Fitness to practise decisions must take into account pandemic factors such as fatigue, GMC saysBMJ 2022; 376 doi: https://doi.org/10.1136/bmj.o151 (Published 19 January 2022) Cite this as: BMJ 2022;376:o151
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Imagine what the GMC might do in a few years time when a trainee doctor, working in unfamiliar surroundings, doing the work of 4 doctors and no onsite supervision from a senior colleague, made a medical error resulting in the death of a patient?
Would the MPTS consider her fitness to practice as impaired?
Would the extra ordinary situation of the working condition mean a higher likelihood of a favourable outcome for the doctor?
In 2015, trainee paediatrician Dr Bawa-Garba was convicted of manslaughter on the grounds of gross negligence over the "needless" death of six-year-old Jack Adcock (ref 1).
On Friday February 18th, 2011, Dr. Bawa-Garba had recently "returned from a thirteen-month maternity break. She was the on-call pediatric registrar."
"... Dr. Bawa-Garba’s supervisor, Dr. O’ Riordan, was not in the hospital but teaching in a nearby city..... Dr. Bawa-Garba’s colleagues, i.e. other registrars, were also away, on educational leave. Normally, a registrar each is assigned to cover the wards, the emergency department and the Children’s Assessment Unit (CAU). On that day, Dr. Bawa-Garba covered all three. She was new to the hospital, but with no formal induction – i.e. no explanation where things are and how stuff gets done in the hospital – she was expected to get along with the call and find her way around the hospital."
"That day, Dr. Bawa-Garba was taking referrals from general practitioners and emergency physicians, surgeons and midwives, and responding to emergencies on the wards, along with the usual multiple inquiries which in hindsight turn out to be clinically irrelevant. She was also phoning pathology for results because the hospital IT system was down, and the results, let alone the abnormal results, weren’t automatically being populated in the electronic health record. She was performing skilled procedures like lumbar punctures because no one else in her team, which comprised an intern and a junior trainee, could. Triple booked, Dr. Bawa-Garba was making critical decisions and also doing the scut work, and teaching and supervising her team. " (ref 2)
Jack Adock died under her care in difficult conditions not of her own doing. Dr. Bawa-Garba and the two nurses were charged with manslaughter, she and nurse Isabel Amaro were convicted of it.
"After the manslaughter conviction in 2015 Bawa-Garba was given a two year suspended jail sentence. A medical practitioners tribunal, which took account of the context in which she worked, suspended her from the medical register for a year. But the General Medical Council appealed, and the High Court ordered her to be struck off the register.
Doctors who were outraged by the GMC’s decision crowdfunded around £350 000 to cover the cost of taking her case to the Court of Appeal. In 2018 three judges ruled that the High Court was wrong and reinstated her suspension.
The case was sent back to the tribunal, which decided that she should have to practice under supervision for two years from July 2019, given her four years out of clinical practice, with a review at the end to check whether her skills were up to date."
Hence in effect, the MPTS judged Dr. Bawa-Garba's fitness to practice as impaired, and it only allowed her to practice unconditionally upon review in 2021: "The review tribunal decided on 2 July that she can now work without supervision. Sharmistha Michaels, chairing the tribunal, said it had received “overwhelming evidence” of Bawa-Garba’s clinical competence." (ref 3)
What is mind boggling is what Charlie Massey, the GMC Chief Executive wrote in February 2018, right after GMC's successful appeal at the High Court against the first MPTS's decision (and Bawa-Garba was struck off on 25 January 2018).
"If you think your working conditions are unsafe, document the issue and escalate it at the earliest opportunity, but don’t walk away. One of the commitments we have made with the BMA is to confirm that if doctors follow this guidance it will very much weigh in their favour if the GMC subsequently receives complaints."
The unsafe working conditions were well documented via newspaper articles and court proceedings, without having Dr Bawa-Garba having to write anything herself. Mr Massey's suggestion to document and flag it, then carry-on in hope for a "favourable" consideration pretty much rung hollow, considering the eagerness and extent of the GMC to pursue Dr Bawa-Garba's erasure in full knowledge of her working conditions.
Considering that the first MPTS acted correctly to its remit and guidelines (and confirmed by the Court of Appeal), the GMC's attempts at reassurance to consider the circumstances of COVID-19 pandemic in its determination is in fact not much of any insurance, considering that it is the GMC who went on all the way to go after the MPTS they disagree with and still do after "the head of the UK General Medical Council has acknowledged that the legal advice the regulator received during the Hadiza Bawa-Garba case was incorrect" in 2019 (ref 6), as they continue to exercise that right to appeal decisions they don't like. (ref 7)
As of today, as far as I am aware, there is still no legislation in place to remove the GMC’s right to appeal against tribunal decisions with ongoing uncertainty when and how this is going to pass through parliament (ref 8).
Hence I would be looking upon this GMC attempt at reassurance with some skepticism until its right to appeal is removed permanently.
In my opinion, the hope of "document and flag it, then carry-on" for a favourable consideration is simply a talk too much to risk putting all your faith in and assigning your fate to.
Competing interests: No competing interests