ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Gross LJ and Ouseley J
Strand, London, WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
LADY JUSTICE RAFFERTY
| Hadiza BAWA-GARBA
|- and -
|THE GENERAL MEDICAL COUNCIL
THE BRITISH MEDICAL ASSOCIATION (1)
THE PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE (2)
THE BRITISH ASSOCIATION OF PHYSICIANS OF INDIAN ORIGIN (3)
Ivan Hare QC (instructed by GMC Legal) for the Respondent
Jenni Richards QC and Nadia Motraghi (instructed by Capital Law) for the First Intervener
Fenella Morris QC (instructed by Browne Jacobson LLP) for the Second Intervener
Karon Monaghan QC (instructed by Sarah Dodds, Medical Defence Shield) made written submissions for the Third Intervener
Hearing dates : 25 and 26 July 2018
Crown Copyright ©
Lord Burnett of Maldon CJ, Sir Terence Etherton MR and Lady Justice Rafferty :
The factual background
Events prior to the criminal proceedings
The criminal proceedings
"There is no guideline [set by the Sentencing Guidelines Council] for gross negligence manslaughter. No case from the Court of Appeal has been identified as a guideline authority ... Inevitably the facts differ ... That said, it is of course necessary to look carefully at the individual case to consider the nature of the offence, the culpability of the defendant and any mitigating features.
I directed the jury that they could convict if they were sure that your failures significantly contributed to Jack's death or led him to die significantly sooner than he would otherwise have done. I consider it right to pass sentence on the basis that it was the latter alternative of which the jury were satisfied here.
I take into account the circumstances in which your offences took place. The CAU of the LRI was a busy ward. It could not limit its intake. All children had to be seen, assessed and treated. There was no evidence that either of you neglected Jack because you were lazy or behaved for other selfish reasons. You both had other patients to attend to. The problem was that neither of you gave Jack the priority which this very sick boy deserved and in your case, Hadiza Bawa-Garba, you were falsely reassured by the apparent improvement in Jack's condition from the treatment which you did give him.
There was a limit to how far these issues could be explored in the trial, but there may be some force in the comment that yours was a responsibility that was shared with others.
I turn to the mitigation which has been extremely capably advanced by your counsel. Hadiza Bawa-Garba, you were 35 at the time of this offence. You had wished to become a doctor since the age of 13. Medicine was your vocation. As a result of this offence, your career as a doctor will be over.
I received numerous testimonials that spoke in graphic terms of your skill as a doctor, your dedication to your patients and the high regard in which your colleagues held you. You were two years away from completing your training and being able to apply for posts as a consultant. All that is over now. Like Isabel Amaro, you have no previous convictions.
Both of you have also had to wait some considerable time before these two proceedings have come to an end. I am told that in April 2012, the CPS wrote to both of you to say that you would not be prosecuted.
Both of your counsel accept that this offence is so serious that only a sentence of imprisonment will suffice. The real issues are what should be its length and whether it should be suspended. I have decided that in each case, the right length is two years. I've also decided that in light of all the circumstances of your offences and in the light of the mitigation I have heard, those sentences will be suspended."
"... the judge had correctly directed the jury that the prosecution had to show that what a defendant did or did not do was 'truly exceptionally bad'. Suffice to say that this jury was (and all juries considering this offence, should be) left in no doubt as to the truly exceptional degree of negligence which must be established if it is to be made out".
The legislative context
The statutory framework
"(1A) The over-arching objective of the General Council in exercising their functions is the protection of the public.
(1B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession."
"(3) Production of a certificate purporting to be under the hand of a competent officer of a Court in the United Kingdom or overseas that a person has been convicted of a criminal offence or, in Scotland, an extract conviction, shall be conclusive evidence of the offence committed.
(5) The only evidence which may be adduced by the practitioner in rebuttal of a conviction or determination certified in the manner specified in paragraph (3) or (4) is evidence for the purposes of proving that he is not the person referred to in the certificate or extract."
The GMC's Sanctions Guidance
"Maintaining public confidence in the profession
17. Patients must be able to trust doctors with their lives and health, so doctors must make sure that their conduct justifies their patients' trust in them and the public's trust in the profession ... Although the Tribunal should make sure the sanction it imposes is appropriate and proportionate, the reputation of the profession as a whole is more important than the interests of any individual doctor."
"32. However, there are some cases where a doctor's failings are irremediable. This is because they are so serious or persistent that, despite steps subsequently taken, action is needed to maintain public confidence. This might include where a doctor knew, or ought to have known, they were causing harm to patients, and should have taken steps earlier to prevent this."
"86. Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)."
"102. Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.
103. Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive).
(a) A particularly serious departure from the principles set out in [the document published by the GMC entitled] Good Medical Practice where the behaviour is fundamentally incompatible with being a doctor.
(b) A deliberate or reckless disregard for the principles set out in Good Medical Practice and/or patient safety.
(c) Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 123126 regarding failure to provide an acceptable level of treatment or care) ..."
