Reminiscent of the way pharmacists were up in arms in 2009 after an Old Bailey judge imposed a prison sentence on Elizabeth Lee for making a dispensing error, there has been an outcry in the medical profession over the way the legal system has treated Dr Bawa-Garba.
Dr Bawa-Garba was a junior paediatric doctor in 2011. She treated a 6-year-old boy, Jack Adcock, who was seriously ill in hospital. Dr Bawa-Garba had worked a 13-hour double shift without breaks. She was accused of numerous failings that contributed to Jack’s death, and prosecuted for manslaughter. The key test was whether Dr Bawa-Garba’s negligence was truly exceptionally bad. The jury convicted her and the judge imposed a suspended prison sentence.
The General Medical Council (GMC) brought fitness to practise proceedings and in 2017 the Medical Practitioner Tribunal Service imposed a 12-month suspension from practice.The Tribunal referred to a 2001 case in which the court said: ‘Concern with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment.’
The GMC appealed against the Tribunal’s decision, and the High Court upheld the appeal in late January 2018, replacing the suspension with erasure from the medical register. This decision – not the manslaughter trial – seems to have triggered the current outcry.
Apart from her treatment of Jack Adcock in 2011, no concerns had been expressed about Dr Bawa-Garba before or since. In the High Court, Mr Justice Ouseley said that the Tribunal’s decision was wrong because it did not respect the decision of the jury, who must have found that Dr Bawa-Garba had not been merely negligent, but that that the negligence was truly exceptionally bad. He concluded that public confidence in the profession required erasure, not suspension. He disavowed any suggestion that this meant that any healthcare professional convicted of manslaughter should automatically be struck off, but it is difficult to envisage circumstances in which a manslaughter conviction would not now result in striking off.
The outcry in the medical profession led the Secretary of State to announce in the House of Commons on 6 February that he has asked Professor Sir Norman Williams to ‘conduct a rapid review into the application of gross negligence manslaughter in healthcare’. It seems a marked contrast to the nine years it has taken for dispensing errors to be decriminalised after Elizabeth Lee’s conviction.
I doubt if the review will result in a change to the law of manslaughter in the case of healthcare professionals. In my view, the best they can hope for is new sanctions guidance that allows fitness to practise tribunals to avoid striking off practitioners if, despite a serious but isolated lapse in standards, they present no current danger to patients and the public.