Abstract
In a 2015 prosecution which divided public opinion, Dr Bawa-Garba was convicted of gross negligence manslaughter and sentenced to 2-years’ imprisonment, suspended for 2 years. The post-conviction litigation which sought to determine whether and when Dr Bawa-Garba could return to clinical practice threatened to destabilise the already fragile relationship between the medical profession and its regulator, the General Medical Council. At the heart of this litigation lay the regulator’s quest to maintain and promote public confidence in the profession, in a case where the doctor concerned was not regarded as posing a future risk to patient safety. Using the Bawa-Garba litigation, this commentary examines the position and use of the nebulous concept of ‘public confidence’ within the fitness to practise framework for doctors. Although the authors’ observations arise specifically from a case decided in the UK, ‘public confidence’ is a touchstone concept in professional regulation regimes around the world and so these observations have relevance beyond this jurisdiction. The authors argue that, for too long, use of the rhetoric of public confidence in the regulation of the medical profession has been characterised by an unsatisfactory lack of transparency, excessive deference by the courts to regulatory tribunals and that research is increasingly signalling that instinctual ‘expert’ judgements on the issue of ‘what the public think’ may be unreliable.
Highlights
There is growing interest1 in the concept of ‘maintaining public confidence’ as it is applied in the regulation of the healthcare professions
In the UK, the term is acknowledged as being relevant to all stages of fitness to practise determinations in tribunals, which assess a doctor’s fitness to practise,3 despite no settled test for assessing public confidence being enshrined in either statute or case law
This lack of concretisation explains, in part, why the use of the language of ‘public confidence’ in decision-making has steadily become more controversial: its relationship with the regulator’s overriding statutory aim of protecting the public’s lacks transparency;4 maintaining public confidence in the profession can be construed as a throwback to self-(serving) regulation rather than patient-centred governance; the public confidence narrative is frequently relied upon to justify judicial deference to professional regulators,5 and it has been key in the use of draconian regulatory powers where the individual healthcare practitioner concerned is not currently regarded as posing a risk to patient safety
Summary
There is growing interest in the concept of ‘maintaining public confidence’ as it is applied in the regulation of the healthcare professions. In the UK, the term is acknowledged as being relevant to all stages of fitness to practise determinations in tribunals, which assess a doctor’s fitness to practise, despite no settled test for assessing public confidence being enshrined in either statute or case law This lack of concretisation explains, in part, why the use of the language of ‘public confidence’ in decision-making has steadily become more controversial: its relationship with the regulator’s overriding statutory aim of protecting the public’s lacks transparency; maintaining public confidence in the profession can be construed as a throwback to self-(serving) regulation rather than patient-centred governance; the public confidence narrative is frequently relied upon to justify judicial deference to professional regulators, and it has been key in the use of draconian regulatory powers where the individual healthcare practitioner concerned is not currently regarded as posing a risk to patient safety.. GNM conviction meant that she should be excluded from medical practice
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