Replacing a Warning:
R (Bramhall) v. GMC [2019] EWHC 3525 (Admin)
In the widely reported case of Simon Bramhall – a surgeon who branded the livers of patients on whom he had performed transplant surgery – the High Court has ruled that, following Mr Bramhall’s conviction, the GMC’s decision to effectively reverse a warning he had previously been given, and refer the matter to the MPTS for consideration of his impairment, would not be quashed.
In 2013 it emerged that Mr Bramhall, after completing a liver transplant procedure, had used an argon beam coagulator to mark his initials onto the patient’s new liver. Evidence later emerged that he had made similar marks on the livers of a number of patients in 2013. During an internal disciplinary procedure within the University Hospitals Birmingham NHS Trust in 2014, at the conclusion of which he was dismissed for gross misconduct, Mr Bramhall made wide-ranging admissions to the facts alleged against him.
For some time afterwards, investigations by the police and the GMC ran simultaneously. Following representations by Mr Bramhall’s legal representatives, the GMC had delayed taking any action, in the hope that the criminal investigation might be concluded first. Eventually, however, the GMC apparently took the view that it would not be appropriate to delay its own processes further, and in February 2017 the Case Examiners issued a warning under Rule 8(2)(b) of the General Medical Council (Fitness to Practise) Rules 2004 (“the 2004 Rules”). Following that warning, however, in December 2017 Mr Bramhall pleaded guilty at Birmingham Crown Court to two offences of common assault, and was sentenced in January 2018. There then followed three decisions by the GMC, which had the effect of removing the warning that was previously issued, and referring Mr Bramhall to the MPTS for consideration of whether his fitness to practise was impaired by reason of his conviction.
The case is an interesting one because the facts on which the original warning was issued were largely (if not entirely) the same as those which gave rise to the conviction in respect of which Mr Bramhall’s case was subsequently referred to the MPTS. On first blush, then, the GMC’s actions have the appearance of reversing its decision to issue a warning in respect of certain behaviour where that behaviour later gives rise to a conviction.
In fact, the Court held that although the conviction was founded on substantially the same facts as the allegation in respect of which Mr Bramhall had received a warning, the conviction itself was “new information that may have led to a different decision” for the purposes of Rule 12(2)(b) of the 2004 Rules concerning the power of the Registrar to review decisions. Mr Bramhall’s guilty plea was, the Court observed, the first time he had unequivocally admitted the acts in question. Moreover, at the time that they had issued the warning, the Case Examiners cannot have known that the behaviour in question amounted to a criminal offence. Indeed, in representations made by Mr Bramhall’s legal representatives prior to the issuing of the warning, it had been asserted that criminal proceedings were “highly unlikely”.
Of course, in addition to proceeding under one of the grounds set out in Rule 12(2), the Registrar must also be satisfied that a review of a decision to issue a warning is necessary for one of the reasons under Rule 12(3) of the 2004 Rules, namely that it is necessary for protection of the public, for the prevention of injustice to the practitioner, or that it is otherwise in the public interest. On public interest grounds, Jefford J, delivering the judgment of the Court, was entirely satisfied that the test of necessity had been met, stating, at paragraph 66:
“It seems obvious that, following the convictions, public confidence in the profession would be in issue and potentially undermined by the fact that the claimant had received only a warning at a time when he had not been convicted, and the public would expect review following these events.”
Ultimately, the Court rejected challenges against all aspects of the process which led to the removal of the warning that was issued, and the referral to the MPTS. The detailed judgment, which considers a number of arguments that were advanced with the goal of maintaining the GMC’s previous disposal of the case by way of a warning, repays further reading. But the overall effect of the judgment would appear to be that even where a practitioner has already received a warning in relation to certain behaviour, where he or she is later convicted in relation to that behaviour, it is highly likely that a regulator will reconsider their response, and that any challenge to that reconsideration will be unlikely to succeed.
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