I know there is concern and anger about this issue, and that it has affected the gains that the GMC has made in recent years to develop a better relationship with the profession, and I acknowledge there is much more work to do.
I have spoken to many people about this case—including frontline doctors—and it is clear that some of the anxiety, although by no means all, is not based on a full understanding of the facts.
The background to the case, and our subsequent appeal of the Medical Practitioners Tribunal decision not to remove Bawa-Garba from the register, have been written about at length.
We chose to appeal the Tribunal’s decision because the panel had not taken proper account, as required in law, of the criminal court’s judgement. Their approach on sanction did not take sufficient account of our statutory duty to consider public confidence in the profession in light of the court’s findings on so serious an offence.
Charges of gross negligence manslaughter against medical practitioners are extremely rare. They are not about mistakes such as missed diagnosis, a series of failings, or even several missed opportunities. In this case the judgement was clear that “the degree of error, applying the legal test, was that her own failings were, in the circumstances, ‘truly exceptionally bad’ failings.” The judge was also clear that wider systems issues and pressures were taken into account in the original criminal conviction, and in the hearing when Bawa-Garba applied for leave to appeal, where that conviction was upheld.
The judgement handed down by the High Court confirms that the Tribunal’s approach did not give due weight to the jury’s verdict, and was “simply wrong to conclude that, in all the circumstances, public confidence in the profession and its professional standards could be maintained by any sanction short of erasure.”
We know this case has wider implications. We are completely committed to engendering a speak-up culture and have a pivotal role in making health services a place for learning, not blaming. That is why we want to provide a stronger focus to our work to support doctors by emphasising medical professionalism, promoting and protecting excellence in education and training, and reducing the number of cases we investigate. We have already reduced full investigations, from 2,265 in 2011 to 1,436 in 2016.
However, we recognise that any doctor, no matter how experienced, can make a mistake, particularly when working under pressure. The duty of candour requires health professionals to be open and honest with patients or, where appropriate, families, when things have gone wrong.
If our guidance is followed then there shouldn’t be anything recorded in reflective notes that the patient, or those close to the patient, isn’t aware of. Let me also make clear that we do not ask for doctor’s reflective notes: in this case, Bawa-Garba’s defence team introduced those into her own hearing.
In cases where a doctor has made a mistake, shown insight, and taken steps to apologise this weighs heavily in their favour if fitness to practise concerns are raised. Indeed, evidence of insight, remediation, and remorse are central to whether we investigate and what sanction may be necessary. On those occasions reflective notes would help to demonstrate that insight and, in the vast majority of clinical care complaints, it is that judgement on an individual’s risk to future patients that determines whether we take action. It is only in very rare cases such as this that the question of maintaining public confidence still remains.
Reflecting regularly on your practice is a core aspect of professionalism and reflection is linked to improved learning and performance. We want to do more to support the profession in this area so we will shortly be publishing updated guidance for all doctors. Crucial too is that doctors working in unsafe environments speak up, to their supervisor, MDO or our helpline, so that those responsible are in no doubt about concerns.
The GMC will always be called upon to make difficult decisions about a doctor’s fitness to practise. My commitment is that we will continue to do so with the same reflection and willingness to learn as the profession we regulate.
Charlie Massey has been the chief executive and registrar of the GMC since November 2016. He was previously an executive director of the Pensions Regulator and Director General at the Department of Health.
Competing interest: I have been the chief executive and registrar of the General Medical Council since November 2016.
Note: Paragraph 6 was amended on 1 February to clarify which appeal hearing it refers to.