High wire walking without a mat: doctors, patient safety and public confidence

27 January 2018 by Guest Contributor

General Medical Council v.  Dr Bawa Garba, Divisional Court, 25 January 2018 – read judgment here

By Jeremy Hyam Q.C. of 1 Crown Office Row: see end of post for his involvement.

On 4^th November 2015, Dr Bawa Garba was convicted of gross negligence manslaughter of a 6 year old boy. She was sentenced to two years of imprisonment suspended for two years. On 29 November 2016 the Court of Appeal Civil Division refused her leave to appeal against her conviction.

This case concerns proceedings before the Medical Practitioners Tribunal Service (MPTS), the MPTS’s decision to suspend her, and the GMC’s successful appeal on the basis that Dr Bawa Garba should have been erased from the register.

The MPTS hearings

In February 2017 Dr Bawa Garba  appeared before the MPTS to face the charge that her fitness to practise was impaired by reason of her conviction. She duly admitted the conviction and the sentence which had been imposed. The MPTS found her fitness to practise was so impaired. The MPTS reasoned that public confidence in the profession would be undermined if a finding of impairment were not made since this was a case where the doctor’s actions had fallen so far below the standards to be expected as to result in a conviction for manslaughter in respect of which she was still under a suspended sentence. A finding was required in order to promote and maintain proper professional standards and conduct for members of the profession. A further hearing was arranged to address sanction.

At a sanction hearing in June 2017, the MPTS, having regard to its own Guidance which expressly stated that:

the purpose of the hearing is not to punish the doctor a second time for the offences they were found guilty of. The purpose is to consider whether the doctor’s fitness to practise is impaired as a result. If so, the tribunal then needs to consider whether to restrict the doctor’s registration to protect the public and to maintain the high standards and good reputation of the profession.

went on to determine that the appropriate sanction was suspension for the maximum period of 12 months with a review at the end of that period. The conclusion was reached having regard to aggravating and mitigating factors. Amongst the mitigating factors was:

the multiple systemic failures identified in the Trust investigation following the events of 18 February 2011

The GMC appeal

The GMC appealed against the decision of the MPTS to suspend on the basis that the decision was not ‘sufficient to protect the public’. It said Dr Bawa Garba ought to have been erased from the register and that the MPTS had reached a wrong conclusion because they had reached a view on the severity of offending which was at odds with the criminal conviction. It relied on the GMC (Fitness to Practise) Rules 2004 in respect of evidence, in particular Rule 34 which provides:-

(4) production of a certificate purporting to be under the hand of a competent office of a Court in the United Kingdom or overseas that a person has been convicted of a criminal offence …shall be conclusive evidence of the offence committed

(5) The only evidence which may be adduced by the practitioner in rebuttal of a conviction or determination certified in a manner specified in (3) or (4) is evidence for the person he is not the person referred to in the certificate of extract

In the lead Judgment allowing the appeal, Ouseley J. held that the MPTS had reached the wrong conclusion because it did not ‘respect the verdict of the jury as it should have”; rather it reached its own, and less severe, view of the degree of Dr Bawa Garba’s personal culpability. Gross LJ agreed summarising his conclusions in the following terms:

Notwithstanding the system failures and the failures of others, the jury convicted Dr Bawa-Garba of manslaughter by gross negligence. It necessarily follows that her failings on that day were “truly exceptionally bad”…this was not properly reflected or respected in the Tribunal’s decision on sanction…I reach this conclusion with sadness but no real hesitation.

The decision, and the lack of deference shown to the MPTS, was nonetheless a surprising one, and has received a good deal of press interest. Professor Jane Dacre responding on behalf of the Royal College of Physicians on 25 January 2018 has said:-

…we do have concerns about the impact this judgment will have on many doctors particularly trainees. We recognise that the GMC has issued guidance for doctors working in what they think are unsafe conditions – suggesting they should flag problems to their consultants and management team and have a clear paper trail to show that this has happened. However, this leaves doctors in the difficult position of being forced to choose between refusing to work in such circumstances, and therefore not only being in breach of contract but also potentially letting down patients, or risking civil or even criminal action if they do choose to work and errors or harms occur

