The Court of Appeal (CoA) ruling quashing January’s High Court decision to erase Dr Bawa-Garba from the medical register is very important. It will affect the GMC’s approach to fitness to practise cases where a patient’s death would almost certainly have been prevented by more experienced medical practitioners. If the reasoning of the judgment is followed, it will likely mean fewer erasures from the register where medical negligence was serious but the errors were unintentional. In 2015, a criminal court found Dr Bawa-Garba guilty of gross negligence manslaughter over the death of Jack Adcock. She received a two year suspended sentence pending the Medical Practitioners Tribunal Service (MPTS) decision, which in June 2017 imposed a one year suspension from practice. The GMC appealed the tribunal decision, claiming it was lesser than the sentence imposed in 2015. The High Court found in the GMC’s favour and struck Dr Bawa-Garba off the register.
Following this, medics across the UK supported Dr Bawa-Garba’s appeal, donating towards her legal representation and speaking out about doctors being presented as scapegoats for wider systemic issues, including high pressure working conditions caused by understaffing. When Jack was admitted with vomiting and diarrhoea Dr Bawa-Garba is reported to have been covering six wards, supervising two junior doctors new to paediatrics, without a consultant. Jack had Down’s syndrome and a known heart condition. Due to a series of clinical errors and miscommunication, Jack suffered heart failure after sepsis went undetected. It was under these tragic circumstances that Dr Bawa-Garda had fitness to practice proceedings brought against her. Jack’s parents argue that this CoA ruling could cause the public to lose trust in the NHS. However, former health secretary Jeremy Hunt warns that criminalising medical professionals for clinical mistakes risks putting them off openly discussing errors. It is only through transparency that medics can learn from errors and continue improving their service for the public good. When releasing the CoA judgment Master of the Rolls, Sir Terence Etherton , reminded that “no concerns” had been raised with Dr Bawa-Garba’s competence as a doctor, other than in this case, and that her mistakes had been “neither deliberate nor reckless”.
This decision will have a lasting impact on future fitness to practice claims, in clarifying the different roles of criminal courts and disciplinary tribunals in cases concerning gross negligence manslaughter. The GMC plan to conduct an independent review into gross negligence manslaughter claims “where the risk of death is a constant, and in the context of systemic pressure.”
Alex Peebles, solicitor and Director of Public Law at Duncan Lewis, has extensive experience representing professionals in fitness to practice proceedings brought by professional regulators.
Contact Alex on 020 3114 1218 or via email at [email protected]. Get in touch with our specialist solicitors if you have a regulatory query; you wish to appeal the decision of a tribunal, or a decision to withdraw your licence to practice.