The Court of Appeal has handed down judgment in two important cases concerning the regulation of doctors: Dr Bawa-Garba v General Medical Council & General Medical Council v Dr Chandra. Both deal with the overarching objective but the opposing decisions merit comparison of its application to clinical failings and non-clinical misconduct.
Dr Bawa-Garba v GMC  EWCA Civ 1879
This is one of the most widely reported regulatory cases in recent decades and we anticipate that most readers will be broadly familiar with the factual background. In summary however, six-year old Jack Adcock was admitted to Leicester Royal Infirmary on 18 February 2011 and died later that day. Dr Bawa-Garba was the most senior junior doctor on duty and she initially treated Jack for acute gastro-enteritis and dehydration. She later prescribed antibiotics for pneumonia but she had failed to recognise that Jack had developed sepsis and multi-organ failure.
A jury convicted Dr Bawa-Garba of gross negligence manslaughter in December 2015. The judge ordered a two-year suspended sentence and the courts refused Dr Bawa-Garba leave to appeal against her conviction.
In February 2017 a Medical Practitioners Tribunal (“MPT”) concluded that Dr Bawa-Garba’s fitness to practise was impaired on the basis of her conviction and imposed a 12-month suspension on her registration.
The General Medical Council (“GMC”) successfully appealed the MPT’s sanction decision and the Divisional Court ordered that erasure be substituted for suspension. It found that in imposing a suspension, the MPT had failed to respect the true force of the jury’s verdict (that the failings had been “truly exceptionally bad”) thereby reducing Dr Bawa-Garba’s personal culpability.
Dr Bawa-Garba has now successfully appealed this decision of the Divisional Court and, pending a review by the MPT of originally imposed suspension, it is anticipated that she will be permitted to return to practise in due course. In summary, McCombe LJ commented:
“Undoubtedly, there are some 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. Once it is understood that it was permissible for the Tribunal to take into account the full context of Jack’s death, including the range of persons bearing responsibility for that tragedy and the systemic failings of the Trust, as well as the other matters relied upon by Dr Bawa-Garba, and that the Tribunal plainly had in mind its overriding obligation to protect the public for the future, in the tri-partite sense stated in section 1(1B) of MA 1983, it is impossible to say that the suspension sanction imposed by the Tribunal was not one properly open to it and that the only sanction properly and reasonably available was erasure.” 
GMC v Dr Chandra  EWCA Civ 1898
Dr Chandra’s name was erased from the medical register in 2008 following inappropriate, consensual sexual activity with a patient. In 2016, Dr Chandra applied to be restored to the medical register and the MPT allowed his application on the basis that he had developed insight and remorse, and presented a very low risk to patient safety.
The GMC was unsuccessful in appealing the MPT’s decision at the High Court however, the Court of Appeal has now allowed their appeal. The case is due to be remitted to the MPT for a further determination. In allowing the appeal, the Court of Appeal concluded that,
“90. Read overall, the focus of the Tribunal was limited to issues of the applicant’s acceptance of his wrongdoing, his insight, the risk of repetition and his competence. The MPT did not address, or address adequately, the issue of whether public confidence and professional standards would be damaged by restoring the applicant to the register, an applicant who had fundamentally fallen short of the necessary standards of probity and good conduct, by his sexual misconduct and dishonesty, albeit many years ago.”
It is significant that both judgments were handed down on the same day. The same principles apply to a sanction imposed by the MPT and a decision by the MPT to restore a doctor to the medical register.
In both cases the GMC exercised its right of appeal pursuant to section 40A of the Medical Act 1983 on the grounds that the MPT’s decision was insufficient to protect the public from the potential risk posed by the registrant.
The Court of Appeal has confirmed that if a doctor has caused serious harm either deliberately or through incompetence, then there is no automatic presumption of erasure from the medical register. Every case will turn on its own facts; however it is clear from these two judgments that isolated clinical errors, occurring in the context of an unblemished career, where contextual issues have played a role, are less likely to result in erasure, whereas non-clinical misconduct, and in particular sexual misconduct, may be more likely to attract a sanction of erasure.
In cases where a registrant is convicted of a criminal offence, the tribunal performs a very different task to that of a jury. A jury assesses culpability and determines guilt ‘beyond reasonable doubt’ based on past events, whereas a tribunal must also look to the future and determine what sanction would most appropriately meet the statutory objectives of protecting the public and promoting and maintaining proper professional standards and conduct, and public confidence in the profession.
Although the jury convicted Dr Bawa-Garba on the basis that her conduct was ‘truly exceptionally bad’, the criminal judge was entitled, when passing sentence, to attach appropriate weight to any mitigating/aggravating factors. That resulted in a relatively lenient sentence for Dr Bawa-Garba. The Court of Appeal considered that a regulatory tribunal reviewing that conviction was also entitled to take into account any such mitigating factors, provided that in doing so it acknowledges the facts upon which the jury based their decision and does not undermine the jury’s verdict in any way.
The Court of Appeal has confirmed that, as a panel of experts, a tribunal is the most suitable adjudicator to determine whether a doctor is fit to practise and the appropriate sanctions. For instance, the MPT is acutely aware of the wider systemic issues that junior doctors are facing and it is able to assess mitigating/aggravating factors without undermining a jury’s assessment of a registrant’s personal culpability.
The BLM Healthcare team frequently advise registrants facing criminal and disciplinary proceedings. Our advice to our clients is unlikely to change significantly in light of these judgments, albeit that they assist in clarifying the role of the regulator in such cases. We would always advise clients to put forward all relevant mitigation, context, reflection and remediation for consideration by the tribunal/jury.
There has been an unprecedented degree of publicity and debate surrounding Dr Bawa-Garba’s case and the strength of feeling within the medical community cannot be ignored. Many junior doctors have become distrustful and concerned that being open and honest about mistakes could lead to punitive sanctions. It had been suggested by some that doctors will be relieved by this judgment, however it is clear that in cases where a doctor’s conduct is ‘truly exceptionally bad’ and where the necessary thresholds are met for prosecution, they will still face criminal charges and may be erased from the medical register.
The GMC’s current review of Gross Negligence Manslaughter cases and, to a degree, the recently concluded Professor Sir Norman Williams review, is expected to provide clarity on the relevant considerations for the prosecution of healthcare professionals in such difficult cases.
Co-authored by BLM Healthcare Partners Adam Weston, Clare Chapman, Jane Lang and Professional Support Chartered Legal Executive Aliyah Hussain.