GMC to push for erasure of paediatrician convicted of manslaughterBMJ 2017; 359 doi: https://doi.org/10.1136/bmj.j5223 (Published 09 November 2017) Cite this as: BMJ 2017;359:j5223
All rapid responses
Additional comments (1).(2).
I am concerned about the use of an incorrect analogy (i.e. "unlawful shooting of a mortally wounded prisoner") by the original trial judge in the direction to the jury. (3). Shooting is an 'active' action which is 'highly likely' to cause the intended effect. In this case, on the other hand, the inaction has been 'passive' and also there was merely a 'delay' in providing help which again in turn might or might not have made any difference to the eventual outcome. A more appropriate analogy for this case would have been "delay in providing (possible futile) help to a mortally wounded person". To a lay jury, who would have struggled to deal with medical uncertainties, this incorrect analogy could have had a significant effect on their thought process, discussion and decision making.
Furthermore, NHS is riddled with delays everywhere. With regards to major killers such as cancer and heart diseases , there are delays in referral, delays in getting blood tests, delays in performing and reporting of scans, delays in initiating appropriate therapy, delays in follow up and so on, each of which could have potentially hastened death even when cure is impossible and death is inevitable . For instance, the NHS 62 day wait target for cancer treatment is clearly inappropriate for cancers which are proliferating rapidly. (4).
We cannot hold an individual be criminally culpable for systemic failures in the NHS. An individual is completely "powerless" to change the system. In many ways, delays are the 'norm' rather than the exception in NHS. Was this mitigating factor specifically highlighted by expert witness to the jury?
Finally, I wish that the jury has been told that an analogy for being a doctor oncall for the admissions unit, AE and wards is "a chef cooking 10 different dishes simultaneously in an understaffed kitchen" !!!!
1. S Sundar. http://www.bmj.com/content/359/bmj.j5223/rr-30 .
2. S Sundar. http://www.bmj.com/content/359/bmj.j5223/rr-32
3. Court of Appeal. http://www.bailii.org/ew/cases/EWCA/Crim/2016/1841.html
4. Lung Cancer Treatment Waiting Times and Tumour Growth. http://www.clinicaloncologyonline.net/article/S0936-6555(00)99139-8/pdf
Competing interests: No competing interests
Where will the blame culture lead us? At some stage in the future will we think it worth checking the entire cast of doctors working for the GMC in a regulatory capacity for potential errors they may have been a party to, at some or any stage during their career? I doubt any doctor will be free from errors or omissions. They are usually the stimulus for greater anxiety and over careful management when faced with future situations. If we cannot have, as many respected commentators have mentioned, a ‘safe space’ to discuss these traumatic occurrences and debrief, learn and move forward, then what use is clinical governance? I grew up hearing stories of 4-day weekends sustained by milky coffee and courage, working alongside junior doctors who were likely burnt out; one even suicidal. All anecdotal, of course. As a medical student I tried to grasp the concepts of audit and risk management, only to later find myself and one colleague covering over 400 acute medical patients as night SHO’s. If Admissions was busy, the wards suffered and groaned while one or both of us diverted to clerking. The Registrar was seen flitting between wards and Admissions, certainly not responsible for chasing blood results or x-ray review, at least in the first instance. The House Officer would chase bloods, or the lab ring in worrisome findings. How can a registrar covering Children’s Assessment Unit, Accident and Emergency and the wards in a much busier teaching hospital in Leicester, be responsible for one tragic occurrence? No one can imagine the loss felt by the grieving family, but wouldn’t the healing thing to do be the explanation of what happened through a mediator, explaining that the tragic death was multifactorial and that Dr Bawa-Garba was not the cause? Surely we work as an MDT, and any death in such circumstances would be attributable to the MDT as a whole breaking down, perhaps through institutional problems such as poor staffing levels and inadequate senior support.
