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McIllwraith, Janine --- "Criminally negligent or scapegoat? The case of Dr Hadiza Bawa-Garba" [2018] PrecedentAULA 72; (2018) 149 Precedent 36


CRIMINALLY NEGLIGENT OR SCAPEGOAT?

THE CASE OF DR HADIZA BAWA-GARBA

By Janine McIlwraith

In late 2015 the world media reverberated with the news that Dr Hadiza Bawa-Garba had been convicted of manslaughter by gross negligence, triggering much debate (and outrage) from the health professional and medico-legal fraternities worldwide. Much of the discussion which followed was characterised by inaccuracies, missing information and sensationalism. In our social media-obsessed world of rapid information transfer, any inaccuracy is replicated millions of times until correcting it becomes almost impossible. What really happened, and is the criminal prosecution of doctors for clinical errors necessary for justice to prevail? This case potentially has wide-reaching implications, at least some of which were probably not considered before it went through the courts.

THAT FATEFUL DAY

On 18 February 2011, Dr Hadiza Bawa-Garba was the most senior doctor covering the Children’s Assessment Unit (CAU) at Leicester Royal Infirmary. At the time she was a specialist registrar in the sixth year of her postgraduate training.[1] Six-year-old Jack Aldcock was brought in by his mother following a referral from his GP. Jack had Down’s Syndrome and a known heart condition. He had been very unwell throughout the preceding night and had not been himself the day before. Jack had presented to the GP with dehydration caused by vomiting and diarrhoea, his breathing was shallow and his lips had a bluish tinge.[2]

When Jack arrived at the CAU at about 10:15am he was seen by the triage nurse who immediately asked that he be assessed by Dr Bawa-Garba. Jack was unresponsive and limp.[3] Dr Bawa-Garba saw Jack at about 10:30am and recognised that he was seriously ill. Jack was receiving supplementary oxygen at the time and Dr Bawa-Garba ordered a fluid bolus and blood gas test. The blood gas test was recognised as abnormal by Dr Bawa-Garba. She arranged blood tests and a chest x-ray.[4]

The blood gas results were available at 10:44am and showed a high lactate level, which when viewed with the other symptoms was an indicator of a differential diagnosis of sepsis. The x-ray was available at 12:30pm but was not viewed by Dr Bawa-Garba until 3pm, when she recognised that it indicated the presence of infection and ordered antibiotics.[5]

Dr Bawa-Garba reviewed Jack’s blood test results at about 4pm.[6] She did not recognise that those results indicated that Jack had sepsis. At approximately 4:30pm, Dr Bawa-Garba handed over Jack’s care to a consultant but made no specific request for the consultant to review Jack. Jack was transferred to the ward at around 7:30pm.

At the time of his admission, Jack was on regular medication, a drug called Enalapril, to lower his blood pressure. Dr Bawa-Garba realised that this drug should not be given to someone who is in shock and did not prescribe him the drug.[7] However, someone gave Jack his Enalapril and shortly afterwards he went into cardiac arrest.

A crash call was made at about 8pm and Dr Bawa-Garba was among the doctors who responded. On entering the room she mistakenly confused Jack with another patient who had a DNR order and called off the resuscitation. The mistake was noticed within between 30 seconds and 2 minutes and resuscitation was restarted.[8] Tragically, Jack died.

Recounted in this simplistic way, it is not hard to see why Dr Bawa-Garba’s errors and failings that day were variously described as ‘a catalogue of errors’ and her deficiencies as exceptionally bad.

EXTRANEOUS FACTS

However, such situations rarely arise in a vacuum and several factors that day may have contributed to Jack’s death.

