Jump to comment:

• Bawa-Garba - no-one wins in this scenario
  Jeremy Wickins
  Published on: 21 January 2019

• Published on: 21 January 2019

  Bawa-Garba - no-one wins in this scenario

  • Jeremy Wickins, Lecturer in Medical Law and Ethics Medical School, University of St. Andrews

  Nathan Hodson is quite correct in his conclusions that the rulings in the awful situation of Dr Hadiza Bawa-Garba are not good news for doctors, but I am not convinced that the analysis starts in the right place. Most of the focus in the article (and almost everywhere else) is on what the GMC has done following the decision of the MPTS not to strike Dr B-G off the register, and, in general, the opinion is that the body shoud not have done what it did. In my opinion, this is the wrong place to start - questions should be asked about how a relatively routine error led to a conviction at all.

  As a lecturer in medical law and ethics, I find it strange in the extreme that a) the police felt that they should forward this to the Crown Prosecution Service (CPS) for prosecution, b) that the CPS went forward with the prosecution, and c) that the jury found Dr B-G guilty given the evidence available. Whilst the final part will remain a complete mystery because the law requires that what happens in the jury room must not be divulged, there is need to examine the decisions that led from a tragic but not remarkable incident in a hospital to a cause-celebre which has ruptured both public and professional trust in the GMC, and the law of gross negligence manslaughter. At the very least, there should be an appeal heard into Dr Bawa-Garba's convictions, but really there needs to a full and frank investigation into how this case ever got through the courtroom door. There was no...

  Show More

  Nathan Hodson is quite correct in his conclusions that the rulings in the awful situation of Dr Hadiza Bawa-Garba are not good news for doctors, but I am not convinced that the analysis starts in the right place. Most of the focus in the article (and almost everywhere else) is on what the GMC has done following the decision of the MPTS not to strike Dr B-G off the register, and, in general, the opinion is that the body shoud not have done what it did. In my opinion, this is the wrong place to start - questions should be asked about how a relatively routine error led to a conviction at all.

  As a lecturer in medical law and ethics, I find it strange in the extreme that a) the police felt that they should forward this to the Crown Prosecution Service (CPS) for prosecution, b) that the CPS went forward with the prosecution, and c) that the jury found Dr B-G guilty given the evidence available. Whilst the final part will remain a complete mystery because the law requires that what happens in the jury room must not be divulged, there is need to examine the decisions that led from a tragic but not remarkable incident in a hospital to a cause-celebre which has ruptured both public and professional trust in the GMC, and the law of gross negligence manslaughter. At the very least, there should be an appeal heard into Dr Bawa-Garba's convictions, but really there needs to a full and frank investigation into how this case ever got through the courtroom door. There was nothing about her conduct that was " ... so bad in all the circumstances as to amount ... to a criminal act or omission" (R v Adomako, [1994] 3 WLR 288, per Lord Mackay), which suggests that the chances of a successful prosecution were very small, and so should not have been actively prosecuted. To put it baldly, something smells very unpleasant regarding the whole prosecution.

  Given the reality that Dr Bawa-Garba is a doctor convicted of manslaughter, and the MPTS found good reasons not to strike her off the GMC register, the GMC did not have any option but to use the powers it has to question the decision. The GMC's mandate includes "where necessary, tak[ing] action to prevent a doctor from putting the safety of patients, or the public's confidence in doctors, at risk." (https://www.gmc-uk.org/about/what-we-do-and-why/our-mandate). In principle, having a doctor convicted of manslaughter remain on the register would undermine confidence in doctors. The GMC is generally widely regarded by the public as being over-protective of doctors at the expense of others - see, for example, the criticism of the GMC when no doctors were disciplined following the Mid-Staffordshire enquiry. Regardless of whether the GMC agreed with the MPTS decision, they had no option but to appeal. However, it could not have anticipated the huge public interest, and unexpected vitriol levelled at the body, for following its mandate.

  On a slightly different note, that the Court of Appeal came to a completely different decision than the High Court in this case, and also in the less-reported case of Raychaudhuri v General Medical Council [2018] EWCA Civ 2027, suggests that there is a problem in the law that needs clarifying. Whilst it is no doubt a relief to the doctors involved that their cases ended there, we need a case to go to the Supreme Court for clarity in this area.

  Show Less

  Conflict of Interest:
  None declared.

  • Back to top