The case that rocked medicine has finally been resolved. Dr Hadiza Bawa-Garba has been reinstated onto the medical register with a successful verdict handed down in the Court of Appeal.
It has been a long road for all concerned, that has encompassed a manslaughter conviction, the GMC successfully taking its own tribunal to court to erase her from the medical register and now a crowdfunded appeal that has found against the GMC.
But the Court of Appeal has had the final say. In one succinct phrase on 13 August, it brought the matter to a close: ‘Undoubtedly, there are some cases where the facts are such that the most severe sanction, erasure from the medical register, is the only proper and reasonable sanction. This is not one of them.’
It restored the MPTS judgement – that Dr Bawa-Garba be suspended from practice for 12 months. In real terms, she will be able to work again once the MPTS reviews her case – which could be soon, as the GMC has said it is happy to bring her review forward.
But beyond the practicalities, there is still a lot on anger from the medical profession, and it may have implications on future regulation.
Most obvious is the role of the GMC in pursuing erasure. The regulator had always argued that it had no choice but to pursue Dr Bawa-Garba. It said its duty to the public meant it had to seek erasure from the medical register for doctors convicted of a ‘serious criminal offence’. Indeed, it had argued as recently as March that this should be an automatic process.
But it looks like this will be a forlorn hope, which will allow doctors to breathe a sigh of relief. The GMC’s position has little support. BMA chair Dr Chaand Nagpaul has criticised the regulator for its ‘ill-judged handling of the case’, and has asked the GMC to research whether the public actually expect them to pursue doctors in cases of clinical error following the GMC justification that it needs to maintain public confidence.
More surprisingly, even former health secretary Jeremy Hunt questioned its handling in a tweet where he said he was ‘totally perplexed that GMC acted as they did’.
And the most recent decision from the Court of Appeal suggests that the judiciary doesn’t agree with the GMC either. Sir Terence Etherton, a judge at the Court of Appeal, explained in a statement read out in court: ‘The appropriate sanction will always depend upon the precise circumstances of the particular case.’
Indeed, the implications of the case are likely to remove powers from the GMC. As part of Mr Hunt’s ‘rapid review’ of gross negligence manslaughter in medicine launched in February, he announced proposals to stop the GMC appealing decisions made by the MPTS regarding fitness-to-practise cases – which is currently going through the legislative process.
But the issue of doctors facing gross negligence manslaughter charges in the first place is one where there is greater agreement between the GMC and the wider profession.
The regulator has suggested that there are problems with the way manslaughter charges are applied in medicine, and has commissioned out an independent review of gross negligence manslaughter separate to the one announced by Hunt as a way of looking ‘at how [the charge] is applied in situations where the risk of death is a constant’.
In its response to the GMC’s review, the BMA has called for all gross negligence manslaughter cases in healthcare to be referred to the police ‘only after consultation with the chief coroner (in England and Wales)’ as this would ‘ensure that only the cases that warrant further investigation are referred’.
However, the most significant point of the whole case is the medical profession’s confidence in the GMC. The BMA says a motion of no confidence in the GMC that was passed at its Annual Representative Meeting still stands, while also calling for an apology from the GMC and a public enquiry ‘to review the GMC’s conduct in the Bawa-Garba case’.
Meanwhile, in an open letter to outgoing GMC chair Professor Sir Terrance Stephenson, GPSurvival has called for the resignation of his chief executive Charlie Massey, saying their actions have ‘caused doctors throughout the U.K. to suffer considerable fear and anxiety working in a highly pressured system that they will be held as scapegoats for systematic failures’.
They add that without an inquiry into the GMC’s handling of the case and resignations from its executive board, as GPSurvival demands, ‘it is difficult to see how the GMC can recover to become a respected regulator of the medical profession’.
The regulator has a lot of work still to do.