Lawyers must fix the problems with gagging orders before it is too late
This decision is one that regulatory lawyers like me have been waiting for. I have blogged on this case previously; and as such the underlying facts can be reviewed here.
On 25 and 26 July 2018, the Court of Appeal (CoA) consisting of Lord Burnett, the Lord Chief Justice, Sir Terence Etherton, the Master of the Rolls, and Lady Justice Rafferty considered Dr Bawa-Garba’s appeal against erasure from the medical register. The appeal to the CoA followed the GMC’s use of its power under section 40 of the Medical Act 1983, which led the High Court to review the decision of the Medical Practitioners Tribunal (MPT) which considered Dr Bawa-Garba’s case, imposing a suspension. The High Court replaced the suspension imposed by the MPT with erasure.
The central issue as stated in paragraph two of the CoA judgement is: ‘… the proper approach to the conviction of a medical practitioner for gross negligence manslaughter in the context of fitness to practise sanctions under the Medical Act 1983 (“MA 1983”) where the registrant does not present a continuing risk to patients’.
In summary, the grounds of appeal were as follows:
Ground 1: the High Court (the Court) erred by applying a presumption that a conviction of manslaughter by gross negligence should lead to erasure save in exceptional circumstances;
Ground 2: the Court erred by failing to appreciate the discrete roles of the jury and the MPT;
Ground 3: the Court unlawfully substituted its own judgment for that of the MPT as to the circumstances of the case in respect of the MPT’s decision that suspension was ‘sufficient to maintain public confidence in the profession and its procedures for maintaining its professional standards’;
Ground 4: the Court erred in deciding that the MPT could not take into account the evidence of systemic failures in the Hospital on the day in question; and
Ground 5: the Court’s reached an irrational conclusion as to erasure being the only sanction open to the MPT in the circumstances.
As aptly set out by the CoA at paragraph 87, there will obviously be cases where the ‘facts are such that the most severe sanction, erasure, is the only proper and reasonable sanction. This is not one of them’.
The CoA concluded that the Court had approached the case on the basis that: ‘erasure should be imposed if the medical practitioner has caused serious harm to a patient through incompetence, despite there being no continuing risk to patients, unless there are sufficiently significant reasons and circumstances for a lesser sanction consistent with the maintenance of public confidence in the profession and its professional standards. That amounts to a presumption of erasure in the case of such harm’, which is clearly wrong.
The CoA remitted the case back to the MPT for review of Dr Bawa-Garba’s suspension.
This case is clearly a sad one; a young patient died causing considerable distress to all those involved. Nonetheless, the decision of the GMC to use its section 40 power caused significant upset amongst doctors.
For my part, the decision of the Court, whilst well-reasoned, seemed to fail to grapple with this issue: whilst there were clearly mistakes made by Dr Bawa-Garba in the care of a sick patient, it did not strike me, having reviewed the case, that these were matters which were irremediable or that she lacked insight to a degree that she presents a real and on-going risk to patients. The GMC’s own Sanctions Guidance, at paragraph 32 states:
' ….there are some cases where a doctor's failings are irremediable. This is because they are so serious or persistent that, despite steps subsequently taken, action is needed to maintain public confidence. This might include where a doctor knew, or ought to have known, they were causing harm to patients, and should have taken steps earlier to prevent this’
How Dr Bawa-Garba met the aforementioned seems to have been lost in the course of the proceedings.
The GMC clearly has a fundamental role to play in ensuring that it protects patients, but it also very clearly cites that as the regulator of the medical profession it will help ‘improve UK medical education and practice by supporting students, doctors, educators and healthcare providers’. This case struck me as one from which there were clear learning points which the GMC could have cascaded to doctors and Trusts around the UK, especially in relation to the effect that avoidable systemic failures have on patient care and safety. One can hope the GMC will reflect upon this decision and consider how to fulfil this role, with a view to seeking to mitigate the risks of such tragic circumstances arising again.
As for Dr Bawa- Garba, she will have to face further proceedings before the MPT, before it is determined when she will be able to practise again. Regulatory lawyers like me just hope that she will be dealt with fairly, and in the context of the decision handed down by the CoA.
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