General Medical Council v Bramhall [2021] EWHC (2109) (Admin)
In a series of acts referred to by HHJ Farrer QC as “conduct borne of professional arrogance of such magnitude that it strayed into criminal behaviour”, Mr Bramhall used an argon beam cauterising tool to sign his initials on the livers of multiple patients. In the aftermath of a criminal conviction, the General Medical Council (GMC) sought his erasure from the medical register. The MPT, disagreeing with the GMC over the severity of his actions, preferred a 5-month suspension.
This case was the GMC’s appeal against that decision. It raised interesting questions about how the GMC’s Sanctions Guidance is applied in hard cases, and about whether, and how, its recommendations can be departed from.
Background
Mr Bramhall is a transplant surgeon. In 2013, after carrying out a transplant on a patient, he used his cauterising tool to mark his initials – a signature of sorts – on the livers of one of his patients. Then, whilst performing another transplant, he did it again. When one of the patients underwent further surgery with a different surgeon, his actions were noticed, and he confessed to what he had done.
One of the patients so branded went on to develop serious psychiatric symptoms, described as a condition which did not amount to PTSD only because the patient had not witnessed the causative event, and that event did not threaten her with death or serious injury. Mr Bramhall’s conduct was treated as a criminal matter, and he pleaded guilty to, and was convicted of, two counts of assault by battery in the Crown Court at Birmingham in 2017.
Regulatory Proceedings
Following Mr Bramhall’s conviction, the GMC brought regulatory proceedings seeking his erasure from the register. The MPT predictably found that Mr Bramhall’s fitness to practice was impaired. Turning to the question of sanction, the MPT directed itself to the GMC’s Sanctions Guidance.
The MPT’s approach is striking for the weight it gave to mitigating factors (an important factor in the appeal, discussed below), despite their relative lack of importance in regulatory proceedings designed as they are to protect the public, and the reputation of the medical profession. The MPT noted in mitigation Mr Bramhall’s exceptional clinical skill and dedication to his patients, as evinced in numerous testimonials, and his full acceptance of wrongdoing and genuine remorse, as well as that his actions were out of character.
Aggravating Mr Bramhall’s conduct, though, was its repeated nature, that it was committed against unconscious patients in theatre, and that it was a significant breach of trust. Noting that it was “unlikely” that Mr Bramhall would offend again, and that he had demonstrated insight, the MPT determined that while a suspension was necessary to uphold public confidence, his convictions were not incompatible with continued registration, so erasure was not an “appropriate or proportionate response” (at [11]). The MPT decided on a sanction of five months’ suspension.
The GMC’s Appeal
The GMC, supported by The Professional Standards Authority for Health and Social Care appealed on several grounds (see [12]). Most importantly, they argued that “The Tribunal failed to consider relevant parts of the Sanctions Guidance and/or departed from the Sanctions Guidance by failing to direct erasure without giving any, or any adequate, reasons”.
The High Court, acting in its appellate capacity, heard the GMC’s appeal. The test applicable was whether the MPT’s decision was “either wrong, or unjust because of a serious procedural or other irregularity” ([15]). The Judge, Mrs Justice Collins Rice, noted that while the court was required to approach the MPT’s determinations of what was necessary to maintain public confidence with “diffidence”, given their professional expertise, the extent of the diffidence required depended on the subject-matter; where dishonesty, or sexual misconduct (for example) were concerned, a court may feel more able to intervene.
The judge’s approach, read as a whole, was to break the issue down into four questions: first, had the MPT followed the Sanctions Guidance? Second, were the MPT required to follow the Sanctions Guidance? Third, if not, what must the MPT do (if anything) to justify their departure from it? And fourth, had that, on the facts, been done?
Answering the first question, the judge noted that Mr Bramhall’s multiple convictions for offences of deliberate violence, his patients’ vulnerability, his abuse of their trust, and the lasting harm caused were each alone sufficient to bring his conduct within the Sanctions Guidance’s recommendation for erasure. As such, she found that the MPT had not followed the Sanctions Guidance.
Turning to the question of whether the Sanctions Guidance is binding, the judge held that the MPT were not bound immutably by the Sanctions Guidance, rather it provided an “authoritative steer”. The key to proper engagement with the Sanctions Guidance was understanding what was required to depart from that authoritative steer.
Answering the third question, the judge held that departures from the Sanctions Guidance must follow from “careful and substantial case-specific justification” rather than “generalised assertion that erasure would be a disproportionate sanction” (at [22]-[25], internal quotation marks omitted).
The case turned, then, on the fourth question: whether the MPT’s decision met that requirement. The MPT, the judge observed, was faced with unique circumstances, and “unique circumstances always pose a challenge for applying general principles”, but this was not a basis in itself for disregarding those principles. On the contrary, “it is precisely where principles and rules are most challenged by unique and ambivalent facts, that procedure and guidance may have the most important work to do” (at [33]). This engaged a duty on the MPT to state clearly their reasons for that departure ([36]), which the MPT did not discharge.
The judge identified two ways the MPT fell short: first, it failed to engage with the indicators for erasure in a clear, substantial and specific manner. Second, having determined that suspension was an appropriate sanction, the MPT failed to engage directly with the possibility of erasure, preferring to stop, as it were, at suspension, and deciding that erasure was disproportionate because suspension was sufficient. This meant erasure was never considered on its own merits; it was judged disproportionate without ever being addressed directly.
Both of these were errors of principle which made it impossible to see the MPT’s decision as other than vague and subjective. Nor was the judge able to remedy this deficiency by reading the MPT proceedings as a whole: for example, while the Tribunal said it had given “particular weight” to public confidence, it did not explain or show how it did so. The appeal was, therefore, upheld, and the matter remitted to be reconsidered by a reconstituted panel.
The judge then considered the GMC’s contention that the MPT had failed to properly interrogate Mr Bramhall’s attitude, mixing up candour and insight. This ground of appeal was also upheld ([50]).
Comment
Aside from its undeniably striking facts, this case is important for two reasons. First, it provides a neat encapsulation of the requirements which must be satisfied by an MPT panel who wish to depart from the GMC Sanctions Guidance: clarity, and careful attention to the relevance and weight of each factor taken into account is necessary and should probably be made explicit and spelled out in a manner not necessary where the sanction imposed is the same as that envisioned by the Sanctions Guidance. Shortcuts, however tempting, are unlikely to save time in the long run.
But perhaps more interesting is the judge’s observations on the interaction between general principles and unusual, striking fact-patterns. It is trite to observe that hard cases make bad law, but Mrs Justice Collins Rice gave a corrective to the instinct that sometimes underlies the truth of that observation. At [31], she set out two different ways of looking at Mr Bramhall’s conduct, two “competing high-level narratives”, as she put it. Was he (paraphrasing the judge somewhat) a brilliant, dedicated expert of whose skill the public would be unfairly deprived by overreaction to a hubristic mistake, or a contemptuous, power-tripping egomaniac? Her answer was that, whatever the narrative, a proper sanction would only be arrived at by careful, proper structures, and transparently accessible process. The case’s irregularity made these things more important, not less. A hard case might be less likely to make bad law when it is not given special treatment on account of its difficulty.
