The case of Dr Bawa-Garba have been closely followed by doctors and the public alike.
On 25 and 26 July 2018, the Court of Appeal considered Dr Bawa-Garba’s appeal against the High Court’s decision of erasure from the Medical Register.
This appeal followed the GMC’s use of section 40 of the Medical Act 1983 to appeal the decision of the Medical Practitioners’ Tribunal’s imposition of a suspension.
The central issue in the case was: “the proper approach to the conviction of a medical practitioner for gross negligence manslaughter in the context of fitness to practise sanctions under the Medical Act 1983 where the registrant does not present a continuing risk to patients”.
The Court of Appeal stated that the Court had approached the case on the basis that: ‘erasure should be imposed if the medical practitioner has caused serious harm to a patient through incompetence, despite there being no continuing risk to patients, unless there are sufficiently significant reasons and circumstances for a lesser sanction consistent with the maintenance of public confidence in the profession and its professional standards. That amounts to a presumption of erasure in the case of such harm’, which is clearly wrong”.
This case has caused huge concerns amongst the medical profession however with a criminal conviction for gross negligence manslaughter the almost inevitable decision of a Medical Practitioners’ Tribunal would be erasure, despite the doctor having demonstrated insight and remediation. As the Medical Practitioner’s Tribunal considers public interest reasons, would the public feel that is was the correct decision to allow a doctor to practice with a live criminal conviction for gross negligence?
This case clearly highlights serious issues in current procedures and decision-making processes at the GMC and MPT.
The GMC have fully accepted the Court of Appeal’s judgement.
Chief Executive of the GMC, Charlie Massey had expressed that the case had “exposed a raft of concerns” around the role of criminal law in medicine and that an independent review had been commissioned.
The purpose of this review was to firstly: “consider gross negligence manslaughter and culpable homicide (in Scotland) in relation to the perceived vulnerability of the medical profession to charges of GNM/CH. Further, to examine what might be done to improve the application of the existing law, procedures and processes to address this in the light of two recent high-profile cases involving doctors, whilst maintaining the core objective of protecting the public and maintaining confidence in the profession.
And secondly: “To consider how the GMC should handle such cases in future. This review will not be considering particular doctors’ cases, although it will consider wider questions and issues raised by them. It will also cover equality, diversity and inclusion issues, including whether there is fair and consistent representation of particular groups of doctors with protected characteristics in allegations of GNM/CH”.
However despite these developments, only today the Hospital Consultants and Specialists Association (HCSA) has called for Charlie Massey to stand down as his position has become untenable and he has lost the confidence of the profession. The HCSA has expressed concerns about Mr Massey’s decision to escalate the case.
Stephen McCaffrey and Catherine Stock
www.kingsviewchambers.com
