The GMC challenged a decision made last June by the Medical Practitioners Tribunal Service (MPTS) to suspend for 12 months a junior paediatrician who had been convicted of manslaughter following the death of a six-year old child at Leicester Royal Infirmary in 2011.
The regulator announced on Thursday that the High Court had 'confirmed that the tribunal was simply wrong to conclude that public confidence in the profession could be maintained without removing the doctor from the medical register'.
GMC chief executive Charlie Massey said the ruling confirmed that 'tribunals cannot go behind [a] jury’s verdict when a doctor is convicted in a criminal court'. He said: 'As the ruling makes clear, the tribunal were wrong when they decided to suspend the doctor’s registration because in doing so they "reached their own less severe view of the degree of Dr Bawa-Garba’s personal culpability" than was established in the criminal court.'
But the medical defence organisation that represented Dr Hadiza Bawa-Garba has questioned the decision to increase the sanction against her and the process that led to it. Along with the Royal College of Physicians (RCP) and health secretary Jeremy Hunt, the Medical Protection Society (MPS) warned that the decision risked undermining the drive to foster a culture of openness and honesty in the NHS around mistakes, and could put patients at risk.
RCP president Professor Jane Dacre warned: 'Several of our fellows and members have expressed concern about the judgment made today and though we respect the legal process, and the GMC’s decision to challenge the MPTS, we do have concerns about the impact this judgment will have on many doctors, particularly trainees.
'We recognise that the GMC has issued guidance for doctors working in what they think are unsafe conditions - suggesting that they should flag the problems to their consultants and management team and have a clear paper trail to show that this has happened. However, this leaves doctors in the difficult position of being forced to choose between refusing to work in such circumstances, and therefore not only being in breach of contract but also potentially letting down patients, or risking civil or even criminal action if they do choose to work and errors or harms occur.
'This case will influence the confidence doctors have in making and documenting honest reflections on their practise when things have gone wrong. The implication is that blame may be directed to doctors for doing their best in what are often very difficult circumstances.'
The original criminal trial that saw Dr Bawa-Garba convicted of manslaughter is understood to have considered as evidence a document from her NHS electronic portfolio, a tool doctors use to store information for use in professional development, reflection and learning.
The use of this information in the case appears to be at the heart of the health secretary's concerns about the handling of the case. Mr Hunt said on Twitter within hours of the verdict: 'Wouldn’t be appropriate for me as govt minister to criticise a court ruling, but deeply concerned about possibly unintended implications here for learning & reflective practice in e-journals. Am also totally perplexed that GMC acted as they did: patient safety must be paramount.'
MPS medical director Dr Rob Hendry said: 'The outcome of the GMC’s appeal against the tribunal decision on this case is disappointing and its implications will understandably be of concern to the healthcare community.
'This challenge was brought by the GMC following their recently acquired right to appeal - a power which we opposed on the basis that it creates an unnecessary and unjust duplication of the Professional Standards Authority’s function.
'While the criminal courts dispense justice - including punishment - the regulator’s role is to protect patients. When considering whether a doctor is fit and safe to practise every case must be assessed on its own merits and should not be solely determined by the criminal sanction handed down by the court. gross negligence manslaughter cases are usually complex, involve systems failures, and are devastating for all concerned. A conviction should not automatically mean that a doctor who has fully remediated and demonstrated insight into their clinical failings is erased.
'This appeal decision may jeopardise an open, learning culture in healthcare at a time when the profession is already marred by low morale and fear. We are considering all options in the interests of our member and the wider profession.'