Do doctors trust their regulators?
Possible legal and regulatory developments following the ‘Bawa-Garba’ case are examined by Gregory Smith.
Most Independent Practitioner Today readers will be familiar with the case of Dr Hadiza Bawa-Garba, the junior doctor who recently successfully appealed a decision by the GMC to strike her off the Medical Register following an earlier conviction for gross negligence manslaughter.
Some may even have contributed to Dr Bawa-Garba’s defence fund, which reached approximately £366,000.
Others may have refused to pay their GMC subscriptions or reported themselves for minor clinical errors in direct protest, and others may have started to anonymise their reflections as a defensive measure.
In short, the response from practitioners was unprecedented.
Touched a nerve
Her circumstances have clearly touched a collective nerve among doctors and thrown a focus on the legal and regulatory frameworks.
Sensitive to the outcry precipitated by the initial decision to strike Dr Bawa-Garba off the medical register, both the Department of Health and the GMC launched reviews of the offence of gross negligence manslaughter as it applies in healthcare contexts.
The former – the Williams Review – was completed in June 2018. The latter was formerly known as the ‘Marx Review’, after its chairman Dame Clare Marx. But she has now been appointed chairman of the GMC from January 2019 and the council has appointed cardiac surgeon Mr Leslie Hamilton to head its gross negligence manslaughter review, which is expected to report early next year.
Although the Williams review shied away from considering the merits of the underlying criminal legislation, both have, or will, address its application.
There are also broader legal and regulatory changes which have been mooted – some from unexpected quarters – and which could have far-reaching consequences if enacted.
The Williams Review
While not commenting on the conceptual merits or otherwise of gross negligence manslaughter as an offence, the Williams Review recommended clearer guidance for its application on the basis that only a minority of investigated cases result in a conviction.
The numbers speak for themselves. Over a five-year period from 2013-18, the Crown Prosecution Service has investigated 151 cases of gross negligence manslaughter involving health professionals, resulting in 15 prosecutions and six convictions, two of which have been overturned on appeal.
The Williams Review had an unexpected sting in its tail, arguing that it had to consider the broader regulatory framework to do justice to its purpose – and recommended legal changes to prevent the GMC from having the power to appeal a decision of the Medical Practitioners Tribunal Service (MPTS).
Unsurprisingly, this did not go down well with the GMC – especially as the Health Secretary announced his support for the recommendations, albeit vaguely.
But this recommendation may well reflect the source of doctors’ unhappiness about this case – namely, that the GMC appealed the decision of the MPTS Tribunal that suspended Dr Bawa-Garba, leading to her erasure.
The GMC’s response to the Williams Review
In the GMC’s formal response to the Williams Review, it argued that the number of healthcare-related gross negligence manslaughter prosecutions was too high and hinted at support for a shift from individual to organisational responsibility, where there is the offence of ‘corporate manslaughter’.
But the GMC also surprisingly suggested that reflective writings should be given ‘legal privilege’ to prevent them from being admissible in court proceedings.
This would be a significant legal change. But it should be noted that the Williams Review concluded that this would be excessive, instead recommending that the GMC and General Optical Council should lose the powers that they alone among regulatory bodies have to compel registrants to hand over reflections – in the context of regulatory rather than criminal proceedings.
The ‘Hamilton’ Review
In the absence of a final or even interim report, it is obviously difficult to comment on the GMC’s forthcoming Hamilton Review. The working group has issued a call for written evidence and Independent Practitioner Today readers may wish to contribute.
Broader questions
If the GMC does indeed lose some of its powers, then the Bawa-Garba case will have had legal and regulatory consequences unrelated to the actual offence of gross negligence manslaughter, which was the original focal point of attention and which will perhaps ironically remain untouched– better guidance notwithstanding.
There are, however, further possibilities which could arise.
Does the conviction of Dr Bawa-Garba – a professional – by a lay jury pose questions about the applicability of jury trials to complex matters involving environments, judgments and skill sets which jurors will be utterly unfamiliar with?
Might the Government piggyback on the backlash against the GMC to reduce the number of regulatory bodies – an intention that it spelled out as recently as late 2017?
Even in the absence of any changes to gross negligence manslaughter on a legal or practical level or to the GMC’s legal powers, one uncomfortable development of the Bawa-Garba case is perhaps this question: what happens when a regulator tasked with maintaining public confidence in a profession loses the confidence of the professionals that it regulates?
