Bawa-Garba v General Medical Council [2018] EWCA CIV 1879, [2019] 1 WLR 1929, [2019] 1 All ER 500

Transcript

Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, [2019] 1 WLR 1929, [2019] 1 All ER 500 was an appeal by Dr Hadiza Bawa-Garba to the Court of Appeal (Civil Division) heard by the Lord Chief Justice, the Master of the Rolls and Lady Justice Rafferty, which allowed her appeal against the decision of the Divisional Court that had quashed the Medical Practitioners Tribunal’s suspension order and substituted erasure from the Medical Register.

Dr Bawa-Garba was a paediatric registrar who in November 2015 had been convicted of gross negligence manslaughter and sentenced to two years’ imprisonment suspended for two years in relation to the death of six-year-old Jack Adcock on 18 February 2011 at Leicester Royal Infirmary. Jack, who had Down’s syndrome and a congenital heart condition, was admitted to the Children’s Assessment Unit with acute gastroenteritis and dehydration, but was in fact suffering from Group A streptococcal pneumonia which caused septic shock leading to his death at 9.20 pm. The prosecution case was that Dr Bawa-Garba’s care fell far below the standard expected, including failures to review a chest x-ray promptly, to obtain and act on blood test results in a timely manner, to prescribe antibiotics urgently once pneumonia was identified, to maintain proper clinical notes, and to escalate concerns to consultants. The defence at trial relied on systemic hospital failures including computer system problems that delayed blood results, nursing staff shortages with agency nurses unfamiliar with the ward, the absence of a senior house officer, and Dr Bawa-Garba working a 12-hour shift covering multiple areas without breaks. The jury convicted on the basis that her failures were “truly exceptionally bad”, the direction given by Nicol J as the test for gross negligence manslaughter. In sentencing, Nicol J noted the busy ward, that responsibilities were shared with others, and imposed a lenient sentence, remarking that Dr Bawa-Garba’s medical career would be over. The Court of Appeal (Criminal Division) refused leave to appeal against conviction in November 2016.

In February 2017 the Medical Practitioners Tribunal found Dr Bawa-Garba’s fitness to practise impaired, accepting that although her failings fell far below expected standards, they were capable of remedy and had been remedied, and that she posed no higher risk of falling below standards than any reasonably competent doctor, but that a finding of impairment was necessary to maintain public confidence in the profession. In June 2017, following a further hearing on sanction, the Tribunal imposed a twelve-month suspension subject to review rather than erasure. The Tribunal took account of mitigating factors including Dr Bawa-Garba’s previously unblemished record, good character, lack of evidence of clinical concerns before or after the incident, the time elapsed, her recent return from maternity leave, the pressures she faced on the day covering multiple areas, and the multiple systemic failures identified in the Trust investigation. It noted aggravating factors including the vulnerability of the patient and the numerous failings over several hours. The Tribunal accepted evidence that Dr Bawa-Garba had remediated her clinical deficiencies, was considered an excellent doctor in the top third of her cohort, and posed a low continuing risk to patients. It concluded that her actions, while falling far short of standards and causative of Jack’s early death, occurred in a context of wider failings, were neither deliberate nor reckless, and were not fundamentally incompatible with continued registration, and that suspension would maintain public confidence.

The General Medical Council appealed to the Divisional Court under section 40A of the Medical Act 1983, which permits the GMC to appeal where it considers a sanction insufficient for public protection. In January 2018 the Divisional Court allowed the appeal, with Ouseley J giving the lead judgment. The Divisional Court held that the Tribunal had failed to give proper respect to the jury’s verdict that Dr Bawa-Garba’s failures were truly exceptionally bad. Ouseley J reasoned that rule 34 of the General Medical Council (Fitness to Practise) Rules 2004 makes a certificate of conviction conclusive evidence not just of the fact of conviction but of the basis of conviction, so that systemic failings and personal mitigation, even if raised at trial, could not reduce Dr Bawa-Garba’s culpability below the level necessarily found by the jury. He held that the Tribunal had impermissibly reached its own, less severe view of Dr Bawa-Garba’s culpability by taking into account matters already considered by the jury, and that where a patient dies because of failings the tribunal must treat as truly exceptionally bad, it would require stronger circumstances than were present for suspension to suffice to maintain public confidence. He concluded that the misconduct involved a particularly serious departure from Good Medical Practice and was fundamentally incompatible with being a doctor, and that erasure was the only appropriate sanction. Gross LJ agreed. The Divisional Court quashed the suspension and directed erasure.

