Allowing the dust to settle: Criminal and Professional Disciplinary implications of the Dr Bawa-Garba case - Part II – Update Note

Published 1 May 2018

1. Introduction

On 23 February 2018, we published a legal briefing on the criminal and disciplinary implications of the Dr Bawa-Garba case.  In this brief update note, we report two of the more significant developments since then. We will provide further analysis once the DoHSC review led by Prof Sir Norman Williams and the GMC review led by Dame Clare Marx report.

2. Permission to appeal granted

On 23 March 2018, the Rt Hon Lord Justice Simon considered the papers filed on behalf of Dr Bawa-Garba by her lawyers and granted permission to appeal against the Divisional Court's decision. The appeal is expected to be heard in the Court of Appeal over one day before the end of July 2018. In his order, Simon LJ opined that "Having rejected the [GMC]'s argument that a gross negligent manslaughter conviction should lead to erasure in the absence of (truly) exceptional circumstances, it is properly arguable that the Divisional Court applied an equivalent test in allowing the [GMC]'s appeal." In straightforward terms, Simon LJ considers it to be arguable that the Divisional Court applied inconsistent reasoning in how it approached the question of what sanction should flow from a finding of gross negligence manslaughter, and that there arguably were truly exceptional circumstances in Dr Bawa-Garba's case. We can expect this point, relevant to fitness to practise cases based on a conviction, to feature heavily in any appeal judgment. It would be surprising, however, if the Court of Appeal entertains argument on the question of the use of reflective materials, due to the fact that it did not feature in the judgment against which Dr Bawa-Garba appeals. Those issues are likely to be left to the Williams and Marx reviews.

3. GMC submissions to the Williams review

The GMC have issued detailed written submissions to the DoHSC review led by Professor Williams. Oral evidence to the review is expected to follow from both the GMC and others. 

These submissions are worth reading in full. Perhaps the most notable part of the response concerns the disclosability of reflective materials, as to which the GMC confirmed again that it "will not ask for doctors’ reflective records as part of the fitness to practise processes," but that courts may request them if they are relevant to matters being determined in litigation. It went on to say that "The likelihood of records needing to be produced in court may be reduced if reflective records focus on reactions to, and learning from, an incident." 

It is noteworthy that the GMC states it has "concluded that because doctors’ reflective records are so fundamental to their professionalism they should be treated as privileged and for parliament to legislate on this if it sees fit to do so." There are a range of positions one could assume on this issue, and to argue for exceptional blanket privileged status of these materials is a particularly robust stance. 

The GMC also proposes training case examiners (who make certain decisions on fitness to practise cases) and medico-legal experts on "human factors", and says it will continue to seek to engage with doctors via social media channels and face to face where possible. 

It remains to be seen whether either Professor Williams or Dame Clare will adopt these recommendations and we will provide a further update once they report.

How we can help

DAC Beachcroft is widely recognised as the leading strategic, commercial and regulatory legal adviser to the health and social care sector in the UK. We advise on a wide range of issues, including the defence of criminal prosecutions arising from health and social care, fitness to practise proceedings brought by the GMC and other regulators, and wider associated legal compliance issues.

For further details visit the Healthcare Regulatory section of the DAC Beachcroft website or contact one of the authors detailed below.