Newsletters Professional Discipline 27th Feb 2018

Bye-bye Bijl

The recent case of GMC v Bawa -Garba [2018] EWHC 76 (Admin) could well be taking us all back to the bad old days when the thirst for punitive sanctions outweighed any other more nuanced assessment of the public interest.

The case is a sad one. A child was admitted to hospital, initially misdiagnosed and then died that same evening from multi-organ failure arising from sepsis. The doctor, a junior specialist in Paediatric medicine, was convicted of gross negligence manslaughter at Nottingham Crown Court and was sentenced to a suspended term of imprisonment. In due course an MPTS hearing found her impaired, and imposed a sanction of suspension.

The Tribunal found that there were “wider failings” (established by oral evidence called on the Doctor’s behalf) as to multiple systemic failings, the parts played by others, IT failings, failures of review and deficiencies in handover. The Tribunal accepted the Doctor was “safe” according to testimonial evidence, that she had practised safely for four years since, that the future risk of harm was low, that she had reflected, had substantial insight, had shown remorse, was honest and reliable. The Tribunal was unable to conclude that she had “complete insight” because she did not give evidence at either stage of the proceedings. The Tribunal also referred to Bijl [2001] UKPC 41, where Lord Hoffman had warned against sacrificing a Doctor who presents no danger to the public in order to satisfy a demand for blame and punishment.

The GMC appealed under s.40 A of the Medical Act. The Administrative Court (Ousely J, Goff LJ concurring) allowed the appeal and imposed a sanction of erasure. In doing so the court endorsed the “diffidence” to be deployed in approaching the MPTS decision, recognising the professional expertise of the MPTS Tribunal. However, it also observed there are areas such as sexual misconduct and dishonesty where the court will consider itself likely to feel that it can assess the public interest.

In coming to this decision the court made it clear that Bijl is superseded by Jagjivan, Raschid, and Bolton v The Law Society. Bijl is indeed “an incomplete statement of the law now found in ss 1 and 40A of the Medical Act, with the requirement to consider public confidence and maintenance of proper standards separately from patient safety” [para 39 of the judgement].

The court was concerned, and said so on a number of occasions, that the Tribunal had failed to respect the verdict of the jury as it should have. The court observed that gross negligence manslaughter meant that the jury had decided that the Doctor’s management was “truly exceptionally bad”. The court was critical of the Tribunal for reaching (unstated) a less severe view of the degree of the Doctor’s culpability by considering the systemic failings as material to its determinations. Those failings, and the personal mitigation, had been before the jury.  The court ruled that not only is the certificate of conviction conclusive of the fact of the conviction, but it is also conclusive of the jury’s basis of conviction. A Tribunal cannot reduce the doctor’s culpability to below “truly exceptionally bad”, and the Tribunal had to recognise the gravity of the failings.

With respect to the court, this seems to provide for an approach that is far from diffident to the Tribunal.  The finding of current impairment, notwithstanding the remediation, reflected the importance of maintaining confidence and upholding proper standards. So too did a period of suspension where there are no patient safety issues. If the Tribunal had identified why perhaps the failures occurred in an otherwise safe and unblemished career, surely the reasonable and informed observer would understand that, as per Bijl, the sacrifice of a safe doctor is not needed. This would be particularly so, bearing in mind proportionality, which was not addressed by their lordships.

The Tribunal exercised their judgement in a way that looked at all of the circumstances and took account of all of the principles at large in a way a jury is not required to do. Clearly a jury and a regulatory tribunal have very different functions. Every Tribunal or Committee is advised on how it is to look forward not back. A jury only looks back.

The court went on to declare that where erasure is indicated through a doctor’s incompetence causing serious harm to a patient, even where there is no continuing risk, a decision that erasure should not be imposed requires sufficiently significant reasons and circumstances [para 49]. The court rejected the GMC submission of a presumption in gross negligence manslaughter cases for erasure, and felt it unwise to set out factors that may influence the outcome [para 40]. However, it would seem that the bar is set very high, and the onus clearly is now on the registrant to persuade the Tribunal away from erasure. Arguably, given future risk is all but irrelevant to the discussion, there is in fact a de facto presumption, despite the court declaring that there isn’t. It also seems contradictory to allow for persuasive circumstances to exist whilst warning against anything that appears apparently to down grade the jury’s verdict. What circumstances might exist that would not be criticised by the court are hard to imagine.

So goodbye Bijl: and arguably goodbye diffidence or deference or whatever we call it. Proportionally, remediation and future safety won’t count for much if anything at all where there has been a tragedy, it would seem. So much for single incident cases in unblemished careers when a death arises; nuanced decision making seems to have been taken away, the verdict is sacrosanct and to be seen in isolation, and the public interest will be served in future by erasing safe doctors.

Andrew Hurst

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