A summary of the Dr Bawa-Garba case – and what this may mean for trusts

Background

On 18 February 2011, six-year-old Jack Adcock, who had Down’s syndrome and a heart condition, was admitted to Leicester Royal Infirmary with sickness and diarrhoea. Dr Bawa-Garba, a trainee paediatrician, was responsible for the care of Jack and has been found to have been responsible for a series of errors, which led to Jack’s death later the same day. These errors were also contributed to by agency nurse, Isabel Amaro, who was responsible for Jack’s hands-on care.

Importantly, the Trust’s internal investigation concluded that no single root cause could be identified, and multiple actions were recommended in order to minimise risk to future patients. Concerns have been raised that the wider system in which Dr Bawa-Garba and Ms Amaro were working also contributed to Jack’s death and that they have been ‘scape-goated’ for systemic failures.

The systemic failures included difficulties with the IT system used to review test results and staffing issues; the on-call consultant was not on-site until the afternoon and the other registrar due on duty was attending a training day, with no cover provided. Dr Bawa-Garba also worked her 13-hour shift without a break and had just returned from maternity leave to a hospital which was new to her, having received no induction.

Criminal convictions and professional sanctions

In November 2015, Dr Bawa-Garba and Ms Amaro were found guilty of gross negligence manslaughter and were both handed two year suspended prison sentences.

In August 2016, it was found that Ms Amaro’s fitness to practise was impaired and she was stuck off the register by the Nursing and Midwifery Council (NMC). In June 2017, Dr Bawa-Garba’s fitness to practise was also found to be impaired by the Medical Practitioners Tribunal (MPT) and she was suspended from practice for 12 months. The MPT considered Dr Bawa-Garba’s actions to be neither ‘deliberate or reckless’ and decided that she did not ‘pose a continuing risk to patients’; erasure would therefore be disproportionate.

GMC’s appeal

The General Medical Council (GMC) was of the view that the MPT had re-examined the criminal case and arrived at its own, less severe, conclusion regarding Dr Bawa-Garba’s personal culpability. It therefore appealed the decision of the MPT to avoid setting ‘a wider precedent in allowing tribunals to unpick the findings and outcomes of the criminal court process’.

In January 2018, the High Court held that Dr Bawa-Garba’s sanction should be substituted for erasure from the GMC register, saying that “the tribunal did not give the weight required to the verdict of the jury, and it was simply wrong to conclude that, in all the circumstances, public confidence in the profession and its professional standards could be maintained by any sanction short of erasure”.

In March 2018, Dr Bawa-Garba was granted leave to appeal this decision and the High Court rejected the GMC’s argument that a manslaughter conviction should result in automatic erasure from the register.

Dr Bawa-Garba’s appeal

Dr Bawa-Garba appealed the decision of the High Court and was successful. Accordingly, the sanction of erasure has been set aside and the original order of 12 months suspension from practice, subject to review by the MPT, has been restored, with a review hearing to be held as soon as possible.

In handing down its unanimous judgment, the Court of Appeal held that the Divisional Court was wrong to interfere with the decision of the tribunal and commented that an appeal court should only interfere with the “evaluative decision” of a tribunal if:

• there was an error of principle in carrying out the evaluation, or
• for any other reason, the evaluation was wrong, in the sense that it was a decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide.

The Court of Appeal held that neither of the above grounds applied in this case and highlighted that the criminal court and the MPT are different bodies with different functions. They also said that the tribunal were just as entitled to take the systemic failings of the hospital and others into account when deciding sanction, as the criminal court had been when passing sentence.

The GMC has confirmed that it will not appeal to the Supreme Court.

