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The Treatment of Negligent Doctors: Reflections on the Dr Bawa-Garba Case

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About The Author

Ceylan Simsek (Regular Writer)

Ceylan is a law graduate from the University of Greenwich and an LPC student at BPP University. Her main area of interest is medical law. Outside of the law, Ceylan is an aspiring children's book author. She also enjoys learning new languages and, in order to combat her fear of heights, rock climbing.

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The system of justice does not take into account, in a proper and informed way, systemic issues, particularly looking at the human factors behind decision making.

Sir Robert Francis

The NHS celebrated its 70th birthday on 5 July 2018. For many, this was a welcome date to commemorate the durability of the UK’s flagship political institution. For medical lawyers, however, it also represented an opportune moment to reflect upon and consider the seminal legal case concerning Dr Hadiza Bawa-Garba – a junior doctor working for the NHS in Leicester, who was convicted of manslaughter by gross negligence following the death of six-year old Jack Adcock – and what it says about the state of the UK’s healthcare system at present.

This was a case that triggered a public debate about the (increasing) pressures facing doctors at work, how they are impacting upon their effectiveness, and the extent to which they should be taken into account in medical negligence cases. Indeed, despite the various arrays of systemic errors which appeared to play a vital role in causing Adcock’s death, the Medical Practitioners Tribunal Service (the Tribunal) – deciding upon Dr Bawa-Garba’s case – refused to accept that they had materially contributed, and therefore could not avail Dr Bawa-Garba of responsibility for her actions.

With the Court of Appeal hearing set to begin on this case tomorrow, this article will analyse the current law and the Tribunal’s reasoning in the initial decision. It argues that reform of the law is necessary, advocating in favour of a system akin to New Zealand's ‘no-fault’ compensation scheme which – in contrast to the current position in UK law – does not simply label doctors as ‘negligent’ without having due regard to how systemic failures may well have contributed to the death at hand.

The Law on Erasing a Doctor from the Medical Register

The medical register is an online platform that displays a list of registered doctors. In the event of a failure to comply with the profession’s Code of Practice(s) or legal obligations, a doctor’s name may either be erased or temporarily removed from the register. This prevents that individual from practicing as a doctor until their name is reinstated.

To erase a doctor from the register, it must first be shown that the individual’s fitness to practice was impaired, such that their conduct fell below the standards expected of a competent doctor of their experience. If this is shown, the Tribunal has to decide on the appropriate sanction to impose, ensuring that the sanction in question ensures that public confidence in the medical profession is maintained. On this issue, Paragraph 16 of the GMC’s Sanctions Guidance states:

Patients must be able to trust doctors with their lives and health, so doctors must make sure that their conduct justifies their patients’ trust in them and the public’s trust in the profession. Although the tribunal should make sure the sanction they impose is appropriate and proportionate the reputation of the profession as a whole is more important than the interests of any individual doctor.

Thus, decision-makers must focus on the overall impact that their decision would have on the profession as a whole, and give limited regard to how the individual doctor’s circumstances may have affected the outcome. This was emphasised by the Privy Council in Gupta v GMC [2001], in which it was held that – when deciding upon professional conduct issues – the court should aim to protect the profession rather than being punitive towards the individual. As Sir Thomas Bingham MR described in Bolton v Law Society [1993], which concerned professional conduct issues in the legal profession:

[T]he reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.

Thus, while mitigating factors – such as the circumstances leading to the incident and any lapse of time since the incident occurred – are taken into account, they carry less weight here than they might in cases where public confidence in the profession is not so heavily at stake. Indeed, Paragraph 31 of the GMC’s Sanctions Guidance considers a doctor’s failings to be irremediable where:

[T]hey are so serious or persistent that, despite steps subsequently taken, action is needed to maintain public confidence. This might include where a doctor knew, or ought to have known, they were causing harm to patients, and should have taken steps earlier to prevent this.

This all impacts on when a decision-maker is entitled to consider it appropriate for a doctor to be erased from the medical register. Indeed, while Paragraph 88 of the GMC’s Sanctions Guidance states that erasure should occur if the facts suggest one of a number of listed factors – including violence, deliberate or reckless disregard to patient safety, dishonesty or abuse of position – it is also worth noting that Paragraph 102 of the GMC’s Sanctions Guidance reemphasises the importance of public opinion to the decision. It holds that:

Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.