Dr Bawa-Garba was the most senior doctor covering the emergency department and the ward that day. She had recently returned from 14-months’ maternity leave and this was her first shift in an acute setting since her return to work. Staff shortages meant she was doing the work of at least one other paediatric registrar[9] and her consultant was teaching in another town that morning.[10]

A failure in the hospital’s electronic computer system that day meant that although she had ordered blood tests at about 10:45am they were not reported in the ordinary way. Accordingly she only received them at 4:15pm.[11]

The nurse with primary care of Jack was an agency nurse. She did not tell Dr Bawa-Garba about Jack’s deterioration; she turned off the oxygen saturation monitoring equipment; she did not report his temperature of 40° or the extensive changing of nappies.[12]

Dr Bawa-Garba had worked a double shift that day (12/13 hours straight) without any breaks.[13]

Jack had been placed in a bed on the ward that had previously been occupied by a patient with a DNR order.[14] Dr Bawa-Garba was not aware that this other patient had been moved to another room, and that Jack had taken his place.

Dr Bawa-Garba continued to be employed by the Trust up until her conviction in 2015.[15]

Dr Bawa-Garba was 35 years old at the time. She had wanted to be a doctor from an early age.[16] Numerous positive testimonials were supplied by senior colleagues[17] who described her as an ‘excellent doctor’[18] and she had an unblemished record prior to this matter.[19] Indeed, she was considered to be in the top third of her specialist trainee cohort.[20]

There was no evidence that Dr Bawa-Garba had apologised to Jack’s family.[21]

EVIDENCE

A paediatric intensive care consultant gave evidence that Dr Bawa-Garba’s initial assessment of Jack was at least in part appropriate. He formed the view that her misdiagnosis of Jack as suffering gastro-enteritis did not amount to negligence until the point she received the initial blood tests, which he stated would have provided clear evidence that Jack was in shock and that ‘any competent junior doctor would have realised that condition’. He went on to say that if Jack had been properly diagnosed and treated he would not have died ‘at the time and in the circumstances that he did’.[22]

However, it was accepted that at some point during the day Jack’s condition deteriorated to a point where the administration of appropriate treatment would not enable him to recover.[23] The paediatric consultant gave evidence that the ‘point of no return’ could have been reached as early as 2:30pm.[24] Further:

‘It was accepted that even on his admission to hospital, Jack was at risk of death from this condition (quantified as being in the range 4-20.8%). The expert evidence, however, revealed the clinical signs of septic shock which were present in Jack... In addition, raised temperature, diarrhoea and breathlessness all pointed to infection being the cause.’[25]

No one contended that the interruption to resuscitation efforts caused Jack’s death. But evidence was led that Dr Bawa-Garba’s actions in this regard demonstrated her carelessness and a general level of incompetence:

‘for a short while, Dr Bawa-Garba had a mistaken belief that Jack was a child for whom a decision had been made not to resuscitate: this was because she mistook Jack’s mother for the mother of another child. Although this was said to be indicative of the degree of attention or care that Jack was receiving, it was underlined that this had no material or causative impact.’[26]

E-JOURNAL

One area of concern was the purported use of Dr Bawa-Garba’s e-portfolio[27] at the criminal trial. The Medical Protection Society (MPS) stated that this had been widely misreported and issued a statement saying ‘the e-portfolio did not form part of the evidence before the court and jury. Indeed, the court was clear that reflections were irrelevant to the facts to be determined and that no weight should be given to the remarks documented after the event’.[28] This statement would suggest that at least the existence of the reflection if not also part of its content was before the jury, but that it was directed not to rely on it. The General Medical Council (GMC) denied it used notes made by Dr Bawa-Garba about that day, but accepted they may have been used in the Medical Practitioners Tribunal.[29]

CRIMINAL PROCEEDINGS

Dr Bawa-Garba was investigated by police in 2011 and told in 2012 that no charges would be brought against her.[30] However, she was subsequently charged with manslaughter by gross negligence and the matter proceeded to trial in 2015 before a judge and jury. The case for the Crown was that Dr Bawa-Garba: ‘contributed to, or caused Jack’s death, by serious neglect which fell so far below the standard of care expected by competent professionals that it amounted to the criminal offence of gross negligence manslaughter.’[31]

The failings on which the prosecution case rested were Dr Bawa-Garba’s alleged:

• initial, hasty assessment of Jack;

• ignoring of obvious clinical symptoms;

• failure to recognise the significance of blood test results;