Dr Bawa-Garba appealed on five grounds: that the Divisional Court had applied a presumption of erasure save in exceptional circumstances; failed to appreciate the distinct roles of jury and tribunal; unlawfully substituted its own judgment; erred in concluding the Tribunal was precluded from considering systemic failures; and reached an irrational conclusion that only erasure was open to the Tribunal. The British Medical Association, the Professional Standards Authority for Health and Social Care, and the British Association of Physicians of Indian Origin were granted permission to intervene, given the wider importance of the issues for the medical profession.

The Court of Appeal allowed the appeal and restored the Tribunal’s suspension order. The court held that the Divisional Court had erred in principle and in its evaluative conclusion. The court emphasised that the task and necessary approach of the jury differed fundamentally from that of the Tribunal. The jury’s task was to decide on guilt or innocence based on past conduct, requiring proof that Dr Bawa-Garba’s failures were truly exceptionally bad and caused or significantly contributed to Jack’s death. The Tribunal’s task, looking to the future, was to determine what sanction would most appropriately protect the public by maintaining public confidence in the profession and proper professional standards, pursuant to section 1 of the Medical Act 1983. The Tribunal was concerned with the reputation of the profession rather than punishment of the doctor.

The court held that the Tribunal had not disrespected the jury’s verdict by taking into account systemic Trust failures and personal mitigation. Different degrees of culpability can satisfy the requirements of gross negligence manslaughter, with some failings substantially more serious than others even though all constitute gross negligence, reflected in the range of sentences available. The sentence imposed by Nicol J of two years suspended was conspicuously lenient, at the bottom end of the scale, and he had expressly taken into account the circumstances including that responsibilities were shared with others and personal mitigation. The Tribunal was equally entitled to consider the full context of Jack’s death, including systemic failures and the range of persons bearing responsibility, as well as matters of personal mitigation, in determining the appropriate forward-looking sanction. In doing so the Tribunal was not deciding that Dr Bawa-Garba’s failings were other than truly exceptionally bad; it was conducting an evaluative exercise to determine the sanction most appropriate to protect the public. The Tribunal’s decision was therefore not contrary to rule 34 of the Fitness to Practise Rules, as the matters it considered did not contradict any necessary findings underpinning the conviction.

The court rejected the GMC’s contention, accepted by the Divisional Court, that the Tribunal had attributed to Dr Bawa-Garba a lower level of culpability than necessarily established by her conviction. The court held that systemic failures were of only peripheral relevance to guilt at trial, as reflected in the trial judge’s directions focusing on Dr Bawa-Garba’s personal acts and omissions, whereas they were legitimately relevant to the Tribunal’s forward-looking assessment of appropriate sanction. The Tribunal’s description of Dr Bawa-Garba’s conduct as falling “far short” of standards reflected the language used by Nicol J himself in his sentencing remarks and did not indicate the Tribunal considered her conduct less than truly exceptionally bad.

The court further held that the Divisional Court had applied an impermissible presumption that erasure should be imposed for causing serious harm through incompetence unless there were sufficiently significant reasons for a lesser sanction, despite Ouseley J having expressly disclaimed such an approach. The court held that whether erasure or suspension is appropriate always depends on the facts of the particular case. The GMC’s Sanctions Guidance, while very useful and always to be consulted, is non-statutory guidance the relevance and application of which depends on the circumstances of each case. Paragraph 103 of the Guidance, which states that doing serious harm through incompetence “may indicate” erasure is appropriate, uses permissive not mandatory language. The Guidance does not require erasure in all cases of gross negligence manslaughter.

