Leniency in sanctions for Medical Practitioners

A trainee paediatrician has won the right to continue practising as a medical doctor following her victory in the court of appeal last week.

In Bawa-Garba v GMC [2018] EWCA Civ 1879 the Court of Appeal unanimously ruled in favour of an appellant doctor to set aside a sanction for erasure from the medical practitioner's register as she presented no continuing danger to the public. The case involved the death of a young boy who suffered from sepsis after receiving treatment from the doctor. As a result, she was convicted of gross negligence manslaughter and sentenced to two years imprisonment. An appeal against conviction was lodged in February 2017 however this was dismissed by the court. In June 2017, the Medical Practitioners Tribunal Service (MPTS) decided that the appellant's fitness to practice was impaired due to her conviction and consequentially imposed a 12 month suspension subject to review. The Tribunal decided that this period of suspension would not be extended.

In January 2018, the General Medical Council (GMC) appealed against the Tribunal's decision on the basis that it was too lenient.

The High Court held that the tribunal's decision to impose a suspension rather than erasure from the register was inconsistent with the jury's verdict and it was wrong to impose a lesser sanction considering that the doctor's failings were "truly exceptionally bad" in contributing to the child's death. The Tribunal was expected to consider whether any sanction other than erasure could maintain public confidence in the profession.

The High Court concluded that the only available sanction on the facts of the case was erasure from the register and this would replace the original one year suspension.

The doctor appealed this decision and the Court of Appeal had to decide whether the correct approach was applied when considering a fitness to practice sanction in relation to a conviction for gross negligence manslaughter where the registrant did not present a "continuing risk to patients".

The Court of Appeal disagreed that the tribunal's decision was inconsistent with the jury's verdict, pointing out that there is a difference between the task of the jury and that of the tribunal. The court emphasised the fact the task of the tribunal was to decide what sanction would most appropriately meet the objective of protecting the public and the task of the jury was to decide on whether or not the doctor was guilty having regard to her past conduct.

It was held that that the High Court had relied on a presumption of erasure in error and had failed to consider whether a lesser sanction would maintain public confidence, proper professional standards and conduct. The Court of Appeal concluded that if there are sufficiently significant reasons and circumstances for a lesser sanction then the presumption of erasure can be waived, even if serious harm has been caused to a patient through incompetence:

Ruling in favour of the appellant, the judge was satisfied that no concerns had been raised regarding the clinical competency of the appellant other than in this particular case.

The Court of Appeal restored the original sanction of a one year suspension from practice imposed by the MPTS.

During these proceedings, the appellant received strong support from fellow medical practitioners who are concerned that being honest about mistakes puts them at risk of heavy sanctions. This judgment provides a degree of optimism to the medical profession as it suggests that doctors with a similar conviction may in future be able to return to practice.

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