Gross negligence manslaughter and doctors

By Jo Samanta and Ash Samanta

The recent prosecution of a doctor for gross negligence manslaughter has led to grave concerns particularly among medical professionals.  The circumstances concerned the tragic death of a six-year-old child, who had been admitted to hospital. On the facts of the case Dr Hadiza Bawa-Garba was charged with gross negligence manslaughter and subsequently convicted. Aspects of this case raise wider issues about prosecutions such as these which we discuss in our recent article. The key question being asked by many is whether Dr Bawa-Garba’s conviction and subsequent erasure from the medical register was proportionate to her failings.

Jack Adcock, a severely ill child, had been admitted to hospital. Dr Bawa-Garba, a senior trainee paediatrician, was responsible for most of his clinical care. This was her first day back on an intensive care unit following a prolonged period of maternity leave. She had worked a double shift without a break and she had no senior assistance. To further confound matters a computer breakdown meant that the return of blood tests were delayed and nurses working in difficult circumstances failed to update her of Jack’s deteriorating health. At a critical time she had been heavily involved with treating other sick children. In the circumstances she believed that she had done her clinical best. Shortly afterwards, and due to overwhelming infection, Jack developed septic shock. His subsequent cardiac arrest led to his death about ten hours after admission.

A range of adverse factors in the hospital environment impacted upon Jack’s death and the doctor’s errors. Unfortunately, systemic failings are not uncommon in hospitals and the NHS (as well as many other healthcare systems) is stretched in terms of volume of work and resource limitations. This does not imply that doctors ought to be exonerated for their shortcomings in situations such as these. Accountability and responsibility needs to be apportioned appropriately between healthcare systems, managers and clinicians, rather than singling out an individual to assume all the blame.

It is questionable as to whether it is ethically or legally justifiable to impose criminal culpability upon unintended medical errors.  If moral culpability depends upon making a free choice (either intentionally or recklessly), then an action that is not the result of such a choice surely cannot be blameworthy. Criminal culpability should be judged in the light of all circumstances of a particular case, and not based solely upon outcomes even where death has occurred if the perpetrator’s actions were neither intentional, nor reckless.

Another matter of concern was the approach of the General Medical Council (GMC) regarding professional regulatory sanction. Dr Bawa-Garba’s case had been (quite rightly) referred to the regulator. The Medical Practitioners’ Tribunal found her fitness to practice was impaired and suspended her from practice for one year. The GMC’s appeal that the Tribunal should have ordered erasure due to her conviction and sentence was allowed, a decision that caused outrage, bewilderment and anger among doctors. In writing to the GMC, the eminent journalist Nick Ross voiced grave concerns, stating that his confidence had been shaken by the GMC’s disproportionate action and that patient safety should be first, medical candour second, adversarial procedures last, and retribution nowhere in cases such as these.

Dr Bawa-Garba’s subsequent appeal against her erasure was upheld by the Court of Appeal.[1] The Master of the Rolls, Sir Terence Etherton, stated the initial Tribunal was satisfied that her actions were neither deliberate nor reckless, and that the critical factor in her favour was that she presents no material continuing danger to the public and that she can give considerable useful service to society.

Although one can truly sympathise with Jack’s family, this latest ruling is a move in the right direction for doctors and society. The public is entitled to receive answers without hospitals and their staff being fearful of openness and transparency.  The GMC needs to re-think its priorities rather than pursue individual doctors aggressively who make honest mistakes whilst working in challenging and potentially unsafe working environments. This ruling is a right step in the direction of a just culture as opposed to a blame culture within healthcare.

Gross negligence manslaughter and the case of Dr Bawa-Garba raise extensive ethical issues that are relevant to medical practice and the wider society and which merit debate and discussion for the future benefit of all concerned.

[1] Hadiza Bawa-Garba v The General Medical Council [2018] EWCA Civ 1879

 

Paper title: Gross negligence manslaughter and doctors: ethical concerns following the case of Dr Bawa-Garba

Authors: Ash Samanta and Jo Samanta

Competing interests: Ash Samanta has previously held a substantive Consultant post with University Hospitals of Leicester NHS Trust (for several years), and has worked for the General Medical Council (GMC), National Clinical Assessment Service (NCAS), and NHS England (NHSE). Jo Samanta has no competing interest to declare.

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