Court of Appeal overturns decision striking off doctor convicted of gross negligence manslaughter

The Court of Appeal has rejected an argument by the General Medical Council (GMC) that the original Medical Practitioners’ Tribunal panel was wrong…

Bawa-Garba v General Medical Council [2018] EWCA Civ 1879

Executive summary

In a decision which is likely to be welcomed by all medical practitioners, the Court of Appeal has rejected an argument by the General Medical Council (GMC) that the original Medical Practitioners’ Tribunal panel was wrong not to strike off the appellant Dr. Bawa-Garba in 2015, following her conviction for gross negligence manslaughter after six year old Jack Adcock’s death at Leicester Royal Infirmary in 2011. Reversing the High Court’s decision in January 2018 which had ruled in favour of the GMC and hence ordered Dr Bawa-Garba be struck off/erased from the medical register, the Court of Appeal has now restored the original tribunal decision that she be suspended from practice for 12 months, subject to review.

Background

Dr. Bawa-Garba was a junior doctor specialising in paediatrics at the time of the death of Jack Adcock, who suffered heart failure after going into septic shock while in her care at Leicester Royal Infirmary in 2011. Dr. Bawa-Garba and a nurse on duty at the time were convicted of gross negligence manslaughter in November 2015. On the basis of the legal test for that offence, the jury found their conduct to be “truly exceptionally bad” and each was sentenced to two years’ imprisonment, suspended for two years.

A Medical Practitioners Tribunal was convened and after hearings in February and June 2017, the doctor was suspended for 12 months with a review to follow prior to the conclusion of that period, but she was removed from the medical register in January 2018 after the GMC successfully appealed against that decision in the High Court. The tribunal, in suspending her for 12 months, had taken into consideration wider systemic failings at the hospital trust which included poor staffing levels (the effect of which was that the appellant was covering multiple wards), delays in test results and IT failures, plus a lack of senior consultant presence.

The Court of Appeal’s decision

The Court of Appeal confirmed that an appeal court should only interfere with the decision of a specialist adjudicative body, such as the tribunal in this case, if there was an error of principle in carrying out the evaluation, or the decision was irrational in that it fell outside the bounds of what the body could properly and reasonably decide, neither of which was the case here.

The court noted that the criminal court and the tribunal were different bodies, with different functions, addressing different questions and at different times. The jury in the criminal court was concerned with guilt or absence of guilt having regard to the doctor’s personal past conduct whilst the function of the tribunal, looking to the future, was to decide what sanction would best meet the overriding objective of protecting the public in all the circumstances.

Overturning the High Court’s decision to strike her off, the Court of Appeal concluded that that decision was based on an impermissible approach, by applying a presumption of striking off following a conviction for gross negligence manslaughter without considering whether a lesser sanction would be consistent with its remit to protect the public, maintain public confidence in the profession and uphold professional standards.

The tribunal, the court concluded, had been entitled to come to the decision that suspension for one year (with a review before its conclusion) was an appropriate sanction, given the important factor weighing in her favour that she was a competent and useful doctor, who presented no material continuing danger to the public, and could provide considerable useful future service to society. The Court of Appeal also upheld as appropriate the Tribunal’s original approach to consideration of the wider systemic failures, rejecting the suggestion made by the GMC that the tribunal had as a consequence paid insufficient regard to the criminal Jury’s conclusions as to the seriousness of Dr Bawa-Garba’s failings and level of her personal culpability.

Conclusion

Cases such as this will, inevitably, arouse strong feelings and none more so than those involving the death of a child. The unanimous judgment recognises that this case was unusual, noting at paragraph 92 that “No concerns have ever been raised about the clinical competence of Dr. Bawa-Garba, other than in relation to Jack’s death, even though she continued to be employed at the hospital until her conviction. The evidence before the tribunal was that she was in the top third of her specialist trainee cohort.

The case had attracted particular attention from doctors, many of whom had accused the GMC of acting heavy-handedly and pointing out those wider systemic issues and failures which had been flagged by the original tribunal. Significantly, more than 1,500 doctors had signed a letter expressing “deep-seated concerns” at her treatment and arguing it threatened the “culture of openness” that was critical to learning from medical error and would result in others not being honest in their own self-appraisals. The GMC’s decision to make use of its power of appeal, under section 40A of the Medical Act 1983 in this case, drew considerable criticism and focused attention again on this power. Indeed, it is noteworthy that the Court of Appeal makes specific mention of government’s support (through the Secretary of State for Health and Social Care) for the recommendation of the recent Williams Review into gross negligence manslaughter (convened at least in part as a result of concerns over this case) that the GMC should lose this right of appeal.  

The GMC has confirmed that it fully accepts the Court of Appeal’s judgment which, in spite of the individual circumstances, will be welcomed both for its clarification of the different functions which are to be fulfilled by criminal courts and disciplinary tribunals and for the court’s recognition that the tribunal had not erred in principle in taking into account the wider systemic failures at the hospital in reaching its decision as to Dr. Bawa-Garba’s sanction. The decision will also do much to alleviate the concerns raised by the original High Court decision that, although disavowing such an approach, its effect was in essence that a conviction for gross negligence manslaughter should lead to a presumption of erasure in the absence of truly exceptional circumstances. The Court of Appeal decision underlines that such an approach/presumption is wrong, restoring the primacy of the MPT, in such cases, as an expert panel in relation to its regulatory function to assess fitness to practise and make such order as it proportionate to protect the public, maintain public confidence in, and uphold the standards of, the profession.

If you have any questions or would like to know more about our update, please contact Simon Turner (Partner).

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