"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
The case of Dr Bawa-Garba has gained a lot of traction in the medical world; view my previous comments on the case.
Dr Bawa-Garba was convicted of gross negligence manslaughter in November 2015, following the sad death of a young boy from sepsis. Whilst issues arose from Dr Bawa-Garba’s practice on the day in question, some systemic failures were present. These included Dr Bawa-Garba having recently returned from 14 months’ maternity leave and being left in charge of an acute ward, her working an extensive shift without respite and the lack of permanent nursing staff.
At a hearing before the Medical Practitioners Tribunal Service (MPTS) which culminated on 13 June 2017, Dr Bawa-Garba was suspended from practice. Shortly following the decision, the GMC lodged an appeal by virtue of its statutory framework namely sections 1 and 40(a) of the Medical Act 1983 which state:
(1A) The over-arching objective of the General Medical Council in exercising their functions is the protection of the public.
(40A) This section applies to any of the following decisions by a Medical Practitioners Tribunal –
a decision under section 35D giving -
a direction for suspension, including a direction extending a period of suspension;.
(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
The GMC appealed the MPTS decision on the basis that it should have ordered that Dr Bawa-Garba be erased from the register.
The GMC’s appeal was heard in the High Court on 7 December 2017 before Lord Justice Gross and Mr Justice Ouseley, the approved judgment stemming from the latter. Paying heed to the decision of the MPTS, the Court noted the following mitigating factors:
Despite the above, at paragraphs 36 to 37 Mr Justice Ouseley stated as follows:
I accept that the approach to adopt is that set out in Jagjivan, above: was the Tribunal decision wrong? I have to respect its findings of fact on which it heard evidence, and I 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".
Nonetheless, I have come firmly to the conclusion that the decision of the Tribunal on sanction was wrong, that the GMC appeal must be allowed, and that this Court must substitute the sanction of erasure for the sanction of suspension. No-one suggested that this issue should be remitted to the Tribunal for further consideration. I note what Nicol J said in sentencing Dr. Bawa-Garba, to the effect that the conviction meant that her career was over. It was an assumption or instinctive reaction to the circumstances before him, which may have mitigated sentence. But I have reached my own conclusion, unaffected by his reaction or expectation”.
Whilst not accepting a submission by GMC instructed counsel that there is a presumption that a conviction for gross negligence manslaughter should lead to erasure “in the absence of exceptional or truly exceptional circumstances”, Mr Justice Ouseley was concerned that the MPTS did not show deference to the verdict of the jury, and instead reached its own and less severe view of the degree of Dr Bawa-Garba's personal culpability. He commented that the MPTS had “a result of considering the systemic failings or failings of others and personal mitigation which had already been considered by the jury; and then came to its own, albeit unstated, view that she was less culpable than the verdict of the jury established”.
The Court concluded that the appropriate sanction was that of erasure from the register.
Following this decision, there was a public outcry from doctors, politicians and lawyers (to name but a few) regarding the decision. Many were concerned about the message the sanction of erasure sent to medical doctors about making mistakes in practice. This lead to a public appeal to fund taking Dr Bawa-Garba’s case to the Court of Appeal as a matter of “important point or principle” which has a "real prospect" of success.
On the 28th of March, leave was granted by the Right Honourable Lord Justice Simon stating:
The grounds meet the second appeal test in all respects”.
This case is tragic on a number of fronts. A young patient lost his life, and his family are left with dealing with the pain of losing a loved one. Regardless of the outcome of the appeal, Dr Bawa-Garba has undoubtedly been through a period of turmoil following a criminal conviction, investigation by the GMC and pending legal battles.
On a positive note, the case has led Jeremy Hunt to order a review into whether gross negligence manslaughter laws are fit for purpose in the healthcare context and has also made many recognise the real and present struggle facing medical staff in an overstretched NHS system.
A number have questioned why the GMC invoked its appeal powers in the circumstances of this case given that the regulator should recognise the issues Dr Bawa-Garba faced on the day in question. This aside, the High Court agreed with the GMC, substituting suspension for erasure. I represent doctors in respect of fitness to practise proceedings on a regular basis, aside from assisting doctors with their continuing professional development by way of seminars. Many advise me of the real pressure they face daily to perform at a high level, often caring for critically ill patients, whilst dealing with staffing issues, lack of resources and increasing patient demand, amongst other matters. As a lawyer, whilst my workload can become hectic at times, I am not responsible for the lives of sick patients and therefore do not face the same pressures as doctors.
I will be amongst many who will be watching the progress of this case and how it develops the understanding of medical practice with a keen eye.
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