Case Update: GMC v Simon Bramhall.

General Medical Council v Bramhall [2021] EWHC (2109) (Admin)

The proceedings against Mr Bramhall have a long history and have still not concluded.

In December 2020, a Medical Practitioners Tribunal (MPT) imposed a 5 month suspension order on Mr Bramhall’s registration. The General Medical Council (GMC) and The Professional Standards Authority for Health and Social Care (PSAHSC) appealed this decision to the High Court. The appeal was heard on the 13th July 2021. The High Court has quashed the sanctions determination imposed and remitted the case for a fresh determination by a differently constituted tribunal.

Background

Mr Bramhall was a transplant surgeon at University Hospitals Birmingham. In February 2013 a consultant anaesthetist witnessed Mr Bramhall initial a patient’s liver using an argon beam coagulator, a surgical instrument used for cauterisation. During a transplant operation for a second patient in August 2013 a nurse saw him mark his initials on the liver, when Mr Bramwell realised that she was watching, he told her “I do this” [2 & 3]. Mr Bramwell was charged with two counts of assault by battery and pleaded guilty at Birmingham Crown Court in December 2017 [4].

The GMC’s grounds of appeal against the MPT decision were [12]:

1. 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.
2. The Tribunal erred in its assessment of the inherent seriousness of the misconduct.
3. The Tribunal failed to address the attitudinal issues underlying the misconduct.
4. The Tribunal failed to take into account the Registrant’s lack of candour and /or inconsistencies in respect of the February 2013 charge.
5. Alternatively, the Tribunal erred in not imposing the maximum (or a longer) period of suspension and /or by failing to provide any, or any adequate, reasons for its decision that five months was sufficient.
6. In the alternative, the Tribunal failed to give adequate reasons for its decision.

The PSAHSC adopted and ‘strongly supported’ these grounds and advanced a further ground of appeal. It was submitted that the GMC failed to present all the statements made by the Registrant in its possession. It was asserted that reading all the statements together revealed deep-seated attitudinal issues [13].

Mrs Justice Collins Rice gave the judgement of the court

‘It is not my task to offer an opinion. I am not rehearing the case. I am considering whether the MPT did its job properly’…… ‘The MPT, an expert tribunal on which the public relies, was tasked with putting its finger on precisely what was and was not wrong with Mr Bramhall’s conduct and how serious it was or was not, and sanctioning accordingly’ [32]

‘Unusual facts call for the particularly thoughtful and responsive application of general rules’ [33].

‘First, I cannot regard this sanctions decision as anything other than a departure from the Sanctions Guidance’. [35]

‘Second, while that does not necessarily constrain a tribunal’s final decision, it does properly engage a duty to state clear reasons for departure in the form of careful and substantial case-specific justification’….... ‘The determination does not provide that. While the GMC’s submissions were noted, the engagement of the erasure indicators is not even acknowledged as such in the MPT’s reasoned determination. That is remarkable in a case brought on the basis of convictions for crimes of violence, an express indicator in its own right that erasure may be required, not least where committed in a clinical setting. Failure to deal with erasure indicators where they are engaged produces determinations which are simply incomplete’….. ‘That is a fundamental flaw - an error of principle. The decision does not fully make sense and the reader cannot see how it is proportionate’ [36].

‘Third. I firmly agree with the court in Khetyar that a proper conclusion that suspension is sufficient cannot be reached in a case like this without reference to, and careful consideration of, advice in the Guidance that erasure may be appropriate on the facts’……. ‘To ‘stop at suspension’ without addressing indications of erasure – and therefore without addressing what the Guidance says about when misconduct is ‘fundamentally incompatible’ – is to make the error of principle the appellate courts have consistently identified as such. It is an error that leads to a generalised assertion that erasure would be a disproportionate sanction and that a doctor’s conduct is not incompatible with continued registration. That is insufficient’ [37].

‘The sanctions determination in the present case does not persuade me that it has avoided this error. It appears to ‘stop at suspension’…… ‘An informed reader does not in these circumstances know why suspension (in principle, and for five months in particular) rather than erasure is sufficient to maintain public confidence in the medical profession and to maintain proper professional standards and conduct for members of that profession. It is asserted, not demonstrated’ [38].

‘Underlying the problems with the sanctions analysis by the MPT in this case are indications of error of principle at a deeper level, similar to that in Stone, namely a failure properly to assess and / or articulate the gravity of conduct before it, and hence correctly apply itself to the question of sanction. That was the essence of the task before it’ [40].

‘The ‘attitudinal’ concerns were not demonstrably interrogated by the MPT to any degree. I am not persuaded that, reading the proceedings as a whole, the MPT showed itself sufficiently astute to the potential relevance of these issues for the determination of sanction; to maintaining appropriate clarity about the distinctions between them; and to the need to assess and weigh them and explain its conclusions. Error of principle is disclosed in this also’ [50].

‘I remind myself of the appropriate diffidence I must show before thinking of interfering in an MPT decision. Here, the appellate function is properly engaged; not with a reassessment of the MPT’s decision on sanction on its merits, but with its failure to demonstrate convincingly that it has made a proper assessment of sanction, one which the public and the profession can fully understand and have confidence in, at all. It is my conclusion for the reasons given that the MPT in this case made errors of principle in its sanctions evaluation, resulting in, and including an insufficiency of reasons for departure from the Sanctions Guidance. These constitute serious irregularity in the conduct of its functions, vitiating the justice of its conclusion. The MPT did not put its finger on precisely what was and what was not wrong with Mr Bramhall’s conduct and sanction accordingly. It did not do justice to this unique case. I allow this appeal on that basis.’ [53]

Commentary

This judgement, in which the MPT’s failure to demonstrate its assessment of the relevant issues was repeatedly criticised, is another reminder to tribunals of the importance of the written determinations. It is crucial that they not only show that the tribunal have considered all the relevant issues, but also give clear reasons for each decision made.

It will be interesting to see what sanction the next MPT impose on Mr Bramhall. Whatever the decision, it is going to have to be meticulously explained and justified.