​Dr Bawa-Garba Court of Appeal Decision: Impact on the medical profession?

Bawa-Garba v General Medical Council (British Medical Association and others intervening) [2018] EWCA Civ 1879

03 September 2018

Author: Rachael McAdorey
Practice Area: Healthcare
Sector: Healthcare

R_mcadorey

Background

As we all now know, Dr Bawa-Garba was a junior doctor specialising in paediatrics at Leicester Royal Infirmary in February 2011, when she treated Jack Adcock, aged six, prior to his untimely death. An initial criminal investigation in 2012 resulted in no prosecution being brought against Dr Bawa-Garba. However, following an Inquest in 2013, the Crown Prosecution Service reviewed its decision, and Dr Bawa-Garba was informed in December 2014 that she would be prosecuted. A number of administrative failings on the Ward at the time were put forward in mitigation at her criminal Trial, however, Dr Bawa-Garba was convicted of gross-negligence manslaughter, and received a two-year prison sentence, suspended for two years.

The General Medical Council (‘GMC’) subsequently brought Fitness to Practise Proceedings against Dr Bawa-Garba, and a Medical Practitioners’ Tribunal Service (‘MPTS’) Hearing determined that her conviction impaired her fitness to practise, and suspended her registration. The MPTS concluded that it would not be appropriate to erase her registration, given that her clinical failings could be remedied, and had been addressed. The GMC appealed the MPTS’ decision (pursuant to section 40A of the Medical Act 1983), and sought an order to quash the determination and substitute a direction of erasure. The High Court granted the appeal. Dr Bawa-Garba appealed to the Court of Appeal which set aside the decision of the High Court, and remitted the matter to the MPTS for review.

Wider issues for the medical profession

The case raised concerns that Dr Bawa-Garba's written reflections in her e-portfolio were used as evidence against her in the criminal proceedings. They were not. Nevertheless, these rumours have impacted on the confidence which healthcare professionals previously placed on the reflective process. It is clear that if reflections are to be used in disciplinary and clinical negligence hearings, this is likely to result in healthcare professionals not fully and appropriately reflecting, or boycotting the reflective process entirely. This can only be a negative impact.

It is pleasing to note that a key finding of the Williams Review on gross negligence manslaughter, was that regulators should not be able to require reflective material when investigating fitness to practise concerns. Importantly, however, in March 2018, Professor Terence Stephenson, GMC Chair, stated: "We have made it clear the GMC will not ask for doctors' reflective records as part of the fitness to practise processes. But we do not control the actions of the courts and recorded reflections, such as in ePortfolios or for CPD purposes, are not subject to legal protection."

New guidance for doctors on reflective practice is to be jointly considered by the GMC, the Academy of Medical Royal Colleges, the Conference of Postgraduate Medical Deans and the Medical Schools Council, and should be available later this year.

In the meantime, clinicians should continue to reflect on an anonymous basis in order to minimise the risk of their reflections being used to criticise them, and be aware that, as stated by Professor Stephenson, recorded reflections do not have legal protection.

For more information, contact Rachael McAdorey, an Associate in Carson McDowell's Healthcare team at [email protected]

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