In the much publicised decision in the case of Bawa-Garba (Appellant) v General Medical Council (Respondent)  EWCA Civ 1879
, the UK Court of Appeal has unanimously allowed the appeal of Dr Bawa-Garba to set aside the decision of the UK High Court to erase Dr Bawa-Garba from the Medical Register of the General Medical Council (“the GMC”). The Court of Appeal has restored the decision of the Medical Practitioners Tribunal (“the Tribunal”) that she be suspended from the Medical Register for a period of 12 months subject to review.
Background and Criminal Proceedings
In February 2011, Dr Bawa-Garba was a junior doctor specialising in paediatrics. She was employed in the children’s assessment unit of Leicester Royal Infirmary Hospital and had recently returned to practice as a Registrar after 14 months of maternity leave.
On Friday 18 February 2011, Jack Adcock, a six year old boy with Down Syndrome, was admitted to the children’s assessment unit having been very unwell. Jack was initially treated for acute gastro-enteritis and dehydration upon admission, whereas in fact, Jack had been suffering from pneumonia when he was admitted to hospital. The pneumonia caused his body to go into septic shock, which resulted in organ failure, and Jack died.
In November 2015, Dr Bawa-Garba was convicted of manslaughter by gross negligence in respect of Jack and given a 2 year suspended jail sentence.
The Medical Practitioners Tribunal Service
Following conclusion of the criminal proceedings, the Medical Practitioners Tribunal Service considered the matter in June 2017. The Tribunal recommended that Dr Bawa-Garba be suspended from the Medical Register for 12 months, rejecting a request from the GMC to have Dr Bawa-Garba erased from the Register. By that time, Dr Bawa-Garba had practised safely for the four years following the original incident and the Tribunal found that the doctor’s “clinical failings, serious as they were, had been remedied, leaving a low risk of future harm”.
Subsequently, the GMC, believing that the decision of the Tribunal was too lenient, appealed the decision of the Tribunal to the High Court.
High Court decision
The High Court found that Dr Bawa-Garba’s “failings on that day were truly exceptionally bad". The High Court ultimately decided “the Tribunal was wrong and that the appropriate sanction must be erasure rather than suspension.”
This decision of the High Court resulted in universal condemnation by the medical profession and an urgent review was ordered by former UK Health Secretary Jeremy Hunt regarding medical malpractice cases in light of this case to seek clarity between cases of gross negligence and ordinary errors by medics.
Dr Bawa-Garba, in turn, appealed this decision of the High Court to the Court of Appeal.
Court of Appeal decision
On 13 August 2018, a three member sitting of senior judges in the Court of Appeal quashed the High Court decision and restored the sanction of a suspension for Dr Bawa-Garba from the Medical Register for a period of 12 months, subject to review.
The court of appeal made a number of interesting points when setting out the reasoning for their decision;
- An appeal court should only interfere with an evaluative decision if “(1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, in the sense that it was a decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide”. Neither ground applied in the present case to the decision of the Tribunal.
- The Tribunal were tasked with protecting the public and deciding an appropriate sanction to meet that objective. The jury in the criminal trial had a different task, that is, to determine Dr Bawa-Garba’s guilt or absence of guilt having regard to her past conduct.
- The Tribunal was entitled to take into account in determining sanction systemic failures in the Hospital as well as personal mitigating factors on the part of Dr Bawa-Garba.
Whilst this is a decision of the UK Court of Appeal, it will undoubtedly be of interest to all regulators in Ireland in determining relevant factors to consider in making decisions on sanction.
The judgment of the Court of Appeal can be accessed here.