So as you may have figured out from the title, there is a first part which you should read first because it is the first part. Read the first part!
There, I vaguely summarised the court cases. Here I go into a more detail.
I’m also less comfortable with this bit as I am not a lawyer but I’ll do my best to hit the salient points.
Coroner’s Inquest – July 2013
Firstly, there was a coroner’s inquest where details such as Dr Bawa-Garba’s mistake in stopping resuscitation and her admission that her care was sub-par come to light. The Crown Prosecution Service (CPS) only decide to prosecute after the findings of the inquest (see para 34 of the High Court judgment).
Crown Court – 4 Nov 2015
Dr Bawa-Garba is convicted of gross negligence manslaughter in Nottingham Crown Court. A month later, she is sentenced to a two-year suspended prison sentence on 14 December 2015.
This is a criminal conviction. In criminal law, the standard is proof “beyond a reasonable doubt”. The excellent The Secret Barrister, in an article I now can’t find, makes the point that even if the jury think a defendant probably did it, that’s insufficient to warrant conviction. (They also have a rather thoughtful piece about the context of Dr Bawa-Garba’s case.) Contrast this with “on the balance of probabilities”, the usual standard for civil law.
It is a criminal offence for jurors to discuss the case they hear. You sometimes hear lawyers say one cannot “go behind” the jury’s decision. That is to say, you cannot and should not make assumptions about why the jury made a certain decision.
(There is the 2013 case of R v Huhne and Pryce, a prominent Liberal Democrat and his wife, in which the judge ordered a retrial because the jury, to put it bluntly, asked him such stupid questions they clearly didn’t know what they were doing. But this is very rare. Both Chris Huhne and Vicky Pryce went to jail following the subsequent retrial.)
What is gross negligence manslaughter?
I try to avoid Wikipedia references but Page 7 of The Sentencing Council guidelines on manslaughter essentially corroborates the following:
…gross negligence manslaughter involved the following elements:
- the defendant owed a duty to the deceased to take care;
- the defendant breached this duty;
- the breach caused the death of the deceased; and
- the defendant’s negligence was gross, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment.
Manslaughter by gross negligence, Wikipedia, 6/2/18
Or: you were meant to look after somebody; you didn’t; because you didn’t they died; that you didn’t was super bad. (NB: super bad is sort of a technical legal term. The “gross” mandates the negligence be “truly, exceptionally bad”.)
That means that if you screw something up but a patient doesn’t die, you can’t be convicted of gross negligence manslaughter. (But don’t do that because you can still face other consequences. And also it would still make you a bad doctor. And person.)
There is of course a great deal of interpretation as to what is meant by “amount to a crime and deserve punishment”. We’ll get to that later.
Why was her sentence suspended?
Judges have to consider whether sending somebody to prison will actually make much of a difference. There are broadly 5 reasons to send somebody to prison: punishment, deterrence, rehabilitation, public protection and to give something back to the community. Given the consequences of a criminal conviction for a doctor, it’s likely the judge saw this as sufficient.
The Court of Appeal – 8 Dec 2016
So this bit of the case may seem slightly odd . Dr Bawa-Garba’s lawyers made what amounts a series of fairly technical challenges around one issue: that the instructions the Crown Court trial judge gave to the jury were misleading. Firstly, there are two submissions on the use of the phrase “significantly sooner”. If you really want to, you can go to paragraph 23 of the judgment for the details, but the arguments were rejected.
There was a third submission: that the judge did not specify that if the effect of the enalapril was the dominant cause such that then Dr Bawa-Garba’s actions would not have made a “significant contribution” to Jack’s death, she should not be convicted. And finally that given when the arrest happened, Jack was past the “the point of no return”, the judge gave insufficient direction to the jury that any actions that happened after this point should not be considered in the decision to convict. The Court of Appeal rejected both these arguments too.
Little of this questions the facts of the case – they examined whether the Crown Court judge had explained the case, the law and the jury’s duty sufficiently clearly to the jury. Really, I don’t think any non-lawyer or indeed most lawyers can argue that the Court of Appeal was wrong.
