Newsflash Professional Discipline 14th Aug 2018

No Presumption of Erasure: Bawa-Garba v GMC [2018] EWCA Civ 1879

The Court of Appeal handed down its long awaited judgment concerning Dr Bawa-Garba, overturning the Divisional Court’s decision that her conviction for gross negligence manslaughter necessitated erasure from the Medical Register.

The facts of this tragic case have been rehearsed many times in the media. In brief, Dr Bawa-Garba had treated a young patient who subsequently died of sepsis. Upon being tried for gross negligence manslaughter the jury were invited to convict her if it felt her care was “truly exceptionally bad”. It did so and she received a sentence of two years custody suspended for two years. In subsequent GMC proceedings, the Tribunal nonetheless considered her case could be dealt with by a period of suspension.

In overturning this decision, the Divisional Court stated the Tribunal failed to respect the verdict of the jury in making its assessment of her culpability. It felt that having considered the systemic failings present and her personal mitigation the Tribunal had formed the view that she was less culpable than the verdict of the jury established. The court considered that the only sanction properly and reasonably open to the Tribunal was erasure. Whilst discounting this was its intention, the court effectively imposed a presumption of erasure in such cases.

The Court of Appeal rejected this analysis. It did not consider the Tribunal had gone behind the verdict.

“There was a fundamental difference between the task and necessary approach of the jury, on the one hand, and that of the Tribunal, on the other. The task of the jury was to decide on the guilt or absence of guilt of Dr Bawa-Garba having regard to her past conduct. The task of the Tribunal, looking to the future, was to decide what sanction would most appropriately meet the statutory objective of protecting the public pursuant to the over-arching objectives in section 1(1A) and 1(B) of MA 1983”

It observed that gross negligence manslaughter carried different degrees of culpability. This was reflected in sentence. On any view Dr Bawa-Garba’s sentence was very light.

“The Tribunal was just as much entitled to take into account, in determining the appropriate sanction, systemic failings on the part of the Trust, as part of the context for Jack’s tragic death and Dr Bawa-Garba’s role in it, as well as matters of personal mitigation, as Nicol J was entitled to do in determining the appropriate sentence for her crime”

In doing so the Tribunal was not rejecting the jury’s decision but rather it was conducting an evaluative exercise to determine what sanction was most appropriate. Systemic failings were of limited relevance to a jury establishing the guilt or innocence but they were potentially relevant to an analysis of sanction.
In argument the GMC relied heavily on the Sanctions Guidance, which it considered indicated the necessity for erasure. The Court of Appeal rejected the suggestion made that it had any kind of statutory underpinning to this guidance and noted:

“The Sanctions Guidance contains very useful guidance to help provide consistency in approach and outcome in MPTs and should always be consulted by them but, at the end of the day, it is no more than that, non-statutory guidance, the relevance and application of which will always depend on the precise circumstances of the particular case”

In its view this was not one of those cases were only erasure was possible:

“Once it is understood that it was permissible for the Tribunal to take into account the full context of Jack’s death, including the range of persons bearing responsibility for that tragedy and the systemic failings of the Trust, as well as the other matters relied upon by Dr Bawa-Garba, and that the Tribunal plainly had in mind its overriding obligation to protect the public for the future, in the tri-partite sense stated in section 1(1B) of MA 1983, it is impossible to say that the suspension sanction imposed by the Tribunal was not one properly open to it and that the only sanction properly and reasonably available was erasure.”

It rejected the Divisional Court’s analysis that

“erasure should be imposed if the medical practitioner has caused serious harm to a patient through incompetence, despite there being no continuing risk to patients, unless there are sufficiently significant reasons and circumstances for a lesser sanction consistent with the maintenance of public confidence in the profession and its professional standards. That amounts to a presumption of erasure in the case of such harm.”

There had been no other concerns raised about Dr Bawa-Garba. She had worked since the incident. She was in the top third of her Specialist Trainee Cohort. The Tribunal considered she had remedied her practice, presented no risk to patients, had reflected at length and had substantial insight.

“The Tribunal was an expert body entitled to reach all those conclusions. Indeed, none of them have been challenged by the GMC. The Tribunal was entitled to take into account, consistently with Bijl v General Medical Council [2001] UKPC 42, [2002] Lloyd’s Rep Med 60 at [13], that an important factor weighing in favour of Dr Bawa-Garba is that she is a competent and useful doctor, who presents no material danger to the public, and can provide considerable useful future service to society.”

Christopher Geering

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