Rather than wreck the lives, reputations and careers of those onshift when a death occurs, the trust simply needed to arrange in-house reflections that culminated in better staffing, increased senior cover and re enforcement of early warning scoring systems to identify peri-arrest scenarios. It appears there are now 2 registrars in the Leicester Royal Infirmary doing the same, which speaks volumes. Isn’t this the very purpose of clinical governance-find errors, make changes, re-review the changes, feedback to patients and their families. Could not a series of meetings between the trust and the patient’s family, with mediators present, have averted this tragic hounding of one individual? Dr Bawa-Garba has been described as an ‘excellent doctor’ according to two consultant colleagues, Dr A and Dr D, as written in the recordings of the MTPS tribunal (1). Indeed, she worked for a further 4 years for the same employer-the inference would be that she was safe, which both the above-mentioned Consultants agreed verbally within this recording. What a great shame that this situation was allowed to go this far. GMC: do the honourable thing and prove your doubters wrong. Reinstate this doctor.
When a patient dies whilst on-shift, what are doctors’ feelings and thoughts? It is easy to blame a shell-shocked, possibly over-reflective doctor for the death of a patient. It is harder to pin down blame when faced with gross institutional failures. We live by the Multidisciplinary team, but abandon our colleagues as soon as a whiff of blame surfaces, perhaps from a grieving family lashing out. Without apportioning blame, a little analysis reveals many factors, as one would expect. Nursing and junior medical staff issues surface such as the unfortunate lack of repeating the blood gases despite being requested by Dr Bawa-Garba of her junior, the administration of enalapril despite it not being prescribed by Dr Bawa-Garba, or the seeming absence of early warning scores failing to cascade progressively senior clinician review by the nursing team. One point on the mention of bloods not being seen in the tribunal notes available online struck a chord-as a PRHO and then SHO in acute medicine, I reviewed the blood results of admitted patients rather than my registrar.
Let’s talk about why individual doctors may allow this type of allegation to be levelled against them, without necessarily being able to rebut effectively what was not their fault. A study of over 7,000 doctors to investigate health and psychological welfare after a complaint found their anxiety and depression scores increased with the severity of the complaint, most emphatically after GMC referral (2). No surprise there. 38% felt bullied, and they were twice as likely to have experienced thoughts of self-harm. I wonder whether one eventually starts to believe the anger within the grief of family bereaved, and acquiesce to the blame being levelled. In a study on paediatric registrars’ responses to child death, 91% of registrars think of a particular baby or child who died, and many of these thoughts related to doubt about management and unresolved issues (3). Potential reasons why the courtroom scene played out in this fashion..
Now to the conviction-many would argue that this is not gross negligence, but could well be a gross injustice. Cases that involve the tragic loss of life through supposed medical negligence should require, in my humble opinion, a specialist jury-one trained in medicine, perhaps. Certainly one able to accommodate situations where there could be a systems failure rather than individual culpability, however shell-shocked the defendant. Juries faced with the sad death of a child may be more likely to be sympathetic to the family in grief-we are only human, after all. Further analysis needs to be done in this field, and research is scanty, however what is known is that there is subconscious prejudice when a jury deals with BME defendants (4).
(1) MPTS Public record of determinations page 6, found at https://www.mpts-uk.org/static/documents/content/Dr_Hadiza_BAWA-GARBA_13...
(2) Tom Bourne et al. The impact of complaints procedures on the welfare, health and clinical practise of 7926 doctors in the UK: a cross-sectional survey. BMJ Open. Volume 5, Issue 1. Found at http://dx.doi.org/10.1136/bmjopen-2014-006687
(3): A Baverstock. Specialist Registrars’ emotional responses to a patient’s death. Arch Dis Child. 2006 Sep; 91(9):774-776 doi: 10.1136/adc.2005.076760
Competing interests: Empathy
I thank Dr Ilangaratne for commenting on my views. (1) (2).
Before I respond, I wish to state that I do not condone the poor clinical care provided by the team. I am commenting purely from a legal standpoint pertaining to 'criminal standard of proof' required for conviction of an individual in a clinical team .
