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GMC was advised to appeal Bawa-Garba case to 'protect reputation of profession'

The legal advice that recommended the GMC go to court to strike Dr Hadiza Bawa-Garba off the register said it was necessary in order to protect public interest and the reputation of the profession.

The newly released documents, published today due to a decision by the information commissioner, show the legal advice given to the GMC regarding the case of Dr Hadiza Bawa-Garba, following her suspension from the register in 2017.

This advice said there was a 'failure to regard' the reputation of the profession in the initial Medical Practitioner Tribunal Service (MPTS) case that decided to impose a suspension on the doctor. 

It said the MPTS looked too much at the personal mitigation of Dr Bawa-Garba and not enough at the public interest and confidence in the profession. 

However, the GMC's advice was later heavily criticised by doctors and the Court of Appeal. 

It follows admission by its chief executive Charlie Massey that the legal advice it received in this case was wrong and if the same case were to happen now, the GMC would not try and have a doctor barred from practice.

What happened in the Dr Bawa-Garba case? 

Dr Bawa-Garba was convicted of manslaughter by gross negligence in 2015 following the death of six-year-old Jack Adcock at Leicester Royal Infirmary in 2011.

The doctor received a 24-month suspended sentence for the conviction and was suspended from practice for one year by the MPTS. 

Following legal advice, the GMC then appealed this decision to only suspend Dr Bawa-Garba, which succeeded in January 2018 and led to Dr Bawa-Garba being struck off the register.

The Court of Appeal heard that the GMC wanted the decision to be replaced with erasure because suspension was 'not sufficient to protect the public'. 

There was then widespread criticism about the decision by doctors who said systemic pressures at the hospital Dr Bawa-Garba worked at were not taken into account in the case.

In 2018, the Court of Appeal judges ruled in her favour and restored the former MPTS decision to only suspend Dr Bawa-Garba from the register, rather than strike her off. It pointed out that the legal advice the GMC received was not correct.

Today's documents show an email conversation about the grounds for appeal, principal legal adviser at the GMC, Jim Percival, said: ‘There was a clear mishandling on the part of Medical Practitioners Tribunal (MPT) in its assessment of remediation and mitigation in this case, for the reasons set out in submission and in counsel’s advice.

‘One particular powerful component of the submission, in the grave circumstance of this case, is the failure to have regard to the reputation of the profession, and that matters of personal mitigation are less relevant in professional conduct settings in relation to the public interest.’

The legal advice mentioned the nurse who was also convicted in the case and was struck off due to 'public confidence in the nursing profession and in the Nursing and Midwifery Council as its regulator would be undermined were the panel not to impose a striking-off order'. This decision, the advice said, was reached despite the committee accepting that the nurse had fully remidiated, demonstrated substantial insight into her misconduct and had practiced safely since the incident. 

In regards to Dr Bawa-Garba, the advice said: 'The MPT erred in placing such weight on these matters in Dr Bawa-Garba's case, especially where - as here - the MPT was not satisfied that Dr Bawa-Garba had complete insight into her actions.'

It also found the personal mitigation to be less relevant in a case which was so high profile. 

The advice said: 'The MPT erred in failing to have regard to this consideration in a case which was so clearly about maintaining confidence in the profession.'

It also stated that Dr Bawa-Garba relied ‘heavily’ on systemic failings in her trial, and yet was still convicted of manslaughter.

It said: ‘Dr Bawa-Garba relied heavily on these “systemic” failings at her trial … The failings of the computer system, the lack of a Senior House Officer, the shortage of permanent nursing staff, Nurse Amaro’s failings and so on are all referred to … in her unsuccessful appeal against conviction to the Court of Appeal.

‘As such, these matters must have been considered by the jury which was nonetheless satisfied that Dr Bawa-Garba’s conduct crossed the very high threshold of gross negligence in relation to her personal culpability.’

Dr Rob Hendry, medical director at the Medical Protection Society said: ‘The publication of this advice – more than a year after the Government committed to removing the GMC’s right of appeal – reinforces the need for this change to take effect as soon as possible.

‘We are calling on the Government to bring forward the necessary measures to strip the GMC of its right of appeal over the MPTS as soon as possible. It should not wait to include it in a wider package of reforms which could take years to complete. This power should be removed now.’

It follows a review into gross negligence, manslaughter and culpable homicide, which said the GMC should take immediate steps to rebuild doctors' trust after they were damaged by the regulator's handling of the Dr Bawa-Garba case. 

 

Readers' comments (28)

  • Given the public interest then it follows that the legal advice given should lead to the dismissal of those who both gave and accepted the advice so not to loose public/ professional trust in the legal profession and GMC.

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  • if ever there was a case of 'the law is an ass' this is it

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  • what about her reputation?

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  • Given that it lead to the profession losing complete trust in their regulator I would say it was a massive own goal & I would expect the people involved to reflect on their error, apologise & resign.

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  • So if as the GMC says, the legal advice was WRONG, then this should pave the way for this doctor to claim compensation from the GMC based upon their own admission that their handling of the case was a mistake and therefore, the GMC should be found liable for the damage done to this doctor as a result of their error, surely....???

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  • I think somebody ought to now strike off the legal advisors to protect the reputation of the legal profession.
    Not going to happen though is it.
    And whats that bad smell Massey doing still hanging around?

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  • I think an ominous cyclone is encircling Charlie Massey......it is called change of guards. His godfather, Jeremy Hunt, is dethroned and if BoJo is going to do anything to give impression that he is trying to sort this mess called mistrust between GMC and doctors then it is a marching order to Charlie.

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  • Amazed GMC would have appointed a lawyer who was totally inexperienced in medical law, like Jim Percival, as their Principal GMC lawyer for so long.
    Checking his Linked-In profile, he graduated from Oxford Uni with a Law degree in 1988, finished Law Society Finals in 1991, then worked for 9 years in Geldards LLP in the Commercial Dispute Resolution Team, left in 2001 to join British Nuclear Fuels, where he worked as Manager in the team dealing with litigation and promoting Nuclear energy, despite the enviromental risks, until he left in 2007, but also helped out as an English Law Advisor for Anglo-American Contracts in 2004-2008 as well.
    Then in 2008 was picked asthe manager and head of the GMC legal team , where he remains as in charge for the past 10 years .
    He seems to be experienced in Business and Company Law, defending Nuclear Fuels etc.
    Surely, the GMC would have chosen a lawyer experienced in the complex field of medical care and the pressures on staff and resources in the NHS, not just defending Big Companies and Litigating against the public and those who care for them?
    How can you claim to consider "the reputation of the profession" by deliberately targeting a Black Female Junior Doctor, not just once, but repeatedly and again and again?
    And now it turns out his whole legal advice was "WRONG", what is the GMC doing to counter their
    own "HOSTILE ENVIRONMENT" policy towards all doctors and nurses?
    For God's sake, the police arrested Dr. Bawa-Garba at home, while she was holding and feeding her newborn baby, and took her straight to a prison cell.
    What is the GMC going to do to make up for their deliberate targeting of innocent Drs & Nurses, who are struggling to do their best, in an overworked and underfunded Health service?

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  • The RCGP and other Royal colleges should be calling for resignations.... but they wont... same old London Clique.....

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  • If I gave medical advice as incompetent as the advice given to the GMC, I would expect to be sanctioned.
    This raises the question “Is the GMC fit for purpose?”

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