By Kevin Dent and Sarah Fairbairn
INTRODUCTION
On 14 August 2018, the Court of Appeal allowed Dr Bawa-Garba’s appeal against the decision of the Divisional Court to erase her name from the medical register, reinstating the twelve-month’s suspension imposed by the Medical Practitioners Tribunal (“MPT”) in June 2017.
According to recent news headlines it appeared as though the Court of Appeal had simply ruled that a medical doctor could be responsible for the death of a child and remain in practice. Understandably, such headlines caused widespread consternation. A closer analysis of the case, however, reveals that the decision was an intensely legal one, with different courts seeking to resolve complex issues about the interplay between criminal and regulatory proceedings and also grappling with difficult questions concerning the public interest.
The case is a tragic one. A six year old boy, Jack Adcock, died of sepsis following a series of systemic and individual failures at Leicester Royal Infirmary Hospital in February 2011. Dr Bawa-Garba has faced both criminal and regulatory proceedings in the eight years that have followed. In 2015 she was convicted of gross negligence manslaughter and given a two year suspended sentence. In 2016, following the GMC’s successful appeal to the Divisional Court, Dr Bawa-Garba’s name was erased from the medical register. It was that decision that was subject of the most recent appeal.
CASE HISTORY
February 2011 – Death of Jack Adcock
On 18 February 2011 Jack Adcock, a six year old boy, became seriously ill and was admitted to Leicester Royal Infirmary Hospital at 10.15am. Jack was under the care of Dr Bawa-Garba, the most senior junior doctor on duty, and two nurses. He was treated for gastro-enteritis and dehydration and, later, pneumonia. In fact, Jack had pneumonia when admitted to hospital, which caused his body to go into septic shock and his organs to fail. At 9.20pm Jack died.
November-December 2015 – Criminal Trial and Sentence
In November 2015 Dr Bawa-Garba, together with the two nurses on duty, stood trial for gross negligence manslaughter. It was argued by the Crown that Dr Bawa-Garba’s numerous failings in her care of Jack fell far below the standard of care expected and contributed to his death.
The jury was directed that the prosecution had to show that Dr Bawa-Garba’s actions were truly exceptionally bad. On 4 November 2015, Dr Bawa-Garba and one of the nurses were convicted of gross negligence manslaughter.
Dr Bawa-Garba was sentenced on 14 December 2015 to a two year sentence of imprisonment, suspended for two years. She appealed, unsuccessfully, to the Court of Appeal.
February and June 2017 – Regulatory Hearing
In February 2017 the MPT convened to hear Dr Bawa-Garba’s regulatory case. Under Fitness to Practise Rule 34, a certificate of conviction is conclusive evidence of the offence committed. Although the MPT found that Dr Bawa-Garba had remediated her clinical failings, they decided a finding of impairment was required to maintain public confidence in the profession.
In June 2017, the MPT imposed a twelve month suspension. In reaching this decision they took into account Dr Bawa-Garba’s otherwise unblemished record and good character, the multiple systemic failures identified at the hospital, that her actions were not deliberate or reckless, the significant and substantial insight demonstrated, Jack’s vulnerability and the sustained duration of her failures.
The MPT concluded that “a fully informed and reasonable member of the public would view suspension as an appropriate sanction, given all the circumstances of your case. It was therefore satisfied that the goal of maintaining public confidence in the profession would be satisfied by suspension of your registration.”
The MPT considered erasure but decided, balancing the circumstances of the case, it would be disproportionate.
December 2017
In December 2017, the GMC’s appeal of the MPT’s sanction decision was heard in the Divisional Court. Ouseley J and Gross LJ allowed the appeal, quashing the suspension and substituting it with a sanction of erasure from the medical register.
The Divisional Court found that the MPT had not given the jury’s verdict full respect or appropriate weight, reaching their own less severe view of her culpability instead.
The Divisional Court found that the MPT’s conclusion that the public would consider suspension sufficient was “simply wrong”, finding that in cases where a patient has died as a result of a doctor’s gross negligence, it would require stronger circumstances than those present for suspension to be sufficient to maintain public confidence in the profession.
COURT OF APPEAL JUDGMENT
On 14 August 2018 the Court of Appeal allowed Dr Bawa-Garba’s appeal, setting aside the decision of the Divisional Court to erase her name from the medical register, and reinstating the MPT’s decision to impose a twelve month suspension.
There were five grounds of appeal which the Court of Appeal addressed under two heads – (1) the Divisional Court was wrong on a point of principle, and (2) that the Divisional Court was wrong to conclude that erasure was the only sanction open to the MPT.