GMC v Bawa-Garba

The Facts

Following the death of Jack Adcock on 18 February 2011, Dr Hadiza Bawa-Garba was convicted of manslaughter by gross negligence – an offence examined by Jett Parker-Holland for Keep Calm Talk Law – on 4 November 2015 by Nicol J sitting at Nottingham Crown Court, receiving a sentence of two years’ suspended imprisonment. The conduct for which she was sentenced were her failure to ask her consultant to review Adcock’s condition, her mistaking of Adcock for another patient which saw administering of CPR to be delayed, and failures concerning the medicine that had been prescribed for Adcock’s heart condition.

On 13 June 2017, the Tribunal suspended Dr Bawa-Garba from practicing as a doctor for 12 months. The GMC, however, felt that, combined, the two-year suspended imprisonment and 12-month suspension were insufficient punishments. It therefore appealed to the High Court, arguing that her name should be erased from the register completely, such that she could no longer practice medicine.

The Decision

The High Court in GMC v Bawa-Garba [2018] allowed the GMC’s appeal; Ouseley J, with whom Gross LJ agreed, concluded that Dr Bawa-Garba should have her name erased from the register. On the issue of whether Dr Bawa-Garba’s fitness to practice had been impaired, it agreed with the Tribunal that she had fallen below the standards expected of a competent doctor at her level.

With regards to the sanctions, the High Court reaffirmed the overarching objective of the sanctions is not to punish doctors but to maintain public confidence in the profession. It examined the mitigating factors of the case, which included that:

  • Other than this case, Dr Bawa-Garba had an excellent record of patient care;
  • Dr Bawa-Garba was of ‘good character’ (she had no previous criminal convictions or disciplinary complaints);
  • Dr Bawa-Garba had recently returned from maternity leave on the day of the incident, and it was her first shift in an acute setting;
  • There were no concerns as to her clinical competence;
  • On the day of the incident, systemic failures caused Dr Bawa-Garba to receive a crucial x-ray late;
  • There is no evidence suggesting Dr Bawa-Garba’s actions were deliberate or reckless;
  • On the day of the event, Dr Bawa-Garba was covering the CAU, the emergency department and the ward (essentially doing the job of three people).

The strength of these mitigating factors were high. As a group of doctors who started a crowdfunding page for Dr Bawa-Garba's legal costs have written:

The clinical circumstances surrounding Jack’s death sound exceptionally horrific, with Dr Bawa-Garba struggling against all odds to keep her young patients safe and undertaking the roles of 3 or 4 doctors in the absence of her supervising clinical consultant. It seems clear to us that even the most competent junior doctor would struggle to keep children safe under such conditions

However, despite the presence of these mitigating factors, the High Court in GMC v Bawa-Garba [2018] held that any sanction short of erasure would fail to maintain public confidence in the profession. It placed emphasis on the failings of Dr Bawa-Garba, suggesting there were ways through which she could have raised concerns to her consultant. Furthermore, it held that she had failed in her responsibility to recognise and work within the limits of her competence.

Moreover, Ouseley J stated that, due to her conviction for the offence of manslaughter by gross negligence, if no findings of impairment were made, this would jeopardise public confidence in the profession. Ultimately, it was concluded that:

This misconduct by manslaughter by gross negligence involved a particularly serious departure from the principles of "Good Medical Practice", and the behaviour was fundamentally incompatible with being a doctor. It involved truly exceptionally bad failings, causing very serious harm to a patient.

Implications of the Decision

The approach taken by the High Court in GMC v Bawa-Garba [2018] confirms that the court must focus on the individual failings of the doctor in question. It reaffirms that each case must be considered individually as each case turns on its own facts, and that mitigating failures – including systemic failures – can reduce personal culpability in some cases, but not in cases where the conduct of the doctor ‘was truly exceptionally bad’.