The court emphasised that this was an unusual case in which no concerns had ever been raised about Dr Bawa-Garba’s clinical competency other than in relation to Jack’s death, even though she continued clinical work at the Trust until conviction and was in the top third of her specialist trainee cohort. The Tribunal, an expert body comprising a medical practitioner and two lay members assisted by a legal assessor, was satisfied she had remediated her deficiencies, was an excellent doctor who posed no higher risk than any reasonably competent doctor, and presented no continuing risk to patients. It accepted evidence that she was honest, reliable, had reflected deeply and demonstrated significant insight, and that her conduct was neither deliberate nor reckless. The Tribunal was entitled to take into account, consistently with the Privy Council’s decision in Bijl v General Medical Council, that Dr Bawa-Garba is a competent and useful doctor presenting no material danger and capable of considerable future service to society.

The court held that the Tribunal’s evaluative judgment on the appropriate sanction to maintain public confidence was entitled to particular respect as the assessment of an expert specialist adjudicative body with greater experience in this field than the courts, familiar with this type of adjudication and best equipped to judge what measures are required to maintain professional standards and reputation. Appeals from such evaluative multi-factorial decisions should only succeed if there was an error of principle or the decision fell outside the bounds of what the body could properly and reasonably decide. Appellate courts must be cautious in differing from such an evaluative judgment, particularly on matters of professional performance. There were no grounds for holding that erasure was the only sanction properly and reasonably open to the Tribunal. The Tribunal had not made an error of principle and its decision was one properly open to it on the facts.

In short, the Court of Appeal held that the Divisional Court erred in law by treating the jury’s gross negligence manslaughter verdict as precluding the Tribunal from considering systemic failures and mitigation when determining the forward-looking question of appropriate sanction, and by applying what amounted to a presumption of erasure, and allowed the appeal, set aside the Divisional Court’s order, and restored the Tribunal’s twelve-month suspension order for review.

Bijl v General Medical Council [2001] UKPC 42
General Medical Council v Jagjivan [2017] EWHC 1247 (Admin), [2017] 1 WLR 4438
Fatnani & Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460
Bolton v The Law Society [1994] 1 WLR 512
The General Medical Council v Professor Sir Roy Meadow [2006] EWCA Civ 1390
Biogen Inc. v Medeva [1997] RPC 1
Pharmacia Corp v Merck & Co Inc [2001] EWCA Civ 1610; [2002] RPC 41
GMC Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR 1325
Benmax v. Austin Motor Co. Ltd [1955] A.C. 370
Bowen & Stanton v Secretary of State for Justice [2017] EWCA Civ 2181
Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577
R (Smech Properties Ltd) v Runnymede Borough Council [2016] JPL 677, [2016] EWCA Civ 42

Khan v General Pharmaceutical Council [2017] 1 WLR 169, [2016] UKSC 64, [2017] 3 All ER 873
Buchanan v Alba Diagnostics Ltd [2004] UKHL 5; [2004] RPC 34
Misra and Another [2004] EWCA Crim 2375, [2005] 1 Cr App R 21
Sellu [2016] EWCA Crim 1716
Ziderman v General Dental Council [1976] 1 WLR 330
Redgrave v Commissioner of Police for the Metropolis [2003] EWCA Civ 4
Yeong v General Medical Council [2009] EWHC 1923 (Admin)
Garg [2012] EWCA Crim 2520
Attorney General’s Reference (9 of 2015) [2015] EWCA Crim 2152
R (Campbell) v General Medical Council [2005] EWCA Civ 250
Marinovich v General Medical Council [2002] UKPC 36
Giele v General Medical Council [2005] EWHC 2143 (Admin)

Wallace v Secretary of State for Education [2017] EWHC 109
Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642
Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, [2007] 2 WLR 286, [2007] 1 All ER 1
Re B (a Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911
Bawa-Garba [2016] EWCA Crim 1841
Professional Standards Authority v Heath and Care Professions Council & Doree [2017] EWCA Civ 319
General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin), [2018] 4 WLR 44

Bookmark

Please login to bookmark