My gut feeling is that we are not at the beginning of the end of the discussion over Dr Bawa-Garba, but reaching the end of the beginning. This is an intensely complex case which has correctly aroused strong and often polar emotions. As far as the law is concerned, there was a set of events which saw Dr. Hadiza Bawa-Garba convicted beyond reasonable doubt of the offence of gross negligence manslaughter. The right to appeal has in fact been refused, and, by next Monday, the Doctor still have been convicted of this offence.
In the GMC’s skeleton argument for the Court of Appeal case appealing suspension by MPTS to be replaced with a sanction of erasure off the GMC medical register, this outcome from the criminal court is beyond dispute:
“In rejecting her application for permission to appeal, the Court of Appeal referred (at) to the “truly exceptional degree of negligence which must be established” ifgross negligence manslaughter is to be made out (R v Sellu  EWCA Crim 1716 [Auth: 18]). The Court of Appeal found that Nicol J had directed the jury appropriately.”
Gross negligence manslaughter is, of course, a very serious offence. So it is perhaps unsurprising that many members of the general public will find a sentence completely mystifying in a letter signed by many registered Doctors: “Although we understand you are seeking to do this in the case where a doctor has been convicted of a “serious criminal offence” we are dismayed to learn that this includes gross negligence manslaughter.”
There have been numerous reasons cited for why Dr. Hadiza Bawa-Garba has been unfairly ‘scapegoated’. It is argued that, in the condition that Jack Adcock was found to have at autopsy – septic shock, the boy had a poor prognosis anyway. So it is not necessarily the case that if the antibiotics had been given any earlier, or if the diagnosis had been made earlier, that Jack would’ve lived. It is mooted that Dr. Bawa-Garba was late in reading a x-ray, but a whole load of factors, known to current hospital doctors, prevented Bawa-Garba from reading it any earlier. Critics say that it is unfair to blame Bawa-Garba for this, when in an ideally furnished hospital there might be a team of radiologists promptly reporting on films even at the weekend, but the reality was Bawa-Garba was on her own, on her first day back, with no induction.
But to the people wishing to see Dr Bawa-Garba erased, this sounds a lot like making excuses for the fact that Bawa-Garba did not seek help, as would have been expected in her obligation for teamwork, communication and partnership under the code of conduct. The MPTS published its assessment of Bawa-Garba’s failings here, but it is clear a whole maelstrom of factors were completely beyond her control. We are told she was a very studious trainee, bordering on ‘boring’.
The GMC’s case seems to rely heavily on public confidence in the medical profession.
“The crucial question is whether the Divisional Court properly took account of the individual circumstances of Dr Bawa-Garba’s conduct (which included the defence she ran in her criminal trial and which the jury rejected). The Divisional Court cited the relevant parts of the Sanctions Guidance (DC: 16, 49 & 53) and concluded that the individual circumstances of Dr Bawa-Garba’s case were not such that sufficiently significant reasons could be given to justify a sanction less than erasure whilst still maintaining public confidence in the profession and its professional standards in a case such as the present where a doctor had hastened a patient’s death through “truly exceptionally bad”failings. The individual circumstances also included Dr Bawa-Garba’s serious and repeated errors (as described by the Court of Appeal (Criminal Division) and quoted (DC: 2)). The Divisional Court therefore plainly had regard to the individual circumstances of the case.”
And these errors are described, for example, here, in para.10:
“In respect of Dr Bawa-Garba, the Crown relied on the evidence of Dr Simon Nadel, a consultant in paediatric intensive care. He considered that when Jack, as a seriously ill child, was referred to her by the nursing staff, Dr Bawa-Garba had responded, in part, appropriately in her initial assessment. His original view was that her preliminary diagnosis of gastro-enteritis was negligent but he later changed that opinion on the basis that the misdiagnosis did not amount to negligence until the point she received the results of the initial blood tests, which would have provided clear evidence that Jack was in shock. As to the position at that time, however, Dr Nadel’s evidence was that any competent junior doctor would have realised that condition. His conclusion was that had Jack subsequently been properly diagnosed and treated, he would not have died at the time and in the circumstances which he did.”
Even, as Michael Gove will tell you, experts can be wrong. It is possible given the virulence of the organism that Jack might have died anyway.
But for me para.15 about the enalapril makes for interesting reading:
“Before parting from the history, two further details need to be added, neither of which caused Jack’s death. First, having been transferred to a ward (Ward 28) and, thus, out of Dr Bawa-Garba’s care, Jack received what had been his usual dose of enalapril (for his unrelated conditions) from his mother shortly before he fatally collapsed. This was entirely understandable and known to the medical staff on the ward. In fact, Dr Bawa-Garba had deliberately not prescribed enalapril as she was aware (accurately) that it could lower blood pressure, particularly in a dehydrated child. It was agreed at trial that enalapril should not have been given and may have contributed to Jack’s death although it did not cause his death.”
This, though, is highly relevant to how the whole offence of gross negligence manslaughter is satisfied in the law.
This is where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. The law in respect of this has been clarified in the case of R v Adomako (1994) 3 All ER 79 where a four stage test for gross negligence manslaughter known as the Adomako Test was outlined by the House of Lords:
The test involves the following stages:
a) the existence of a duty of care to the deceased;
b) a breach of that duty of care which;
c) causes (or significantly contributes) to the death of the victim; and
d) the breach should be characterised as gross negligence, and therefore a crime.
The offence needs to be demonstrated beyond reasonable doubt to secure a criminal standard of proof. But the enalapril can be argued as breaking the chain of causation – what is called a ‘novus actus interveniens’.
The lack of discussion for this is the most alarming part of the Bawa-Garba case.
See, for example, this description:
“Novus actus interveniens is Latin for a “new intervening act”. In the Law of Delict 6th Edition, Neethling states that a novus actus interveniens is “an independent event which, after the wrongdoer’s act has been concluded either caused or contributed to the consequence concerned”. A novus actus breaks the causal chain between the initial wrongdoer’s action and the liability that is imputed to him or her as a result thereof. A requirement for an act or omission committed after the initial wrongdoer’s act to constitute a novus actus is that the secondary act was not reasonably foreseeable. If the subsequent event was reasonably foreseeable at the time of the initial wrongful act, it is not to be considered as a novus actus capable of limiting the liability to be imputed on the initial wrongdoer. “
But the die is probably caste for Bawa-Garba. Bawa-Garba’s lifelong career intention to be a paediatrician is destroyed, so are the dreams of Jack Adcock’s family, and the GMC comes across by some as supporting vindictiveness and nastinesss. If the conviction is viewed as secure, and the MPTS does not want to give out any message that gross failures in the system are an ‘excuse’ for a doctor to deliver unsafe care, it is hard to see someone functioning fully on the GMC register. For some, this will be necessary to see justice done. For others, it undermines the work of doctors daily who consider themselves trying their best under very difficult circumstances, even risking going into custody. It’s clear that a set of factors have clearly conspired to kill this doctor’s career, whatever the virulence of the organism that killed Jack but needed to be treated promptly, and Bawa-Garba won’t forget about these events ever. And nor will Jack Adcock’s family.
I doubt when the dust settles, we will see any clearer. If anything, the verdict, whatever happens, will mark the beginning of an unpleasant debate.