This was the determination of the Court of Appeal (CoA) in yesterday’s Judgment, following Bawa-Garba’s appeal in July 2018. The CoA concluded that the Divisional Court had been wrong to overturn the MPT’s suspension with erasure from the medical register, following the GMC’s Appeal of the MPT’s decision in December 2017. The CoA has now overturned that Divisional Court decision, and has referred the case back to the MPTS, where Dr Bawa-Garba’s suspension will be reviewed.

Key Issues from the CoA Decision:

CoA determined that the MPT’s decision should be upheld due to the following:

  1. No presumption that a conviction for GNM should lead to erasure – The CoA was clear that the appropriate sanction will depend on the facts and circumstances of each case, considered individually, and that there should not be a presumption that a conviction for gross negligence manslaughter (GNM) should lead to erasure in the absence of exceptional or truly exceptional circumstances.
  2. MPT’s Evaluative Decision – The MPT’s decision was not a decision of fact or law but an evaluative one, after consideration of many factors. They had properly considered Bawa-Garba’s fitness to practise in all relevant circumstances of the case.
  3. MPT Acted Within its Remit – The MPT is a specialist adjudicative body. Appeal courts should be very cautious in interfering with Tribunal decisions. The Divisional Court was wrong to interfere in the MPT decision because there was (i) no error in the Tribunal’s evaluation or decision; and (ii) the Tribunal’s decision to impose a sanction of suspension as opposed to erasure was one which the Tribunal, as an expert body, was entitled to make.
  4. Past Vs Future – The task of the jury in Bawa-Garba’s GNM trial in 2015 had been to determine her guilt based on her past actions. The Divisional Court determined erasure to be the only proper sanction because it properly reflected Bawa-Garba’s errors which had been determined by the Jury to be “truly exceptionally bad”. The CoA confirmed that the systematic failures at the Trust were peripheral to the Jury’s task in considering GNM. The CoA further distinguished the roles of that Jury and the MPT: the MPT’s task was not a reflective one. Its task was to determine what sanction, going forward, most appropriately met the overarching objectives of the GMC to protect the public and maintain professional standards and public confidence in the profession.

Comment:

The case is a tragic one for all concerned. It arises out of the devastating loss of a son for the Adcock family, and it has resulted in a gruelling six year legal ordeal, both criminal and regulatory, for Dr Bawa-Garba, which has had wider implications for the medical community as a whole.

The response to yesterday’s CoA decision has been significant. The family are devastated and have indicated an intention to appeal. Many doctors responding to yesterday’s Judgment have extended sympathy to the Adcock family for their tragic loss. The medical community are emphasising that they want to be engaged with an honest discussion about engendering a culture of ‘learn not blame’ and patient safety, in the face of human error in a pressurised and overstretched NHS.

The CoA acknowledged that in June 2018 the Secretary of State for Health and Social Care announced his support for the recommendation of the Williams’ review into GNM, which is that the GMC should lose its right under s40A of the MA 1983 to appeal a MPTS decision. The CoA confirmed that this had not affected this appeal.

Click here to read the full Judgment and Media summary.

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