The GMC has won a High Court bid to have a junior doctor struck off the medical register, against the decision of its own tribunal.
The Medical Practitioner Tribunal Service decided in June last year that erasing trainee paediatrician Dr Hadiza Bawa-Garba from the register would be ‘disproportionate’ and recommended a 12-month suspension instead.
But the GMC disagreed and told the High Court in December that she should be struck off ‘to protect the public’ after her actions resulted in the death of a six-year-old boy.
The case sparked anger within the medical community, with hundreds of doctors writing to the GMC to voice their concerns that its actions would lead to ‘criminalisation of clinical error’ and worsen patient safety
In the judgment handed down this morning, the court ruled that Dr Bawa-Garba’s original sanction of suspension should be replaced with a decision to remove the doctor’s name from the medical register.
Lord Justice Ouseley said: ‘I come firmly to the conclusion that the decision of the Tribunal on sanction was wrong, that the GMC appeal must be allowed, and that this Court must substitute the sanction of erasure for the sanction of suspension.
‘The Tribunal did not respect the verdict of the jury as it should have. In fact, it reached its own and less severe view of the degree of Dr Bawa-Garba’s personal culpability.
‘It did so as a result of considering the systemic failings and failings of other, and then came to tis own, albeit unstated, view that she was less culpable than the verdict of the jury established.’
The Medical Protection Society, which represented Dr Bawa-Garba, warned that the case would have worrying implications for doctors.
MPS medical director Rob Hendry said: ‘The outcome of the GMC’s appeal against the Tribunal decision on this case is disappointing and its implications will understandably be of concern to the healthcare community.
‘This challenge was brought by the GMC following their recently acquired right to appeal – a power which we opposed on the basis that it creates an unnecessary and unjust duplication of the Professional Standards Authority’s function.’
The MPS argued that ‘while the criminal courts dispense justice – including punishment – the regulator’s role is to protect patients’.
Mr Hendry said: ‘When considering whether a doctor is fit and safe to practise every case must be assessed on its own merits and should not be solely determined by the criminal sanction handed down by the court. Gross Negligence Manslaughter cases are usually complex, involve systems failures, and are devastating for all concerned. A conviction should not automatically mean that a doctor who has fully remediated and demonstrated insight into their clinical failings is erased.
‘This appeal decision may jeopardise an open, learning culture in healthcare at a time when the profession is already marred by low morale and fear. We are considering all options in the interests of our member and the wider profession.’
GMC chief executive Charlie Massey said: ‘This has been a tragic case; a family has lost their son in terrible circumstances and a doctor has lost her career.
‘In today’s ruling the court has confirmed that the Tribunal was simply wrong to conclude that public confidence in the profession could be maintained without removing the doctor from the medical register.’
Dr Bawa-Garba was a registrar at the Children’s Assessment Unit at Leicester Royal Infirmary on 18 February 2011, and the most senior doctor on the shift, when a six-year-old child with sepsis died. Dr Bawa-Garba continued to work at the hospital trust up until she was convicted of manslaughter by a Crown Court Jury in November 2015.
The MPTS said in a June 2017 hearing however, that erasing Dr Bawa-Garba from the GMC register would be ‘disproportionate’, that her actions were neither ‘deliberate or reckless’ and that she did not ’pose a continuing risk to patients.’
Mr Massey said: ‘The ruling clarifies that tribunals cannot go behind the jury’s verdict when a doctor is convicted in a criminal court.
‘As the ruling makes clear, the Tribunal were wrong when they decided to suspend the doctor’s registration because in doing so they “reached their own less severe view of the degree of Dr Bawa-Garba’s personal culpability” than was established in the criminal court; which found that Dr Bawa-Garba’s failures that day were not simply honest errors or mere negligence, but were truly exceptionally bad.
‘The judgment also found that the Tribunal did not give the weight required when considering the need to maintain public confidence in the profession.
‘We know the strength of feeling expressed by many doctors working in a system under sustained pressure, and we are totally committed to engendering a speak-up culture in the NHS. Doctors should never hesitate to act openly and honestly if something has gone wrong.’