Paediatrician convicted of manslaughter must be erased from register, rules High Court
BMJ 2018; 360 doi: https://doi.org/10.1136/bmj.k417 (Published 26 January 2018) Cite this as: BMJ 2018;360:k417
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I analysed the Bawa-Garba judgment under ten numbered paragraphs on 2 February [1]. At para,(10), I erroneously referred to para.52 of the judgment [2] whereas it should have been para.51; having given further thought, I have redrafted that paragraph below:
(10) The High Court’s (‘HC’) conclusion at para.51 that “there was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors”—gives the clear impression that despite not giving any or sufficient weight to extraordinary systemic failings, totally unexpected, additional workload which fell upon Dr Bawa-Garba and other factors —it effectively embarked on applying a perverse standard of infallibility on a Year 6 trainee doctor.
(11) Having expressly found that “before and after the tragic events, [Dr Bawa-Garba] was a competent, above average doctor”, thus confirming there are no health & safety risks to the public as per the first limb of the ‘over-arching objectives’. However, HC went on erase her off the medical register to satisfy the ‘public confidence’ and ‘maintain proper professional standards’ as per the second and third limb of the ‘over-arching objectives’ respectively (see para.6;[2]). It is highly unlikely that the Parliament ever intended such an approach in relation to--honest clinical errors—as in this case, thus the HC has fallen into error in its interpretation and application of the ‘over-arching objectives’ of the GMC. Had the Parliament intended to strike-off otherwise safe doctors for honest errors, simply to satisfy the second & third limb of ‘over-arching objectives’, then it would have clearly stated so in legislature. Further, even if the ‘over-arching objective’ has been poorly drafted and lacks clarity, it is not a sufficient reason for a court to misapply the same in a disproportionate and/or perverse manner.
Jurisdictional Challenge
In GMC’s first appeal-Jagjivan[1] under new legal powers, their jurisdiction to appeal was unsuccessfully challenged in the High Court but it appears, was not appealed or taken up in other cases which followed Jagjivan. Although it is not necessary for Dr Bawa-Garba to re-challenge GMC’s jurisdiction, and may also encounter some hurdles at permission to appeal stage, particularly as this point was not taken up at the High Court--in the wider interest of the medical profession--the jurisdictional point could be freshly taken up with more refined arguments than originally submitted in Jagjivan [3]. Whilst it appears there was some consultation exercise, it is not clear as to the level of parliamentary debate (if any) or whether an Equality Impact Assessment was considered/necessary or carried out before granting new legal powers to the GMC. Further it is mentioned in Jagjivan (para.36) that “Article 6” argument was not advanced or considered. Arguably, in the light of Bawa-Garba judgment, there is now a “compelling reason for the Court of Appeal to hear”[4] this point.
References
[1] http://www.bmj.com/content/360/bmj.k417/rr-10
[2] http://www.bailii.org/ew/cases/EWHC/Admin/2018/76.html
[3] http://www.bailii.org/ew/cases/EWHC/Admin/2017/1247.html
[4] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52#52.7
Competing interests: No competing interests
It is widely anticipated that Dr Bawa-Garba would be appealing the controversial High Court judgment [1]. Given the decision of the High Court (‘HC’) was itself made on appeal, an appeal to the Court of Appeal would be considered a ‘second appeal’ under Civil Procedure Rules (‘CPR’); permission to appeal test for second appeals is set out under CPR 52.7[2]. In such appeals the Court of Appeal will not give permission unless it considers that
“(a) the appeal would—
(i) have a real prospect of success; and
(ii) raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it.”[2].
My analysis of main issues in the judgment [1] is set out below:
(1) The High Court (‘HC’) having expressly rejected the presumption that a conviction for manslaughter by gross negligence should lead to erasure in the absence of exceptional or truly exceptional circumstances, acknowledged the rarity of convictions for the said offence accounts for the absence of specific reference (para.40) in the Sanction Guidance, and confirmed that Sanction Guide was properly noted (para.19) by the MPTS (‘tribunal’), HC fell into error in its own analysis of facts found by an expert tribunal by imposing the most extreme & disproportionate sanction of erasure.
