What happens after?

THE UK Court of Appeal has upheld Dr Bawa-Garba’s appeal of the UK High Court’s decision that she be disqualified from medical practice, and the suspension order has been restored.

Dr Bawa-Garba’s Case

Following the death of a six-year-old patient in 2011, Dr Bawa-Garba, who was a junior doctor specialising in paediatrics, was prosecuted and convicted of gross negligence manslaughter in November 2015 and given a suspended sentence of two years’ imprisonment. Following the criminal proceedings, the Medical Practitioners Tribunal conducted an inquiry concerning Dr Bawa-Garba’s fitness to practise.

At the criminal trial there was a limit to which systemic factors were able to be taken into account by the jury. The trial judge had regard to the circumstances in which the offence took place when determining the sentence:

• The Child and Adolescent Unit at the hospital was busy;
• There were a number of children to be seen;
• There was no evidence that the patient was neglected because of laziness or other selfish reasons;
• The patient was not given the priority required;
• Dr Bawa-Garba was falsely reassured by the apparent improvement in the patient’s condition following treatment.

In February 2017, a Medical Practitioners Tribunal (the Tribunal) concluded that Dr Bawa-Garba’s fitness to practice was impaired. The Tribunal concluded that Dr Bawa-Garba fell far below the standards expected of a competent doctor of her level and that she had brought the profession into disrepute, and breached a fundamental tenet of the medical profession relating to good clinical care but that her serious clinical failings were capable of being remedied and had been addressed.

When considering the appropriate sanction, the Tribunal said that it considered its overarching objective was to protect, promote and maintain the health, safety and wellbeing of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for the medical profession. The Tribunal said the sanctions were not to be punitive but to protect patients and the public interest. The Tribunal also considered a number of mitigating factors, including:

• Dr Bawa-Garba’s good character prior to the offence;
• The length of time that had passed;
• Dr Bawa-Garba had recently returned from maternity leave and this was her first shift since returning in an acute setting;
• Dr Bawa-Garba was covering the CAU, emergency department and the ward on the day in question;
• There were a number of systemic failures identified including staffing issues, IT system failures, accessibility of data at the bedside and no mechanism for automatic consultant review.

The Tribunal noted that the risk of placing a patient at unwarranted risk of harm in the future was low. The Tribunal imposed a suspension of 12 months noting the remaining term of the suspended imprisonment term, the need to maintain public confidence in the profession and uphold proper professional standards.

The General Medical Council appealed the Tribunal’s decision. The High Court allowed the appeal and quashed the decision of the Tribunal and ordered that Dr Bawa-Garba’s name be erased from the Register. The High Court stated that a period of suspension did not afford proper respect to the verdict of the jury. The High Court said that not only was the conviction evidence of the fact of the conviction itself, the basis of the jury’s conviction should also be regarded to be conclusive. As such, while there may have been systemic failings, they could not reduce Dr Bawa-Garba’s personal culpability below that which the jury had found, that was, to have been exceptionally bad. The Court found that the conduct was fundamentally incompatible with continuing registration and ordered the cancellation of Dr Bawa-Garba’s registration.

Dr Bawa-Garba appealed the decision. When determining the appeal, the Court of Appeal rejected the contention that the Tribunal made an error of principle in taking into account systemic failures and personal mitigation. While the jury was limited in the extent to which it could take into account such matters when determining Dr Bawa-Garba’s personal culpability, the Tribunal was not so limited when making an assessment of her fitness to practise.

The Court of Appeal noted the approaches of the jury and the Tribunal were necessarily different. The jury was charged with deciding guilt or an absence of guilt based on past conduct, and the Tribunal was to look to the future to decide the appropriate sanction to protect, promote and maintain the health, safety and wellbeing of the public, to promote and maintain professional standards and confidence in the medical profession. The Tribunal was not deciding that the failings of Dr Bawa-Garba were other than truly exceptionally bad. The Tribunal was conducting an evaluative exercise to determine what sanction was most appropriate to satisfy the statutory objective of protecting the public.

The task of the Tribunal was to carry out an evaluative judgement. The Court noted that the evidence before the Tribunal was that there were no other clinical concerns that had been raised about Dr Bawa-Garba, she continued to work until her conviction, she provided evidence that was accepted that she had remediated her deficiencies and she was supported by two consultants who testified that she was an excellent doctor. The evidence before the Tribunal was that she was an honest and reliable witness, had reflected and had developed considerable insight and she had not acted deliberately or recklessly when treating the patient. The evidence was that Dr Bawa-Garba was not a continuing risk.

The Court of Appeal said that it was impossible to say that the suspension sanction imposed by the Tribunal was not one properly open to it and that the only sanction properly and reasonably available was cancellation. The Court of Appeal allowed the appeal and reinstated the Tribunal’s sanction of 12 months’ suspension.

What would happen in NSW if a medical practitioner is convicted of a criminal offence?

In NSW, an approach similar to that taken by the Medical Practitioners Tribunal in Dr Bawa-Garba’s case would be taken by the NSW Civil and Administrative Tribunal (NCAT).

Under the Health Practitioner Regulation National Law 2009 (NSW) (the National Law), the Tribunal may suspend or cancel a registered health practitioner’s registration if NCAT is satisfied that the practitioner:

• Has been convicted of, or made the subject of a criminal offence, either inside or outside NSW; and
• The circumstances of the offence render the practitioner unfit to practise in the public interest to practise the practitioner’s profession.

When exercising its powers to suspend or cancel a medical practitioner’s registration, NCAT’s paramount consideration is the protection of the health and safety of the public (section 3A National Law).
When considering what is encompassed by the principle of the protection of the health and safety of the public, the NSW Court of Appeal has said:

The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. (HCCC v Do [2014] NSWCA 307)

Just as in the UK, when considering whether suspension or cancellation may be appropriate the Tribunal will factor in what is necessary for the protection of patients and the public, and the maintenance of professional standards and confidence in the profession.

In a recent decision, NCAT noted that when determining the suitability of a health practitioner to practise his/her profession, criminal conduct is to be assessed as part of a holistic inquiry into suitability to practise. The Tribunal noted that such assessment involves an examination of the context of the practitioner’s improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and following any investigation or sanction. Subject to the circumstances of the particular case, other relevant matters may include relevant systemic issues, character, experience and training.

In NSW, the fact of a conviction alone will not result in the cancellation of a medical practitioner’s registration. An examination of the conduct, and the surrounding acts and circumstances will be undertaken by NCAT when making a determination as to whether the suspension or cancellation of registration may be appropriate.

For a complete list of article references, please contact the editor – andrea.cornish@amansw.com.au