Jake Taylor and Stephen Reynolds examine the case of Dr Hadiza Bawa-Garba.
Doctors in uproar, a historic vote of no confidence in their regulator, a young patient dead, and the subsequent conviction, suspension and erasure from the medical register of the junior doctor in charge of his care. The case of Dr Bawa-Garba goes to the heart of the current state of the often-fractious relationship between doctors and their regulator, the General Medical Council (GMC).
While the final decision of the Court of Appeal on 13 August 2018 ( EWCA Civ 1879
), reversing Dr Bawa-Garba’s erasure, provides useful guidance for lawyers and advisers on the proper approach to the conviction of a medical practitioner for gross negligence manslaughter, in the context of fitness to practise sanctions under the Medical Act (MA) 1983, the wider ramifications of the case are being seen and felt in hospitals and surgeries around the country. This article seeks to explain Dr Bawa-Garba’s unusual and poignant case, and to clarify what actually took place at the various stages of proceedings.
Jack Adcock died at the Leicester Royal Infirmary children’s assessment unit (CAU) on 18 February 2011. A ‘thriving little boy’ (para 5 of the Court of Appeal (Civil Division) judgment), Jack had a number of conditions, including Down’s syndrome and long-term bowel and heart abnormalities. He was six years old at the time of his death.
On the morning of 18 February 2011, Jack was taken to see his GP, who had him admitted to the Leicester Royal Infirmary CAU. Jack presented with dehydration caused by vomiting and diarrhoea, slow breathing and slightly blue lips. The doctor on duty that day, and in charge of Jack’s care, was Dr Bawa-Garba. She was then a registrar in year six of her specialty postgraduate training. She had only recently returned to work after having her first baby. During the later proceedings, she was described as having had an ‘exemplary record’ as a doctor. On the day, she had worked a double shift of 12-13 hours without a break.
Jack was admitted to the CAU at 10.15 am, where he was unresponsive and limp. He was seen by Dr Bawa-Garba, who erroneously diagnosed him with a stomach bug and dehydration. Jack was in fact suffering from pneumonia and in urgent need of antibiotics. This was not diagnosed until much later in the day.
There were significant difficulties on the day – difficulties that would later be described as ‘failings’ by the NHS trust. These included staff shortages, a reliance on agency nurses who were not experienced with the CAU systems, significant IT failings that meant a delay in obtaining test results, and a lack of more senior doctors on duty, leaving Dr Bawa-Garba as the most senior.
When it came to Jack’s care, Dr Bawa-Garba was later said to have failed to check the first blood test when it became available at 10.44 am, and to have failed to check the X-ray when it became available at around 12.01 pm (this was not viewed by Dr Bawa-Garba until 3 pm). It was not until approximately 4.15 pm that Dr Bawa-Garba viewed the blood tests, at which point, it was said, she did not appreciate their significance. It was also alleged that Dr Bawa-Garba failed to note that Jack’s heart medication should be discontinued, meaning that he received an evening dose when he should not have done.
Jack’s pneumonia caused his body to go into septic shock and resulted in organ failure. At 7.45 pm, this caused his heart to fail. Despite efforts to resuscitate him, Jack was pronounced dead at 9.20 pm (the resuscitation efforts were initially and briefly hampered by the mistaken belief that Jack was a child in the ‘do not resuscitate’ category). The cause of death given after the post-mortem was systemic sepsis and pneumonia combined with Down’s syndrome and his heart condition.
Dr Bawa-Garba was charged with gross negligence manslaughter and subsequently stood trial before Nicol J and a jury at Nottingham Crown Court. The prosecution case was that Jack’s care was deficient over a prolonged period of time, that the clinical signs of sepsis were evident at the time of his admission, and that Dr Bawa-Garba’s failure to correctly and promptly diagnose this was grossly negligent. It was alleged that the results of the initial blood tests, together with Jack’s medical history, physical condition and symptoms, would have shown any competent junior doctor that Jack was in shock. The judge directed the jury that the prosecution had to show that Dr Bawa-Garba’s professional performance was ‘truly exceptionally bad’.
On 4 November 2015, following 25 hours of deliberation, and by a majority verdict of 10 to two, Dr Bawa-Garba was convicted of gross negligence manslaughter. A nurse on duty at the time (Isabel Amaro) was also convicted of the same offence, while the ward sister (Theresa Taylor) was acquitted. On 14 December 2015, Dr Bawa-Garba was sentenced to two years’ imprisonment, suspended for two years.
A serious untoward incident inquiry was completed on 24 August 2012. The inquiry was unable to identify a single root cause of Jack’s death, but it concluded that numerous aspects of the clinical process required change and that failings had taken place.
The criminal appeal
Dr Bawa-Garba sought leave from the Court of Appeal (Criminal Division) to appeal her conviction on the basis that the directions of law given to the jury in the course of the judge’s summing up were wrong. This concerned the direction that the prosecution had proved its case if the jury were sure that Jack died significantly sooner because of the negligence of Dr Bawa-Garba. Sir Brian Leveson P, giving the judgment of the court, held that the direction encompassed the fact that the jury had to be sure that the treatment would have saved or significantly prolonged Jack’s life. On 8 December 2016, leave to appeal the criminal conviction was refused ( EWCA Crim 1841
The Medical Practitioners Tribunal
Following her conviction, Dr Bawa-Garba was referred to the Medical Practitioners Tribunal (MPT). On 22 February 2017, the MPT found that Dr Bawa-Garba’s fitness to practise was impaired by virtue of her conviction, and that such a finding was required in order to maintain public confidence in the profession and promote proper professional standards and conduct. The MPT accepted that Dr Bawa-Garba had remediated the specific clinical failings that had been identified.