(2) In the interest of justice and fairness, it was incumbent upon the HC to consider all of the other reasonably available sanctions between a 12-month suspension and ultimate erasure, without simply leapfrogging to consider erasure from the medical register. Further, its failure to follow such reasonable, logical approach and give any or sufficient consideration to fundamental legal principle of proportionality in relation to sanction, and its failure to provide any or sufficient reasoning for not giving such consideration is perverse and an error of law.
(3) There is no established legal test to assess the proportionality of sanction with regard to public confidence and maintenance of proper standards requirements under ss1 and 40A, Medical Act. Similarly, neither the Crown Court nor its jury have any formal jurisdiction, albeit it may relate to a criminal conviction, to decide matters in relation to imposition of sanction by an expert tribunal. Further, at best, it is highly controversial if not unlikely that the lay juries have the expertise, knowledge or skill to carry out a balancing exercise of complex medical/scientific evidence, mitigating factors etc compared to an expert tribunal such as MPTS. Notwithstanding the above, the HC misdirected itself by relying on a sentencing remark of the trial judge (para.37) and/or misinterpreting that ‘truly exceptionally bad’ meant--nothing other than--meriting a sanction of erasure.
(4) Further or alternatively, the HC’s bland insistence that the tribunal did not give due weight to jury’s verdict and had minimised personal culpability is wholly inconsistent with the tribunal’s careful adherence to Sanctions Guide, risk assessment and in particular, clear reservations as to insight and decision to review following a 12-month suspension.
(5) HC’s finding that Dr Bawa-Garba’s failures “were not simply honest errors” (para.38) is at odds with the fact they were neither deliberate, reckless errors nor as confirmed by the trial judge as a result of laziness or selfishness. Thus, it appears the HC’s decision making process has been tainted by its own misdirection as to the nature of her errors. Further, there is nothing to confirm that ‘truly exceptionally bad’ failures were not due to innocent errors.
(6) Whilst expressly acknowledging that “two ‘systemic’ failings” were “not explored at trial”, apparently without any reasonable assessment of its merits, the HC concluded “that they could not have affected the verdict” (para.45); this is an unfair approach, breach of Article 6 ECHR/HRA. Further even if the Dr Bawa-Garba’s counsel had agreed with such approach, it was in the interest of justice that HC carried out its own independent assessment of unexplored issues at trial before considering an alternative sanction.
(7) The HC accepted, “there is force” (para.46) in the point with reference to failure of systemic safety nets at the material time but went on conclude such failures did not diminish personal culpability. Further at para.50 it is said, “it would require rather stronger circumstances” to justify suspension to maintain public confidence in that profession, and its procedures for maintaining its professional standards. The HC’s express failure to identify those “stronger circumstances” or provide any explanation as to what it really meant, among other things, gives rise to considerable legal uncertainty as to the standard/test it set upon when deciding the impact of mitigating factors such systemic failures.
(8) Further or alternatively, if the extraordinary systemic failings on the day which were pleaded in mitigation were insufficient to meet HC’s requisite standard/test (which it has failed to identify), then in the interest of justice and fairness, it should have explained reasons for rejecting such systemic failures in some detail without simply relying on the phrase ‘truly exceptionally bad’ to justify its substituted sanction.
(9) Para.52, the HC referred to the apparent legal test adopted by the tribunal with regard to sanction, “fully informed and reasonable member of the public", and accepted that it is “a useful notion to invoke”. Such careful, logical approach of the tribunal undoubtedly reinforces the view that it not only followed the s40A, Medical Act but also attached due weight to jury’s verdict rather than minimising its impact without applying any objective legal test. Further, HC whilst effectively praising tribunal’s test (as above), it did not apply such objective test, nor develop and follow its own version of suitable legal test when analysing the ‘public confidence and professional standards’ requirement. Arguably, the HC’s conclusion is simply a value judgment.
