Bawa-Garba v the General Medical Council [2015] EWHC 1277 (QB), Knowles JThis case concerned an appeal by Dr Bawa-Garba against an interim order of the Interim Orders Panel ("the IO Panel") of the
Bawa-Garba v the General Medical Council [2015] EWHC 1277 (QB), Knowles J
This case concerned an appeal by Dr Bawa-Garba against an interim order of the Interim Orders Panel ("the IO Panel") of the General Medical Council ("the GMC") suspending her registration for 18 months pending a final determination by the GMC in relation to her fitness to practise. Mr Justice Knowles terminated the suspension and offered interesting comments on the proper interim arrangements for registrants charged with serious crimes.
Dr Bawa-Garba is a Paediatric Specialist Registrar employed by the University Hospitals of Leicester NHS Trust ("the Trust"). It was accepted as undisputed by the IO Panel and by Knowles J that for a short period on 18 February 2011, Dr Bawa-Garba stood down resuscitation efforts on a six year old boy at Leicester Royal Infirmary because she mistakenly believed that a "do not resuscitate" order was in place for the child. The child died on the same day.
The IO Panel recorded in its determination that, following the death of the child, Dr Bawa-Garba continued her employment and the Trust carried out an investigation. The matter came to the attention of the GMC in April 2012. Expert reports provided at the request of the CPS and GMC (in April and June 2012 respectively) contained material criticisms of Dr Bawa-Garba, who was thereafter placed under close educational supervision by the Trust. The IO Panel recorded that in December 2014 the GMC was informed that Dr Bawa-Garba had been charged with Gross Negligence Manslaughter in connection with the child's death, and that the Trust continued to employ her but in a role in which she did not have patient contact.
The IO Panel had heard submissions on behalf of Dr Bawa-Garba that for reasons of proportionality, the IO Panel should make a conditions order to 'ring-fence' Dr Bawa-Garba from any contact with patients, but should allow her to continue to work in her NHS post. The GMC acknowledged that there was evidence that Dr Bawa-Garba had reflected on the case and taken steps to address deficiencies, that there were no concerns about her work and she had the confidence of colleagues and the Trust. The GMC however submitted that there was material to support four other criticisms of Dr Bawa-Garba, making the case one of multiple aspects of alleged deficiency at a concentrated point in time. The other criticisms related to the same case, in respect of an alleged failure to understand and communicate the significance of a blood result, her understanding and communication of the child's clinical condition and a failure to engage a timely cardiological opinion. Following what the chairman described as "long and difficult discussion", the IO Panel made an interim suspension order on 8 January 2015.
Knowles J could not see the IO Panel's reasoning as to why conditions would not be sufficient and why suspension was necessary. Whilst recognising that the IO Panel's decision was a question of judgment, he determined their judgment to have been wrong. He considered that although the IO Panel had rightly considered the risk to patients and the risk to public confidence, it had not considered how such risk would arise in the circumstance of conditions being imposed which prevented Dr Bawa-Garba from working with any patient contact, particularly since there was no suggestion of dishonesty or lack of integrity so as to cause concern that she would not honour any conditions imposed. He noted that the IO Panel's "treatment of risk to public confidence would lead, on the face of it, to a decision to suspend in every case where an allegation of manslaughter was to be proceeded with."
The case raises an interesting point. Referring to the 'Imposing interim orders: Guidance for the interim orders panel and the fitness to practise panel' document, Knowles J commented that "[t]he mere fact of a criminal charge, even a very serious one such as manslaughter, does not, in my assessment, automatically mean that suspension is necessary or appropriate; there is a judgment to be made." In his view, this judgment should consider whether the conduct alleged is of a type consistent with, or to be distinguished from the examples given in the guidance as circumstances in which conditions may not be adequate. He distinguished the alleged conduct of Dr Bawa-Garba from the guidance examples of alleged deliberate serious sexual offences or of a pattern of deliberate sexually inappropriate conduct. This case concerned "alleged gross negligence at a particular point in time, albeit with the most serious and tragic outcome, but coupled with evidence of later work without negligence and arrangements to restrict the duties of the practitioner…" In his view therefore, even when a serious crime is alleged, interim suspension may be disproportionate if the conduct alleged is limited to a particular time and there is no evidence of any other concerns about the registrant's practise. In such circumstances, conditions or other interim working arrangements should warrant confidence in the profession if tailored to manage risk.
It is likely that many regulators may be surprised by Knowles J's decision. The judgment can be contrasted with that of D v GMC [2015] EWHC 847 (which we blogged about here) in which Mrs Justice Lang upheld the IO Panel's interim suspension order against a doctor charged with blackmail on the basis that a reasonable member of the public would be "surprised and dismayed" to learn that his doctor was awaiting trial on a serious charge which could result in imprisonment. Perhaps in Bawa-Garba's case, it seemed possible to tailor conditions to allay public concern to the alleged misconduct in question, whereas in D's case, no conditions could achieve that objective. Nevertheless the question remains whether public understanding is as sufficiently nuanced as Knowles J assumes, in his assertion that the public, if properly informed, would accept in Bawa-Garba's case that responsible and proportionate action has been taken.