• failure to seek consultant input;

• failure to appropriately reassess; and

• failure to recognise the significance of the chest x-ray.[32]

The trial lasted a month.[33] The prosecution contended that Dr Bawa-Garba’s failings were ‘not just a momentary lapse ... Jack’s care was neglected over a protracted period of time.’[34]

The trial judge, Nicol J, directed the jury that:

‘What the prosecution has to show is that the negligence of the defendant ... at least significantly contributed to Jack’s death. You have heard that even if everything that the Crown say ought to have been done for Jack had been done, he might not ultimately have survived but the Crown will have satisfied this element of the offence if they have made you sure that Jack died significantly sooner because of the negligence of the defendant ... Once again, how big a contribution that has to be in order to qualify as significant is left to your good sense, although it must be more than trivial or minimal.’

The jury was further directed that to satisfy the test for gross negligence manslaughter it must be satisfied that Dr Bawa-Garba’s actions were ‘truly exceptionally bad’.

After five days of deliberation, the jury by a 10-2 majority[35] found Dr Bawa-Garba guilty of manslaughter (by gross negligence) on 4 November 2015.[36] Shortly thereafter she was sentenced to a term of two years’ imprisonment, suspended for two years. She was also ordered to pay £25,000 towards the prosecution’s costs.

Dr Bawa-Garba subsequently sought leave to appeal and was refused by a single judge. She then renewed her application for leave to appeal the conviction before a panel of three judges in the Court of Appeal. Dr Bawa-Garba’s counsel argued that it was an error of law to direct the jury that the prosecution had proved its case if the jury was sure that Jack died significantly sooner as a result of Dr Bawa-Garba’s negligence. She argued that the test was inverted and that the jury should have been required to be satisfied that the treatment contended for by the prosecution would significantly have prolonged Jack’s life.[37] However, the Court held that the two tests are not inverse but merely ‘different sides of the same coin’[38] and rejected the challenge to the way in which the jury was directed with regard to causation.

The Court commented that counsel for the defendant recognised that the trial judge had correctly directed the jury in stating that the prosecution had to show that what Dr Bawa-Garba had done was ‘truly, exceptionally bad’.[39] The Court held that none of the grounds of appeal was arguable and refused the application.

DISCIPLINARY PROCEEDINGS

Following on from the criminal proceedings, the GMC prosecuted Dr Bawa-Garba before the Medical Practitioners Tribunal Service (MPTS), alleging that Dr Bawa-Garba’s criminal conviction and sentence meant that her fitness to practise was impaired. Dr Bawa-Garba admitted the entirety of the allegations and the Tribunal took the certificate of conviction as conclusive evidence that the offence had been committed and announced the allegations proved.[40]

The Tribunal considered that Dr Bawa-Garba’s actions and resulting conviction had brought the profession into disrepute and breached the fundamental tenet of good care. However, the Tribunal also considered her failings capable of being remedied and was satisfied that the risk of Dr Bawa-Garba putting a patient at unwarranted risk in the future was low. It went on to state that it ‘considers that the risk of your clinical practice suddenly and without explanation falling below the standards expected on any given day is no higher than for any other reasonably competent doctor’.[41]

The Tribunal held that the public confidence would be undermined if a finding of impairment was not made and that such a finding was required in order to protect and promote proper professional standards within the profession.[42] Consequently, the Tribunal found that Dr Bawa-Garba’s fitness to practice was impaired.[43]

The real dispute arose with regard to the sanction. The GMC’s counsel submitted that the only appropriate sanction was erasure.[44] Counsel for Dr Bawa-Garba submitted that the events leading to her conviction did not take place in isolation but in combination with failings of other staff and multiple systemic failures.[45] The Tribunal agreed that while Dr Bawa-Garba’s actions fell far short of the standards expected and were a causative factor in Jack’s early death, they took place in the context of wider failings.[46]