(10) At para.52, the HC’s assertion “There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or..” is contrary to the evidence before the court. Further or alternatively, the HC failed to appreciate all of the circumstances fully including the fact it was first day back after a long period of leave and highly responsible, unexpected, additional tasks which fell upon Dr Bawa-Garaba on that day. The HC seems to have taken a rather rigid mechanistic approach to human dealings/failings and personal mitigation which does not reflect the realities of modern day clinical practice in the NHS, nor what actually happened on that fateful day in 2011.
References
[1] http://www.bailii.org/ew/cases/EWHC/Admin/2018/76.html
[2] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52#52.7
Competing interests: No competing interests
As an educationalist everything our global education community has worked towards has failed. Dr Bawa-Garba has been drastically failed by the very elements medical education was designed to achieve, a personal reflective log sacred to herself and her learning, a complete lack of supervision and an wholly unsafe learning environment.
The principles of medical education are unique. It is not simply designed to ensure someone demonstrates the appropriate knowledge, skills and attitudes. It is also more fundamentally designed to serve to nurture, to encourage, to motivate and protect.
A candidate’s reflective elements are never meant to be used as ammunition against the learner. The subjectivity is too grand. No one can ever objectively determine from a learner’s entry the actual learning that has occurred. That is sacred to the learner.
As educationalists, we have highlighted time and again severe inadequacies in mentorship. A doctor in training is exactly that, one in training. And the training never ends! My long term mentor once told me he never stops training, the moment he does he is of no use to his patients. He currently serves as a Senior Consultant, Professor and Dean. Mentors are ever more important in a world of increasing patient volume, complexity of care, and society’s expectations. Mentorship failed in Dr Bawa-Garba’s case.
As educationalists, we have highlighted time and again the importance of a safe learning environment. That particular day was wholly unsafe. Reduced staffing and inadequate technologies. We spend thousands on simulation and our selling point is the safe learning environment. This is of course of no use if in real life the learning environment is far from such.
The sacred principles of medical education have failed Dr Bawa-Garba. And worse still have been ignored entirely. I call upon educators to recognise our responsibility in view of this occurrence. If legalising our principles is necessary then we are duty bound to do so.
Dr Neel Sharma
Competing interests: TASME Awards Lead AMEE Postgraduate Committee Member
The public need to have confidence in the medical profession, which would be undermined if the General Medical Council did not permanently remove from the register doctors convicted of the most serious criminal offences. Criminal negligence manslaughter is one such offence.
However, the public, and doctors, also need to have confidence in the criminal justice system. At present we do not. The trial summary, as presented by the appeal court, (http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2016/18...(Bawa-Garba) does not justify the original verdict.
Dr Bawa-Garba, a doctor in training, failed to diagnose severe sepsis in a child – once. To be more precise, she made the correct diagnosis and ordered the correct treatment, albeit after some delay, but failed to appreciate the full seriousness of the child’s condition until it was too late.
She did not kill Jack Adcock. Sepsis killed Jack Adcock. Dr Bawa-Garba tried unsuccessfully to save him by administering intravenous fluid, oxygen, and antibiotics. Her intent to save his life was never in doubt. Everyone agrees that she should have done more, but her failure to do so was not due to intoxication, laziness, malevolence or pride. It was due to cognitive failure; she did not appreciate the seriousness of his condition.
Even in the absence of any mitigating factors, cognitive failure is part of being human. It does not justify such a serious conviction.
In fact the court considered some mitigating factors, the partial failure of the hospital lab results system, the contributory culpability of two other staff members who failed to inform her of abnormal results, made their own monitoring errors, and delayed giving the antibiotics that Dr Bawa Garba had prescribed, as well as her previous unblemished record.