"Failing to provide an acceptable level of treatment or care
123. Cases in this category are those where a doctor has not acted in a patient's best interests and has failed to provide an adequate level of care, falling well below expected professional standards Particularly where there is a deliberate or reckless disregard for patient safety or a breach of the fundamental duty of doctors to 'Make the care of [your] patients [your] first concern' (Good Medical Practice), paragraph 1).
126. However, there are some cases where a doctor's failings are irremediable. This is because they are so serious or persistent that, despite steps subsequently taken, action is needed to maintain public confidence. This might include where a doctor knew, or ought to have known, they were causing harm to a patient and should have taken steps earlier to prevent this."
The appeals process
The disciplinary proceedings
The Tribunal's determination as to impairment
The Tribunal's determination as to sanction
18. In mitigation the Tribunal had regard to the following factors:
Other than this matter, you have an unblemished record as a doctor
You were of good character prior to your offence
You remained employed by the Trust up until your conviction in 2015
There is no evidence of any concerns being raised regarding your clinical competency before or after your offence
The length of time which has passed since your offence
Before the events of 18 February 2011, you had recently returned from maternity leave and whilst you had completed some on-call shifts, this was your first shift in an acute setting
On the day in question, you were covering CAU, the emergency department and the ward
The multiple systemic failures identified in the Trust investigation following the events of 18 February 2011
There is no evidence to suggest that your actions on 18 February were deliberate or reckless.
19. The Tribunal balanced those mitigating factors against what it considered to be the aggravating factors in this case:
Patient A was vulnerable by reason of his age and disability
Your failings in relation to Patient A were numerous, continued over a period of hours and included your failure to reassess Patient A following your initial diagnosis or seek assistance from senior consultants
Even though you expressed your condolences to the family of Patient A, there is no evidence before this Tribunal that you subsequently apologised to them."
"26. The Tribunal was mindful that your actions marked a serious departure from Good Medical Practice, and contributed to Patient A's early death and which continues to cause great distress to Patient A's family.
27. It reminded itself of its findings in its determination on impairment, namely:
It was satisfied that you had remediated the deficiencies in your clinical skills and had practised safely for a period of almost four years; both Dr Barry and Dr Cusack described you as an excellent doctor.
It was satisfied that the risk of you putting a patient at unwarranted risk of harm in the future was low.
The basis of the Tribunal's finding on impairment was that public confidence in the profession and upholding of proper standards would be undermined if a finding of impairment were not made in your case.
28. The Tribunal had regard to the oral evidence of Dr Cusack, who stated that following the events of 18 February 2011, a Trust investigation was carried out which highlighted multiple systemic failures which existed at the time of these events. These included failings on the part of the nurses and consultants, medical and nursing staff shortages, IT system failures which led to abnormal laboratory test results not being highlighted, the deficiencies in handover, accessibility of the data at the bedside, and the absence of a mechanism for an automatic consultant review. The Tribunal therefore determined that whilst your actions fell far short of the standards expected and were a causative factor in the early death of Patient A, they took place in the context of wider failings.
29. The Tribunal was satisfied that the evidence of Dr Cusack was honest and reliable and that he could appropriately testify to your level of insight and remorse as he met with you regularly in a supervisory capacity. He initially met with you every 2 weeks and then subsequently up to your appearance in court in December 2015, aside from the period during which you were on your second period of maternity leave during 2012/13. It bore in mind that before and after the events leading to your conviction, you were considered by colleagues to be a good and competent doctor. It had regard to the various positive testimonials submitted by colleagues on your behalf. Following the incident, you continued to work at the Trust and were described as being in the top third of your Specialist Trainee cohort. The Tribunal accepted the evidence of Dr Cusack that you had reflected deeply and demonstrated significant and substantial insight in your conversations with him. However, the Tribunal was unable to conclude that you had complete insight into your actions as it did not hear from you directly."
"31. Further, the Tribunal was of the view that a fully informed and reasonable member of the public would view suspension as an appropriate sanction, given all the circumstances of your case. It was therefore satisfied that the goal of maintaining public confidence in the profession would satisfied by suspension of your registration.
32. The Tribunal also considered whether it would be appropriate to erase your name from the Medical Register. However, in the circumstances of the case, balancing the mitigating and aggravating factors, the Tribunal concluded that erasure would be disproportionate. In reaching this decision, it considered paras 101105 and 126 of the Sanctions Guidance. In the judgement of the Tribunal, in all of the circumstances of this case, your actions and subsequent conviction are not fundamentally incompatible with continued registration. It also concluded that public confidence in the profession would not be undermined by a lesser sanction; your actions were neither deliberate nor reckless. Although your actions resulted in the early death of Patient A, you do not present as a continuing risk to patients. The Tribunal did not consider that your failings are irremediable; indeed it has already found that you have remedied them."
The current proceedings
Judgment under appeal
The appeal to the Court of Appeal
Grounds of appeal
Ground 1: the Divisional Court erred by applying a presumption that a conviction of manslaughter by gross negligence should lead to erasure from the Medical Register save in exceptional circumstances.
