On 25 January 2018, the High Court in England and Wales delivered a judgment in an appeal brought by the General Medical Council (the “GMC”) in the UK against the decision of the Medical Practitioners Tribunal Service (the “Tribunal”), to suspend Dr Bawa-Garba from practise for one year. The Tribunal is the body in the UK which decides on cases in relation to the fitness to practise of doctors. The GMC has the power to appeal sanction decisions of the Tribunal to the High Court.
Statutory professional regulators in Ireland do not have the power to appeal sanction decisions. However, the issues considered by the High Court in the UK will be of interest to regulators and professionals in this jurisdiction, particularly in relation to how convictions for serious criminal offences are considered by professional regulators and the sanctioning of professionals in such circumstances, to include the regulators’ consideration of aggravating and mitigating factors when deciding on sanction. A summary of the case has been provided below.
The background to the case
On 6 November 2015, Dr Bawa-Garba was convicted by a jury of gross negligence of a 6 year old boy. She was sentenced to two years’ imprisonment which was suspended for two years. A nurse who had been involved in the child’s care was also convicted of manslaughter and removed from the Register of Nurses and Midwives, while the third co-defendant, a ward sister, was acquitted.
In February 2017, Dr Bawa–Garba admitted the conviction and the sentence imposed. The Tribunal, on hearing evidence from two consultants, decided that her fitness to practise was impaired. In June 2017, the Tribunal decided to impose the sanction of 12 months suspension and rejected the GMC’s contention that Dr Bawa-Garba’s name should be erased from the register on the basis that it would be a disproportionate sanction. The GMC appealed the decision of the Tribunal to the High Court.
The decision of the Tribunal
The Tribunal in coming to its decision took into account its Sanction Guidance and balanced a number of mitigating and aggravating factors. Some of the mitigating factors included the doctor’s unblemished record and good character prior to the offence, the fact no other clinical concerns had been raised prior to or after the offence, the length of time that had passed since the offence and the multiple systems failures that had been identified in the investigation following the event. These were balanced against the aggravating factors which included the vulnerability of the patient given his age and disability, the numerous failings in respect of the patient which continued over a number of hours and the fact that, even though the doctor had expressed her condolences in the course of the inquiry, there was no evidence before the Tribunal at that time the patient died that she had apologised to the family.
In deciding on the sanction of suspension, the Tribunal was satisfied it was appropriate and that, on balancing the aggravating and mitigating factors, erasure was not appropriate. The Tribunal was satisfied that the doctor’s actions and subsequent conviction were not fundamentally incompatible with continued registration. The Tribunal was also of the view that public confidence would not be undermined by the sanction of suspension as her actions were neither deliberate nor reckless. The Tribunal considered that, although her actions resulted in the early death of the patient, she was not a continuing risk to patients. In addition, the Tribunal was of the view that her failings were not irremediable and found that she had remedied them.
Appeal of the GMC
The GMC, on appealing the decision the High Court, submitted that the Tribunal had allowed evidence of the systematic failings to undermine Dr Bawa-Garba’s personal culpability. The GMC also submitted that the remediation and personal mitigation were of too limited weight to satisfy the requirements of the public interest in upholding confidence in the profession.
The decision of the High Court
The Court, describing this case as "sad and distressing" for the parents of the six year old boy who died and Dr Bawa-Garba, decided to uphold the appeal of the GMC and to substitute the sanction of erasure for that of suspension. In summary, the High Court found that the Tribunal did not respect the verdict of the jury as it should have done, that the Tribunal had found a less severe view of the doctor’s personal culpability and was wrong in its finding that public confidence in the profession and its professional standards could be maintained by any sanction other than erasure. The High Court was of the view that:
“The misconduct by manslaughter by gross negligence involved a particularly serious departure from the principles of “Good Medical Practice”, and the behaviour was fundamentally incompatible with being a doctor. It involved truly exceptionally bad failings, causing very serious harm to a patient.”
Response to the High Court Decision
This case is currently the subject of much discussion in the UK and, in light of this, the GMC has issued a press release on its approach to the case. In addition, the British Medical Association, which is the trade union and professional body for doctors in the UK has also issued a response to the case and has expressed its concern about both the decision of the GMC to bring the appeal as well as the findings of the High Court on appeal.
In addition, the GMC has announced that it is to review the wider issues surrounding medical manslaughter, in particular the commencement and investigation of such cases before the GMC. The Secretary of State for Health and Social care in the United Kingdom has also announced a review into gross negligence manslaughter laws, a move which has been welcomed by the GMC. It remains to be seen if Dr Bawa-Garba will appeal the decision of the High Court.