The High Court’s decision in GMC v. Dr Bawa-Garba  EWHC 76 (Admin), handed down on 25th January 2018, has raised significant concerns in the medical community. The morning after the judgment the Health Secretary took the unusual step of expressing concerns regarding the possible impact of the judgment in interviews and on twitter.
The case concerns a junior doctor specialising in paediatrics (“BG”) who, in November 2015, was convicted of manslaughter by gross negligence of a 6 year old boy. Her sentence was two years suspended imprisonment. The Medical Practitioners Tribunal subsequently found that BG’s practise was impaired, and duly suspended her from practice for one year. The General Medical Council (“GMC”), on the other hand, considered this sanction to be too lenient: it appealed and argued that the Tribunal should have ordered that BG be erased from the register, never to practice again. The Divisional Court comprising Gross L.J. and Ouseley J. agreed with the GMC and ordered BG be erased from the register. In this article we will explain the processes and reasoning that led to the High Court’s judgment. We will also examine the wider implications of the judgment for medical practitioners.
In the aftermath of the tragic events that gave rise to this sad case, BG was initially informed by the Crown Prosecution Service that she would not be prosecuted. However, following an inquest, the CPS reconsidered its decision. BG was charged and convicted of gross negligence manslaughter at Nottingham Crown Court. In R v. Sellu  EWCA Crim 1716 the Court of Appeal explained that the test for gross negligence manslaughter is whether an individual’s conduct was “truly exceptionally bad and was such a departure from [the standard of a reasonably competent doctor] that it consequently amounted to being criminal”. This was the test the jury had to apply to BG’s individual conduct leading up to her patient’s death. She was convicted by a majority.
The Court of Appeal refused BG leave to appeal her conviction. The judgment of Sir Brian Leveson P. recounts BG’s individual failings in detail ( EWCA Crim 1841, paras 12 – 16). Importantly, from paras. 14, 17 and 18 of the same judgment, it is also clear that, as part of BG’s defence, evidence of various “systemic failings” affecting the Trust that day was placed in front of the jury. The systemic problems included failures on the part of the nurses and consultants, staff shortages, IT failures, deficiencies in handover, and no automatic consultant review.
Following the criminal proceedings, BG appeared before the Medical Practitioners Tribunal (“MPT”). By that time, BG had practised safely for four years following the original incident. The Tribunal had found that BG’s “clinical failings, serious as they were, had been remedied, leaving a low risk of future harm” (High Court, para. 18). The MPT also laid great emphasis on expert oral evidence which highlighted once again those wider systemic failures present on the day.
The MPT considered whether BG should be permanently erased from the Medical Register. It concluded that erasure would be disproportionate, and that a fully informed and reasonable member of the public would view suspension as an appropriate sanction (para. 23). It held that suspension was sufficient to maintain public confidence in the profession and proper standards.
The MPT’s focus on the systemic failings of the Trust—as opposed to BG’s individual negligence—came in for heavy criticism from Ouseley J. in the High Court. He explained (at para. 40) that, as BG’s personal conduct had been found to be “truly exceptionally bad” by a jury, it was difficult to see how the systemic factors raised, which the jury rejected as a defence, could play such a significant role in the Tribunal’s decision. The High Court held that the Tribunal “did not respect the true force of the jury’s verdict nor did it give it the weight required when considering the need to maintain public confidence in the profession and proper standards” (para. 38). Ouseley J. went on to reiterate the correct approach to these issues: that the certificate of conviction is conclusive not just of the fact of conviction—it is the basis of the jury’s conviction which must also be treated as conclusive (para. 41). The High Court observed that there were two systemic failings that had not been explored before the jury at the criminal trial, but accepted Counsel for the GMC’s submission that they could not have affected the verdict (para. 45).
As for the point that BG had redeemed herself and practised safely for several years subsequently, and that she posed no continuing risk: Ouseley J. held at para. 49 that the Sanctions Guidance (at [103.c]) envisages a situation where erasure can be imposed absent continuing risk where serious harm has been caused to a patient through incompetence: “The crucial issue on sanction, in [a gross negligence manslaughter case], is whether any sanction short of erasure can maintain public confidence in the profession and maintain its proper professional standards and conduct” (para. 49). Where a jury had made findings of “truly exceptionally bad failings” it was difficult to see how any sanction short of erasure would do. Stronger circumstances than BG’s remediation would have been required in order to maintain public confidence in the profession, and its procedures for maintaining its professional standards (para. 50).
