Regulation of Substandard Medical Practice: Lessons from the Bawa-Garba Case
Freckelton, I.
Journal of Law and Medicine 25(3): 603-625
2018
ISSN/ISBN: 1320-159X PMID: 29978656 Document Number: 697544
The regulation of substandard or dangerous clinical work by medical practitioners is one of the most challenging areas of medical regulation. There is an important conceptual distinction between poor or suboptimal clinical conduct and the outcome of such conduct. It is also important that harsh sanctions are not imposed by reason of a tragic result for a patient or a perception that no other regulatory response will be acceptable to the community. The line needs to be straddled between maintaining public confidence with stern and robust action being taken to protect the public and maintain standards, on the one hand, and, on the other hand, informed and realistic evaluation of conduct, taking into account the pressures that exist in the real world of clinical practice and the reality that all practitioners are fallible. Debate has been reignited by the decision of the High Court in General Medical Council v Bawa-Garba [2018] WLR (D) 52; [2018] EWHC 76 (Admin) about whether and when gross negligence manslaughter charges constitute a constructive way of rendering doctors accountable and how draconian the regulatory sanctions should be that are imposed when clinical conduct has been found to be truly exceptionally bad. Such evaluations need to be conducted in humane recognition of systemic and colleagues' deficiencies but principally by reference to what needs to be done to ensure responsible, caring and competent medical practice.