Dr Bawa-Garba – the Court of Appeal has spoken
This article was first published on Lexis®PSL Corporate Crime on 4 July 2019.
Shannett Thompson, senior associate at Kingsley Napley, considers the background to the independent review of gross negligence manslaughter and culpable homicide (review) commissioned by the General Medical Council (GMC) and highlights its key recommendations.
Report on gross negligence manslaughter recommendations are ‘fully accepted’, LNB News 06/06/2019 110
The GMC have announced that an independent review into how the laws on gross negligence manslaughter and culpable homicide are applied to medical practice has been published. The independent review of gross negligence manslaughter and culpable homicide made 29 recommendations for the GMC and various other UK organisations that covered local, coronial, criminal and regulatory processes. The review has called for the GMC to rebuild the relationship between them and the medical profession and that it must learn from recent events. The GMC announced that it welcomes all the actions directed against it in the review and its chief executive, Charlie Massey, said they ‘are committed to acting on that and taking forward all the recommendations in this report directed to us.’
The review was commissioned by the GMC in January 2018. One of the principle drivers for the review was the level of concern among the medical profession about the handling of the case of Dr Hadiza Bawa-Garba, a junior doctor convicted of gross negligence manslaughter (GNM). The concerns centred on the GMC’s use of its appeal power under section 40A of the Medical Act 1983 against the decision of a Panel of the Medical Practitioners Tribunal Service (MPTS) to suspend, rather than erase, Dr Bawa-Garba from the register following her conviction.
The GMC’s actions in seeking Dr Bawa-Garba’s erasure from its register, through the mechanism of an appeal, caused a significant amount of distrust among the profession towards their regulator. For many medical practitioners, Dr Bawa-Garba’s case amplified concerns already held about their vulnerability to criminal prosecution for GNM as a result of a clinical mistake. The decision to appeal also reinforced beliefs around the unnecessarily harsh stance of the GMC and worries around scapegoating—inappropriately laying the blame for systemic problems at the door of individuals.
The review made it clear that its main focus was not to propose changes to the law surrounding GNM and culpable homicide—its Scottish equivalent—but to ‘…encourage a renewed focus on a fair and just culture, reflective practice, individual and systemic learning (with a view to enhancing patient safety) and the provision of support for doctors in acting on concerns.’
In other words, the regulator had some rebuilding of trust to do and the review, along with its findings, were seen as a mechanism to assist with this challenging task.
The review produced a list of 29 recommendations which were widespread in their intended effect.
The review encourages the GMC to recognise that its relationship with the medical profession has been damaged in the aftermath of Dr Bawa Garba’s case and that it should take steps to regain that lost trust. The review proposes that this might be done by the GMC, among others, ‘examining the processes and policies that have contributed to doctors’ loss of confidence and considering how it can better support a profession under pressure as well as promoting a fair and just culture’.
The review recommends that in cases where doctors are being investigated for GNM or culpable homicide, an external authority should scrutinise the systems within the department where the doctor worked. This scrutiny will add an extra layer of protection and reassurance for all parties involved. Where the doctor is a trainee, this should include the scrutiny of the education and training environment by the bodies responsible.
The review produced a number of recommendations for those providing expert witness reports, specifically the requirement for them to state the basis of their competence to provide an expert opinion, as well as to state where their views fit on the spectrum of possible expert opinion within their specialty. The review also recommends that experts should only provide expert opinion to the coroner, procurators fiscal, police, Crown Prosecution Service
(CPS), GMC or criminal court on matters which occurred while they were still in active and relevant clinical practice. The review further recommends that, for cases before the MPTS, the support of two expert opinions should be required.
The review recognises the local nature of coroner services and variables to approaches resulting from it. It recommends that, in any cases where the coroner considers that the threshold for GNM might be met, this should be discussed with the Chief Coroner’s Office before the decision to notify the police is made.
The review agrees with the previous recommendation of the Williams Review to remove the GMC’s right of appeal of MPTS decisions and urges the government to introduce necessary legislative reform to achieve this. The review also calls for the GMC to speed up its processing of fitness to practise cases and for the regulator to have greater scope to dispose of cases consensually.
The review acknowledges that, in cases where the threshold for GNM may be met, complex legal and regulatory systems are invoked and that such systems require involvement from a number of stakeholders beyond the GMC.
While the review recognises that substantial change can only be achieved through a concerted effort of all stakeholders involved, it is important to highlight that the recommended changes within the GMC itself, if effected, have the potential to significantly improve the fairness of its regulatory processes and alleviate some of the stress on doctors undergoing investigation. In addition, imposing greater scrutiny of the systems in place at the time of the act of GNM and culpable homicide being committed, is likely to go some way to rebuilding the trust of doctors in the thoroughness of the investigation and could make a real, practical, difference to professionals charged with GNM and culpable homicide.
The changes—such as increased consensual disposal—have the potential of making the GMC’s fitness to practise process more streamlined, transparent and timely.
The law in Scotland relating to culpable homicide is different to the English law on GNM. In Scotland, a medical professional would only be charged with culpable homicide if their act was intentional, reckless or grossly careless. As such, the changes recommended by the review are unlikely to make any substantial difference to the way in which medical professionals are investigated and/or potentially charged with culpable homicide. In fact, the review confirmed that there has never been a successful conviction of culpable homicide in the course of the discharge of medical duties.
The recommendations relating to the other aspects, such as the GMC’s fitness to practise processes and the use of experts, will be equally beneficial across the UK.
Dr Bawa-Garba’s case, while uniting the medical profession to support a fellow doctor whose case rang true for experiences they had endured, also divided public opinion as to whether she should be allowed to practice again. Any legislative changes in the area of GNM relating to medical professionals, such as moving the position closer to the Scottish equivalent of culpable homicide, is likely to be met with fervent debate. So much so, that it may lead Parliament to shy away from implementing any drastic changes to the legislation in the near future.
As for the GMC, unless it takes drastic steps, which will undoubtedly include implementing some of the recommendations from the review, its relationship with the profession may not recover anytime soon.
Shannett Thompson is a Senior Associate in the Regulatory Team. Having commenced her career in the NHS, she is a highly experienced lawyer taking the lead in defending health professionals before their regulatory bodies including the GMC. She has substantial experience in advising individuals in relation to their regulatory obligations in the wider context.
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