The Tribunal accepted evidence that Dr Bawa-Garba had demonstrated significant insight but felt unable to conclude that she had complete insight as she did not give evidence before the Tribunal.[47] The Tribunal went on to note that the sanction of erasure would be disproportionate, stating that ‘in all the circumstances of the case, your actions and subsequent conviction are not fundamentally incompatible with continued registration. It also concluded that public confidence in the profession would not be undermined by a lesser sanction; your actions were neither deliberate nor reckless. Although your actions resulted in the early death of [Jack], you do not present a continuing risk to patients.’[48] The Tribunal concluded that the most appropriate sanction was suspension and felt the period of suspension should cover the period until the criminal sentence was served. Thus the Tribunal ordered Dr Bawa-Garba’s registration be suspended immediately for a maximum period of 12 months.[49]

The GMC appealed against the decision of the MPTS to the High Court on the ground that Dr Bawa-Garba should have been erased from the register, not suspended from practice for one year.[50] Lord Justice Gross and Justice Ouseley heard the appeal. Justice Ouseley found that the decision of the Tribunal on sanction was wrong and that the sanction of erasure must be substituted for the sanction of suspension.[51] He stated that the Tribunal had not given full respect to the jury’s verdict, that Dr Bawa-Garba’s failures ‘were not simply honest errors or mere negligence, but were truly exceptionally bad’. He stated ‘the Tribunal’s approach did not respect the true force of the jury’s verdict nor did it give it the weight required when considering the need to maintain public confidence in the profession and proper standards’.[52] He elaborated:

‘the Tribunal ... reached its own and less severe view of the degree of Dr Bawa-Garba’s personal culpability ... as a result of considering the systemic failings or failings of others...’[53]

‘They were the circumstances in which her failings occurred, but they did not cause them to occur, as the jury’s verdict showed. The holes in the patient’s safety net cannot reduce her personal culpability.’[54]

‘... there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that ... this was something she had not been trained to cope with ... without making such serious errors. It was her failings which were truly exceptionally bad.’[55]

Dr Bawa-Garba appealed the decision of the High Court to the Supreme Court.[56] On 13 August 2018 the Court of Appeal overturned the High Court’s decision to erase Dr Bawa-Garba from the medical register. The Court noted that the central issue on appeal was the proper approach to a conviction of a medical practitioner for gross negligence manslaughter in terms of fitness-to-practise sanctions where the registrant does not pose a continuing risk to patients. The Court concluded:

‘It is clear from that analysis that Ouseley J approached the matter on the basis that (1) the gross negligence manslaughter verdict meant that the Tribunal had to accept that Dr Bawa-Garba’s failings in her care and treatment of Jack had been truly exceptionally bad and had caused him very serious harm, (2) such culpability would require a sanction of erasure in order to maintain public confidence in the medical profession and its procedures for maintaining its professional standards unless there were sufficiently significant reasons for imposing a lesser sanction. That seems to us to be materially the same as a presumption that a conviction for manslaughter by gross negligence should lead to erasure in the absence of exceptional or truly exceptional circumstances, a proposition which Ouseley J rightly said (at [40]) was not correct.’[57]

AUSTRALIA

In Australia, at common law, the offence of involuntary manslaughter applies where the accused killed the deceased without intending to; the death being due to an unlawful or dangerous act or criminal negligence.

According to Eburn the difficulty with the test for criminal negligence is that there is no clear definition as to when it applies; it is a question for the jury.[58] However, the leading statement was espoused in Nydam v R [1977] VicRp 50; [1977] VR 430 where the Victorian Supreme Court said:

‘In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.’ (Italics inserted).

It is perhaps the last words in this statement that are the most important. This requirement clearly contrasts with the direction to the jury in R v Dr Bawa-Garba, that all that was required was that her actions were considered ‘truly exceptionally bad’. One can only wonder whether the result would have been the same had the jurors been required to focus on whether her actions, in light of all the circumstances, warranted criminal conviction.

