Sticking to convictions: General Medical Council and Dr Bawa-Garba

05.04.18

On 28 March 2018 Lord Justice Simon granted leave for Dr Bawa-Garba to appeal the decision of the High Court, which substituted the original decision of suspension imposed by the Medical Practitioners Tribunal with an order for erasure. 


While the circumstances of this tragic case have been discussed and analysed at some length in the national, legal, and medical press, it is probably worth reminding ourselves of the events that led to Dr Bawa-Garba being erased from the medical register.   


Background 


A six-year-old boy with Down’s Syndrome, Jack, was admitted one morning in 2011 to the paediatric receiving unit of Leicester Royal Infirmary following an urgent GP referral. He presented with dehydration due to vomiting and diarrhoea, and respiratory problems. He was assessed by Dr Bawa-Garba, a registrar in paediatrics, whose differential diagnosis was acute gastro-enteritis. 


Dr Bawa-Garba instigated investigations. Dr Bawa-Garba was under serious pressure. This, her first shift in an acute hospital setting following her return from maternity leave, was scheduled to last 12 to 13 hours. The unit was busy and understaffed, there were many acutely ill children to treat, and an issue arose with the hospital’s electronic computer system which resulted in the late return of blood results from the lab. 


Jack’s chest x-ray disclosed pneumonia and antibiotic treatment started that afternoon. Blood test results strongly suggested infection. Jack was transferred from the receiving unit to a ward. He suffered sepsis resulting in organ failure and sadly died that evening. The post mortem certified the cause of death as systemic sepsis complicating pneumonia. 


Criminal proceedings were brought against Dr Bawa-Garba. On 4 November 2015 she was convicted by jury of manslaughter by gross negligence of Jack and sentenced to two years imprisonment, suspended for two years. She was refused leave to appeal against the conviction in November 2016.    


Fitness to practise proceedings were subsequently brought against Dr Bawa-Garba by the General Medical Council. At a hearing of the Medical Practitioners Tribunal Service (MPTS), Dr Bawa-Garba admitted that her fitness to practise was impaired by reason of her conviction. The tribunal found that her clinical care had fallen seriously below the standards expected of a competent doctor, had brought the profession into disrepute, and had breached the fundamental tenet of the profession relating to good medical care. 


In determining the sanction, the tribunal relied upon Dr Bawa-Garba’s remediation evidence and reflection, previously unblemished record, good character and the systemic issues which formed part of the wider picture of Jack’s care on the day in question.  


The GMC had argued that Dr Bawa-Garba should be erased from the register. The tribunal, however, ordered her suspension from the medical register for 12 months.  


To the surprise of many medical professionals, the GMC appealed this decision. In reaching its view, the High Court referred to the GMC’s fitness to practise rules, which state that a conviction is conclusive evidence of an offence committed. A conviction can therefore only be rebutted where the identity of the convicted person is challenged. Mr Justice Ouseley relied heavily upon the nature of Dr Bawa-Garba’s conviction. He underscored the fact that the legal test the Crown successfully proved in the criminal case was that her failings were “truly exceptionally bad”. The conviction stood as conclusive evidence of the offence meaning the seriousness of the failings was not in dispute. 


The High Court concluded that the MPTS tribunal did not attach sufficient weight to the seriousness of Dr Bawa-Garba’s conviction when considering the need to uphold public confidence in, and the proper standards of, the profession. The jury’s verdict was that Dr Bawa-Garba’s professional conduct was “truly exceptionally bad”. The mitigating systemic issues in the hospital did not diminish the seriousness of her conduct.


Interestingly, Mr Justice Ouseley rejected the GMC’s submission that there is a presumption that a conviction for manslaughter by gross negligence means erasure in the absence of exceptional or truly exceptional circumstances, but it seems this is the effect of his decision.  


What next? 


This decision sent shockwaves through the medical profession. Crowdfunding campaigns have raised in excess of £336,000 to assist Dr Bawa-Garba in her legal campaign. Many consider the decision discourages healthcare professionals from being open and honest about their clinical errors. Lawyers may be less surprised by this decision owing to the seriousness of a conviction of manslaughter by gross negligence, although the circumstances Dr Bawa-Garba found herself in were beyond challenging.


Notwithstanding the recent granting of leave to appeal, this case should underscore that tribunals must consider sanction on a case-by-case basis. This is clearly what is envisaged by the MPTS’ sanctions guidance which explicitly sets out the factors which indicate that a particular sanction is appropriate. Insight, learning, remediation, intention are all relevant. The effect of this decision should not be to encourage tribunals to impose blanket sanctions for certain types of conduct due to fear of judicial intervention, but rather to continue to take into account the circumstances of each case before it.   


Many, including the BMA, medical professionals and the medical press, have welcomed the decision to grant Dr Bawa-Garba’s appeal to the Court of Appeal.  The BMA intends to apply to intervene in the appeal to assist the court and “achieve the best possible outcome for the profession”. The wider implications of this second challenge therefore remain to be seen.  


Read more about Dr Bawa-Garba’s case and the High Court’s decision