Should a doctor’s gross negligence manslaughter conviction lead to automatic erasure from the GMC register?

Timeline

• February 2011 – Jack Adcock dies from sepsis at Leicester Royal Infirmary
• December 2014 – Dr Hadiza Bawa-Garda, agency nurse Isabel Amaro and ward sister Theresa Taylor are charged with gross negligence manslaughter
• November 2015 – Dr Bawa-Garba and Ms Amaro are convicted of gross negligence manslaughter and given two year suspended prison sentences
• August 2016 – Ms Amaro is struck off the NMC Register
• December 2016 – Dr Bawa-Garba is denied permission to appeal against her manslaughter conviction
• June 2017 – Dr Bawa-Garba is suspended for 12 months by the MPTS
• January 2018 – The High Court substitutes the sanction of erasure from the medical register
• March 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
• July 2018 – Dr Bawa-Garba’s appeal is heard in the Court of Appeal. Judgment is Reserved.
• August 2018 – Appeal successful

Background

On the morning of 18^th 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 into Jack’s death concluded that no single root cause for Jack’s death 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 the fact that Dr Bawa-Garba was responsible for the workload of two doctors that day, as no cover had been provided for the other Registrar to attend a training day, and the on-call Consultant was not on-site until the afternoon. Additionally, there were difficulties with the IT system, used to review test results, which resulted in one of the more junior doctors spending the day on the phone to the laboratory chasing results. Dr Bawa-Garba also worked her 13 hour shift without a break and had just returned from maternity leave to a new hospital and had received no induction.

Criminal convictions and professional sanctions

Four years after Jack’s death, Dr Bawa-Garba, Ms Amaro and ward sister Theresa Taylor were charged with gross negligence manslaughter. In November 2015, Dr Bawa-Garba and Ms Amaro were found guilty and were handed two-year suspended prison sentences. Dr Bawa-Garba was denied permission to appeal her conviction.

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

Appeals

The GMC appealed the decision of the MPTS and said it was doing so because, if they did not, this case would ‘set a wider precedent in allowing tribunals to unpick the findings and outcomes of the criminal court process’. The GMC was of the view that the MPTS had re-examined the criminal case and arrived at their own, less severe, conclusion regarding Dr Bawa-Garba’s personal culpability.

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 is currently being heard in the Court of Appeal and judgment has today been reserved.

Concerns about the GMC’s decision

The GMC’s decision to appeal the decision of the MPTS 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 within the overstretched NHS. Some of the concerns raised are:

• Written reflections are an important tool used by doctors to learn about mistakes, both personally and via shared experiences, thereby improving patient safety. There is now a fear that these 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 in relation to doctors placed on the Sex Offender’s Register, or guilty of defrauding charities and insurance companies or performing inappropriate surgery for personal gain. 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.
• It is argued that the GMC’s Sanctions Guidance clearly outlines that the purpose of fitness to practise proceedings is not to punish the doctor a second time for the offences of which they have been found guilty. 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. The criminal court and the professional regulator each represent a different function and, whilst criminal convictions should be taken into account, they should not be conclusive of sanction in professional conduct matters.

Update 13/08/18 – Appeal Successful

Dr Bawa-Garba has been successful in her appeal against the High Court decision to substitute her suspension for erasure from the GMC Register.

In handing down their unanimous judgment, the Court of Appeal held that the Divisional Court was wrong to interfere with the decision of the Tribunal and, accordingly, they set aside the Order of the High Court that Dr Bawa-Garba be erased from the GMC Register. The original order of 12 months suspension from practice, subject to review by the MPTS, has been restored.

The Court of Appeal commented that an appeal court should only interfere with the “evaluative decision” of a Tribunal if:

(1) there was an error of principle in carrying out the evaluation, or

(2) 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 found that, in taking into account evidence of the systemic failings of the Hospital and others, the Tribunal had not reduced the level of Dr Bawa-Garba’s culpability below that which had been established by her conviction.

In summary, the reasons for the Court of Appeal’s decision were given as follows:

1. The focus of the criminal trial was the personal actions of Dr Bawa-Garba and their contribution to Jack’s death; there was therefore a limit to how far the systemic failings of the Hospital and others could be explored at that time.
2. The criminal court and the Tribunal are different bodies with different functions. The task of the Tribunal was to decide an appropriate sanction which would meet the overriding objective of protecting the public, as opposed to Dr Bawa-Garba’s guilt, or absence of such.
3. The sentence imposed by Mr Justice Nichol at the criminal trial was at the lightest end of the sentencing range for gross negligence manslaughter, in order to take account of the systemic failings of the Hospital and others. The Tribunal was just as entitled as Mr Justice Nichol to take systemic failings and personal mitigation into account in determining the appropriate sanction.
4. The Tribunal was not disrespecting the jury’s verdict and made no error of principle; it was conducting an evaluative exercise to determine what sanction was most appropriate to protect the public in all the circumstances.