As regards causation, if a 'medical treatment ' is (potentially) ineffective then it follows that withholding the said ' medical treatment' could NOT have hastened the death. I wonder whether the lay jury has been made aware of this critical information.
If clinical inactions could be legally deemed to have hastened death even when death is imminent and inevitable, then it has serious implications for routine care of patients where there is a high risk of mortality. For instance, most cancer deaths in hospice could be deemed to have been hastened either by medications ( e.g. sedatives ) or by withdrawal of food nutrition. (even if Doctrine of Double Effect with opiates is accepted).
As regards, 'the point of no return' there is no such clinically defined endpoint in management of septic shock and it is concerning to see legal discussions on this hypothetical clinical state.
1. S Sundar. http://www.bmj.com/content/359/bmj.j5223/rr-30 .
2. Jay Ilangaratne. http://www.bmj.com/content/359/bmj.j5223/rr-31
Competing interests: No competing interests
Dr Sundar (17.11.17) questions “whether the Jury has been specifically aware of this increased mortality risk that is present even in promptly treated patients because of the disturbance in the adaptive immune system that is intrinsically present in Downs syndrome patients.” Alternatively, he seems to be suggesting, had the jury been aware of the same, they may have come to a different conclusion. Without sight of the transcript of trial, it is not possible to say with any certainty whether such evidence was advanced at the original trial; the appeal court’s judgment  does not appear to shed any light in this regard either.
However, the issue of causation was clearly challenged on appeal, and para.33 to 36 of judgment  aptly summarises points raised in this regard by Dr Bawa-Garba’s counsel and the court’s response.
With regard to causation, at para.29, it is said:“Although a coronial case, it is also worth referring to R(Khan) v West Hertfordshire Coroner  EWHC 302 (Admin) because Richards J (as he then was) there seeks to illustrate that causation can be established without showing that the deceased would have survived. He went on (at [43(ii)]):
“But that is because it can be established by showing in the alternative that death, although inevitable, was hastened by the conduct in question. … the case [R(Dawson) v Coroner for East Riding and Kingston upon Hull  EWHC 352 Admin] does not support the proposition that causation can be established simply by showing that there was an opportunity to render care. It must be shown to the requisite standard of proof that care would have been rendered and that it would have saved or prolonged life. “Thus, as with Rose LJ, Richards J uses the formulation "death, although inevitable, was hastened" synonymously with "care … would have saved or prolonged life".”
In fact the trial Judge “was emphatic that the jury had to be sure "that Jack died significantly sooner" because of the negligence (by which it is clear he meant gross negligence) of the defendant whose case was being considered” .
Further, "the point of no return" was duly addressed at the trial, and the appeal court found at para34, “later negligence could not be causative and that he [Judge] had failed also to explain this direction by reference to the facts of the case, in particular the evidence of Dr Nadel that he could not be sure that this point had not been reached as early as 2.30 pm. However, in the light of the direction on this issue which we have set out above, this submission is untenable.”
In the light of the above, even if the jury was aware of the information which Dr Sundar cites, it is unlikely that they would have come to a different verdict. Of course, juries ability to grasp complex medical and scientific evidence put forward by experts is a contentious issue, just as it is difficult to assess to what extent their subconscious biases could affect the decision making.
If “the General Medical Council is perhaps between a rock and a hard place” as Dr Sundar suggests, then it is due to their wilful desire to get into such difficult situations by acquiring rights to challenge the decisions of its own adjudication arm, MPTS. Further, the GMC is at a distinct advantage as the cost of litigation does not appear to be an issue, thanks to the fee-paying doctors.
Long before, the GMC acquired powers to appeal decisions of the its own tribunal (MPTS), three Law Lords expressed some remarkable words of wisdom  :
“13.The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment. As was said in A Commitment to Quality, A Quest for Excellence, a recent statement on behalf of the Government, the medical profession and the National Health Service: "The Government, the medical profession and the NHS pledge … without lessening commitment to safety and public accountability of services, to recognise that honest failure should not be responded to primarily by blame and retribution but by learning and by a drive to reduce risks for future patients."