But, according to the appeal court record, the original court did not fully consider the potential co-culpability of the duty consultant who took Dr Bawa-Garba’s reassurance that the child was improving at face value, despite being more senior, ‘in charge’ and also aware of the very low pH. That consultant did not appear in court. Nor, as far as we can see, did the court consider other alleged mitigating factors such as her having to cover for other doctor’s absences, being on her first day back after maternity leave, and not having received any return to work orientation.
The medical expert called by the defence, Dr Martin Samuels, who has also argued in Dr Bawa-Garba’s defence in these pages, (http://www.bmj.com/content/359/bmj.j5223/rr) was a general consultant paediatrician. In contrast the prosecution expert, Dr Nadels, who presumably argued in court that her care “fell so far below the standard of care expected by competent professionals that it amounted to the criminal offence of gross negligence manslaughter” was a consultant in paediatric intensive care. Did the jury understand that, all else being equal, Dr Samuels was better placed to judge the standard of care expected of a general paediatrician?
There is another strange aspect to the jury’s verdict. One of the nurse co-defendants was also convicted of the same offence at the same trial. Medical negligence manslaughter is extremely uncommon, with only 22 convictions and three guilty pleas since 1795 in the UK – fewer than one every eight years. For comparison the National Lottery has created 4,750 millionaires since 1994, nearly 200 per year. Given that there has never been any suggestion that Dr Bawa-Garba and the nurse colluded, it is an extraordinary coincidence that two people should independently commit such a rare offence on the same day, in the same hospital and while caring for the same child?
However, all the above is speculation. We have not seen the full transcript of the original trial. Perhaps there was some particularly heinous behaviour by Dr Bawa-Garba, which justified the verdict. Perhaps the jury was unduly swayed by her mistakenly mixing up Jack Adcock with another child with a “Do No Attempt Resuscitation (DNAR)” order in place, when she attended the final crash call. It’s not difficult to see how that would anger the child’s parents, although the appeal court makes clear, both that there were ample reasons for the mix up, and that it did not alter the final outcome. Perhaps the court erred. Lawyers and juries, like doctors, are not perfect.
We support the call by Drs Moosa Qureshi, James Haddock and Chris Day, for an independent legal opinion on the original criminal trial verdict. https://www.crowdjustice.com/case/help-dr-bawa-garba/
Last year in a letter in these pages Dr David Nicoll wrote:
“How on earth did Dr Hadiza Bawa-Garba ever get convicted of gross negligence manslaughter? It is possible that the judiciary, just like the medical profession, are fallible and there has been a miscarriage of justice - this, however, is a question to be addressed on another day.”
In our opinion, now that the GMC appeal has been upheld, that other day has arrived.
Competing interests: No competing interests
The High Court upheld the appeal of the GMC in the case of Dr Bawa-Garba and she has been struck off the Medical Register because her clinical errors were determined to amount to gross negligence manslaughter.
During 4 decades of practice, I have made clinical errors including delayed diagnosis and errors in treatment. Some sick patients died. I am sure that many would have died anyway, but in some cases my errors are likely to have contributed to poor outcomes and some patient deaths.
Therefore I have asked the GMC to investigate my clinical practice over the last 40 years to see whether I am fit to practise. Other doctors who have made similar clinical errors may also feel obliged to report themselves to the GMC.
It is clear that the High Court agreed with the GMC that honest errors should be career ending mistakes. The High Court also agreed with the GMC that in the case of Dr Bawa-Garba, the three members of the Fitness to Practise Panel had made an error in determining Dr Bawa-Garba’s sanction. Will the GMC be asking for removal those three individuals from the list of panel members, so that they cannot make a mistake at a future tribunal?
