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Dr Bawa-Garba erasure from medical register following gross negligence manslaughter conviction overturned by the Court of Appeal

Details

In November 2015, paediatric specialist, Dr Bawa-Garba, was convicted of manslaughter by gross negligence of a six year old boy under her care. The Medical Practitioners Tribunal (MPT) suspended her registration for 12 months, but the General Medical Council (GMC) appealed and in January 2018 the High Court ruled that she should be erased from the medical register. Dr Bawa-Garba appealed the decision of the High Court to the Court of Appeal which has re-instated the MPT’s decision.

Disciplinary proceedings

Following the criminal conviction, the MPT concluded that Dr Bawa-Garba’s fitness to practise had been impaired and imposed a 12 month suspension, subject to review but not extension. It considered erasure from the register to be a disproportionate response. The MPT found that while Dr Bawa-Garba’s clinical failings had been serious, they had been remedied and there was low risk of future harm. The MPT also took into account the mitigating factors put forward on behalf of Dr Bawa-Garba including evidence of systemic failures within the hospital, medical and nursing staff shortages, IT systems failures, handover deficiencies and the absence of a mechanism for automatic consultant review. It was satisfied that public confidence in the profession would not be undermined by a sanction of suspension, rather than erasure. 

Appeals

The GMC appealed the MPT’s decision to the High Court. Its decision was that, while the MPT’s findings on the facts must be accepted, its sanction choice was nonetheless wrong. The MPT’s approach to sanction did not respect the force of the verdict in the criminal case or give it the necessary weight to maintain public confidence. Rather, it substituted its own less severe view of Dr Bawa-Garba’s culpability as a result of considering evidence of systemic failings and failings of others which had already been considered by the jury and rejected.

The Court of Appeal disagreed with this assessment. Appeal courts should give respect to decisions of a ‘specialist adjudicative body’ such as the MPT, and there is limited scope on which its decision can be overturned on appeal. It must have either made an error of principle, or be wrong in some other way.

The MPT had not disrespected the jury’s decision by taking systemic issues into account, and, in doing so, had not reduced Dr Bawa-Garba’s culpability below the level necessary to convict her.  The jury and MPT have fundamentally different tasks, and take different approaches. A jury must consider guilt or innocence based on past conduct while the MPT looks to the future to fulfil the statutory objective of protecting the public and maintaining public confidence in the profession. The MPT’s decision, bearing in mind the task that it was fulfilling, was not inconsistent with the jury’s finding that Dr Bawa-Garba’s conduct had been ‘truly exceptionally bad’. There are different degrees of culpability which  will satisfy that definition, as reflected in the different sentences that a criminal court may apply, and, in this case, Dr Bawa-Garba’s sentence of two years imprisonment suspended for two years had been ‘conspicuously light’.

In some cases the facts will be so bad that only the most severe sanction is appropriate, but Dr Bawa-Garba’s case does not fit that category.  In deciding on the appropriate sanction, the MPT, as an expert body, was entitled to take into account unusual facts of this case including: 

  • no concerns had ever, or since, been raised about Dr Bawa-Garba’s clinical competence
  • there was evidence from two consultants that she was an excellent doctor in the top third of her specialist trainee cohort
  • the risk of her putting patients at unwarranted risk of harm in the future was low, and no higher than any other reasonably competent doctor

The MPT was entitled to take account of the fact that Dr Bawa-Garba was a ‘competent and useful doctor, who presents no material danger to the public, and can provide considerable useful future service to society.’ 

Commentary

This case has understandably caused alarm amongst the medical profession. The decision of the Court of Appeal should provide some relief insofar as providing reassurance that the decision of the MPT should not be appealed in this way unless there has been a clear error made by the MPT.  It is for the GMC now to work with the medical community to restore the faith of its members.

The review into gross negligence manslaughter laws in the healthcare setting (ordered by former secretary of state for health, Jeremy Hunt) remains necessary and important to provide reassurance for professionals in a healthcare context.  

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