This decision is problematic: it fails to recognise that justice can be achieved without compromising fairness. It is undeniable that erasure is necessary in the case of sexual misconduct and dishonesty. However, where systemic failures are not taken into account and more weight is placed on strict legal principles rather than the honest intentions of a doctor, this can ultimately lead to unfair consequences

As Jessica Johnson has written for Keep Calm Talk Law, placing harsh punishments – in the context of that article, Health Minister Jeremy Hunt’s proposals to criminalise doctors for medical negligence – on healthcare professionals could be counterproductive, in that they:

[P]ut the fear of punishment into the minds of practitioners, discouraging ‘an open culture’, and perhaps even hindering their willingness to work in the more complex cases.

Indeed, an overly-punitive stance that does not take into account the influence of systemic failures may see doctors less willing to cover shifts and be open with their supervisors for fear that this may be used in court in the face of an honest mistake. This could be disastrous for the NHS, particularly in an age where it is under more pressure than ever before. It follows that reforms which introduce an approach that is less draconian might be worth pursuing.

A Proposal for Reform: Inspiration from New Zealand

Inspiration for such reforms could come from the law of New Zealand. Instead of a tort-based malpractice system (similar to that operating in English law), New Zealand operates a taxpayer funded accident compensation scheme to provide compensation for medical injury. It uses a ‘no-fault’ scheme, such that compensation is determined according to outcome and may be awarded irrespective of fault or negligence on the part of doctors. As a result, patients can bring claims for all injuries they suffer without needing to go through the usual hurdles of negligence (duty, breach, causation and loss).

The operation of this scheme means that claimants are barred from suing doctors in negligence for compensatory damages; its purpose is not to provide accountability, but rather to minimise both the incidence and impact of injury. However, this does not mean that doctors are not held accountable: separate systems operate to hold doctors to account. For example, the Medical Council of New Zealand can strike a doctor off the register where it is felt they have breached standards.

Crucially though, in light of the ‘no fault’ compensation system, demands for such action are only likely to be brought if a patient dies, or where the doctor’s mistake is egregious and results in a long term non-treatable complication.

This has given doctors more leeway, freeing them to participate in the compensation claims process for the majority of their mistakes without fear of punishment (whether that be from lawsuits or being struck off the register). It also shifts the law's focus away from identifying error proving negligence  to providing doctors with assistance and training to reduce the likelihood of such injuries being repeated. This encourages justice without compromising fairness; doctors are not labelled ‘negligent’ – and also pay comparatively low medical identify fees – and the patient is given means of compensation while the healthcare system can turn its focus to treatment and rehabilitation.

Furthermore, the New Zealand system has the advantage of avoiding placing blame on doctors who have made non-egregious mistakes as a result of systemic failures or other pressures that impact on their ability to work. This would be important in the UK where, for example, the NHS is increasingly under-staffed with The Guardian reporting that 80% of NHS workers consider this to be a major concern for patient safety.

Such pressures have also been shown to impact on the mental health of doctors, undermining their capacity to do their job. Indeed, both factors likely contributed to the actions of Dr Bawa-Garba, but could not be adequately taken into account under the current law.

Clearly then, an adoption of a similar system within the UK could make major strides in encouraging harmonising accountability with patient safety, in a way that criminalising or subjecting doctors to expensive civil claims, and the inculcating of a punitive environment, fail to do. 

Conclusion

Healthcare professionals are understandably held to a higher standard than most other professions. However, the law needs to be careful: if it goes too far in trying to ensure individual doctors are held accountable, it threatens to create a paranoia of malpractice that will discourage an ‘open culture’, undermine the ability of doctors to pioneer new treatment and may disincentive new recruits from joining the profession.

It is therefore good news that, on 1 April 2018, Dr Bawa-Garba was given permission by Simon LJ to take her case to the Court of Appeal, the hearings for which will begin 25 July 2018. This presents a welcome opportunity for three judges to give greater weight to the mitigating factors of her case, and overcome the problems that the initial decision causes.

However, such problems are unlikely to be avoided in the future without the law's adoption of a new system that mirrors that in New Zealand. Indeed, while such a system does not prevent doctors being held accountable where their actions were so egregious that justice warrants it, it tends – in the majority of negligence cases – to place focus on ensuring the victim is compensated and that the issues which caused the injury are tackled. This reduces the influence of malpractice paranoia on the actions of doctors that can cause over-diagnosing, or the victimisation of an individual who acted without malicious intentions and whose actions may have been caused by systemic failures.

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Tagged: Administrative Law, Justice, Medical Law & Ethics, Public Law, Tort Law

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