General Medical Council v Bawa-Garba [2018] EWHC 76

The Divisional Court allowed the GMC’s appeal against the decision of the Medical Practitioners Tribunal (“MPT”) to suspend Dr Bawa-Garba’s registration for 12 months and substituted the sanction of erasure from the Medical Register.

The “sad and distressing” facts, as how Ousley J described them, have been well rehearsed in legal and medical journals, as well as the media, but in summary they involved the premature death of a six year-old boy, Jack Adcock, who was admitted to the Leicester Royal Infirmary under Dr Bawa-Garba’s care. Both Dr Bawa-Garba and a nurse at the hospital were convicted of gross negligence manslaughter, with both receiving suspended custodial sentences.

In reaching their decision to suspend, rather than erase, the MPT had relied heavily on systemic failings at the hospital and on the shortcomings of other clinicians as mitigating Dr Bawa-Garba’s personal responsibility. However, on appeal, the GMC argued successfully that this involved the MPT going behind the jury’s findings since these matters had been relied upon by her defence at the criminal trial.

On appeal, the Divisional Court held that the MPT’s decision to suspend Dr Bawa-Garba was simply wrong and was not sufficient to maintain public confidence in the profession or to uphold professional standards. It is perhaps worth noting that the nurse involved in the matter had been struck off the NMC register in August 2016.

Analysis

In the media, the GMC’s appeal led to a significant amount of coverage and criticism, with concerns that the handling of the case by the judiciary and the GMC risked reviving a culture of blame in healthcare and that doctors live in fear of legal action over honest mistakes with the criminalization of a medical error. However, the MPT’s leniency in suspending Dr Bawa-Garba for 12 months was condemned by the Divisional Court.

What appears to have been significant to the Divisional Court was that the MPT “did not respect the verdict of the jury as it should have. In fact, it reached its own and less severe view of the degree of Dr. Bawa-Garba’s personal culpability. It did so as a result of considering the systemic failings or failings of others and personal mitigation which had already been considered by the jury; and then came to its own, albeit unstated, view that she was less culpable than the verdict of the jury established”.

It was thus held that this was an incorrect approach when considering the case on the basis of a conviction, which should have been taken as conclusive, not just of the fact of conviction but also as the basis of the jury’s conviction. Importantly, the ruling therefore clarifies that tribunals cannot go behind the jury’s verdict when a professional is convicted in a criminal court. The question then arises as to what would constitute proper mitigating factors to be put forward on behalf of the professional person, as mitigation is of course one of the important steps in the process of considering what sanction to impose for all regulatory panels.

However the decision of the Divisional Court did go beyond this issue and it was held that “where erasure is indicated, as on any view it was indicated here by the Sanctions Guidance at [103.c] – doing serious harm to a patient through incompetence even where there is no continuing risk to patients – a decision that erasure should not be imposed requires the reasons and circumstances why not, to be sufficiently significant to maintain public confidence in the profession and its professional standards…

Dr. Bawa-Garba, before and after the tragic events, was a competent, above average doctor. The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance. There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad (using the phrasing of gross negligence manslaughter)”.

Behaviour that was fundamentally incompatible with registration and public confidence in the profession and in its professional standards – were therefore the determinative factors leading to erasure being the only suitable sanction.

That this decision was reached ‘with sadness but no real hesitation’ as Gross LJ said, perhaps sums the situation up; many will feel sadness for Dr Bawa Garba individually and perhaps for the criminalisation of a medical error and the culture of blame that that brings. On the other hand, that Dr Bawa-Garba was not erased from the register in the first instance could be considered the surprising thing given the conviction for gross-negligence manslaughter in all the circumstances of this case.

However, it appears that this is not the end of the matter; Dr Bawa-Garba has been granted an appeal against this last decision following a backlash from the medical profession. The case has also led to Jeremy Hunt ordering a review into whether the manslaughter by gross negligence laws are fit for purpose in healthcare, so it may be that this case has far wider implications than just for Dr Bawa-Garba herself.

For the moment, all interested parties will be eagerly awaiting the outcome of the next round of the appeal.