Competing interests: No competing interests
Tower Hamlets is characterised by high social disadvantage. People live with more illness, consult more frequently, and die younger, compared with more affluent areas. The number of patient contacts per GP is very high, resulting in both patients and doctors feeling more stressed after consultations. ‘We want fresh doctors’, a Patient Participation Group member requested during an engagement event in Tower Hamlets in 2014. He went on to explain that he no longer wanted to consult doctors who looked tired and distracted. http://bjgp.org/content/65/639/536
Despite testing new ways of working, we are still being measured in an appraisal system that does not appreciate complexity in the system (Safety I) nor what features could strengthen the system. Safety II refers to a "new approach which seeks to understand the ability of clinicians to adapt to problems and pressures. It is based on the view that healthcare is a complex adaptive system that is constantly changing in unexpected and unpredictable ways. The linear approach of Safety I, which involves tracing causes of events and mapping out steps in procedures, doesn’t fit this reality. In a complex adaptive system it is the humans who make things work by problem solving and adapting to the pressures in their environment". http://resiliencecentre.org.uk/fact-sheets/safety-i-and-safety-ii/
The Medical Appraisal System urgently needs to move to a kinder and more intelligent way of improving safety in the NHS by focusing on measuring resilient teams and systems.
Competing interests: No competing interests
In one quote Massey seems to have displayed a significant misrepresentation of part of the High Court judgement and a profound lack of insight regarding the effect on transparency within the UK medical profession.
Specifically the judgment stated "I do not accept Mr Hare's submission that there is a presumption that a conviction for manslaughter by gross negligence should lead to erasure in the absence of exceptional or truly exceptional circumstances." In other words there may be circumstances in which erasure is not appropriate.
Clearly the MPTS decided, and many concerned doctors believe, that this was the case here. Many respectfully disagree with the GMC action and the High Court decision.
His comments regarding 'engendering a speak-up culture' will ring as very hollow to doctors following this case. There will clearly be a backlash following this outcome and the damage to openness done by the GMC will become evident in time.
There is an impression that the trial, and thus this later judgment, were flawed by the exclusion of the hospital report into the event from evidence before the jury. This judgement states, regarding the MPTS reaching a decision not to erase, "It did so as a result of considering the systemic failings or failings of others and personal mitigation which had already been considered by the jury." How can this be so when the report into the many significant systematic failures was kept from the jury by the trial judge upholding prosecution submissions to do so?
Competing interests: No competing interests
Well written. The GMC and the Trust and the Court have all done what politically influenced, heavily biased adversarial prosecutors do: hunt and kill for revenge. As a metaphor. This is not a well balanced decision with an eye for patient care safety long term. This is public and political appeasement. The elephant in the room is also discrimination, for who she looks to be, the faith she appears to publically espouse.
An eye for an eye, said a very wise man from my homeland once, will leave the whole world blind. Where is the justice in this? She is a scapegoat for a system about to crash under the burdens of lean, mean and unclean. A system failing everybody but most of all its vulnerable public. Sacrifice the expendable ethnic doctor, appease a public in uproar, carry on with a failing system with impunity and cross your fingers hoping no further Mid Staffs story will happen. Meantime, quickly change executive and board jobs. The Adjudicators here need to be placed on trial for endangering a whole generation of patients with their vigilante justice. An eye fo an eye, dear GMC, High Court and regulators, esp in sad clinical systematic fatal failures will definitely leave your children's future blind. No one will work for you anymore when a trial for systematic failure led error is paid back with implacable medieval and permanent revenge.
Competing interests: No competing interests
Dear Editors
The GMC’s chief executive, Charlie Massey, is quoted to have said: “We know the strength of feeling expressed by many doctors working in a system under sustained pressure, and we are totally committed to engendering a speak-up culture in the NHS. Doctors should never hesitate to act openly and honestly if something has gone wrong.”
Certainly a classic example of irony if we ever need one.
Considering how some 'evidence' presented in the original criminal court is obtained, how some witnesses and testimonies are not allowed to be held by in the same jury, and yet the defendant doctor was denied permission to appeal against the decision of the jury, it is not surprising health professionals are concerned about the issue of natural justice, particularly when working in a system under significant stress like the NHS is now.
The extent and methods used by the GMC to pursue their agenda leave doctors in no doubt where the GMC stand if an honest mistake is made by any doctor even when the adverse outcome was not borne by this mistake alone.