The MPTS’ decision makes it abundantly clear that, among other things, the above sensible words of the Privy Council were applied to the case of Dr Bawa-Gaba when they considered the sanction . Similarly, the tribunal was at pains to explore the public protection issue and went onto set out both mitigating and aggravating factors in detail before imposing a 12 month sanction. The thoroughness of the tribunal’s analysis of risks is further amplified by their finding at para.36 , “you do not have complete insight” and their decision to review the suspension order prior to its expiry. Hence, one wonders as to what were the shortcomings in the tribunal’s analysis and reasons which it has set out, seemingly to a standard well above what is expected of a first-tier tribunal. Similarly, it is puzzling, how could any reasonably competent legal professional say with confidence that GMC’s appeal has a real prospect of success on appeal given the high standard of tribunal’s reasoning for their decision.
As for Dr Anand’s query (13.11.17), “why the BMA is silent. Should it keep hiding itself?”, I would say, I am not surprised at all. By not intervening as an interested party to this appeal or expressing their concerns formally, the BMA has simply shown their insensitivity to doctors it represents, in particular to BME doctors. One would say, the BMA has scored another own goal.
Competing interests: Do not trust the BMA
The General Medical Council is perhaps between a rock and a hard place with this case as it is pressing ahead with an appeal in the High Court. One hopes the high court would do the right thing.
The profession should be more outraged at the adversarial legal system rather than at GMC as there has been more medical manslaughter cases recently.
With regards to Bawa- Grabas case, I do have some concerns.
The CPS website refers to a four stage test for gross negligence manslaughter ( also known as the Adomako Test as outlined by the House of Lords). (1). The test involves the following stages:
a) the existence of a duty of care to the deceased;
b) a breach of that duty of care which;
c) causes (or significantly contributes) to the death of the victim; and
d) the breach should be characterised as gross negligence, and therefore a crime.
Bawa-Garba’s case does fulfill the 1st and 2nd criteria.
As regards to the 4th criteria i.e "The Grossness of the Breach" , the CPS website says "It is for a jury to decide whether the defendant's conduct was so bad, in all the circumstances, as to amount to a criminal act or omission".
As regards the 3rd criteria i.e Causation , the CPS website refers to "R v HM Coroner for Inner London, ex parte Douglas-Williams  1 All ER 344" for a causation test in relation to gross negligence manslaughter. This case in turn refers to Galbraith test and the need to take into account the "strength of the evidence". (2).
Published literature indicates "Children with Down syndrome and sepsis have elevated risk of mortality." (3).
So the question is whether the Jury has been specifically aware of this increased mortality risk that is present even in promptly treated patients because of the disturbance in the adaptive immune system that is intrinsically present in Downs syndrome patients.(4).
1.The Crown Prosecution Service.Homicide Murder and Manslaughter: https://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/#gross
2. Chief Coroner. Law sheet no 2. Galbraith plus. https://www.judiciary.gov.uk/wp-content/uploads/2016/02/law-sheets-no-2-...
3. Garrison MM et al. Risk of death for children with down syndrome and sepsis. J Pediatr. 2005 Dec;147(6):748-52. https://www.ncbi.nlm.nih.gov/pubmed/16356424.
4. de Hingh YC, et al. Intrinsic abnormalities of lymphocyte counts in children with down syndrome. J Pediatr. 2005 Dec;147(6):744-7. https://www.ncbi.nlm.nih.gov/pubmed/16356423
Competing interests: No competing interests
Like most responders to this article I am appalled by the GMC’s decision and the injustice it seeks to inflict on Dr Bawa Garba. But I am not surprised.
The GMC in its present incarnation is a strange institution that mighty well have been created in the mid-20th century when the journalist Henry Fairlie proclaimed the existence of the Establishment.
