Dr Bawa-Garba: the real impact of appeal win

The recent Court of Appeal decision in Dr Bawa-Garba’s favour is a welcome victory, and should provide reassurance for the many healthcare professionals worldwide who were dismayed at the previous decision to erase Dr Bawa-Garba from the register.

Following on from the equally welcome announcement that the Government intends to remove the GMC’s right to appeal decisions made by the Medical Practitioners Tribunal Service (MPTS), it has brought some relief for a beleaguered profession that has too often felt itself under fire, seemingly from all quarters. Of greater significance, though, is what it means for the future handling of criminal cases, with numerous potential ripple effects coming out of this appeal win.

We have said all along that it is vital that lessons are learned to avoid other doctors having to go through the same ordeal. It is also the case that Medical Protection has long been concerned about the body of law on the regulation of doctors, and how the deck has seemingly been stacked against the doctor.

It was notable that the Court of Appeal gave considerable weight to the expertise of the MPTS, and the argument that it is better placed than the courts to determine a doctor’s competence. Tying into this is the clarification that the roles of the criminal court and MPTS are very different: the former is all about what has happened, and the resulting punishment; the latter is about judging whether there is present and future impairment in a doctor’s practice.

A gross negligence manslaughter (GNM) conviction should not automatically mean that a doctor who has remediated and demonstrated insight into their clinical failings is erased. The court made it categorically clear that there is no presumption of erasure following a GNM conviction, and at Medical Protection we are continuing to fight to make sure the GMC are never given this power in any subsequent reforms to the law.

Boundaries for the GMC

It would also be a real statement of intent to regain the profession’s trust if the GMC acted now and ceased using its power to appeal MPTS decisions. This was something Medical Protection strongly called for in our submissions to the Professor Sir Norman Williams review into GNM in healthcare. We were delighted that Sir Norman agreed with us, and that the Government has agreed to strip the GMC of its right of appeal. I personally urged swift action when I spoke at the Westminster Health Forum in June. Acknowledging, however, that even swift action will take time, we are continuing to call on the GMC to cease using its power immediately.

Keeping the GMC and MPTS as separate, independent entities means that doctors appearing before the MPTS should be able to do so with greater confidence in that separation and independence. Confidence in the system urgently needs to be regained from disillusioned doctors and this would be a solid first step in doing so.

What needs to happen next

There is still much more to do. I have previously written about how England and Wales can learn a great deal from the Scottish approach to unintentional homicide in healthcare.

It’s a long-running issue and momentum is thankfully behind us in making sure the right conversations are happening, and that complete reform takes place. Medical Protection is continuing to fight for your interests and we will continue to provide updates when we have them.