News - Old Square members appear in two important Court of Appeal cases on the regulation of doctors

Professional Regulatory & Discipline - Nadia Motraghi, Mary O’Rourke QC, Nicola Newbegin

Dr Bawa-Garba v General Medical Council & General Medical Council v Dr Chandra

The Court of Appeal has handed down its decisions in two key cases arising from appeals by the General Medical Council (“GMC”) against decisions of the Medical Practitioners Tribunal (“MPT”) (itself a statutory committee of the GMC).

 

Dr Bawa-Garba v GMC [2018] EWCA Civ 1879

In probably the most well-known medical case in recent times, Dr Bawa-Garba has successfully appealed against the decision of the Divisional Court which had allowed an appeal by the GMC against the decision of the MPT to suspend Dr Bawa-Garba’s registration for 12 months. The Divisional Court imposed the sanction of erasure in place of the sanction of suspension.  The Court of Appeal has now allowed Dr Bawa-Garba’s appeal against the sanction of erasure.

The background facts are well known and arise from the circumstances surrounding the tragic death of a child, Jack Adcock, in February 2011.  Dr Bawa-Garba, then a junior doctor specialising in paediatrics, was in 2015 convicted of gross negligence manslaughter on the basis that her failings had been truly exceptionally bad.  She was sentenced to two years’ imprisonment, suspended for two years.  At a subsequent fitness to practise hearing, the MPT took into account the context of the wider and systematic failures in which Dr Bawa-Garba’s failings took place in deciding that a sanction of erasure would be disproportionate and that suspension for 12 months was the appropriate sanction in all the circumstances of the case.  The Divisional Court disagreed, holding that the MPT did not give the jury’s verdict the true force or weight required when considering whether any sanction short of erasure could maintain public confidence in the profession.  The Court of Appeal disagreed with the Divisional Court.

The Court of Appeal noted in particular the differences between the role of the criminal trial which focused on the actions of Dr Bawa-Garba at the time and that of the MPT which is to look forward and decide what sanction would most appropriately meet the statutory objective of protecting the public pursuant to the over-arching objective.  The MPT was just as entitled to take into account the systemic failings on the part of the Trust as the sentencing judge had been when passing sentence on Dr Bawa-Garba.  In coming to its conclusions the MPT was not disrespecting the verdict of the jury but instead was answering a different question.  This was not a case in which the erasure was the only proper and reasonable sanction and the decision of the MPT, as an expert panel, should be respected.

 

GMC v Dr Chandra [2018] EWCA Civ 1898

At the same time the Court of Appeal has handed down its decision in the case of GMC v Dr Chandra.  Dr Chandra’s name had been erased from the medical register in 2008 following his inappropriate (consensual) sexual activity with a patient.  In 2016 Dr Chandra applied to be restored to the medical register.  The MPT, at a hearing in March 2017, having found that Dr Chandra had shown genuine remorse for his behaviour and that there was a very low risk that he would repeat his behaviour, ordered that his name be restored to the medical register.

The GMC unsuccessfully appealed that decision to the High Court.  The GMC then appealed again to the Court of Appeal, albeit on more limited grounds.  Following a concession by the GMC, the Court of Appeal agreed that the test of “exceptional circumstances” did not apply when considering whether a doctor should be restored to the register.  Instead, the test was the statutory one, namely whether having regard to the over-arching objective, the applicant is now fit to practise.  However, the Court of Appeal then went on to hold that the MPT had failed to give proper weight to the second and third limbs of the over-arching objective, namely the maintenance of public confidence in the medical profession and the maintenance of proper professional standards and conduct for that profession.  The Court of Appeal therefore intents to remit the case for the MPT for further determination.

A continued right of appeal by the GMC?

The right of appeal by the GMC remains in a controversial one.

Since the introduction of the GMC’s right of appeal in 31 December 2015, concerns have arisen about whether or not one arm of the GMC should be able to appeal the decisions of another arm of the GMC (namely the MPT) and why such a right of appeal is necessary, given the existing right of appeal by the Professional Standards Authority (PSA).

The Williams Review recently concluded that the decision to give the GMC an appeal right “has had significant unwelcome and unintended consequences”.  One of those stated consequences was that the right of appeal had undermined doctors’ trust in the GMC.  The Williams Review concluded that, on balance, “the GMC’s right of appeal should be removed”, but that the PSA should retain is right of appeal.

That mistrust in the GMC by doctors as a result of the GMC’s right of appeal was clearly evident in the case of Dr Bawa-Garba.

The GMC’s right of appeal is also controversial in the case of restoration hearings.  A doctor has no right of appeal against a decision not to restore his or her name to the register, but the GMC does have a right of appeal against a decision of the MPT to restore a doctor’s name to the register.  Even if the GMC’s right of appeal survives, this is surely a disrecpancy that must now be addressed.

 

To read the full judgment for Dr Bawa-Garba v GMC, please click here.

For the full judgment for GMC v Dr Chandra, please click here.

 

Nadia Motraghi was instructed by Nicola Mead-Batten of Capital Law on behalf of the British Medical Association.  The BMA were first intervener in the case of Dr Bawa-Garba v GMC.

Mary O’Rourke QC and Nicola Newbegin were instructed by Sarah Dodds of Medical Defence Shield for Dr Chandra in GMC v Dr Chandra.

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