GMC chief executive admits Bawa-Garba legal advice was wrong

The GMC’s chief executive has admitted the legal advice the regulator received during the Dr Hadiza Bawa-Garba case was wrong and if the same case were to take place now he would not try to have a doctor barred from practice.

Charlie Massey said he ‘completely accepts’ the legal advice he was given to pursue the striking off of Dr Bawa-Garba – who was convicted of manslaughter by gross negligence following the death of a six-year-old patient – was ‘not correct’.

His comments follow a recent independent review of gross negligence, manslaughter and culpable homicide – commissioned by the GMC – that concluded the regulator should take ‘immediate steps’ to rebuild doctors’ trust after relations were damaged following the case of Dr Bawa-Garba.

The Doctors’ Association UK (DAUK) said Mr Massey’s admission that his attempt to strike off Dr Bawa-Garba was wrong was ‘long overdue’.

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.

After receiving a 24-month suspended sentence for the conviction, the GMC’s Medical Practitioner Tribunal Service (MPTS) suspended her for one year. However, the GMC appealed its tribunal’s decision and called for the doctor to be struck off.

Dr Bawa-Garba was then struck off the medical register after the High Court ruled in favour of the GMC in early 2018.

There was widespread criticism about the decision by doctors who argued systemic pressures affecting the hospital Dr Bawa-Garba had been working in at the time had not been taken into account.

Later in 2018 Court of Appeal judges ruled in her favour – restoring the MPTS decision that she should be suspended from the medical register rather than erased – pointing out that the legal advice given to the GMC was not correct.

In a recent BBC Radio 4 interview with DAUK chair Dr Samantha Batt-Rawden, Mr Massey said: ‘The GMC wasn’t involved in the criminal process whatsoever. So the question that came to me was whether or not that criminal conviction itself should lead to suspension or erasure. The tribunal decided to suspend Dr Bawa-Garba. The advice that I had at the time was that the tribunal had acted unlawfully and went behind the criminal judgement in terms of her responsibility for Jack Adcock’s death.

‘I said at the time that I felt I had no option but to appeal that decision. The High Court decision have upheld that view and then the Court of Appeal overturned that view. It clarified that that legal advice I had was, with hindsight, not correct and I completely accept that. If that case came up now, that Court of Appeal judgement would mean that I wouldn’t have appealed that case.’

Mr Massey also recognised the increasing pressures doctors are faced with and said the GMC is now trying to help address these issues.

He said: ‘For the vast majority of doctors where we end up suspending or erasing them they’re not for honest and innocent mistakes against the background of system pressure. The vast majority of these cases are for behavioural issues – things like sexual misconduct, dishonesty and probity issues.

‘But I do recognise completely that question about system context, pressure and that’s why the GMC has stepped much more into this territory about thinking “how do we influence that context more effectively”? It is not acceptable for a doctor to be left alone covering a huge busy ward at night.’

In response, Dr Batt-Rawden said: ‘The acknowledgment that his decision to appeal the MPTS verdict in Dr Bawa-Garba’s case was incorrect was long overdue and will be welcomed by doctors and the public.

‘DAUK wrote to the GMC as far back as February 2018 in a letter signed by over 4,500 doctors in protest of the GMC’s appeal against Dr Bawa-Garba. In that letter we brought to light that the Professional Standards Authority had found this decision to be “incorrect” and “without merit” and that the MPTS “considered all relevant principles and applied the case law appropriately”.

‘DAUK also pointed out that the Supreme Court established that professional tribunals were better placed than courts to determine professional competence in 2016. We were therefore astonished by the GMC’s actions in this case. We were pleased that DAUK was found to be correct in the Court of Appeal in August 2018 and that Dr Bawa-Garba was rightly restored to the medical register, something we have long fought for during our Learn Not Blame campaign.‘

She added: ‘To my knowledge this was the first occasion that Charlie Massey accepted publicly that this decision was wrong. This represents a crucial first step in repairing the damage done to the medical profession by the Bawa-Garba case.

‘The GMC still has a long way to go in regaining the trust of doctors, but for the first time in this interview I saw that some genuine reflection and learning had taken place. I hope this signals change in tone from the GMC and we look forward to working with them in moving from a culture of blame, to one of learning.’

An unpublished review – conducted by the Professional Standards Authority in July 2018 – criticised the GMC for its handling of the case, saying the reason for overruling the MPTS decision to suspend, rather than strike off, Dr Bawa-Garba ‘appeared without merit given the established case law’.

Last month, Mr Massey said the GMC would shift how it spends the bulk of its resources, from investigating doctors to supporting them.