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

Yesterday the Court of Appeal unanimously allowed Dr Bawa-Garba’s appeal and set aside the sanction of erasure, restoring the original order of the Medical Practitioners Tribunal (The Tribunal) that she be suspended for 12 months.

In February 2017 the Tribunal concluded that Dr Bawa-Garba’s fitness to practice was impaired. At a subsequent hearing on the 13 June 2017 the Tribunal imposed an immediate suspension for a period of 12 months, subject to review. The Tribunal considered but rejected the sanction of erasure as being unnecessary and therefore disproportionate. The GMC appealed this decision to the Divisional Court, which held that the Tribunal’s decision not to erase Dr Bawa-Garba was inconsistent with the jury’s verdict and that the Tribunal had been  wrong to impose any sanction other than erasure, bearing in mind the seriousness of the doctor’s omissions which were inherent in her conviction for gross negligence manslaughter.

An indication of the importance of the issues which had to be considered in this case can be found in the permission given for the Professional Standards Authority for Health and Social Care, the British Medical Association and the British Association of Physicians of Indian Origin to intervene.

Yesterday’s decision from the Court of Appeal has re-opened the debate regarding the distinction between sentences in the criminal courts and sanctions imposed by regulators in healthcare proceedings. The Court held that the Divisional Court was wrong to interfere with the original decision made by the Tribunal, stating it was “not a decision of fact or law, but an evaluative decision based on many factors”. The criminal court and the Tribunal were “different bodies, with different functions, addressing different questions and at different times”. The task of the Tribunal was to decide what sanction would “most appropriately meet the overriding objective of protecting the public.”

The Court of Appeal, considering the particular circumstances of this case and the aggravating and mitigating factors felt that erasure was not necessary to meet the objectives of protecting the public, maintaining public confidence and promoting and upholding proper professional standards. The Court considered that the expert tribunal was entitled to form the view that a suspension order could meet these statutory objectives.

The reaction to this decision will be mixed. On the one hand, many, particularly perhaps those in the medical profession will see the restoration of the Tribunal’s sanction of suspension as appropriate because it will allow a doctor with an otherwise unblemished record to return to practice. On the other hand, those most closely connected to the tragedy which is at the heart of this case and, indeed, other commentators will be surprised and disappointed that a doctor convicted of gross negligence manslaughter could ever be allowed to practice again.