Bawa-Garba v The General Medical Council & Ors

An appellate court should interfere with a specialist disciplinary tribunal’s evaluative sanction only where the tribunal made an error of principle or reached a decision outside the bounds of what it could properly and reasonably decide.

A criminal conviction conclusively establishes the offence, but it does not determine the appropriate professional sanction. The tribunal may consider systemic failings, personal mitigation, remediation and future risk, provided that it does not contradict facts necessarily established by the conviction.

Sanctions must protect the public in the three senses identified by section 1 of the Medical Act 1983. Neither a conviction for gross negligence manslaughter nor serious harm caused through incompetence creates a presumption of erasure. The sanction must remain proportionate to the circumstances of the individual case.

Dr Bawa-Garba was convicted of gross negligence manslaughter following the death of a child under her care. The Medical Practitioners Tribunal found her fitness to practise impaired but concluded that her clinical deficiencies had been remedied, that she presented no continuing risk to patients and that her conduct was neither deliberate nor reckless. It imposed a 12-month suspension rather than erasure.

The General Medical Council appealed under section 40A of the Medical Act 1983. The Divisional Court, in [2018] EWHC 76 (Admin), quashed the suspension and directed erasure. It considered that the Tribunal had failed to give proper effect to the jury’s finding that the doctor’s negligence was truly exceptionally bad.

The central questions before the Court of Appeal were whether the Tribunal had improperly contradicted the criminal verdict by considering systemic and personal mitigating circumstances, and whether erasure was the only sanction properly and reasonably available.

1. Appeal allowed. The Divisional Court’s decision was set aside, the Tribunal’s suspension decision was restored and the matter was remitted to the Medical Practitioners Tribunal Service for review of the suspension.

2. An appeal under section 40A of the Medical Act 1983 is by way of review. A sanction selected by a specialist tribunal is an evaluative, multi-factorial decision. An appellate court may interfere where the tribunal made an error of principle or reached a decision outside the bounds of what it could properly and reasonably decide. Particular respect is due to a tribunal with relevant professional expertise and experience.

3. The Tribunal made no error of principle. Rule 34(3) made the certificate of conviction conclusive evidence of the offence, but the jury and the Tribunal performed fundamentally different functions. The jury determined criminal guilt by reference to past conduct. The Tribunal had to determine prospectively which sanction would protect the public, maintain public confidence and uphold professional standards under section 1(1B) of the Medical Act 1983.

   The Tribunal was therefore entitled to consider systemic failings, the responsibility of others and personal mitigation, even where some of those matters had featured at trial. Those considerations did not contradict any fact necessarily established by the conviction. The Tribunal’s description of the conduct as falling far short of expected standards did not show that it had downgraded the jury’s assessment.

4. The GMC’s Sanctions Guidance was useful non-statutory guidance which tribunals should consult. Its application depended on the circumstances of the case. Its language did not mandate erasure where serious harm had been caused through incompetence. The appropriate and proportionate sanction always depended on the individual facts.

5. There was no presumption that a conviction for gross negligence manslaughter, or serious harm caused through incompetence, required erasure unless exceptional circumstances justified a lesser sanction. The Divisional Court’s reasoning had in substance applied such a presumption.

   The expert Tribunal was entitled to give weight to the doctor’s remediation, safe subsequent practice, insight, competence, lack of deliberateness or recklessness, absence of continuing risk and capacity for useful future service. Its conclusion that suspension was sufficient to protect the public and maintain confidence was properly and reasonably open to it.

• Court of Appeal (Civil Division): In Bawa-Garba v The General Medical Council & Ors [2018] EWCA Civ 1879, allowed the doctor’s appeal, set aside the Divisional Court’s decision, restored the Tribunal’s suspension decision and remitted the matter for review.

• Divisional Court: In [2018] EWHC 76 (Admin), allowed the General Medical Council’s appeal, quashed the 12-month suspension and substituted erasure from the Medical Register.

• Medical Practitioners Tribunal: Found the doctor’s fitness to practise impaired but imposed an immediate 12-month suspension, subject to review, rather than erasure.