It is a registered charity whose activities are overseen by a council of twelve members. Six of them are doctors and the other six are quaintly described as ‘lay members’, presumably because they are medically unconsecrated. All of them are appointed by the Privy Council, none are elected.
The chair of the GMC is a medical knight with a distinguished academic record worthy of recognition. The other counsellors are, no doubt, equally worthy citizens. Information published by the GMC reveals that each of them is a seasoned quango and/or committee sitter gifted £18,000 a year, plus expenses, for ‘up to’ three days work a month for the GMC.
The present chair of the council stresses that potential members have to appear before an ‘independent panel’ chaired by himself presumably to judge their suitability before they are appointed. The most recent panel consisted of a baroness who is Deputy Chair of the British Council, a member of the Board of the Office of the Scottish Charity Regulator, and the knighted Chairman of London Works who is also a Trustee of the Mayors Fund For London… I think I get the drift.
In the second half of the 20th century the GMC flirted with the idea of reforming itself but, as is the way with flirtation, the affair was confused and temporary. Then, early in this century, while public attention was distracted by the Shipman scandal, our masters imposed a system that included devolving regulatory governance to an unelected body populated by sort of folk who, in Henry Fairlie’s time, were described as the Great and the Good.
The treatment of Dr Bawa Garba shows just how remote this type of regulator can be from the world inhabited by those it seeks to regulate.
Competing interests: From 1971 to 1996 I was a member of the GMC serving as its Rebel in Residence
It appears that hundreds of healthcare professionals and members of the public believe that in this case the GMC is not acting to uphold the reputation of the profession and they are also raising concerns about whether it is acting in the best interests of patient safety. This is extremely serious. For the GMC to therefore "carry on regardless " is very worrying,
I have significant concerns about these gross negligence manslaughter convictions, especially some of the recent ones ( Dr Bawa-Garba, Mr David Sellu ). It is a fact that the job of the prosecuting QC in any GNM trial is to try to aggregate as much blame as possible onto the single individual (s). This approach may not allow a just outcome. Having heard from multiple healthcare workers who have experienced this process at first hand, what is concerning is how the role of systems can be downplayed in a court of law. Relevant systematic improvements can be excluded from even being put before the jury if they occurred after the death as well as the true significance of other individual's acts and/ or omissions and their responsibilities (as they are not on trial). I believe that the criminal law is a very blunt instrument when it comes to dealing with the complexities which invariably lie behind many tragic deaths in healthcare. I, and many others, also have grave concerns about a possible racial bias which must be considered urgently by all of the agencies involved in these prosecutions. To its credit, the independent MPTS tribunal heard the whole picture in the Dr Bawa-Garba case and decided to suspend rather than erase.
The GMC is using its powers to appeal this, arguing for her erasure from the register on 7/12/17. Having looked at the 2015 act, this power should be exercised rarely yet it seems the GMC are not doing this. I understand that there have been a very substantial number of appeals that have been instigated by the GMC over the past year, much higher than the numbers appealed by the PSA historically. I note that when this power was granted to the GMC the comment by Niall Dickson at the time was that an appeal decision would be used "rarely... and only if essential for patient, professionals and healthcare systems." How do they square this with the fact that in 2001 the following statement from " A Commitment to quality and Excellence" was signed by the then president of the GMC, Sir Donald Irvine CBE along with a host of other leaders of relevant organisations.
"The Government, the medical profession and the NHS pledge ... without lessening commitment to safety and public accountability of services, to recognise that honest failure should not be responded to primarily by blame and retribution but by learning and by a drive to reduce risks for future patients."
The decision to go for erasure is wholly disproportionate given what seems to have happened here. The contextual matters in this tragic case were vital in understanding why it occurred. There are many issues here for the whole medical profession to consider. I also note that historically, a conviction for GNM did not mean automatic erasure. I quote particularly the case of Dr Garg where a whole systems review, which was considered by the MPTS, meant that he was not erased. The Secretary of State for health has put a priority on Safe Spaces and learning as part of a just culture when it comes to error. The GMC's actions in this case promote the opposite effect, namely blame and punishment as part of further retribution which they feel must be the portion for Dr Bawa/Garba.
