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Gross Negligence Manslaughter in Healthcare: The Impact of Dr Bawa-Garba's Case

12 September 2018
Regulatory Compliance
The case of Dr Bawa-Garba, the junior doctor convicted of gross negligence manslaughter following the death of a 6 year old boy, has been a very high profile and divisive case – both legally and morally. It has attracted great scrutiny from the media and has undoubtedly had a significant impact on the medical profession, healthcare regulators, the Government and the wider public. This article explores the important issues it raises and the challenges faced.

The Background

In 2015, Dr Hadiza Bawa-Garba was convicted of gross negligence manslaughter over the death of 6 year old Jack Adcock who tragically died of systemic sepsis at the Royal Leister Infirmary. Dr Bawa-Garba was part of the healthcare team treating Jack Adcock and the Court found that her failings which led to the death were 'truly exceptionally bad'. Dr Bawa-Garba received a two year suspended sentence. Her appeal of this conviction was refused.

Subsequently, Dr Bawa-Garba was suspended from the medical register for one year after the Medical Practitioners Tribunal Service (MPTS) found that Dr Bawa-Garba's fitness to practise was impaired. This was a decision that was appealed by the General Medical Council ('GMC') who argued that this was not sufficient to protect the public and that the MTPS should have ordered that Dr Bawa-Garba be erased from the register. This appeal was upheld by the High Court and Dr Bawa-Garba was subsequently erased from the medical register.

Earlier this year, Dr Bawa-Garba was given permission to appeal the decision to the High Court. Last month, Dr Bawa-Garba won her appeal to practise medicine again and has been re-instated on the medical register.

The Issues Raised and Challenges Faced

This case has raised a number of challenging questions of doctors, the healthcare system as a whole, regulators and the frameworks in place.  Should a doctor convicted of gross negligence manslaughter be allowed to practise medicine? Is the bar for gross negligence manslaughter too high, or too low? Should failings have been attributed not only to the individual, but to the wider healthcare system? And perhaps most importantly, what lessons can be learnt to ensure patient safety?

Clearly patient safety has to be at the centre here and this case has demonstrated the fine balance required in ensuring this. On the one hand, holding those individuals responsible to account for their significant failings and ensuring those not fit to practise are not able to do so. On the other, considering the effect on wider patient safety arising from the possibility that simple errors could result in prosecution, even if they occur in the context of broader organisation and healthcare system failings. Many in the profession in this case were critical that failure of IT systems, dangerous levels of understaffing, individuals working under immense pressure and a lack of senior supervision were ignored when convicting Dr Bawa-Garba.

Reflective Practices and the Duty of Candour

Perhaps an even greater concern raised was the negative impact this case could have on healthcare professionals being open and transparent, in particular their reluctance to undertake reflective practice which is an important part of learning. This has arisen from the reporting that the written reflections in Dr Bawa-Garba's e-portfolio were used and referred to at her trial, albeit it is significant that her defence organisation (the Medical Protection Society) has confirmed that the e-portfolio did not form part of the evidence before the Court and jury, although elements of her e-portfolio were seen by expert witnesses. Notes made by her duty consultant on a meeting he had with her after the incident did however form part of his witness statement.

The duty of candour, a statutory obligation within healthcare to be open and honest when something goes wrong with their treatment or care, is at the heart of the organisation. Balancing this obligation against the prospect of having the output of your openness and honesty used against you in any possible prosecution causes obvious difficulties.

The Review into Gross Negligence Manslaughter in Healthcare

Whilst not specifically addressing the Dr Bawa-Garba case, Sir Norman Williams was commissioned by the Health Secretary, Jeremy Hunt, to conduct a review into Gross Negligence Manslaughter in Healthcare recognising "great unease" recent cases have created and the "complexity of modern healthcare". Sir Norman William's recommendations have been accepted in full and include agreeing a clear position on the law on gross negligence manslaughter to promote a consistent understanding of where the threshold for prosecution for gross negligence manslaughter lies. Furthermore, it recommends that the GMC have its power to require information curtailed to exclude reflective material and that GMC should no longer be able to seek to appeal a decision of the Medical Professionals Tribunal Service to the High Court.

None of the recommendations arising from the review are particularly radical and there has been suggestion that more needs to be done. A further review will be undertaken by the GMC into how gross negligence manslaughter and culpable homicide (in Scotland) are applied to medical practice, of which the findings are expected early next year. Additionally, the BMA (British Medical Association) has called for a national police unit that is dedicated to investigating gross negligence manslaughter cases in healthcare.

Manslaughter prosecutions in healthcare is a highly emotive area and is likely to continue to be an area for legal and ethical debate for years to come.

Further Reading