Doctors in the Dock

9 February 2018

Many in the medical profession are up in arms following a recent High Court case involving Dr Bawa-Garba (General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin).

The case followed on from proceedings before the Medical Practitioners Tribunal which had rules that Bawa-Garba should be suspended from practice for a period of one-year. That ruling was challenged by the General Medical Council, resulting in Bawa-Garba being erased from the medical register, which brings to an end her right to practice medicine.

The Court observed that it reached 'this conclusion with sadness but no real hesitation'.

So, what is the background to this unhappy story?

In November 2015 Bawa-Garba was convicted at Nottingham Crown Court for an offence of manslaughter by gross negligence. She was sentenced to two years imprisonment, which was suspended.

This conviction came about due to her negligent care of a six-year-old boy, who died. An appeal against conviction in December 2016 failed.

In the later High Court proceedings, it was observed that 'her failings on that day were "truly exceptionally bad" and that this must be reflected in the sanction.

So, why did the Medical Practitioners Tribunal get it so wrong and only order a suspension?

When the MPT heard the case, it had the benefit of hearing a substantial body of evidence about the pressures placed on Dr Bawa-Garba and the failings of others. In essence counsel for the GMC submitted that the Tribunal had in effect allowed evidence of systemic failings to undermine Dr Bawa-Garba's personal culpability, and to do so even though those failings had been before the Crown Court which convicted her.

The Tribunal had therefore decided to find the Doctor less culpable than the jury had as a matter of law, and for that reason, the decision could not stand.

The High Court observed:

'The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance. There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad.'

A crowd-funding campaign to assist Dr Bawa-Garba has been set up. One of the doctors behind the crowdfunding campaign, Dr Moosa Qureshi, said: ''There needs to be greater transparency as to why these decisions were made and who made them. Many of us feel that Dr Bawa-Garba was unfairly discriminated against and scapegoated for multiple system failings that could easily have happened to any of us in the current political crisis of the NHS. We want patients to be protected and for this doctors need to be able to look after patients without fear that they will be blamed or worse struck off when working in unsafe and dangerous conditions.'

So, many believe that Bawa-Garba has been made a scapegoat for systemic failings in the NHS.

In a further twist to this story, Health Secretary Jeremy Hunt has ordered a review into criminal manslaughter so far as it affects medical practitioners.

The health secretary says clarity is needed about drawing the line between gross negligence and ordinary errors, and that 'Doctors should learn from - not fear - mistakes.'

The review, led by Sir Norman Williams (a former President of the Royal College of Surgeons), is to report by April 2018.

By any measure this is a sad case for all concerned and criminal practitioners will be observing the fallout to assess its future significance.

How We Can Help

If you are a professional person facing criminal proceedings, contact us as soon as possible. Our solicitors are well versed in this aspect of the law and will ensure your best defence.

John O'Kelly

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