None of the above is about letting unjust acts committed by healthcare workers to be over-looked or not taken seriously. However, these were honest errors by a trainee against a backdrop of major systems failures which the MPTS appreciated and fully took account of and the GMC has not. The chilling message it is sending by this act will be heard by trainees and consultants up and down the country who are currently struggling with huge challenges in trying to deliver safe care for patients
Competing interests: No competing interests
No one can read this case and not be moved on at least three counts. Firstly, unconditional sympathy for the family of the deceased child. Secondly, disturbed bafflement about the decision of the GMC to pursue Dr Hadiza Bawa-Garba for professional misconduct. There is nothing in the account of the night in question to suggest that she is un-fit to practise, and nothing in her history to suggest that she posed a danger to her patients. How do we as clinicians reconcile our duties of candour with fears of erasure? And, thirdly, sympathy for Dr Bawa-Garba, who truly seems the scapegoat for an institutional inadequacy.
Competing interests: No competing interests
I wish to extend my condolences to the family for their loss, this was a terrible situation for everyone involved. However, the response of the GMC to try and overturn an independent tribunal is not appropriate or in anyone’s interests. The tribunal did not find Dr Bawa-Garba a danger to continue practising and did recognise the difficulties under which she was working and the multiple contributing circumstances to this tragic outcome.
As others have said, by the ‘Grace of God’ go I. Other responders have already more elequently put the details to this case and the possible unintended consequences but I felt I had to express my apprehension regarding the future of improving the NHS as a safe system to work in for both patients and staff if this goes ahead.
Competing interests: No competing interests
It’s harrowing to read the details and legal analysis surrounding Jack Adcock’s death; a 5 year old with Down’s syndrome whose life was not saved from overwhelming sepsis. Pity all the actors in this tragedy. Compassion demands we understand his family’s grief and the GMC’s desire to pursue a doctor who has already been convicted of manslaughter and in the Court of public opinion. No-one comes to work with the intention of failing in their duty of care. Mistakes happen because unfolding disease is more opaque than retrospectively, the tasks are multiple and complex, and humans are fallible: whether errors are picked up or lead to a bad outcome depends on experience, alertness, staffing levels and skill-mix, distractions, attending to nagging doubt, rechecks, a colleague questioning us and systems that prompt recall or discussion.
As human error is inevitable (especially within busy and unsafe systems), the conjunction of ‘this patient’ with ‘this healthcare professional’ being in the wrong place at the wrong time with the wrong support becomes a matter of ill-luck. We have to explain our actions to multiple jeopardy. There are no paragons of virtue who’ve never erred. Honesty should compel all decent and courageous doctors to stand up and admit “It could have been me, too”. If one case, on one day of a lifetime’s career, proved unlucky and led to such severe sanctions equitably, there would be no professional left standing.
Who benefits from a demand to punish, rather than rehabilitate, an individual doctor? The family? Hardly. The well-paid expert witnesses, lawyers, journalists and victims of medical accidents who’ve joined the ‘risk industry’? Maybe. Healthcare professionals who are now more fearful, mistake-prone and liable to leave the ‘high-risk’ specialties and their future patients? Definitely not. Surely a better legacy would be learn how to build safer systems from adverse and near-miss events that commanded the respect of all?
Competing interests: I was a consultant obstetrician for 17 years, and Clinical Director (obstetrics) for NHS London for 4 years. I was a member of the MDU Council and Cases Committee, have given occasional medico-legal expert reports and performed RCOG service reviews. I was completely exonerated after undergoing a 2-year investigation and full GMC Fitness to Practice Hearing for a single case. Despite the support of my Trust, colleagues and friends, working throughout and continuing for two years after, I no longer practice obstetrics.