Controlling and Coercive Behaviour: Widening the Net
Bawa-Garba v General Medical Council  EWHC 1277
This was an appeal against the decision of an Interim Orders Panel (the Panel) of the Medical Practitioners Tribunal Service (MPTS) on 8 January 2015 to impose an interim suspension order on Dr Bawa-Garba for 18 months pending a final determination about her fitness to practice.
Dr Bawa-Garba is a Paediatric Specialist Registrar employed by the University Hospitals of Leicester NHS Trust (the Trust). The suspension followed the death of a six year old on 18 February 2011 after his admission to Leicester Royal Infirmary. He suffered from T21 Down’s Syndrome and had atrioventricular septal defect repair when he was four year old. Dr Bawa-Garba was charged in December 2014with gross negligence manslaughter of the young boy, along with two nurses. It was only after this development that an interim suspension was ordered.
Following the death of the young boy, Dr Bawa-Garba continued her employment. In December 2014 the Trust confirmed their position in light of the manslaughter charges that had at that stage been recently brought. The Trust confirmed that they were happy to continue to employ Dr Bawa-Garba and that she had changed her role so that she no longer had patient contact (taking part in an education programme and audit projects).
The IOC hearing
Nonetheless, the GMC applied for an interim order. There are four criticisms of Dr Bawa-Garba’s practise;
Counsel for Dr Bawa-Garba argued that the appropriate and proportionate order would be one of conditions restricting the doctor to duties involving no patient contact, allowing her to carry out valuable work for the NHS in the meantime.
The Panel pointed out that the matter had first come to the attention of the GMC back in April 2012 and despite the Trust’s investigation report and a number of expert reports which made material criticisms of the Doctor, no steps had been taken to suspend her registration. The GMC were informed of the decision to charge Dr Bawa-Garba on 18 December 2014 and it was only at this stage that they applied for an order.
The Panel made it clear that following a 3 month period of supervised practice, all of Dr Bawa-Garba’s consultant supervisors were happy that she returned to full duties, and that there had been no further complaints. One doctor outlined that Dr Bawa-Garba has clearly reflected on the matter and that he was happy with her performance, concluding that she is a competent and able doctor.
The Panel nonetheless imposed an interim suspension order, citing risk to patients and risk to public confidence.
Mr Justice Knowles CBE stated that he was not able to see the particular reasons why the Panel thought that conditions would not be sufficient; they failed to state how the risk to patients would arise if conditions were in place. He further opined that their treatment of risk to the public would have the inevitable corollary of a suspension in every case where an allegation of manslaughter was to be proceeded with. He was unable to ascertain the particular reasons for the panel’s views on these matters.
It was held that it was not necessary that Dr Bawa-Garba be the subject of suspension while matters proceeded to a final hearing;
‘the mere fact of a criminal charge, even a serious one such as manslaughter, does not, in my assessment, automatically mean that suspension is necessary or appropriate; there is a judgement to be made’ 
‘in my judgement, the public, if properly informed (see Patel v GMC  EWHC 3688) can be expected to accept that a responsible and proportionate course is taken if Dr Bawa-Garba works with the Trust but without patient contact, pending her trial in the Crown Court or any termination at a final stage by the GMC’ 
It was held that the interim working conditions were ‘sensibly tailored to manage risk to patients in the meantime’. An appropriately framed conditions of practice order would have been suitable in the circumstances.
The suspension order was duly terminated.
A further reiteration of the ‘properly informed public’ test laid down in Patel v GMC. Serious criminal charges should not automatically mean that public confidence merits suspension. Further, one must afford the public the benefit of the full picture when considering what their assessment of the situation would be. The case serves also as another reminder of the need for full and detailed reasons being provided as to why lesser intervention is not suitable or sufficient.
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