Possible Legal and Regulatory Developments following the Bawa-Garba Case
Many (if not all) private practitioners will no doubt be familiar with the case of Dr Bawa-Garba, the junior doctor who recently successfully appealed a decision to strike her off the medical register following an earlier conviction for gross negligence manslaughter (please case summary below if not). Indeed, some may even have contributed to her defence fund, which reached approximately £366,000. Others may have refused to pay their GMC subscriptions or reported themselves for minor clinical errors in direct protest, and others may have started to anonymise their reflections as a defensive measure.
In short, the response from practitioners was unprecedented. One might understand if Dr Bawa-Garba had been the first clinician to be convicted of this offence, or the first to be struck off by her regulator (as the result of such a conviction, or even at all) – but this is certainly not the case. However, her circumstances have clearly touched a collective nerve amongst practitioners and thrown a focus on the legal and regulatory frameworks at play.
Sensitive to the outcry precipitated by the initial decision to strike Dr Bawa-Garba off the medical register, both the Department of Health and the GMC launched reviews of the offence of gross negligence manslaughter as it applies in healthcare contexts. The former – the Williams Review – was completed in June 2018 and the latter – the Marx Review – is expected to report in early 2019. Although the Williams review shied away from considering the merits of the underlying criminal legislation, both have – or will – address its application. There are also broader legal and regulatory changes which have been mooted (some from unexpected quarters) and which could have far-reaching consequences if enacted.
The Williams Review
Whilst not commenting on the conceptual merits (or otherwise) of gross negligence manslaughter as an offence, the Williams Review recommended clearer guidance for its application on the basis that only a minority of investigated cases result in a conviction. The numbers speak for themselves in this respect – over (roughly) a five-year period from 2013-2018 the CPS has investigated 151 cases of gross negligence manslaughter (involving health professionals), resulting in 15 prosecutions and six convictions (two of which have been overturned on appeal).
The Williams Review had an unexpected sting in its tail, arguing that it had to consider the broader regulatory framework to do justice to its purpose – and recommending legal changes to prevent the GMC from having the power to appeal an MPTS Tribunal’s decision. Unsurprisingly, this did not go down well with the GMC – especially as the erstwhile Secretary of State for Health announced his support for the recommendations (albeit very vaguely). However, this recommendation may well reflect the source of some of the unhappiness about this case in the medical profession – namely, that the GMC appealed the decision of the MPTS Tribunal that suspended Dr Bawa-Garba, leading to her erasure.
The GMC’s response to the Williams Review
In the GMC’s formal response to the Williams Review, as well as arguing that the number of healthcare-related gross negligence manslaughter prosecutions was too high and hinting at support for a shift from individual to organisational responsibility (where there is the offence of ‘corporate manslaughter’), the GMC surprisingly suggested that reflective writings should be given ‘legal privilege’ to prevent them from being admissible in court proceedings. This would be a significant legal change – although it should be noted that the Williams Review concluded that this would be excessive, instead recommending that the GMC (and GOC) should lose the powers that they alone amongst regulatory bodies have to compel Registrants to hand over reflections (in the context of regulatory rather than criminal proceedings).
The Marx Review
In the absence of a final or even interim report it is obviously difficult to comment on the GMC’s forthcoming Marx Review. The working group has issued a call for written evidence, and IPT readers may wish to contribute.
If the GMC does indeed lose some of its current powers then the Bawa-Garba case will have had legal and regulatory consequences unrelated to the actual offence of gross negligence manslaughter – which was the original focal point of attention and which will perhaps ironically remain untouched (better guidance notwithstanding).
There are however further – albeit less likely – possibilities which could arise. Does the conviction of Dr Bawa-Garba – a professional – by a lay jury pose questions about the applicability of jury trials to complex matters involving environments, judgments and skill sets which jurors will be utterly unfamiliar with? Might the Government piggyback on the backlash against the GMC to reduce the number of regulatory bodies – an intention that it spelled out as recently as late 2017?
Even in the absence of any changes to gross negligence manslaughter (on a legal or practical level) or to the GMC’s legal powers, one uncomfortable development of the Bawa-Garba case is perhaps this question: what happens when a regulator tasked with maintaining public confidence in a profession loses the confidence of the professionals that it regulates?
Timeline and summary
In February 2011 Jack Adcock, a six-year-old with Down’s syndrome and a history of heart surgery and bowel abnormality was admitted to Leicester Royal Infirmary, where Dr Bawa-Garba was working as a Registrar. Following a series of systematic and individual errors (the latter on the parts of both Dr Bawa-Garba and a nurse, Isabel Amaro) Jack died from sepsis.
Dr Bawa-Garba was charged with gross negligence manslaughter in December 2014 and found guilty in November 2015. She received a two-year suspended sentence. In December 2016 she was denied permission to appeal. Dr Bawa-Garba’s supporters have pointed to her previously impeccable record, computer system failures, the fact that she had just returned from maternity leave and this being her first experience of such an acute setting as mitigation. Others have pointed to the number and nature of the mistakes that she made – such as missing what a medical expert described as ‘barn door obvious’ signs of sepsis in arguing that the conviction was reasonable.
Following an investigation by the GMC, in June 2017 an MPTS Tribunal suspended Dr Bawa-Garba for 12 months. The Tribunal explained that erasure would be disproportionate in the circumstances, when the mitigating and aggravating factors were weighed together.
In January 2018 the GMC successfully appealed the Tribunal’s decision in the High Court. Dr Bawa-Garba was erased from the medical register, with Lord Justice Ouseley noting that that the Tribunal had not respected the jury’s verdict of gross negligence manslaughter. The then Health Secretary, Jeremey Hunt, expressed his ‘deep concerns’ about the decision and launched a review of gross negligence manslaughter in healthcare settings. The GMC also announced their own review shortly afterwards.
Dr Bawa-Garba was granted leave to appeal against the decision to erase her from the medical register in March 2018. Her appeal was heard in July 2018, and the judgement (in her favour) was handed down in August 2018. This reinstated the original MPTS Tribunal’s sanction of a 12-month suspension (subject to review). The Court of Appeal emphasised the high bar which needs to be met before a court should interfere with a Tribunal’s verdict (given that the panel will possess considerable expertise), and concurred that suspension was a reasonable sanction in the circumstances.