The GMC’s bid to strike off a junior doctor from the medical register was ‘without merit’, according to an unpublished review of the case by the Professional Standards Authority (PSA).
The internal review, conducted in July, said the GMC’s reason for overruling the MPTS decision to suspend, rather than strike off, Dr Hadiza Bawa-Garba has ‘appeared without merit given the established case law’.
The report – first obtained by HSJ under a freedom of information request – cited a Supreme Court ruling from a separate case in 2016, which concluded that a court ‘must approach a challenge to the sanction imposed by a professional disciplinary committee with diffidence’.
The PSA also highlighted the Supreme Court’s conclusion that tribunal decisions involving clinical performance should ‘be afforded a high degree of deference by a court’.
Dr Gurmit Mahay, a GP and solicitor in Wolverhampton, told Pulse that it was ‘reassuring’ to see the PSA holding the GMC to account over the case, adding that the GMC ‘lost its way’ and failed to ‘show insight’ into the purpose of the MPTS.
He said: ‘The very reason that the Supreme Court in 2016 makes the comments that it does – that deference needs to be shown to the professional regulating committees like the MPTS – is because they know their industry and they’re able, more than a criminal court, to contextualise the circumstances in which things happen.’
The PSA review added that the MPTS had not ‘fallen into error in placing weight on the fact that there had been systemic failures when considering that case in context’.
This comes after the GMC said it pursued the case because not doing so ‘would have set a wider precedent in allowing tribunals to unpick the findings and outcomes of the criminal court process’.
However, the PSA concluded: ‘Despite the nature of the ground re deference, this was not a case where it was felt a case meeting was required. That argument appeared without merit given the established case law in relation to deference.’
A GMC spokesperson said the PSA is able to make its own independent assessment of cases, ‘which is absolutely right and proper’.
But they maintained that the MPTS ‘was wrong in law when it took a decision not to take appropriate account of Dr Bawa-Garba’s criminal conviction in reaching its original decision. Having considered our appeal, the High Court agreed with us’.
Meanwhile, NHS England released guidance last week urging responsible officers to continue the practice of reflection.
In a letter, NHS England medical directors from the North, South, Midlands and East and London regions said: ‘It is vital that doctors maintain the practice of reflection, both written and oral, including at appraisal.’
However GP leaders, who have been critical of the reflections process since the Dr Bawa-Garba case, said trust in the regulator had been impaired.
BMA sessional GP subcommittee lead Dr Zoe Norris told Pulse that while it was ‘good to have some reassurance’ from NHS England, trust in the GMC is still ‘fundamentally’ undermined.
She said: ‘I think for a lot of doctors, unless the situation is resolved with Dr Bawa-Garba and she’s exonerated in some way, there’s just going to be a general inclination not to engage in reflection in the same way.’
All the coverage on the Bawa-Garba case
17 August 2022