With the recent case of Dr Bawa-Garba and the GMC announcing a review of all cases involving gross-negligence manslaughter – where are we now and where will we go from here?

The facts of this sad case are well-known. In short, Dr Bawa-Garba, a Paediatric Registrar at Leicester Royal Infirmary, was convicted of the manslaughter by gross-negligence of six year old Jack Adcock in November 2015. She was sentenced to 24 months imprisonment, suspended for the same period.

Dr Bawa-Garba’s case was then considered by the Medical Practitioners Tribunal (MPT) and, on 13 June 2017, the Tribunal ordered that she be suspended from the Medical Register for a period of 12 months with a review at the end of this period.

The MPT found Dr Bawa-Garba’s fitness to practise to be impaired; neither party had sought to persuade the Tribunal otherwise. However, in coming to its conclusion on impairment the Tribunal noted that her failings had been unexpected and that the risk of her conduct falling below the standards expected “were no higher than for any other reasonably competent doctor.”

In considering sanction, the MPT “determined that whilst (Dr Bawa-Garba’s) actions fell far short of the standards expected and were a causative factor in the early death of Patient A, they took place in the context of wider failings.” It concluded that erasure would be disproportionate and that public confidence would not be undermined by a lesser sanction given that Dr Bawa-Garba did not present as a continuing risk to patients.

The GMC, which was given power to appeal decisions of the MPT 31 December 2015 (and has done so successfully on a number of occasions) appealed on the ground that the MPT should have ordered Dr Bawa-Garba’s erasure from the Medical Register. It argued that insufficient weight was given to the decision of the jury (notwithstanding the systemic issues and mitigating factors presented in her defence) that her conduct was “truly, exceptionally bad”.

Significantly, while rejected by the Court, the GMC also argued that there was a “presumption” that a conviction for gross negligence manslaughter would lead to erasure in the absence of exceptional or truly exceptional circumstances. This is concerning in light of the increased frequency of gross negligence manslaughter prosecutions and begs the question as to whether we could see a reconsideration of the Indicative Sanctions Guidance on this issue.

The Court recognised the need to respect the professional Tribunal’s findings of fact and that it “should defer, in the legal sense, to its evaluation particularly in areas where its expertise exceeds that which Courts may have, respecting its specific functions and institutional experience.”

However, the Court went on to conclude that the Tribunal did not give full weight to the force of the jury’s verdict, nor to the need to maintain public confidence in the profession and uphold proper standards in reaching its own (less severe) view of Dr Bawa-Garba’s personal responsibility. The comment in the determination that Dr Bawa-Garba’s failing “fell far short of the standards expected” was given in support of the conclusion that the Tribunal did not recognise the jury’s finding that her conduct was “truly exceptionally bad.”

It was accepted that the fact that Dr Bawa-Garba had addressed her failings and practised safely for many years since the events of November 2015 would carry weight with the “fully informed and reasonable member of the public” although this was contrasted with the lay jury’s conclusion at trial.

This is a difficult issue to resolve. However, arguably given the different roles of the lay jury and the professional tribunal in considering the public interest and maintaining public confidence, the Tribunal was entitled to assess Dr Bawa-Garba’s actions since the event in a way that would not be relevant to a jury. This leads to the question as to whether due regard has been given to the experience of the professional tribunal in this matter, in an area where it would in most cases be given the benefit of any doubt.

Following the notable press and public discussion surrounding this case, the GMC has announced an internal programme to consider the issues raised and Terence Stephenson, Chair of the GMC has said that the GMC “recognise(s) the strength of feeling expressed by many doctors, and (it is) listening to those concerns.”

The GMC intends to bring together professional leaders and defence organisations as well as experts in patient, legal and criminal justice matters to “explore how gross negligence manslaughter is applied to medical practice, in situations where the risk of death is a constant and in the context of systemic pressure.”

In committing a renewed focus on reflection and provision of support for doctors in raising concerns, the GMC seeks to reassure doctors that the pressures they are working under are recognised, as is the fact that any doctor, no matter how experienced, can make mistakes.

It is perhaps unfortunate, not only for Dr Bawa-Garba, but the wider profession and also the public, that this review was not conducted earlier, before the GMC’s own appeal of the decision of the MPT in Dr Bawa-Garba’s case. As we have seen in recent days, doctors are undoubtedly concerned at the approach that could be taken, by the Courts and the GMC, should they make mistakes in an NHS which is under significant pressure due to factors outside of their control.