The documents show that the GMC decided to take legal action in order to protect public interest and the reputation of the profession. The Information Commissioner said that the legal advice should be published under the Freedom of Information Act due to the ‘exceptional degree of public interest in this case’.
The GMC went to court in January 2018 to overturn a Medical Practitioner Tribunal Service (MPTS) decision to impose a 12-month suspension, with review, on Dr Bawa-Garba following her conviction for gross negligence manslaughter in the death of six-year old Jack Adcock. Jack died at Leicester Royal Infirmary in February 2011.
> The Bawa-Garba case: a timeline
The legal advice received by the GMC argued that the MPTS relied principally on the systemic failures in the hospital and remediation undertaken by Dr Bawa-Garba in reaching its decision. However it said that it was ‘strongly arguable that the MPTS placed too much weight on both matters’.
By relying on the problems in the hospital on the day of Jack’s death, which included failures with the computer system, a shortage of staff and the lack of a senior house officer, the MPTS had attempted to ‘go behind the verdict’ of the criminal conviction, the advice said. It added that the tribunal had ‘erred in doing so’.
‘These matters must have been considered by the jury which was nonetheless satisfied that Dr Bawa- Garba’s conduct crossed the very high threshold of gross negligence in relation to her personal culpability,’ the advice said.
The advice also said that the MPTS had ‘erred in placing such weight’ on remediation in the case, especially where ‘it was not satisfied that Dr Bawa-Garab had complete insight into her actions’. It said that remediation was less relevant when considering the impact a case has on the reputation of the profession.
An email from the GMC's principal legal adviser Jim Percival, one of the documents published by the GMC, said: 'One particularly powerful component to the submission, in the grave circumstances of this case, is the failure to have regard to the reputation of the profession, and that matters of personal mitigation are less relevant in professional conduct settings in relation to the public interest.'
The legal advice referred to the nurse involved in the case, who was also convicted of gross negligence manslaughter, and who was struck off 'to protect public confidence in the nursing profession'. It said that the Nursing and Midwifery Council had reached this decision despite the nurse showing 'substaintial insight and evidence of subsequent safe practice'.
The GMC appeal following this advice was successful and Dr Bawa-Garba was struck off the register. The decision sparked huge anger in the medical profession and led to the then health secretary Jeremy Hunt saying he was ‘deeply concerned’ by the verdict.
In July last year Dr Bawa-Garba successfully appealed that decision in the Court of Appeal and the one-year suspension imposed by the MPTS was reinstated. She was eventually cleared to return to work with conditions in April this year.
The case led to both a GMC and DHSC review of the rules around gross negligence manslaughter in healthcare.
Among the DHSC's review recommendations was that the GMC should be stripped of its power to appeal MPTS decisions. Last month the government confirmed it was moving ahead with legislation to make this happen.
In response to publication of the legal advice Dr Rob Hendry, medical director at Medical Protection, said: 'The publication of this advice – more than a year after the government committed to removing the GMC’s right of appeal – reinforces the need for this change to take effect as soon as possible.
'We are calling on the government to bring forward the necessary measures to strip the GMC of its right of appeal over the MPTS as soon as possible. It should not wait to include it in a wider package of reforms which could take years to complete. This power should be removed now.'