As the Divisional Court saw it, whatever systemic failings there were acknowledged to be, Dr Bawa Garba’s own conduct had been found by a jury to be “truly exceptionally bad” (the relevant threshold for gross negligence manslaughter) and that as such, erasure was the only sanction reasonably open to the Tribunal. The crucial point relied on by Ouseley J. was that the certificate of conviction is conclusive not just of the fact of conviction, but also the basis of the jury’s conviction: she had been convicted notwithstanding evidence of systemic failures precisely because the degree of her personal responsibility was ‘truly exceptionally bad”. The full force of the Jury’s verdict had been overlooked.

Comment

There are two responses to this sad case.

The first (as the Court held) is that the Tribunal rules effectively preclude an experienced medical panel such as the MPTS from going behind a conviction for gross negligence manslaughter and taking a less severe or more contextual view of the proven wrongdoing. If that is the case, then it is difficult to envisage a case where a gross negligence manslaughter conviction by a jury will not result in erasure of the doctor concerned.

The second is that the Court was wrong and misunderstood the difference between context which was relevant to the level of personal failure, and context which was relevant to the circumstances in which that personal failure occurred and which might have mitigated or avoided the tragic outcome.

The Court considered the key error by the MPTS to be found in this passage of their decision:

“whilst your actions fell far short of the standards expected and were a causative factor in the early death of patient A, they took place in the context of wider failings”.

But having regard to the multi-disciplinary context in which doctors work, why was it not open to the Tribunal, an experienced medical panel, to conclude these wider failings were relevant to sanction? The logic of the court appears to have been that if the jury had found Dr Bawa Garba guilty of gross negligence manslaughter notwithstanding the multiple systemic failings which she put forward in mitigation, then the message the jury were sending and which the MPTS must accept was that Dr Bawa Garba’s falling short of appropriate standards was so exceptionally gross that no circumstantial mitigation could diminish its severity.

But it is worthwhile asking, rhetorically, whether that is in fact what the Jury was doing or were purporting to do? Were not the jury simply making a finding that Dr Bawa Garba’s personal failures on that morning were so seriously below those expected that they should be classed as a criminally negligent. And were the MPTS not entitled to acknowledge that that is what the conviction clearly imported but at the same time to take the view that having regard to the particular context of the offending, public confidence in the profession and the regulator would not be seriously damaged were Dr Bawa Garba to return to work only after her sentence was served, and her suspension by the MPTS ended at a review hearing where it would have to be satisfied that full insight had been regained.

 Of course it is true that the basis of the finding of impairment of fitness to practise (the gateway to the imposition of a sanction) was that such a finding was necessary to uphold confidence in the profession, but there is no inconsistency in finding impairment on the public confidence ground but concluding that a sanction short of erasure is appropriate in a given case.

Yet the Court concluded that the erasure was the only sanction properly open to the MPTS because of the MPTS sanction Guidance which suggests that erasure may be appropriate where there is:

“[103a] a particularly serious departure from the principles set out in Good Medical Practice where the behaviour is fundamentally incompatible with being a doctor”

 Or evidence of:-

“[103(c )] Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients”.

The court said:

it would require rather stronger circumstances than those present for suspension to be sufficient to maintain public confidence in that profession, and its procedures for maintaining its professional standards

This conclusion will be a daunting one for doctors faced with similar circumstances in the future. The circumstantial and personal mitigation put forward at Dr Bawa Garba’s MPTS hearing not just by the doctor herself but by her supporting employer was substantial. By definition every such gross negligence manslaughter case will be of a ‘truly exceptionally bad’ personal failure by the doctor concerned notwithstanding any surrounding mitigating circumstances since that is a necessary element of the offence. But it by no means follows that every such case should result in erasure. The Judges seem to have accepted this since they rejected the GMC’s submission that there is a presumption that a conviction for manslaughter by gross negligence should lead to erasure in the absence of exceptional circumstances. Yet the requirement for ‘rather stronger circumstances’ for it to be suspension to be sufficient to maintain public confidence’, would seem to be very little different from the ‘truly exceptional circumstances’ put forward by the GMC.