Welcome (back) to the Dark Ages of defensive medicine, one that the NHS can ill afford.
Competing interests: No competing interests
A call for a new National Performance Assessment body for doctors with the Health Secretary as Head of Performance
The Health Secretary, Jeremy Hunt, stripped the GMC of the right to appeal against its own fitness-to-practise tribunal. This was a big step in restoring the confidence of the medical profession that has lost all confidence in their regulator. However, only a small step has been achieved regarding the total protection of the medical profession when the workforce is still at high risk.
There is now a continuing retention and recruitment crisis for hospital doctors and GPs, despite steps being taken to boost the number of medical students in the future by 25%. According to the RCP, last year, in physician specialities, 45% of advertised consultant posts were not appointed to and 24% of consultants reported frequent trainee rota gaps. Visas have been increased now to facilitate the recruiting of overseas doctors as the NHS has become very dependant on foreign doctors for survival.
It is, therefore, fundamental that the sanctioning process that tarnished the name of the GMC, both locally and internationally, as a harsh punitive body, be urgently reviewed by the Health Secretary. The motto should be to support by mentorship and not to punish except for truly criminal cases or gross negligence manslaughter or recklessness causing serious harm to patients.
The GMC sanctioning process is decided by either an Interim Order Panel (IOP) or Fitness to Practice Panel (FTP) for up to a period of 18 months. The sanctions seem often disproportionate in comparison to the gravity of actual offences. Yet, there have been multiple cases of patient fatalities apparently due to either recklessness or negligence when only warnings have been issued to the doctors. The Health Secretary has decided that all death cases would now be reviewed by highly trained medical advisers. GMC proposes to invite GPs to provide evidence to its medical manslaughter review.
The sanctioning process involves suspension, or conditions imposed on the registration and Supervision from Low Level to CLOSE Supervision when a second doctor has to be present ALL THE TIME. All forms of supervision have to be funded entirely by the supervised doctor. The Law ensures that the suspended doctor earns his full income during Suspension: 100% for a hospital doctor and a minimum of 90% for a general practitioner. Close supervision is, therefore, financially disastrous for ANY doctor, especially if he has a family to support, mortgage, loans, school fees. The single-handed doctor would receive a Suspension allowance but would find it hard to meet the full locum costs at the BMA rate.
Further, for a single-handed GP, he would be restricted from practising as single-handed. Stigmatised as a HIGH RISK doctor, he may find it very hard to join a group practice or an entirely new doctor, who must NOT be a locum or single-handed, despite the fact that such doctors may be well qualified holding the MRCGP, the essential qualification now for a GP. The hardship for a single-handed doctor is such that most prefer to commit career suicide by taking Voluntary erasure.
Referral of GPs to the GMC is initiated by NHS England Performance Assessment, who employs part-time medical advisors. They are GPs trained to assess and their reporting can be instrumental for a doctor being suspended or removed from the Performers List or being referred to the GMC. These medical advisors appear well protected whenever their reports are flawed by gaps in their clinical knowledge or clinical misinterpretations. These advisors often interpret guidelines in a black-and-white way, penalise their peers for the slightest deviation from these guidelines or for using the British National Formulary recommendations despite achieving a good clinical outcome. They would pontificate instead that ‘harm has been done to patients’ and the performance department may be heavy-handed. This can be a humiliating experience.
To decide on GP sanctioning, the GMC uses GPs with a string of diplomas. Are they actually accredited experts as Consultants in their fields? This would be relevant when their reports appear to agree with the NHS medical advisor’s reporting. Who overlooks the whole process?
I order to instill complete confidence in the medical profession, the time has come for the Health Secretary, who is the Head of Performance, to take over the task and responsibility of Performance Assessment of hospital doctors and GPs by the creation of a National body, manned by specialists accredited by the Royal Colleges. The time has also come to replace GMC supervision financed by the doctor with mentorship support financed by the government. The final assessment of doctors should be by that national body.
Dr A R Sooltan (retired GP)
Competing interests: No competing interests