Dr Bawa Garba returns to work – now it’s time for the GMC and the profession to take stock

15 April 2019 by Jeremy Hyam QC

It was fitting but tinged with irony, that the GMC itself, in its submissions to recent the MPTS review of Dr Bawa-Garba’s suspension maintained that the ‘appropriate and proportionate sanction’ to reflect her continuing ‘impairment’ of fitness to practice was now a period of conditional registration having regard to Dr Bawa-Garba’s ‘absence from active clinical practice’, and also taking into account the evidence of ‘Dr Bawa-Garba’s positive and continuing remediation to date’.

This after all is the ST6 (a specialist registrar in her 6^th year of post-graduate training) paediatrician who was convicted by a jury on 4 November 2015 of gross negligence manslaughter, and given a suspended sentence of imprisonment by the Judge trying her case. The doctor who – given her suspended sentence, her undisputed insight and reflective learning from past events, and the support of her employing Trust was initially suspended rather than erased by the MPTS in November 2017 for the maximum 12 month period but with a review at the end of her suspension.

It is most likely that, had that decision been left undisputed by the GMC, then Dr Bawa Garba who continued then, as now,  to have the fulsome support of her employer and colleagues, would have returned to work under supervision at the end of her suspended sentence. That would have been in or about November 2017.  But that was not what happened.

Rather, the GMC took the view that it ought to dispute the MPTS’s balanced decision and argued successfully before the Divisional Court that (i) the  Tribunal had not respected the verdict of the jury in the criminal case which had found that her failings were ‘truly exceptionally bad’, and (ii), that the only sanction properly and reasonably open to the 2017 Tribunal was that of erasure. Indeed it took the Court of Appeal’s decision of 13 August 2018  (and a further year’s delay) before the Court was able to clarify and distinguish the different roles of the criminal court and a disciplinary tribunal, to result in the restoration of Dr Bawa-Garba’s name to the medical register and to reinstate the original sanction of suspension imposed by the  MPTS Tribunal a year earlier.

This is not the end of Dr Bawa-Garba’s journey through the GMC processes, but very probably the beginning of the end.  The crucial thing is the lessons that have been learnt from this tragic tale.  From the latest decision of the MPTS it is clear that the lessons have already been learned by Dr Bawa-Garba. It is now for the GMC and the profession itself to reflect and consider the outcome.  As the GMC has observed, although gross negligence manslaughter cases in medicine are extremely rare, this case has exposed a number of concerns. Most particularly those concerns are around the role of criminal law in medicine and the relationship between the GMC’s processes and the criminal law. Indeed an independent review has been commissioned by the GMC to look at how the law is applied in situations where the risk of death is a constant, and in the context of systemic pressure.

But the stark fact, as this commentator observed in an earlier piece, was that even if the errors made by Dr Bawa-Garba were ‘truly exceptionally bad’ the context in which they occurred was a system which failed.  That system failure meant that she when she made her errors the safety net that should have been there to protect both Jade Adcock’s life and Dr Bawa Garba’s precipitous fall, was missing.   The Judge in the Crown Court was right to consider any sentence of imprisonment should be suspended for the reasons he did, and the MPTS  in 2017 were right to not equate the jury’s findings with that of a doctor who was irremediable. That the Court of Appeal has now clarified this distinction and the GMC have accepted it, must be for the benefit of the profession.

Jeremy Hyam QC is a barrister at One Crown Office Row. He represented Dr Bawa Garba in a hearing before the High Court to quash an interim order of suspension by the GMC prior to her criminal trial. He has had no involvement in her case since then and was not involved in the criminal trial or subsequent MPTS proceedings. The views here are his own and based solely on the facts as set out in the relevant judgments.