GMC must not deny doctors a fair hearing

Dear Mr Massey,

We are writing to you to express our overwhelming concern regarding the General Medical Council’s (GMC) response to the recent Department of Health consultation on professional regulation, in addition to the GMC’s handling of the Bawa-Garba case.

Currently, all doctors have the right to a fair trial and professional tribunal when things go wrong, to explore the context in which errors occur and determine a doctor’s fitness to practise. It has come to our attention that the GMC has proposed to deny doctors this right, and to extend the powers granted to it by parliament in the Medical Act 1983 by seeking to unilaterally erase doctors from the register. Although we understand you are seeking to do this in the case where a doctor has been convicted of a “serious criminal offence” we are dismayed to learn that this includes gross negligence manslaughter.

The Bawa-Garba case saw a paediatric trainee with a previously unblemished record be convicted of gross negligence manslaughter despite the systemic failures that likely contributed to the tragic death of Jack Adcock. The case, and the subsequent action of the GMC, has caused widespread concern internationally, throughout the medical profession and amongst patient safety experts. The implications are such that the case has prompted Jeremy Hunt, Secretary of State, to announce an urgent review into the application of gross negligence manslaughter in healthcare.

The Medical Practitioners Tribunal Service (MPTS) did not recommend that Dr Bawa-Garba be erased from the register, citing numerous mitigating factors and taking into account the systemic failures of the case. The GMC inexplicably chose to appeal this in court. In a recent letter to Sarah Wollaston, you referred to your own “clear and published guidance” detailing the process of appealing MPT verdicts, but a recent Freedom of Information request revealed that you, as Chief Executive, appear to have made this decision to appeal to the court to have Bawa-Garba erased from the register unilaterally.

It has now come to light that upon reviewing the case, the GMC’s regulator, the Professional Standards Agency (PSA), has criticised this action finding that the argument that the GMC had “no choice” but to appeal the MPTS decision was “incorrect” and “without merit” given established case law. Indeed, the PSA found that the MPTS “considered all relevant principles and applied the case law appropriately”.

We are therefore shocked that you, knowing full well the results of this review, which was conducted last year but disappointingly not published by the GMC, stated in recent weeks “the tribunal had essentially placed itself above the law in reaching that decision”. Your statements appear at best, misguided, and at worst, disingenuous. This is more concerning given that your own regulator, the PSA, had found that “the Panel was not seeking to go behind the conviction or minimizing it”. You further stated “it is a very difficult argument to win that doctors should somehow be above the law or the law operate differently for doctors”. We, as doctors, do not believe we are above the law and are affronted that you would suggest so. The PSA in their review, however, state “it appears the GMC is seeking to create a line of case law which establishes a distinction in how the courts approach appeals by a regulator”.

Given the above we are firmly opposed to any such extension of powers being granted to the GMC and would like to remind you of the following:

• In Cohen v GMC (2008) the High Court established that the GMC must focus on doctors’ current and future fitness to practise

• A number of court rulings have further clarified that the role of the GMC is to determine whether the doctor poses a future risk, and not to discipline them for past conduct

• The GMC states that a secondary function of a fitness to practise hearing is “providing an opportunity to rehabilitate and remediate doctors whose fitness to practise is impaired”

• Further, the GMC states that any action taken must be proportionate and to act otherwise would be “inappropriate and unlawful”

• The GMC also states that any sanction issued to a doctor must be the minimum sanction necessary to protect patients

• In reviewing the action taken by the GMC in the Bawa-Garba case, the Professional Standards Agency pointed out to you that the Supreme Court (a higher court than that to which the GMC appealed for Dr Bawa-Garba’s erasure) in 2016 had previously established that professional tribunals were better placed than courts to determine professional competence

We call on you to do the following:

• Withdraw your response to the Government’s consultation with immediate effect

• Abandon attempts to push for automatic and unilateral erasure and commit to the right of all doctors being allowed a fair hearing

• Acknowledge that inclusion of Gross Negligence Manslaughter as a “serious crime” for which automatic erasure would be pursued is highly inappropriate in the context of widespread concern regarding how this is currently applied, and pending a review of the use of Gross Negligence Manslaughter in the United Kingdom

• Clarify the process by which the GMC chooses to appeal certain outcomes of the MPTS and how this applied in the case of Dr Bawa-Garba

• Clarify what processes are in place to ensure institutional bias against Black and Minority Ethnic doctors does not play a part when considering which MPTS decisions to appeal

We look forward to your timely response.

Yours sincerely