The GMC argued that the Divisional Court had been correct to conclude that the MPT has reduced Dr Bawa-Garba’s culpability to a lower level than that which the jury must have found – a level categorised by the trial judge as “truly exceptionally bad”. It was argued that such a finding was not permissible, as the MPT is bound by Fitness to Practise Rule 34(3), which states that a certificate of conviction is conclusive evidence of the offence committed. Mr Hare, for the GMC, also argued that the MPT was wrong to consider evidence of systemic failings of the Trust and the failings of others, as this was evidence before the jury at trial.
Under this first head of appeal, the Court of Appeal rejected the GMC’s arguments. Firstly, they found that it was proper for the MPT to take consider the failings of the Trust as these were only peripheral issues during the trial.
Secondly, and more significantly, the Court of Appeal concluded:
“…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…the decisions of the Crown Court and the MPT are taken by different bodies, with different functions, addressing different questions and at different times.”
Thirdly, they found that the MPT’s considering the Trust’s failings and personal mitigation when deciding sanction was no different from the trial judge considering these same factors when determining that a suspended sentence was the appropriate sentence.
Therefore, the Court of Appeal concluded that the MPT had not disrespected the jury’s decision and, as such, the Divisional Court’s finding that they had done so was wrong in principle.
Under the second head of appeal, the Court of Appeal was conscious that the Sanctions Guidance uses “permissive, not mandatory” language, and that the MPT are an “expert panel, familiar with this type of adjudication” who are “best equipped to determine questions as to the sanction that should be imposed” and “it is the body which is best qualified to just what measures are required to maintain the standards and reputation of the profession.”
The Court of Appeal found that the Divisional Court had adopted an impermissible approach – a presumption of erasure in cases where serious harm was caused to patients through incompetence, even where there was no continuing risk to patients.
They concluded that, whilst in some cases erasure will be the only proper sanction, that this was not one of them. The factors the MPT had considered when they reached the conclusion that suspension was appropriate included: (1) the failings of others and the systemic failings of the Trust; (2) except for this case, no concerns had been raised about Dr Bawa-Garba’s clinical competency; (3) the MPT had heard evidence that she was an excellent doctor; (4) she had remedied the deficiencies in her clinical skills; (5) the risk of future harm to patients was low; and (6) she was honest, reliable and had demonstrated significant and substantial insight.
The Court of Appeal stressed that, when considering public confidence in the profession, the standard was of “an informed and reasonable member of the public” and “the ordinary intelligent citizen who appreciates the seriousness of the proposed sanction, as well as the other issues involved in the case.”
Therefore, as the expert body best placed to determine decisions on sanction, the MPT had not been wrong, erasure was not the only sanction properly and reasonably open to it.
The Court of Appeal allowed the appeal, restoring the twelve month suspension imposed by the MPT.
OPINION
One of the difficulties facing the Court of Appeal in this case was the extent to which the jury’s verdict impacted upon the MPT when determining sanction. The Divisional Court found that the MPT had disrespected the jury’s decision and substituted with their own finding of a lower level of culpability. This is prohibited under Rule 34(3).
However, the Court of Appeal’s wider and more liberal approach to this issue should perhaps be commended. The jury in a criminal trial and the MPT in regulatory proceedings are performing different functions both in terms of their role and their aims. A jury looks at past conduct, the MPT looks to present impairment and future risk to the public. Further, the rules of evidence and the burden of proof are different. Approaching this issue narrowly, as the Divisional Court did, fails to recognise these many important and fundamental differences and risks injustice.
Another issue which the Court of Appeal grappled with, albeit briefly, is the difficult balance to be struck when assessing the public interest. Should a competent doctor who is capable of providing a valuable service to the public, and who is assessed to be of no risk to the public, be erased from the medical register merely in order to maintain public confidence in the profession? Would that be in the public interest?
The Court of Appeal noted that the public interest was to be measured by the standard of a well-informed, reasonable, ordinary intelligent citizen who appreciates all of the issues in the case. In our current climate, where social media allows pretty much anyone to express an opinion - often an uninformed, unreasonable opinion - perhaps the Court of Appeal felt such a caveat was necessary in order to conclude the balance is struck in favour of suspension rather than erasure.
And so it comes to pass that a doctor who had been found to be culpable in the death of a child was ultimately not erased from the profession. Whether this decision was a correct one or not is something that members of the public may have profoundly different views about. What is perhaps clearest of all from the case, however, is that previous presumptions that certain types of conduct were fundamentally ‘beyond the pale’ no longer hold. Professional regulation is ever more complex, outcomes ever less certain.
Kevin has an established practice within the field of professional regulation and discipline, with a particular emphasis on cases involving probity concerns and fraud. In these Kevin draws upon considerable experience in acting in criminal cases concerning medical professionals.
Sarah Fairbairn is a second-six pupil in chambers with a strong interest in developing a practice within the fields of crime and professional regulation and discipline.
