• Professional Standards Authority did not agree with the GMC appeal in Bawa-Garba case
  • Analysis by PSA suggested the GMC appeal was trying to create new case law
  • GMC grounds for appeal was “without merit” according to PSA documents

Key elements of the General Medical Council’s bid to strike off a doctor convicted of manslaughter were “without merit”, according to an unpublished review of the case seen by HSJ.

Internal documents from the Professional Standards Authority, which oversees professional regulators, detail the PSA’s concerns about the GMC’s handling of the case of Hadiza Bawa-Garba last year.

The case has attracted widespread attention in recent weeks, with health secretary Jeremy Hunt ordering a review of medical manslaughter by Sir Norman Williams, former president of the Royal College of Surgeons.

In an interview with HSJ earlier this month, Charlie Massey, chief executive of the GMC said he felt he had no choice but to make the appeal because the tribunal had put itself above a criminal court and not appealing would have created a precedent giving tribunals power to unpick criminal court rulings.

However the PSA documents, released to HSJ under the Freedom of Information Act, show it concluded that this argument was incorrect, and “appeared without merit given the established case law.”

It also said the fitness to practice panel which decided not to strike Dr Bawa-Garba off the medical register did not make any errors in its decision making.

The PSA also effectively accused the GMC of trying to create new case law where appeals by the regulator would be treated differently to appeals made by individual doctors.

The PSA pointed to a decision of the Supreme Court in 2016, in which judges said courts should treat the decisions of a professional disciplinary committee with “diffidence”. Such committees were best qualified to judge how to address any damage done to a profession’s reputation by a doctor’s misconduct, they said.

The Supreme Court added that courts should be reluctant to depart from a tribunal’s decision where the issues related to professional performance – which was the basis of Dr Bawa-Garba’s case.

The documents cast doubt on the GMC’s grounds for appeal which was accepted by a High Court judge last month but will now be subject to an appeal lodged in the Court of Appeal by Dr Bawa-Garba’s legal team.

The case has sparked widespread concern among medical professionals who believe she has been treated unfairly after she was convicted of gross negligence manslaughter following the death of six year old Jack Adcock in 2011.

A PSA detailed case review found that the GMC’s autonomous fitness to practice panel’s conclusion that Dr Bawa-Garba was not a risk to the public could not be challenged.

While it was a “very borderline case”, the review concluded that the panel’s reasoning was not flawed in concluding Dr Bawa-Garba should be suspended rather than struck off.

On the GMC’s grounds for appeal the PSA document said: “It appears the GMC is seeking to create a line of case law which establishes a distinction in how the courts approach appeals by the regulator and a registrant…

“In my view the GMC is seeking to make a distinction between this case, which it seeks to define as a “conviction case” only and cases of misconduct which are of a clinical nature in order to support their argument that less deference is owed to the panel’s expertise. I am not clear that this argument is sustainable. In any event, the panel was required to consider the underlying facts of the conviction and have not sought to minimise them. In my view the panel was not seeking to go behind the conviction or minimising it.”

After the detailed case review, the PSA concluded “this was not a decision where the only reasonable outcome was erasure. The panel had considered all relevant principles and applied the case law appropriately.

“Despite the nature of the ground deference, this was not a case where it was felt a case meeting was required. That argument appeared without merit given the established case law in relation to deference.”

A spokesman for the GMC said the PSA made its own independent assessments of cases “which is absolutely right and proper”. He added: ”it has been clear that it’s policy is only to join in appeals where it feels it can bring an important contribution or if matters of law relevant to its own jurisdiction are raised.”

He added: ”In this case, our considered view, based upon our analysis of the case in the light of the legal advice which we obtained, was clear. This was that the Medical Practitioners Tribunal was wrong in law when it took a decision not to take appropriate account of Dr Bawa-Garba’s criminal conviction in reaching its original decision. Having considered our appeal, the High Court agreed with us.”