August 14, 2018

Dr Bawa-Garba: a rebalancing of respect for tribunal decisions?

The case of Dr Bawa-Garba has scarcely been out of the news over the past three years. This week's Court of Appeal decision to allow her appeal against erasure may prove to be the last chapter for Dr Bawa-Garba. It may also have a lasting impact on how much respect is given to the original tribunal decision when that is appealed. It also underscores the importance of balancing the evidence on public interest – including evidence that the doctor's future services will be valuable to society.

Background

On 4 November 2015 Dr Bawa-Garba was convicted of gross negligence manslaughter following the death of Jack Adcock in February 2011.

On 13 June 2015 a Medical Practitioners Tribunal Service (MPTS) Fitness to Practise panel had suspended Dr Bawa-Garba's registration for one year. Following the conviction, the General Medical Council (GMC) successfully appealed that decision on the basis that it was too lenient. The court considered that the tribunal had been wrong to take into account that there were systemic failings of the hospital and that Dr Bawa-Garba shared with others the responsibility for failings in the care and treatment of Jack. Given the decision of the jury as to Dr Bawa-Garba’s personal culpability, the tribunal was wrong to think that public confidence in the profession could be maintained by any sanction short of erasure.

Court of Appeal

The Court of Appeal reiterated the well-versed principle that when an appeal is a review of the multi-factorial decision of a specialist body, the appeal court should be slow to intervene.

A court should only interfere with an evaluative decision if (1) there was an error of principle in carrying out the evaluation, or (2) it was a decision which fell outside the bounds of what the body could properly and reasonably decide. Neither of these grounds applied in this case.

The court rejected the GMC’s contention that the tribunal reduced the level of Dr Bawa-Garba’s culpability below that which had been found by the jury by taking into account evidence of systematic failings by the hospital and others:

  • The failures on the part of the Trust were only ever of peripheral relevance to the guilt of Dr Bawa-Garba for gross negligence manslaughter.
  • There was a fundamental difference between the task of the jury and that of the tribunal.
  • Different degrees of culpability are capable of satisfying the requirements of gross negligence manslaughter. The tribunal was entitled to take into account the systematic failings. In doing so it was not disrespecting the jury's verdict.

The tribunal had made no error of principle.

The court further held that none of the provisions of the MPTS Sanction Guidance required the erasure of Dr Bawa-Garba. An appropriate and proportionate sanction always depends on the facts of the particular case. This was not a case where the facts were such that erasure was the only proper and reasonable sanction. The tribunal plainly had in mind its overriding obligation to protect the public for the future and the sanction of suspension was one properly open to it.

The court was particularly critical of Mr Justice Ouseley proceeding on the basis of a presumption that a conviction for manslaughter by gross negligence should lead to erasure in the absence of exceptional circumstances.

The role of the tribunal

The court concluded that the tribunal was an expert body entitled to reach the decision that the risk of future harm was low, that the doctor was honest and reliable and that she had demonstrated insight. The tribunal was right to consider that an important factor was that Dr Bawa-Garba is a competent and useful doctor, who presented no material danger to the public, and could provide considerable useful service to society.

Giving the respect due to the tribunal as an expert body, there were no grounds for the court holding that the sanction decision was wrong because the only sanction properly and reasonably available was erasure.

The Court of Appeal has now remitted the matter to the MPTS to review her suspension.

The judgement acts as another reminder of the weight to be placed on a tribunal's decision having heard the evidence first-hand and carrying out an expert role. It also highlights that public interest can point towards a doctor returning to practise, rather than being prevented from doing so.

To view our previous articles on Fitness to Practise tribunals, click here