Dr Bawa-Garba successful on appeal

The Court of Appeal unanimously allowed the appeal of by Dr Hadiza Bawa-Garba against the decision of the Divisional Court to erase her.

Following the decision of the High Court in January 2018 to substitute the original Medical Practitioner’s Tribunal (MPT) sanction of suspension for one of erasure, there was outcry from the international medical community.

The decision to erase Dr Bawa-Garba was seen as typifying a ‘blame culture’ in which doctors who make mistakes are penalised rather than being encouraged to learn from their errors and share the relevant learning with the broader medical community.

As such the High Court’s ruling generated widespread protest against the General Medical Council (GMC). It spawned a crowd-funding initiative to fund Dr Bawa-Garba’s appeal, which went on to raise in excess of £350,000 from over 11,000 donors worldwide. Many donors were medical professionals who felt that but for ‘a bad day at the office’ they too could find themselves in Dr Bawa-Garba’s shoes.

The High Court

The rationale for the decision to erase Dr Bawa-Garba proffered by the Justices presiding in the High Court was that:

  • The MPT who heard her case had failed to adequately respect the view of the jury in the criminal trial that Dr Bawa-Garba’s conduct had been ‘truly exceptionally bad’
  • The Tribunal were wrong to take into account the many systemic failures present on the day that Jack Adcock died, and
  • The Tribunal was wrong to think that the public confidence in the medical profession could be preserved by any sanction other than erasure[1]

The Court of Appeal

In overturning that prior ruling and restoring the initial sanction of a 12 month suspension, the Court of Appeal held that the Divisional Court had erroneously interfered with the evaluative decision of the MPT.

The Court stressed that for an appeal Court to intervene with the evaluative decision of an adjudicative body (in this case the MPT), there must be an error in principle in the decision reached or it must be demonstrable that the body had exceeded their proper or reasonable remit in coming to a decision. The Court held that neither ground was applicable in this case, and that the MPT, as an expert body, was best equipped to reach a decision about a doctor’s fitness to practise.

Furthermore, the Court held that the MPT was perfectly entitled to take into account the plethora of systemic failings that had contributed to the care Jack had received on the day of his death as well as Dr Bawa-Garba’s personal mitigation.

The judgment emphasised that the roles of the MPT and the Crown Court are entirely different, with the latter being concerned with deciding guilt retrospectively, and the former being occupied with looking to the future and the protection of the public and the reputation of the medical profession.

In addressing the nature of the sanction that could be properly applied in Dr Bawa-Garba’s case the Court stated that:

‘Undoubtedly, there are some cases where the facts are such that the most severe sanction, erasure, is the only proper and reasonable sanction’[2]

However, the Court elaborated that Dr Bawa-Garba’s case does represent such an instance. Moreover, their Lordships took pains to stress that no presumption of erasure exists, contrary to the approach applied by the Divisional Court in deciding to erase Dr Bawa-Garba.

In summing up, their Lordships reiterated the original findings of the MPT that Dr Bawa-Garba’s:

‘Deficient conduct in relation to the care and treatment of Jack was neither deliberate nor reckless and that she did not present a continuing risk to patients’[3]

Comment

Given the history of this case the GMC’s early public acceptance of the Court of Appeal’s decision comes as no surprise.

There can be little doubt that a decision to seek permission to appeal would have been widely criticised and would undermined the steps which the GMC has already taken in its effort to build trust with the professionals whom it regulates.

The Court of Appeal’s rejection of a presumption of erasure does not tie the hands of any future tribunal considering a similar case. It is difficult to object to the principle that a tribunal should determine the appropriate sanction taking account of the circumstances of the particular case. The decision in this case reinforces the requirement to show respect for the evaluative judgments of specialist tribunals.

For more information or guidance please contact:

Stewart Duffy
Partner
T. 
020 7227 7418
E. 
stewart.duffy@rlb-law.com

William Bainbridge
Trainee Solicitor
T.
 020 7227 7435
E.
 william.bainbridge@rlb-law.com

Footnotes
[1] [2018] EWHC 76 (Admin)
[2] [2018] EWCA Civ 1879 Paragraph 87
[3] Ibid Paragraph 92


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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