There have been two principle concerns raised in the aftermath of the High Court judgment. The first concerns the systemic failings on the part of the NHS Trust. On 29 November 2017 the British Medical Journal reported the view of one professional—who happened to also give evidence in support of BG at her trial—as saying “the criminalisation of medical error when events are considered singularly rather than as a part of a highly complex system is going to seriously impede learning”. Concerns have been expressed that an individual has been singled out for sanction unfairly, rather than looking at the systemic pressures and inadequacies of an overstretched health service and how this impacts on medical standards.
The second concern was raised by the Secretary of State for Health. In the aftermath of the judgment he took to Twitter and the Today programme, and spoke about possible “unintended consequences” arising from the ruling: “For patients to be safe, we need doctors to be able to reflect completely openly and freely about what they have done, to learn from mistakes, to spread best practice around the system, to talk openly with their colleagues”. The implication is that the High Court ruling might hamper this process. A petition letter signed in support of BG by some 700 practitioners points to the 2001 joint declaration by the Government and the medical profession which recognised that “honest failure should not be responded to primarily by blame and retribution, but by learning and by a drive to reduce risk for future patients.”
This tragic case has been the subject of intense media scrutiny. In our view, in order to understand the judgment in its proper context, it is crucial to bear in mind both the statutory role of the GMC in bringing the appeal, and the legal tests that the High Court was required to apply to the case.
As noted by Ouseley J., under section 1A the Medical Act 1983, the GMC’s statutory over-arching objective is the protection of the public. They may appeal an MPT decision under section 40A of that Act if they consider that the decision “is not sufficient for the protection of the public.” That entails consideration of whether the decision is sufficient: (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession. Ouseley J. (at para. 8) set out the relevant principles as per Sharp L.J. in GMC v. Jagjivan and PSA  EWHC 1247 (Admin). Those recognise that, whilst the appeal court will generally not have the professional expertise of the Tribunal, and so should approach its determinations with diffidence, there is a class of cases where the court “is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal…”: Council for the Regulation of Healthcare Professionals v. GMC and Southall  EWHC 579 (Admin);  Lloyd’s Rep Med 365, at para. 11. Further, and crucially here, because in regulatory proceedings the overarching concern of the regulator is the protection of the public, matters of mitigation in individual doctor’s cases are likely to be of less concern compared to a court imposing retributive justice—such as the crown court.
It is in this context that the High Court found that the MPT had not given sufficient weight to the jury’s finding that BG’s own errors were “truly exceptionally bad”. There may be some room for criticism of the judgment on the ground that, although Ouseley J. insisted (para. 40) that there was no overt presumption of erasure on the back of a conviction for gross negligence manslaughter, it is difficult to read the judgment as a whole not creating that same presumption implicitly. On the whole, however, the judgment was faithful to the relevant principles of its jurisdiction. The court was operating within a regulatory legal framework in which public confidence in the system outweighs concerns of personal mitigation.
That is not, of course, to invalidate the very real concerns felt by medical practitioners working in an overstretched National Health Service. The reasoning behind Jeremy Hunt’s tweet seems to be that the threat (or implicit presumption) of erasure in such cases will prevent doctors from speaking freely about their experiences. But that logic cannot be confined to MPT proceedings alone. If it applies, then it must be equally if not more true in the threat of a criminal prosecution and a sentence of imprisonment.
This wider context reveals that the real debate which arises from BG’s case is not whether the Court’s decision was legally justified. Rather, the real debate is—in the context of an overstretched and underfunded NHS—whether BG’s case calls into question, on a wider level: (a) the criminalisation of negligent clinical homicide; and/or (b) the emphasis in the current regulatory system on public confidence as an element of public protection, over and above individual professional mitigation and remediation.
These are issues and policy choices which can only really be addressed by Parliament, in dialogue with both the public and the medical profession after careful and informed debate. The Health Secretary’s decision to take to twitter to criticise a court decision was in our view questionable. His time might be better spent addressing the wider concerns that lie at the heart of the negative comment that has followed this judgment. It is to be hoped that it stimulates an informed discussion regarding the way in which doctors’ professional conduct is regulated.