The Medical Practitioners Tribunal Service – 20-22 Feb 2017 & 12-13 Jun 2017
The Medical Practitioners Tribunal Service (MPTS) suspended Dr Bawa-Garba for 12 months following her conviction and appearance at the Court of Appeal.
What are the PSA, GMC and MPTS?
Let’s break down the acronym bingo. The General Medical Council (GMC) is the regulatory body for doctors in the UK. Every year, I send them some money and they keep my name on the Register of Medical Practitioners. As such, I maintain my licence to practise medicine. You can check any doctor’s registration status here by simply searching for a name. Try it with your GP!
These days, all doctors have to revalidate every 5 years. This involves collating evidence that you are keeping up-to-date such that you can safely practise. This only started in 2012. When I qualified in 2010, no such process existed.
There are other bodies for other healthcare professionals – the Nursing and Midwifery Council (NMC) (for nurses and midwives), the General Dental Council (GDC) (for dentists) and some others for pharmacists, opticians and optometrists and bizarrely for osteopathy and chiropractic (bizarre because they’re not real medical treatments).
The Professional Standards Authority for Health and Social Care (PSA) is an overarching body that is responsible for the above regulatory bodies. In short, it regulates the regulators.
What did the GMC do here?
They argued that Dr Bawa-Garba should be struck off the medical register. Dr Bawa-Garba’s lawyers argued suspension was the appropriate sanction. The MPTS agreed and suspended her for 12 months, such that should she complete sufficient remedial training in that time, her suspension would be lifted.
The High Court – 7 Dec 2017 & 25 Jan 2018
The hearing happened in December but the judgment was published in January.
In its simplest terms, the GMC argued that the MPTS gave too much weight to the systemic failings present (which the Crown Court had already heard) and insufficient weight to the Dr Bawa-Garba’s personal culpability. For me, the key line is here:
“…the [MPTS] Tribunal did not respect the verdict of the jury as it should have. In fact, it reached its own and less severe view of the degree of Dr. Bawa-Garba’s personal culpability.”
para 41, GMC v Bawa-Garba
The phrase “did not respect the verdict of the jury” in essence suggests that the MPTS decision had to make sense in the context of the Crown Court decision. The MPTS cannot come to a decision which relies on the jury’s verdict being wrong; it cannot de facto retry the case.
The judgment notes that it’s not that gross negligence manslaughter necessitates being struck off the medical register (though it’s rare not to be). It’s that the MPTS’s conclusion relied on Dr Bawa-Garba being less culpable and the systemic failure being a bigger issue than was found in the Crown Court.
Is this the GMC’s fault?
There has been a lot of shade thrown the GMC’s way, particularly the way of Charlie Massey, its Chief Executive. I’ve even seen Facebook screenshots of his pay with comments complaining about it. He was previously an aide to Jeremy Hunt.
However, when one reads many of the criticisms doctors have of the GMC, they are largely about the events which led to Dr Bawa-Garba being convicted. Given those systemic failings were considered in the case, it is then very difficult for the MPTS to use those as an argument against her being struck off, even if the MPTS is an organisation specifically designed to deal with doctors’ fitness to practise in a way the Crown Court is not.
As is often case when anger and fear abound, it’s difficult not to take aim at the nearest target. I am unclear that the GMC is at fault here. Indeed, if it is, then so the High Court judge.
Should doctors just get over it?
Context is king. The Secret Barrister‘s account of the Bawa-Garba case implies that juries may not be the correct way for cases around technical issues such as medical negligence to be heard (though they do not outright argue for this).
Is it possible within the time constraints of court for a barrister to truly convey the context within which doctors and indeed all healthcare professionals work? It is very well saying, “working the NHS is difficult”. But to explain how tought it is to think straight when your bleep won’t seem to stop going off, you have multiple sick patients, you’ve not eaten or passed urine because you haven’t had the time to think about it, and you are not being sufficiently supported by your seniors or they are too busy to help: that is surely impossible to explain at trial.
I don’t know how you show the frustration of sitting at a computer screen that has taken 5 minutes to log in, then crashes, then you log in again. Then you think about whether or not to try another computer, knowing you will have to go and find one that’s free and possibly go through the exact same scenario. When you get in, the blood results system takes another 5 minutes to load. So you’ve now taken 10 minutes to find one set of results.
