Dr Bawa-Garba wins appeal against strike off

On Monday, the Court of Appeal unanimously found in Dr Bawa-Garba's favour meaning she now is able to seek work as a Junior Doctor.

The facts

A detailed analysis of the sad facts of this case can be found in our previous article. In short, in 2011 Dr Hadiza Bawa-Garba was the junior doctor in charge of the Emergency Department and Children's Assessment Unit at Leeds Royal Infirmary on the day a six-year old boy, Jack Adcock, attended with vomiting and diarrhoea. Jack's subsequent death, of cardiac arrest caused by undiagnosed sepsis, led to Dr Bawa-Garba being convicted of gross negligence manslaughter in November 2015. Dr Bawa-Garba was given a 24 month suspended sentence (upheld by the Court of Appeal).

The General Medical Council (GMC) recommended that Dr Bawa-Garba was struck off the medical register. However, the Medical Practitioners Tribunal Service (MPTS) considered this disproportionate and instead imposed a 12-month suspension. The GMC then took the unusual step of appealing this decision to the High Court, which concluded that the MPTS had not respected the verdict of the jury in the criminal case and Dr Bawa-Garba was struck off the medical register.

Controversy

The case attracted significant attention within the medical community and many doctors have accused the GMC of acting heavy-handedly. More than £350,000 was raised to fund Dr Bawa-Garba's appeal, and more than 1,500 doctors signed a letter expressing 'deep-seated concerns' at her treatment, which they considered threatened the 'culture of openness' that is encouraged within the medical community.

Implications for the medical community

On Monday the Court of Appeal restored the MPTS's original decision not to strike Dr Bawa-Garba off the register and instead suspend her registration.

Whilst it is important to remember that this case involves the tragic death of a young boy the case has implications for the medical community as a whole:

1. The threshold is high for the Court to intervene in decisions of specialist adjudicative bodies

The Court found that it should only interfere with the decision of a specialist adjudicative body (such as the MPTS) if:

i. There was an error of principle in carrying out the evaluation; or

ii. The decision was irrational (meaning it fell outside of what could properly and reasonably be decided).

This is important as it makes clear that the Court will only intervene in extreme cases. With such a high threshold there seems little to be gained in appealing a tribunal decision, save in unusual cases like Dr Bawa-Garba's, whether you are the individual practitioner - or a third party like the GMC. In most cases the tribunal's decision (for good or bad) will be final.

2. The MPTS and the Criminal Court have different functions

The decision emphasises that the Criminal Court and a tribunal such as the MPTS have different functions. The Criminal Court was tasked with looking at Dr Bawa-Garba's past conduct and determining whether it constituted gross negligence manslaughter. The MPTS's function, on the other hand, was to look to the future and consider what sanction was most appropriate to ensure the protection of the public in all the circumstances.

The MPTS was therefore entitled to consider that, prior to Jack Adcock's treatment, no questions had ever been raised about Dr Bawa-Garba's clinical competence, and her hospital had continued to employ her (without issue) for the four years following the incident, but prior to her being charged by the police. When taking these matters into account, the MPTS were entitled to conclude Dr Bawa-Garba was not a risk to the public, even in light of her gross negligence manslaughter conviction. The MPTS had also noted the context of wider systemic failings including staff shortages and IT system failures that had delayed test results.

3. A criminal offence does not mean automatic erasure from the register 

The judgment makes clear that, even in cases where the individual practitioner has been convicted of a criminal offence, there is no 'presumption of erasure' from the register. The MPTS (or an equivalent tribunal) should consider whether a lesser sanction would be consistent with the maintenance of public confidence in the profession, and its professional standards. In Dr Bawa-Garba's case, as she was a competent and useful doctor (who presented no material continuing danger to the public, and could provide considerable useful future service to society) it was entitled to conclude a 12-month suspension was the appropriate course of action.