Many have asked whether a similar case could arise in Australia. The statistics demonstrate that there is a lesser propensity to seek criminal conviction of doctors in Australia compared with England, where the actions in question relate to their clinical practice. Looking at cases where a doctor has been prosecuted, it would seem that Australian authorities have reserved such a step for instances of repeated below-standard care over a period of time and with a number of patients impacted (for example, Dr Jayant Patel and Dr Graeme Reeves). The other aspect that seems to have influenced the decision to prosecute is where there has been some level of disregard for expected standards of professionalism (for example, where a doctor may be self-prescribing medications). It may also be relevant whether the alleged criminal acts were acts of commission or omission. Commenting on Dr Bawa-Garba’s conviction, Dr Brad Frankum, president of the Australian Medical Assocition (AMA), was quoted as saying ‘generally, criminal convictions have been against those with criminal intent, or who were unethical or doing something illegal, whereas this case is different, and it’s truly disturbing’.[59]

The emotion the prosecution has evoked is evident in the comments of Sydney paediatrician, Dr Andrew McDonald, who although concerned at the prosecution did not think similar action would be taken here. He stated ‘[t]he NSW Medical Board or the Australian Health Practitioner Regulation Authority (AHPRA) are not perfect but I’ve never seen anything as vindictive and poorly informed as this’.[60]

IMPLICATIONS

As regards the insurance ramifications of this case, it is important to note that ‘the Dr Bawa-Garba case’ was not a single case; it was a series of civil and disciplinary proceedings and no doubt civil proceedings will follow. The events have unravelled over a protracted period of time, undoubtedly at great financial cost to all involved, including all the insurers for the hospital, doctors and nurses who were implicated.

The decision to criminally prosecute Dr Bawa-Garba and then to press for her erasure from the register on the basis of her conviction was widely criticised by doctors across the UK and abroad. The role of the GMC in this regard created divisions within the medical profession. To many it seemed that the peak body for doctors was out of touch with its members. This division could also create tension between the GMC and the medical protection societies.

Crowd-funding was apparently used to enable Dr Bawa-Garba to challenge the High Court decision to erase her name from the register. Having the possibility of facing such an enormous sanction without the backing of an insurer to meet the legal costs would be terrifying. Given the need to crowd-fund, many doctors, particularly those in hospital settings, lost confidence in their insurance coverage. Junior doctors may not feel adequately covered by the hospital’s insurance and wish to source their own separate insurance but that would come at a great cost. There is also potential for an actual or perceived conflict of interest to arise where a junior doctor and the hospital’s interests diverge in circumstances where all the blame is being sheeted home to the junior doctor.

A lack of acknowledgment of the systems failures that contributed to Jack’s death may also impact on the insurance industry in other ways. The decision justifiably raised grave concerns for open disclosure and associated patient safety initiatives, given the GMC’s and courts’ emphasis on personal responsibility. An increase in errors can only lead to an increase in claims and an increase in liability for the insurer.

Following the disposition of this case, one would have expected the law to have been clarified. On the contrary, there remains great uncertainty as to the law and the appropriateness of the prosecution for gross negligence manslaughter. Further, the test has been described as setting the bar too low.[61] Such uncertainty has many negative consequences, including the difficulty it poses for insurers and their lawyers in advising clients and assessing likely exposure.

CONCLUSION

In regards to the criminal conviction, Jack’s mother has been quoted as saying ‘we are absolutely elated with the decision. It’s what we wanted. I know we’ll never get Jack back but we have got justice for our little boy.’[62] The events of that fateful day were undoubtedly devastating for all concerned, particularly Jack’s parents and family. However, I am not convinced that the criminal prosecution of Dr Bawa-Garba in the circumstances of this case represents justice.

I agree with the comments of the MPS medical director Dr Rob Hendry:

‘A striking feature of the law in England and Wales is that intent, carelessness, or recklessness is not required for a conviction. The legal bar is too low and it’s hard to see who benefits – a family has lost a loved one through tragic circumstances, a doctor may lose their career and face a prison sentence, the NHS has lost a valuable doctor, and fear of personal recrimination becomes increasingly embedded across healthcare.’[63]

Janine McIlwraith is a Principal Lawyer, Medical Law, Slater & Gordon, and an Adjunct Associate Professor at the University of New England. EMAIL Janine.McIlwraith@slatergordon.com.au.


