By Nathan Hodson.

In June 2017 The Medical Practitioner Tribunal Service (MPTS) suspended Dr Hadiza Bawa-Garba from the medical register for 12 months. Following a GMC appeal to the High Court, the MPTS was found to have erred in failing to erase Dr Bawa-Garba. Yet, in July of that year, the Court of Appeal decided that the High Court had been wrong to overrule the professional tribunal. Dr Bawa-Garba returned to the MPTS in December 2018 and, to the surprise of many, it “decided that the doctor’s suspension will be extended for six months and that a review will be held before the suspension expires”. Mr Stephen Killen, chair, commented “little appears to have changed from the position existing in June 2017 and … no evidence is currently available to address the remaining concerns of the 2017 Tribunal”.

The twists and turns of this case have instilled a sense of peril in the medical workforce, but many doctors felt that the Court of Appeal ruling in August 2018 proved that their concerns had been heard. In the January 2019 issue of the Journal of Medical Ethics, I argue that the Court of Appeal did the medical profession no favours. As totemic as Dr Bawa-Garba has become, this small victory for her is not necessarily a wider victory. And it is a small victory; to interpret the Court of Appeal overruling the High Court as a vindication of Dr Bawa-Garba as some have done is completely wrongheaded. Crucially her conviction for the manslaughter of her patient, Jack Adcock, has not been reversed.

In fact, the Court of Appeal decision has come at a cost to the wider medical profession. In the response I examine the ruling at the Court of Appeal and show how its interpretation of the law makes the next doctor accused of gross negligence manslaughter more vulnerable. I argue that the ruling threatens doctors’ ability to defend themselves at a criminal trial through appeal to structural problems within their institutions. It does this by emphasising that structural problems are “peripheral” to the question of conviction. The ruling also increases the opacity of MPTS decisions by supporting a permissive rather than prescriptive reading of the Sanctions Guidance. Finally, the ruling undermines (de facto) public confidence in doctors.

The legal definition of public confidence relates to a well-informed member of the public. For such a lay person, their confidence in doctors may not have been affected by Dr Bawa-Garba’s return to work. However, the discovery that a doctor can commit manslaughter against a patient and continue practicing has surprised many members of the public without in depth knowledge of the case. Nicky Adcock, mother of Jack, made headlines asking the pertinent question: “Would you want your child treated by someone with a manslaughter conviction?”

At the heart of Nicky Adcock’s question is the idea that the bar for a conviction of gross negligence manslaughter is seemingly lower than for erasure from the medical register. Put another way, it seems ‘easier’ to be convicted of gross negligence manslaughter than to be struck off. The Court of Appeal stressed that the question the MPTS answers is different from that at the criminal trial. Still, Nicola Adcock does not seem unreasonable in highlighting the dissonance where a doctor convicted of manslaughter can return to practice.

On Twitter, somebody characterised my position as, “If you’re going to find them guilty of gross negligence manslaughter at least have the courtesy to strike them off too”.

My point is really the opposite. If you’re not going to strike off a doctor in the interests of public safety, then a conviction for gross negligence manslaughter does little good and confuses the public. Inverting Nicola Adcock’s question clarifies the problem with the present law: “Why convict a doctor of manslaughter if her failings were not serious enough to undermine her ability to safely treat children?” An alternative approach would reserve the criminal law for cases where a doctor’s clinical failings are so serious that the most severe professional sanctions are insufficient. If a doctor’s professional failings are not so bad as to exhaust the sanctions available to the MPTS then the label “gross negligence manslaughter” is not helpful and will only cause confusion among the public, as well as distress and distraction for a doctor who, since they are not being struck off, ought to be preparing to resume treating patients.

The latest delay in Dr Bawa-Garba’s return to practice highlights this problem. The GMC has acknowledged that her specific circumstances, including many months in preparation for court cases, may have contributed to the difficulty in providing evidence of remediation by December 2018. The present system is disruptive for doctors who could be caring for patients and causes alarm for patients. If there is a new law on gross negligence manslaughter, as has been suggested, then it should take into account the damage to public confidence where a doctor is convicted of gross negligence manslaughter but allowed to return to practice.

Author: Nathan Hodson

Affiliation: College of Life Sciences, University of Leicester.

Social media account(s) of post author: @NathanHodson

Competing interests: Author is a junior doctor who was until recently working at the hospital where Dr Bawa-Garba had worked.