In June 2017, the MPT came to determine the appropriate sanction and imposed an immediate suspension for a period of 12 months. In doing so, the tribunal found that Dr Bawa-Garba’s actions and conviction were not fundamentally incompatible with continued registration; that public confidence in the profession would not be undermined by a lesser sanction; and that she had remedied her failings. The MPT’s sanction decision specified six matters that it took into account as providing a ‘context of wider failings’. They were: (1) failings on the part of the nurses and consultants; (2) medical and nursing staff shortages; (3) IT system failures that led to abnormal laboratory test results not being highlighted; (4) deficiencies in handover; (5) accessibility of the data at the bedside; and (6) the absence of a mechanism for an automatic consultant review (see para 72 of Court of Appeal (Civil Division) judgment).
The GMC appeal to the High Court
To the consternation of many doctors, the GMC then made use of its recently acquired power to appeal under MA 1983 s40A(3). The GMC argued that the MPT had failed to take proper account of the statutory duty to consider public confidence in the profession and that it had come to a view that she was less culpable than the verdict of the jury established.
The GMC’s appeal was heard in the High Court on 7 December 2017. Ouseley J commented that the MPT had, in imposing a suspension instead of erasure, attached significant weight to the aforementioned ‘multiple systemic failures’ at the hospital at the time. The MPT’s decision was not consistent with, and did not respect, the verdict of the jury as it should have. He considered that the tribunal had reached its own, less severe view of the degree of Dr Bawa-Garba’s personal culpability. On that basis, the court overturned the decision of the MPT and held that the only appropriate sanction was that of erasure from the register ( EWHC 76 (Admin)
The appeal to the Court of Appeal (Civil Division)
Dr Bawa-Garba was granted permission to appeal on 23 March 2018. The main issue on appeal was whether the High Court was right to interfere with the MPT’s decision on sanction. It was noted that caution was required, given that a specialist adjudicative body, such as the MPT, has experience and expertise that the court lacks.
The court first considered whether the MPT had made an error of principle in determining the appropriate sanction. In considering this question, the court reached a number of conclusions. It observed that the task and approach of a jury is fundamentally different from that of a professional tribunal. The Crown Court and the MPT are different bodies with different functions, addressing different questions, at different times. Second, the court explained that ‘different degrees of culpability are capable of satisfying the requirements of gross negligence manslaughter’ (para 77), with some failings being more serious than others. Indeed, the fact that the offence itself encompasses different degrees of culpability is reflected in the range of sentences available, and the imposition of a suspended sentence was significant in this regard. Accordingly, the fact that the MPT had imposed a sanction of suspension rather than erasure did not mean that it had viewed Dr Bawa-Garba’s culpability as lower than that required for gross negligence manslaughter. Instead, a sanction of suspension was perfectly consistent with the view of Dr Bawa-Garba’s culpability that was expressed in the jury’s verdict and in Nicol J’s sentencing remarks. Thus, the tribunal ‘was not disrespecting the verdict of the jury’ (para 78), because it was not deciding that Dr Bawa-Garba’s failings were anything less than ‘truly exceptionally bad’. Instead, it was engaged in a different exercise: that of evaluating the case to determine the most appropriate sanction to satisfy the statutory objective of protecting the public.
The court then moved on to consider whether the decision to suspend Dr Bawa-Garba was a decision that was ‘properly and reasonably open’ to the MPT. It concluded that it was, and that it was ‘impossible’ (para 87) to say otherwise. The court noted that the relevance and application of the Sanctions guidance
will always depend on the particular circumstances of a case, and that there is no requirement to impose a sanction of erasure in cases of gross negligence manslaughter.
For these reasons the Court of Appeal allowed Dr Bawa-Garba’s appeal and set aside the decision of the Divisional Court. Her case was therefore remitted to the MPT for her suspension to be reviewed.
For practitioners and lawyers alike, the Court of Appeal’s judgment is highly significant for at least two reasons. First, because it clarifies that criminal courts and professional tribunals perform fundamentally different roles, with different approaches and different objectives. Second, because it confirms that a conviction for gross negligence manslaughter will not necessarily result in a sanction of erasure, and that there is no presumption that it should. The judgment thus makes it clear that being convicted of gross negligence manslaughter is not, in principle, incompatible with continuing to practise medicine.
Reviews and recommendations
In light of the considerable public and professional interest that Dr Bawa-Garba’s case attracted, Professor Sir Norman Williams was tasked with conducting a rapid review into gross negligence manslaughter in the healthcare setting. He concluded his review (Gross negligence manslaughter in healthcare: the report of a rapid policy review
, June 2018) by providing a number of recommendations, including that a working group be set up to provide a clear position on the law of gross negligence manslaughter, and that the GMC’s right to appeal decisions of the MPT be removed. The government has welcomed Professor Williams’s findings, but the policy ramifications of Dr Bawa-Garba’s case are likely to continue to unfold: Dame Clare Marx has been commissioned by the GMC to conduct an independent review into cases of gross negligence manslaughter, and will report on her findings early next year.