Concerns with the GMC’s decision to appeal

The GMC’s appeal of the MPT’s decision has led to widespread unrest within the medical profession, largely because it is recognised that the systemic failures which contributed to Jack’s death are becoming the ‘norm’. Some of the concerns raised are:

• a fear that written reflections may be used against doctors in future cases (though this was not the case here). As a result, there is concern that doctors will be less frank in reflecting upon mistakes and that this will, in turn, threaten the learning culture within the profession, thus impacting on patient safety
• the GMC’s own regulator, the Professional Standards Authority, considered the GMC’s appeal to be without merit, given the established case law
• the perception that the GMC is lenient in cases where personal conduct is more worrying, for example doctors placed on the Sex Offender’s Register, or found guilty of fraud. It is argued that the GMC should concentrate on dealing with doctors who are deliberately and repeatedly dishonest, rather than those who are conscientious and make a single clinical error
• the GMC’s sanctions guidance clearly outlines that the purpose of fitness to practise proceedings is not to punish the doctor a second time. Therefore, if the doctor presents no danger to the public, their career should not be sacrificed in order to satisfy a demand for blame and punishment.

Future

Independent reviews have been commissioned by both the GMC (the Marx Review) and the government (the Williams Review) in relation to gross negligence manslaughter charges for doctors. The Williams Review, published on 11 June 2018, included a recommendation to strip the GMC of its right to appeal MPT decisions. Then health and social care secretary, Jeremy Hunt, said that he planned to implement this change amongst others, which includes a review, by medical examiners, of all deaths not currently considered by coroners.

The legislative process to repeal the GMC’s right of appeal will be lengthy and, in the meantime, the GMC has confirmed that it intends to continue exercising this right.

Comment

The systemic failings identified in this case resulted in the Crown Prosecution Service (CPS) re-examining whether University Hospitals of Leicester NHS Trust should be charged with corporate manslaughter. The Marx Review will also look at the tendency to pursue gross negligence manslaughter charges against individuals, as opposed to corporate manslaughter against trusts. Although the CPS decided not to pursue the Trust in this case, it remains to be seen whether the Marx Review will make any recommendations on this area. It is clear that there is currently a call from the profession for corporate manslaughter, rather than gross negligence manslaughter, to be the “go to” offence in cases such as this. It is therefore important that trusts adopt policies and procedures to avoid systemic failings becoming the “norm.” Attitudes, policies and accepted practices which encourage or tolerate any failure to comply with health and safety legislation should also be identified and challenged.

A report by NHS Improvement on the pilot of the Department of Health’s Medical Examiners found that possible adverse harm was detected in 10.5% of all deaths reviewed; half of which would not otherwise have been detected at this early stage. This therefore, allowed the coroner to be involved at an early stage. Whether this will have an impact on the number of claims and prosecutions in the future remains to be seen but it does offer the opportunity to gather evidence for such at a time close to events, which is essential should a claim arise. It also offers an invaluable opportunity for trusts to engage with the families of the deceased, which may reduce future litigation risk.

Written reflections should continue to be used as a tool for reflective practice by clinicians, so that patient safety is not compromised. Guidance has been published by the GMC on the content of written reflections and is a useful guide, should clinicians raise concerns.

Timeline

Feb 2011 – Jack Adcock dies from sepsis at Leicester Royal Infirmary

Dec 2014 – Dr Bawa-Garba and Ms Amaro are charged with gross negligence manslaughter

Nov 2015 – Dr Bawa-Garba and Ms Amaro are convicted of gross negligence manslaughter and given two year suspended prison sentences

Aug 2016 – Ms Amaro is struck off the NMC Register

Dec 2016 – Dr Bawa-Garba is denied permission to appeal against her manslaughter conviction

Jun 2017 – Dr Bawa-Garba is suspended for 12 months by the MPTS

Jan 2018 – The High Court substitutes the sanction of erasure from the medical register

Mar 2018 – Dr Bawa-Garba is granted leave to appeal her erasure and the GMC’s argument that a manslaughter conviction should result in automatic erasure from the register is rejected

Jul 2018 – Dr Bawa-Garba’s appeal is heard in the Court of Appeal

Aug 2018 – Judgment is handed down; Dr Bawa-Garba’s appeal was successful and her erasure is set aside and the Order for 12 months suspension restored.

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