In the last few days, the General Medical Council (GMC) released documents that shed light on how it sought to erase junior doctor, Hadiza Bawa-Garba, from the medical register. It did so after the Information Commissioner decided the documents were disclosable under the Freedom of Information Act.
In retrospect, the GMC’s Chief Executive, Charlie Massey, has said it was given the wrong legal advice on its pursuit of Dr Bawa-Garba. But the released documents prompt questions about the GMC’s own internal analysis too.
The documents stoke wider concern, as in the case of Dr Chris Day, about the use of public money (or professional dues) for legal work that’s neither necessary nor in the public interest.
The GMC’s pursuit of Dr Bawa-Garba has troubled the profession. It’s also perturbed the Secretary of State for Health, and the Professional Standards Authority (which oversees the GMC). The furore has led to calls for the GMC to lose the legal power used to pursue Dr Bawa-Garba. It’s also reinforced the need for action on the GMC’s race gap.
The Bawa-Garba case centres on the death of six year old Jack Adcock at the Leicester Royal Infirmary. Though there were multiple systemic failures on the part of the hospital, the managers and senior staff escaped sanction. For example, senior doctor (Consultant), Dr Stephen O’Riordan reportedly failed to address Jack Adcock’s worrying blood results. Dr O’Riordan would leave the Leicester Royal Infirmary for a post in Ireland. In contrast, junior doctor, Hadiza Bawa-Garba was convicted of gross negligence manslaughter, alongside a Portuguese nurse, Ms Amaro.
In light of the conviction, the GMC’s own Medical Practitioners’ Tribunal (MPT) considered Dr Bawa-Garba’s case, and judged she shouldn’t be erased (struck off).
The GMC disagreed. It paid for external legal advice, seeking avenues to erase Dr Bawa-Garba. It paid to go to the High Court and have her struck off. Concerned doctors and members of the public then paid via crowdfunding so Dr Bawa-Garba could hire lawyers to fight her case in the Court of Appeal. Her victory brought uncomfortable questions about the conduct of the GMC, for pursuing her in this manner.
This latest disclosure of documents, highlighted by journalist Shaun Lintern, adds to questions about why the GMC acted as it did.
To appeal one must generally show an error of fact or law. The first document shows that on 19th June 2017, the external legal advice to the GMC from Ivan Hare QC states at paragraph 14:
As is clear from the above summary of the MPT’s determination, it relied principally on two matters: the circumstances at the hospital which may have contributed towards Jack’s death and the remediation and personal mitigation in Dr Bawa-Garba’s case. I do not consider that the GMC can go as far as to say that this was an error of fact or law. However, it is strongly arguable that the MPT placed too much weight on both matters. [underlining added]
The underlined sentence was omitted from the GMC’s Grounds of Appeal even though the latter was issued on the same date as the external advice document (19/6/17). This suggests the GMC paid for Grounds of Appeal before in-house lawyers considered external advice on whether to appeal.
The GMC’s internal lawyers wrote in-house advice to their Chief Executive, Charlie Massey, in which they refer to the external advice from Ivan Hare QC. The in-house advice memo omits the sentence underlined above. This means it highlights Mr Hare’s advice as follows, at paragraph 19:
The MPT relied principally on two matters: the circumstances at the hospital which may have contributed towards Patient A’s death, and the remediation and personal mitigation in the doctor’s case. It is strongly arguable that the MPT placed too much weight on both matters.
The GMC’s senior in-house lawyer, General Counsel, Mr Anthony Omo, emailed this in-house advice to Mr Charlie Massey on 26/6/17, including an email of the same date by the GMC’s Principal Legal Adviser, Mr Jim Percival, which characterised the case, arguably more forcefully:
…there was a clear mishandling on the part of the MPT in its assessment of remediation and mitigation in this case…
Appetite for expedition?
No doubt, Ivan Hare QC had a reason to include his sentence as underlined above, in his advice document (19/6/17). The documents disclosed by the GMC don’t explain why this sentence was dropped from both the Grounds of Appeal (19/6/17) and the in-house advice memo (26/6/17).
In the interests of balance and the public, one might have expected the GMC’s in-house lawyers rigorously to preserve that underlined sentence in their internal advice memo. After all, Mr Hare found it sufficiently important to include in his original advice – and it seems to admit the MPT looked into the right issues, without error in fact or law.
For a lay reader like a Chief Executive, attention to that sentence (as underlined above) might have prompted a critical discussion on whether it was, on reflection, wise for the GMC to argue the MPT went so wrong with all the right issues.
Attention to Mr Hare’s sentence may also have lent nuance that seems to have been lost in GMC’s email claim about the MPT’s “clear mishandling” of the case (26/6/17).
Finally, the GMC’s email chain of 26/6/17 mentions Dr Bawa-Garba’s case might be expedited in view of the media interest. Keen observers of the case may ask whether dropping Mr Hare’s sentence from the internal advice memo reflected the GMC’s appetite for this expedition.