Ground 2: the Divisional Court erred by failing to appreciate the distinct roles of the jury in a criminal trial, on the one hand, and the MPT, on the other.
Ground 3: the Divisional Court erred by unlawfully substituting its own judgment for that of the Tribunal, that the circumstances of the case were not sufficiently strong for suspension to be sufficient to maintain public confidence in the profession and its procedures for maintaining its professional standards.
Ground 4: the Divisional Court erred in concluding that the Tribunal was precluded from taking into account the evidence of systemic failures occurring in the Hospital on 18 February 2011, as to do so would constitute a lack of respect for the jury's decision.
Ground 5: the Divisional Court erred by reaching an irrational conclusion: no reasonable court could have concluded that erasure was the only sanction open to the Tribunal in the circumstances in order to maintain public confidence in the profession and in its procedures for maintaining proper professional standards.
"The question of whether an invention was obvious had been called "a kind of jury question" (see Jenkins L.J. in Allmanna Svenska Elektriska A/B v. The Burntisland Shipbuilding Co. Ltd. (1952) 69 R.P.C. 63, 70) and should be treated with appropriate respect by an appellate court. It is true that in Benmax v. Austin Motor Co. Ltd.  A.C. 370 this House decided that, while the judge's findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, were virtually unassailable, an appellate court would be more ready to differ from the judge's evaluation of those facts by reference to some legal standard such as negligence or obviousness. In drawing this distinction, however, Viscount Simonds went on to observe, at page 374, that it was "subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge". The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vιritι est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation."
"15. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a "rehearing" under the Rules of the Supreme Court and should be its approach on a "review" under the Civil Procedure Rules 1998.
16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way."
"In England and Wales the jurisdiction of the Court of Appeal is set out in CPR r 52.11(3) , which provides that 'the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court'. The rule does not require that the decision be 'plainly wrong'. However, the courts have traditionally required that the appeal court must hold that the judge was plainly wrong before it can interfere with his or her decision in a number of different classes of case. I referred to some of them in Assicurazioni Generali SpA v Arab Insurance Group  1 WLR 577 at my paras 923. It seemed to me then and it seems to me now that the correct approach of an appellate court in a particular case may depend upon all the circumstances of that case. So, for example, it has traditionally been held that, absent an error of principle, the Court of Appeal will not interfere with the exercise of a discretion unless the judge was plainly wrong. On the other hand, where the process involves a consideration of a number of different factors, all will depend on the circumstances. As Hoffmann LJ put it in In re Grayan Building Services Ltd (In Liquidation)  Ch 241, 254, 'generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision'."
"29. ... Where an appeal is to proceed, like this one, by way of a review of the judgment below rather than a re-hearing, it will often be appropriate for this court to give weight to the assessment of the facts made by the judge below, even where that assessment has been made on the basis of written evidence which is also available to this court. The weight to be given to the judge's own assessment will vary depending on the circumstances of each particular case, the nature of the finding or factual assessment which has been made and the nature and range of evidential materials bearing upon it. Often a judge will make a factual assessment by taking into account expressly or implicitly a range of written evidence and making an overall evaluation of what it shows. Even if this court might disagree if it approached the matter afresh for itself on a re-hearing, it does not follow that the judge lacked legitimate and proper grounds for making her own assessment and hence it does not follow that it can be said that her decision was "wrong"."
"72. It seems to me that Sales LJ was addressing the exigencies of reviewing a first instance judge's assessment of primary facts, even where (as in our case) the evidence before the court below was entirely in writing. All will depend on the circumstances of the case and what opportunity the court has, in reality, to improve and correct the overall assessment of the evidence before the first instance judge as a whole."
"You may or may not think that the hospital itself was at fault, but you must set those feelings aside. Your role is not to choose between various people who may have played a part in Jack's death. It is not your job to decide whether these three defendants or any of them come top of that list or to try to rank them. Rather you must focus on the specific elements of manslaughter which the Crown must prove in relation to each of the defendants."
"There was a limit to how far these issues could be explored in the trial."
"I directed the jury that they could only convict you if they were satisfied that you were negligent and that your negligence significantly contributed to Jack's death or its timing. Furthermore, any such negligence had to be gross or severe. In other words, the jury had to be satisfied that what you did or didn't do was truly exceptionally bad. Your negligence had to be not just below the standard which could be expected of a reasonable doctor but far below that standard. By their verdict, the jury have shown that they were sure of all these matters."
" for use by medical practitioners tribunals, in cases that have been referred to the MPTS for a hearing, when considering what sanction to impose following a finding that the doctor's fitness to practise is impaired. It also contains guidance on the issue of warnings where a tribunal has concluded that the doctor's fitness to practise is not impaired. It outlines the purpose of sanctions and the factors to be considered."
"103. Any of the following factors being present may indicate erasure is appropriate (c) Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients "
"28. ... In the appellant's case the effect of the Committee's order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the Committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession."