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.