You then realise the results aren’t back so you decide to ring the lab. You don’t know the number and there’s no phone next to the computer. You try to find a free phone on a ward you don’t know. You don’t have the number for the lab so you dial 0 for switchboard.
You wait on the phone for another couple of minutes but then you get a bleep. You answer your bleep and it takes 10 minutes to get the information about the patient that you need to see. You then ring switch but they’re busy so it takes another 5 minutes to get through. They put you through to the lab but you are on the phone another 5 minutes and decide this must be the number they use during the week and not the weekend.
You ring switch for a third time, take down a couple of numbers and eventually get through to the lab. They give you some of the results you want but not all. 30 minutes after trying to clarify one set of results, the consultant whose post-take ward round you’re supposed to be on has seen two other patients and asked you to order some tests – unfortunately, you don’t know why they need ordering and in the midst of the ward round you forget to ask the consultant before she left to see another patient.
This is just a sample of the chaos. How can it be possible to demonstrate this sort of frustrating disorganisation to a jury of your supposed peers? And how can one explain that this doesn’t stop because people are sick? People are always sick – these are the facts on the ground in a hospital.
It is also not clear how a registrar on maternity leave is supposed confirm she is ready to come back to work. Many days, you will be outside your comfort zone; indeed how else can you get better at your job? But this what Donald Rumsfeld refers to as a “unknown unknown” – talk to any doctor back from a period of time off. Gauging the limits of your own competence is incredibly difficult. And most of your colleagues just think you’ll be fine because they remember you as a highly competent practitioner.
Written reflection is a mandatory part of training for junior doctors and increasingly all doctors. All reflections which include patient information should be anonymised but it can be clear from a reflection which patient is being discussed if the case is sufficiently unique (which it undoubtedly is if you’ve reflected on it).
Pulse, a GP magazine, has reported that though written reflections weren’t used against Dr Bawa-Garba in the trial, expert witnesses were allowed to see other parts of her e-portfolio. Further, Dr O’Riordan – the consultant on-call – documented a verbal reflection with her which was submitted in court. This is troubling given it would be difficult for Dr Bawa-Garba to contest facts within it. It is unclear how much this influenced the jury’s decision.
I personally will continue to write written reflections. However, what I write which be much more considered.
These used to be about communication with other doctors. Now, more than ever, I treat these as an argument to a coroner or judge as to why I have taken a particular course of action. More and more, I explain my reasoning in medical notes, often in much more narrative form than is traditional. Bad documentation was noted through this case – as somebody who is already quite meticulous, I intend to be even more so, particularly in difficult cases.
Why openness matters
Doctors need to be able to discuss mistakes honestly and mostly without fear of reprisal. On hearing that Dr Hadiza Bawa-Garba’s practice would have to be “truly, exceptionally bad” and “criminal” to warrant it, the jury found her guilty. Doctors reading the case will think about cases where they have come close to doing serious harm – when only luck prevented them from being in Dr Bawa-Garba’s shoes. Can twelve lay people really judge the diagnosis of septic shock (albeit with expert testimony) in the same way as they can judge dangerous driving?
I question whether court, in the context of medical negligence, is fit for purpose. Let’s be clear, this is an unusually stark reaction from the medical profession. Often, you read about these cases in the BMJ, shrug your shoulders, and accept that the care was indeed quite bad.
Learning from mistakes is how we keep people alive in the future. So many patients simply want their negative experiences to stay theirs alone. If litigation increases, so do unnecessary tests and an attitude that giving somebody all possible care is the same best possible care. Keeping a 90 year-old with dementia on a ventilator and attached to lines for three months only for her to die anyway cannot be considered best practice. But if intensivists fear prosecution, it may be what becomes the norm.
It is good that Jeremy Hunt has launched a review into manslaughter in healthcare though doctors will be loath to trust him following the junior doctors’ strikes. Nonetheless, I hope to see changes in the legal system that mean doctors can really, truly discuss when things have gone wrong.