The General Medical Council & Anor v Bramhall [2021] EWHC 2109 (Admin) (27 July 2021)

The High Court has remitted the case of Mr Simon Bramhall back to the MPTS following an appeal by the GMC and PSA on grounds of lenient sanction.

 The case of Mr Bramhall has been widely publicised following a conviction for two counts of assault by battery, committed six months apart in 2013 against patients under general anaesthesia during transplant surgery. He had marked his initials on their livers with an argon beam coagulator, a surgical instrument used for cauterisation. 

The MPTS decided on the 18th December 2020 to impose a suspension of five months on Mr Bramhall’s medical registration.

The GMC, with the Professional Standards Authority for Health and Social Care (PSAHSC) as party to the appeal, argued that the sanction was insufficient to maintain public confidence in the profession and/or to maintain proper professional standards and conduct for the profession.  In particular, the GMC appealed on the grounds that:

  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 further alternative, the Tribunal failed to give adequate reasons for its decision.

The PSA advances a further ground of appeal: 

“The Authority by way of its further ground of appeal submits that the GMC failed to present to the Tribunal all the statements made by the Registrant in its possession – particularly those made in the initial investigation by the NHS Trust which employed him, and his representations to the GMC – and then compare them to the statements he made in his police interview and his letter to the [sentencing] Judge. Reading all of the Registrant’s statements together is revealing: they were inconsistent and lacked candour; sought to minimise his misconduct; focused on the negative impact on him rather than the patients; and were tailored to avoid making admissions while at the same time attempting to demonstrate insight. The Registrant’s statements taken together reveal deep-seated attitudinal issues which could well have led the Tribunal to reach a different conclusion as to sanction. The GMC also failed to show the Tribunal the statements it had obtained from clinicians who had seen the Registrant in surgery, in particular where they contradicted his account that they sniggered at his misconduct.”

Mrs Justice Collins Rice noted in her judgement that “there is … profound ambivalence to be confronted about how Mr Bramhall and his actions should properly be regarded” because “on the one hand, what Mr Bramhall did was calculatedly harmless, since no physical damage beyond the ‘transient and trifling’” whereas “on the other hand, this was a criminal, non-consensual physical interference”. 

Noting however that her task was not to offer an opinion but to rehear the case, she ruled that she could not regard the sanctions decision “as anything other than a departure from the Sanctions Guidance” finding that, amongst other things, “Mr Bramhall had been convicted of more than one offence of deliberate violence. He was sentenced on the basis that his offences had targeted patients who were particularly vulnerable because of their personal circumstances.” 

She noted in relation to the above that “while that does not necessarily constrain a tribunal’s final decision, it does properly engage a duty to state clear reasons for departure” and that the MPTS’ “determination does not provide that”.

“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. There is an important part of the picture missing, or a ‘missing link’. That is a fundamental flaw – an error of principle.” 

Rice J commented that Mr Bramhall’s motivation “remains something of an under-explored and unresolved issue in this case.”  This is important because it raised fundamental question relevant to candour, insight and remediation which are all relevant to the question of sanction in this case. 

In conclusion, she said:

“The unusual features of this case (not to say anything of its public prominence) make it especially important that a careful, structured, and transparently accessible approach to regulatory decision-making is demonstrably taken. The same unusual features potentially call for the Sanctions Guidance to be applied particularly sensitively and thoughtfully, and possibly flexibly, to the facts. That is because of some of the ambivalence I have already alluded to in the factual matrix, and because the public and professional confidence issues may, on proper examination, turn out to pull in different directions. In these circumstances, I am satisfied that the right way forward is to quash the sanctions determination and remit the case for a fresh determination by a differently constituted tribunal. That will enable what may or may not be a difficult decision, when correctly approached, to be considered fully and in the round by the body Parliament has primarily entrusted with that responsibility.”

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