[1] Record of Determination – GMC v Dr Bawa-Garba MPT 13 June 2017.

[2] Hadiza Bawa-Garba v The Queen Court of Appeal (Criminal Division) [2016] EWCA Crim 1841, [4-5].

[3] Ibid, [6].

[4] See above note 1, [5].

[5] Ibid, [6].

[6] Ibid.

[7] J Bullen, ‘Dr Bawa-Garba: Who’s to blame when a medical tragedy occurs?’, ABC News (online), 15 February 2018, <http://www.abc.net.au/news/health/2018-02-15/dr-bawa-garba-who-is-to-blame-when-a-medical-tragedy-occurs/9417166> .

[8] See above note 1, [7].

[9] See above note 7.

[10] Ibid.

[11] See above note 2, [17(iv)].

[12] Ibid, [17(vii)].

[13] Ibid, [18].

[14] Statement from the Royal College of Physicians and Surgeons of Glasgow, The Case of Hadiza Bawa-Garba v GMC (30 January 2018) <https://rcpsg.ac.uk/news/2480-the-case-of-hadiza-bawa-garba-v-gmc>.

[15] See above note 1, [10].

[16] Sentencing hearing per Nicol J.

[17] See above note 1, [10].

[18] Ibid, [27].

[19] Ibid, [18].

[20] Ibid, [29].

[21] Ibid, [19].

[22] See above note 2, [10].

[23] See above note 1, [7].

[24] See above note 2, [34].

[25] Ibid, [8].

[26] Ibid, [16].

[27] E-portfolios are journals kept by doctors to reflect on their clinical practice.

[28] E Han, ‘Australian doctors “disturbed” by manslaughter conviction against Dr Hadiza Bawa-Garba’, The Sydney Morning Herald (online), 1 February 2018, <https://www.smh.com.au/healthcare/australian-doctors-disturbed-by-manslaughter-conviction-against-dr-hadiza-bawagarba-20180201-h0rrat.html>.

[29] See above note 7.

[30] See above note 1, [10].

[31] See above note 2, [9].

[32] Ibid, [11-13].

[33] C Dyer, ‘Paediatrician found guilty of manslaughter after boy’s death from septic shock’, BMJ, 5 November 2015, 351.

[34] Ibid.

[35] Ibid.

[36] As was the agency nurse on duty that morning.

[37] See above note 2, [23].

[38] Ibid, [30].

[39] Ibid, [36].

[40] See above note 1.

[41] Ibid, [20].

[42] Ibid, [23].

[43] Ibid, [24].

[44] Ibid, [3].

[45] Ibid, [9].

[46] Ibid, [28].

[47] Ibid, [29].

[48] Ibid, [32].

[49] Ibid, [35] and [5].

[50] GMC v Dr Bawa-Garba [2018] EWHC 76 (Admin), [1].

[51] Ibid, [37].

[52] Ibid, [38].

[53] Ibid, [41].

[54] Ibid, [46].

[55] Ibid, [51].

[56] Bawa-Garba v General Medical Council [2018] EWCA Civ 1879.

[57] Ibid, [91].

[58] M Eburn, ‘Professional discipline after serious criminal conviction – lessons from the UK’, Australian Emergency Law, 29 January 2018, <https://emergencylaw.wordpress.com/2018/01/29/professional-discipline-after-serious-criminal-conviction-lessons-from-the-uk/>.

[59] See above note 27.

[60] See above note 7.

[61] Telegraph Reporters, ‘Legal bar for convicting healthcare professionals of manslaughter is “too low”, medical organisation warns’, The Telegraph (UK, online), 13 March 2018, <https://www.telegraph.co.uk/news/2018/03/13/legal-bar-convicting-healthcare-professionals-ofmanslaughteris/>.

[62] ‘Hunt orders review of criminalising doctors after Bawa-Garba case’, BBC News (online), 6 February 2018, <http://www.bbc.com/news/health-42958391> .

[63] See above note 61.


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