It is significant to note the very sharp contrast between the Court’s conclusion as to sanction and that of the MPTS whose reasoning relevant to the sanctions guidance concerning erasure is not reproduced in the Judgement:-

…erasure would be disproportionate. In reaching this decision, it considered paragraphs 101-105 and 126 of the Sanctions Guidance. In the judgment of the Tribunal, in all the circumstances of this case, you actions and subsequent conviction are not fundamentally incompatible with continued registration. It also concluded that public confidence in the profession would not be undermined by a lesser sanction; your actions were neither deliberate nor reckless. Although your actions resulted in the death of patient A, you do not present a continuing risk to patients. The Tribunal did not consider that your failings are irremediably, indeed it has already found that you have remedied them”

This stark difference raises once again the very difficult question of who (the Court or an expert medical panel such as the MPTS) is the right person to judge what is ‘necessary’ for the proper ‘maintenance in public confidence in the medical profession and its procedures’.

Can it really be said that removing the possibility that Dr Bawa Garba might resume practising medicine after her sentence had expired, and after her MPTS suspension had been reviewed in June 2018, some 7 years after the index events, and when the clear evidence was that she was remediated, was necessary to maintain public confidence? Or that failing to impose an erasure rather than a suspension would seriously damage public confidence? Clearly the Court thought yes, and the Tribunal no.

In trying to understand the reasons for the difference of their respective views, it is suggested that it is doubtful whether the MPTS were under any misapprehension that a conviction for gross negligence manslaughter imported a very significant departure from acceptable standards by the doctor concerns. The only real difference between the two decisions, was that the Court felt it was a necessary implication from the conviction, that the MPTS could not take any other view than that Dr Bawa Garba’s failures were truly exceptionally bad notwithstanding any circumstantial mitigation therefore they were precluded from taking into account any relevant mitigation surrounding the index events because to do so would be to go behind the conviction.

But equally it could be argued that the MPTS can be expected to have understood– because they were told – that the fact of the conviction being admitted meant that the jury had found the shortfall in standards was ‘truly exceptionally bad’ notwithstanding the mitigating circumstances of systemic failure. Yet it does not necessarily follow that the systemic failures were irrelevant considerations to the question of sanction. What the Tribunal said at paragraph 28 was:

“The Tribunal therefore determined that whilst your actions fell far short of the standards expected and were a causative factor in the early death of Patient A, they took place in the context of wider failings.”

One way of reading this is that they were saying that the context of systemic failure did not diminish the severity of the personal falling short by Dr Bawa Garba, but when considering the requirements of pubic confidence going forward in the light of her substantial remediation, it was right to recognise that in an environment where multi-disciplinary working is the norm, system failures capable of mitigating or avoiding the adverse effects of serious personal failures had been absent.

Put in more colourful language, on the facts found by the jury, the MPTS were obliged to consider that Dr Bawa Garba by dint of her ‘truly exceptionally bad’ personal failures was walking a high-wire blindfolded without a mat. Her walking the high-wire blindfolded was criminally negligent but the absence of a mat when she fell was the fault of the the hospital’s systems and those system failures also contributed to the tragic outcome, and the charge of manslaughter.

On this interpretation the Tribunal were entitled to take into account the wider failings when considering whether public confidence would be damaged if, now Dr Bawa Garba has remediated, and has been objectively assessed as posing no continuing risk to patients, she might return to work after her sentence has been served period and the suspension imposed by the MPTS completed.

Whatever view one takes, the concern raised by Professor Dacre is a real one: unsafe conditions leave doctors having to chose between refusing to work or letting patients down. If they choose to work and errors or harm occurs, they can be exposed to career-ending criminal proceedings which, if the necessary safety systems had been in place, would either be avoided or significantly mitigated.

The author represented Dr Bawa Garba in a hearing before the High Court to quash an interim order of suspension by the GMC prior to her criminal trial. He has had no involvement in her case since then and was not involved in the criminal trial or subsequent MPTS proceedings. The views here are his own and based solely on the facts as set out in the Divisional Court judgment.

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