By Nathan Hodson.
Last week Hadiza Bawa-Garba was told that she would be able to return to clinical practice having been suspended since her conviction for gross negligence manslaughter in 2015. Whether or not the decision is good for public confidence in the medical profession, it is probably good news for patients that, from February 2020, one more trained doctor will be looking after sick children. Every erasure is a waste, but sometimes there is no alternative.
Of course, when the doctor in question is unable to safely care for patients, it is necessary to keep them away from patients; it is right to abandon their training and accept that it was heretofore a waste. However, when a doctor would be capable but the failure to erase her threatens the public confidence (as opposed to public safety) the decision is much more difficult. This was the situation in Bawa-Garba’s case (see the previous posts on this here and here).
At this important point in the saga of Bawa-Garba’s professional sanctions, it is worth reflecting on the treatment of the nurse looking after Jack Adcock on the day of his death, Isabel Amaro. Bawa-Garba and Amaro were both convicted of gross negligence manslaughter and both received the same sentence. Each had undertaken appropriate retraining and there was no question that either would be a risk to future patients. However, Amaro was struck off by the Nursing and Midwifery Council (NMC)’s Conduct and Competence Committee (CCC) in order to protect the public confidence in the nursing profession. Meanwhile, the Medical Practitioners Tribunal (MPT) declined to erase Bawa-Garba, and its right to make this decision was supported by the Court of Appeal.
In my recent paper Regulatory justice following gross negligence manslaughter verdicts: Nurse/doctor differences, published in Nursing Ethics, I compared the decision made by the CCC and the analysis from the Court of Appeal regarding Bawa-Garba. In reaching its decision, the CCC considered several issues which were subjected to a more comprehensive analysis at the Court of Appeal in the Bawa-Garba case. This analysis raised the question whether Amaro’s erasure could have been avoided, had these points of law been addressed in her hearing.
A presumption of erasure was defined by the Court of Appeal as “a presumption that a conviction for manslaughter by gross negligence should lead to erasure in the absence of exceptional or truly exceptional circumstances”. The rulings of the High Court and Court of Appeal regarding Bawa-Garba both denied that there was a legal or regulatory presumption of erasure following gross negligence manslaughter.
The CCC decision stated “The panel concluded that your conviction represented such a fundamental departure from the relevant standards, that public confidence in the nursing profession and in the NMC as its regulator would be undermined were the panel not to impose a striking-off order.” The claim that the “conviction” is the departure, not the acts involved, suggests that the panel viewed the conviction for gross negligence manslaughter as demanding a striking-off order.
In fact, the CCC accepted all of Amaro’s mitigation and could not recommend any additional remedial measures, and yet still argued that erasure was the only way to protect the public. The notion that the conviction demanded a striking-off order is tantamount to a presumption of erasure; the CCC appears to have adopted an impermissible approach by expecting erasure from the outset.
The Sentencing Remarks were weighed differently in each case. Both Amaro and Bawa-Garba were told by Nicol J that they would never work again: “This career will come to an end” and “your career as a doctor will be over”. The CCC approached these comments with deference: “The panel bore in mind the judge’s sentencing remarks. He had heard all the evidence called at the criminal trial and was able to assess the seriousness of the case and the extent of your individual failings”.
However during the Bawa-Garba case, the sentencing remarks were disregarded. The MPT declined to erase Bawa-Garba and Ouseley J at the High Court claimed to have reached his own conclusions unaffected by Nicol J’s expectations. The Court of Appeal explicitly stated that the tribunal should not necessarily follow the sentencing comments of the trial judge: “It would be quite wrong to suggest that his assumption should in some way have influenced the Tribunal to give effect to it through the sanction it ordered”.
If Nicol J’s comments were mere “assumption” which should not “influence” the tribunal, then the CCC was wrong to use these comments.
The Public Confidence is the key issue here. (There was no doubt that Bawa-Garba and Amaro were safe to return to practice otherwise.) In one sense the public confidence is undermined by allowing anybody to return to the caring professions following a high-profile conviction for the manslaughter of one of their patients. The MPT, however, explained how the public confidence could be maintained without erasing Bawa-Garba.
Firstly, it argued that her failings “were neither deliberate nor reckless”. Paragraph 107 of the GMC Sanctions Guidance suggests that recklessness would make erasure more likely. The NMC Indicative Guidance makes no similar comment and so the CCC did not err by failing to explore this as a basis for reducing Amaro’s sanction.
Secondly, the MPT referred to Collins J in Giele, arguing “a fully informed and reasonable member of the public would view suspension as an appropriate sanction, given all the circumstances of [Bawa-Garba’s] case”. The CCC did not specify that only the “fully informed and reasonable” public counted. This omission leaves open the possibility that Amaro’s striking off may have been influenced by the risk of losing the confidence of uninformed people.
Finally, the MPT also considered Lord Hoffman’s remarks, in Bijl, that concern for public confidence must “not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment”. There is no evidence that the CCC considered these comments in Amaro’s case, although they have been considered at the CCC in other cases.
This sheds some light on how the CCC determined that Amaro should be erased while the MPT decided against erasing Bawa-Garba. The CCC seems to have made the mistake of presuming erasure, and compounded this presumption by rigidly deferring to the assumptions of the sentencing judge, thereby abnegating its duty to reach its own conclusion. Arguably her career was sacrificed on the alter of public opinion. No two tribunal cases are alike – each decision must turn on its own specific circumstances – but these arguments proved powerful in support of Bawa-Garba. Amaro’s erasure may well have been avoidable, had all the relevant legal arguments been fully explored.
Author: Nathan Hodson
Affiliation: College of Life Sciences, University of Leicester.
Social media account(s) of post author: @NathanHodson
Competing interests: The author is a medical doctor and has worked in the hospital where Hadiza Bawa-Garba practiced.