This case concerned an appeal by Dr Bawa-Garba against an interim order of the Interim Orders Panel ("the IO Panel") of the General Medical Council ("the GMC") suspending her registration for 18 months pending a final determination by the GMC in relation to her fitness to practise. Mr Justice Knowles terminated the suspension and offered interesting comments on the proper interim arrangements for registrants charged with serious crimes.
Dr Bawa-Garba is a Paediatric Specialist Registrar employed by the University Hospitals of Leicester NHS Trust ("the Trust"). It was accepted as undisputed by the IO Panel and by Knowles J that for a short period on 18 February 2011, Dr Bawa-Garba stood down resuscitation efforts on a six year old boy at Leicester Royal Infirmary because she mistakenly believed that a "do not resuscitate" order was in place for the child. The child died on the same day.
The IO Panel recorded in its determination that, following the death of the child, Dr Bawa-Garba continued her employment and the Trust carried out an investigation. The matter came to the attention of the GMC in April 2012. Expert reports provided at the request of the CPS and GMC (in April and June 2012 respectively) contained material criticisms of Dr Bawa-Garba, who was thereafter placed under close educational supervision by the Trust. The IO Panel recorded that in December 2014 the GMC was informed that Dr Bawa-Garba had been charged with Gross Negligence Manslaughter in connection with the child's death, and that the Trust continued to employ her but in a role in which she did not have patient contact.
The IO Panel had heard submissions on behalf of Dr Bawa-Garba that for reasons of proportionality, the IO Panel should make a conditions order to 'ring-fence' Dr Bawa-Garba from any contact with patients, but should allow her to continue to work in her NHS post. The GMC acknowledged that there was evidence that Dr Bawa-Garba had reflected on the case and taken steps to address deficiencies, that there were no concerns about her work and she had the confidence of colleagues and the Trust. The GMC however submitted that there was material to support four other criticisms of Dr Bawa-Garba, making the case one of multiple aspects of alleged deficiency at a concentrated point in time. The other criticisms related to the same case, in respect of an alleged failure to understand and communicate the significance of a blood result, her understanding and communication of the child's clinical condition and a failure to engage a timely cardiological opinion. Following what the chairman described as "long and difficult discussion", the IO Panel made an interim suspension order on 8 January 2015.
Knowles J could not see the IO Panel's reasoning as to why conditions would not be sufficient and why suspension was necessary. Whilst recognising that the IO Panel's decision was a question of judgment, he determined their judgment to have been wrong. He considered that although the IO Panel had rightly considered the risk to patients and the risk to public confidence, it had not considered how such risk would arise in the circumstance of conditions being imposed which prevented Dr Bawa-Garba from working with any patient contact, particularly since there was no suggestion of dishonesty or lack of integrity so as to cause concern that she would not honour any conditions imposed. He noted that the IO Panel's "treatment of risk to public confidence would lead, on the face of it, to a decision to suspend in every case where an allegation of manslaughter was to be proceeded with."
The case raises an interesting point. Referring to the 'Imposing interim orders: Guidance for the interim orders panel and the fitness to practise panel' document, Knowles J commented that "[t]he mere fact of a criminal charge, even a very serious one such as manslaughter, does not, in my assessment, automatically mean that suspension is necessary or appropriate; there is a judgment to be made." In his view, this judgment should consider whether the conduct alleged is of a type consistent with, or to be distinguished from the examples given in the guidance as circumstances in which conditions may not be adequate. He distinguished the alleged conduct of Dr Bawa-Garba from the guidance examples of alleged deliberate serious sexual offences or of a pattern of deliberate sexually inappropriate conduct. This case concerned "alleged gross negligence at a particular point in time, albeit with the most serious and tragic outcome, but coupled with evidence of later work without negligence and arrangements to restrict the duties of the practitioner…" In his view therefore, even when a serious crime is alleged, interim suspension may be disproportionate if the conduct alleged is limited to a particular time and there is no evidence of any other concerns about the registrant's practise. In such circumstances, conditions or other interim working arrangements should warrant confidence in the profession if tailored to manage risk.
It is likely that many regulators may be surprised by Knowles J's decision. The judgment can be contrasted with that of D v GMC [2015] EWHC 847 (which we blogged about here) in which Mrs Justice Lang upheld the IO Panel's interim suspension order against a doctor charged with blackmail on the basis that a reasonable member of the public would be "surprised and dismayed" to learn that his doctor was awaiting trial on a serious charge which could result in imprisonment. Perhaps in Bawa-Garba's case, it seemed possible to tailor conditions to allay public concern to the alleged misconduct in question, whereas in D's case, no conditions could achieve that objective. Nevertheless the question remains whether public understanding is as sufficiently nuanced as Knowles J assumes, in his assertion that the public, if properly informed, would accept in Bawa-Garba's case that responsible and proportionate action has been taken.