Dr Bawa-Garba and protecting public confidence
On 13th August 2018 the Court of Appeal handed down its decision in the case of Dr Bawa-Garba v the General Medical Council. The GMC had successfully appealed against the decision of the original Medical Practitioners Tribunal not to erase Dr Bawa-Garba, but to suspend her from practicing for 12 months. The Court of Appeal upheld the original sanction, ruling that erasure was not appropriate in this tragic case.
Dr Bawa-Garba was convicted by a jury before the criminal courts of gross negligence manslaughter, for behaviour which the trial judge felt was so serious that it should be marked by a sentence of imprisonment, albeit suspended. Yet neither the MPT nor the Court of Appeal felt it necessary to erase her from the register. This left many wondering what would it take for public confidence in the profession to be damaged, if not gross negligence manslaughter?
On 18th February 2011 Dr Bawa-Garba was on duty at the Leicester Royal Infirmary Hospital. She had just returned from a period of maternity leave and had completed two shifts back to back.
Jack Adcock, a 6 year old boy, was admitted to the hospital at 10.15am that morning. When he attended he was unresponsive and limp. Jack presented with dehydration caused by vomiting and diarrhoea, his breathing was shallow and his lips slightly blue. Jack had a history of illnesses. He had been diagnosed with Downs Syndrome from birth. He also had a hole in his heart that required surgery. He was taking enalapril which meant he was more susceptible to coughs and colds.
Dr Bawa-Garba was the most senior junior doctor on duty and Jack was under her care for the next 8-9 hours. Dr Bawa-Garba was assisted by a nurse, Isabel Amaro and the ward sister, Theresa Taylor.
Jack was originally diagnosed as having gastro-enteritis and dehydration. After an x-ray it was determined that Jack in fact had pneumonia and was treated with anti-biotics. As a result of this not being picked up immediately, Jack’s body went into septic shock which caused his heart to fail. Despite attempts to resuscitate him, he died at 9.20pm. There was also a mistaken belief, perpetuated by Dr Bawa-Garba, that Jack had a ‘do not resuscitate’ in place, which hindered his care.
Initially Dr Bawa-Garba was informed that the Crown Prosecution Service would not prosecute. However, following the inquest into Jack’s death in 2013, the CPS reviewed its decision and in December 2014 she was informed she would be charged. Ms Amaro and Ms Taylor were also charged.
During this time Dr Bawa-Garba remained employed at the hospital.
At the hearing the prosecution advanced a number of failures by Dr Bawa-Garba, which it said led to her being grossly negligent. Dr Bawa-Garba’s defence was that Jack’s death was as a result of hospital computer failures, lack of staff and failures by others.
The trial judge directed the jury that the prosecution had to show that what Dr Bawa-Garba did was ‘truly exceptionally bad.’
On 4th November 2015 Dr Bawa-Garba was convicted of gross negligence manslaughter. Ms Amaro was convicted of the same offence.
On 14th December 2015 Dr Bawa-Garba was sentenced to two year’s imprisonment, suspended for two years. She was ordered to pay £25,000 in legal costs. The remarks of the judge when sentencing were ‘there was a limit to how far these issues could be explored in the trial, but there may be some force in the comment that yours was a responsibility that was shared with others’.
Fitness to Practice Proceedings
Under Fitness to Practice Rules a certificate of conviction is conclusive evidence of the offence committed and cannot be challenged. The role therefore of the Medical Practitioners Tribunal is to determine if fitness to practice is impaired and if so what sanction to apply.
On 20th February 2017 a hearing was convened to assess whether Dr Bawa-Garba’s fitness to practice was impaired. Dr Bawa-Garba did not give evidence at that hearing. On 22nd February 2017 the Medical Practitioners Tribunal held that Dr-Bawa-Garba’s fitness to practice was impaired. It found that she ‘fell far below the standards expected of a competent doctor’ at her level and that the conduct had brought the profession into disrepute. However, it went on to say that the clinical failures, although serious, were capable of being remedied and had been addressed.
On 12th June 2017 the same panel reconvened to consider sanction. Again Dr Bawa-Garba did not give evidence; the panel commented ‘the Tribunal was unable to conclude that you had complete insight into your action as it did not hear from you directly’. On 13th June 2017 it issued its decision to suspend Dr Bawa-Garba immediately for 12 months, subject to review. The panel confirmed that it had to bear in mind that the sanctions were not to be punitive but to protect patients and the public interest. The Medical Practitioners Tribunal weighed up the following factors:
|Mitigation factors||Aggravating Factors|
|Unblemished record||Failures were numerous|
|Good Character prior to the event||Failures continued over a period of hours|
|Remained employed by the trust until conviction||A failure to re-assess Jack|
|No concerns raised regarding her clinical competency||Jack was a vulnerable patient given his age and disability|
|Length of time since offence||Expressed condolences but did not apologise|
|Covering CAU, emergency department and the ward|
|Systematic failures identified by the Trust in its independent report of the incident|
|No evidence actions were deliberate or reckless|
The Medical Practitioners Tribunal said ‘whilst your actions fell far short of the standards expected and were a causative factor in the early death of Patient A, they took place in the context of wider failings.’
The GMC appealed the decision. The High Court overturned the Medical Practitioners Tribunal decision and replaced it with a sanction of erasure. In essence the judge felt that the panel had not taken into account the true force of the jury’s finding of ‘truly exceptionally bad’ behaviour on the part of Dr Bawa-Garba.
Dr Bawa-Garba appealed. Her grounds of appeal were that the court had erred:
- By applying a presumption that a conviction of manslaughter by gross negligence should lead to erasure save in exceptional circumstances;
- By failing to appreciate the distinct roles of the jury in a criminal trial and the Medical Practitioners Tribunal;
- By unlawfully substituting its own judgment on the basis a suspension was not sufficient to maintain public confidence;
- In concluding the Medical Practitioners Tribunal was precluded from taking into account evidence of systematic failures;
- By reaching an irrational conclusion; no reasonable court could have concluded erasure was the only sanction.
The Court of Appeal confirmed that
The task of the jury was to decide on the guilt or absence of guilt of Dr Bawa-Garba having regard to her past conduct. The task of the Tribunal, looking to the future, was to decide what sanction would most appropriately meet the statutory objective of protecting the public pursuant to the over-arching objectives… to protect, promote and maintain the health and safety and well-being of the public.
As a result of this finding, the Court of Appeal held it was wrong of the court to presume a conviction of manslaughter should lead to erasure save in exceptional circumstances and to preclude evidence of systematic failures within the hospital at the time of the incident.
The Court of Appeal overturned the court’s decision and re-issued the 12 month suspension as the appropriate sanction in this case.
Having read the judgment it is clear Dr Bawa-Garba was well regarded amongst her peers; indeed a fund set up by junior doctors raised over £200,000 to go towards her legal fees. The incident itself was deemed a one-off incident; a lapse in clinical judgment in an otherwise unblemished history. She had taken remedial action in respect of any issues. There were also failures on the part of others and the hospital itself.
If the public had all of this information, it would no doubt agree Dr Bawa-Garba’s sanction was fair.
If you need any advice or assistance in relation to fitness to practice proceedings, please contact Laura Pearce on 0207 388 1658 or email her at email@example.com
Laura Pearce, Senior Solicitor