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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> General Medical Council v Bawa-Garba  EWHC 76 (Admin) (25 January 2018)
Cite as: (2018) 161 BMLR 99,  EWHC 76 (Admin),  WLR(D) 52,  4 WLR 44
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
| GENERAL MEDICAL COUNCIL
|- and -
MR SEAN LARKIN QC AND MR JULIAN WOODBRIDGE (instructed by RADCLIFFE LE BRASSEUR) for the Respondent
Hearing date: 7 December 2017
Crown Copyright ©
MR JUSTICE OUSELEY :
"3. Dr. Bawa-Garba is a junior doctor specialising in paediatrics. In February 2011, she had recently returned to practice as a Registrar at the Leicester Royal Infirmary Hospital after 14 months of maternity leave. She was employed in the Children's Assessment Unit of the hospital ("the Unit") which was an admissions unit comprising of 15 places (beds and chairs) which would receive patients from Accident and Emergency or from direct referrals by a GP. Its purpose was to assess, diagnose and (if appropriate) then treat children, or to admit them onto a ward or to the Paediatric Intensive Care Unit as necessary.
4. The case concerns the care and treatment received by Jack Adcock, a six year old boy (born on 15 July 2004) who was diagnosed from birth with Downs Syndrome (Trisomy 21). As a baby, he was treated for a bowel abnormality and a "hole in the heart" which required surgery as a result of which he required long-term medication called enalapril and he was more susceptible to coughs, colds and resulting from breathlessness. In the past Jack had required antibiotics for throat and chest infections, including one hospital admission for pneumonia. However, he was well supported by close family, local doctors and learning support assistants and he was a thriving little boy, who attended mainstream pre-school nursery and then a local primary school. He enjoyed playing with his younger sister and was a popular and energetic child.
5. On Friday 18 February 2011, Jack's mother, Nicola Adcock, together with his grandmother, took Jack to see his GP, Dr. Dhillon. Jack had been very unwell throughout the night and had not been himself the day before at school. The GP was also very concerned and he decided that Jack should be admitted to hospital immediately. Jack presented with dehydration caused by vomiting and diarrhoea and his breathing was shallow and his lips were slightly blue.
6. When Jack arrived and was admitted to the Unit at about 10.15 am, he was unresponsive and limp. He was seen by Sister Taylor, who immediately asked that he be assessed by the applicant, then the most senior junior doctor on duty. For the following 8 – 9 hours, he was in the Unit, under the care of three members of staff; at about 7.00 pm, he was transferred to a ward. During his time at the Unit, he was initially treated for acute gastro-enteritis (a stomach bug) and dehydration. After an x-ray he was subsequently treated for a chest infection (pneumonia) with antibiotics. The responsible staff were Dr. Bawa-Garba and her two co-accused.
7. In fact when Jack was admitted to hospital he was suffering from pneumonia (a Group A Streptococcal infection, also referred to as a "GAS" infection) which caused his body to go into septic shock. The sepsis resulted in organ failure and, at 7.45 pm, caused his heart to fail. Despite efforts to resuscitate him (which were initially hampered by the mistaken belief that Jack was a child in the "do not resuscitate" or DNR category), at 9.20 pm, Jack died.
8. It was accepted that even on his admission to hospital, Jack was at risk of death from this condition (quantified as being in the range 4 – 20.8%). The expert evidence, however, revealed the clinical signs of septic shock which were present in Jack (cold peripheries, slow capillary relief time, breathlessness and cyanosis, lethargy and unresponsiveness). In addition, raised temperature, diarrhoea and breathlessness all pointed to infection being the cause.
9. The cause of death given after the post-mortem was systemic sepsis complicating a streptococcal lower respiratory infection (pneumonia) combined with Down's syndrome and the repaired hole in the heart. In those circumstances, the case for the Crown was that all three members of staff contributed to, or caused Jack's death, by serious neglect which fell so far below the standard of care expected by competent professionals that is amounted to the criminal offence of gross negligence manslaughter.
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.
11. To prove gross negligence, the Crown therefore relied on Dr. Bawa-Garba's treatment of Jack in the light of those clinical findings and the obvious continuing deterioration in his condition which she failed properly to reassess and her failure to seek advice from a consultant at any stage. Although it was never suggested as causative, the Crown pointed to her attitude as demonstrated by the error as to whether a DNR ("do not resuscitate") notice applied to Jack.
12. In somewhat greater detail, in particular failings on which the prosecution case rested were, first what was said to be Dr. Bawa-Garba's initial and hasty assessment of Jack (at about 10.45 – 11 am) after receiving the results of the blood tests which ignored obvious clinical findings and symptoms, namely:
i) a history of diarrhoea and vomiting for about 12 hours;ii) a patient who was lethargic and unresponsive;iii) a young child who did not flinch when a cannula was inserted (to administer fluids);iv) raised body temperature (fever) but cold hands and feet;v) poor perfusion of the skin (a test which sees how long it takes the skin to return to its normal colour when pressed);vi) blood gas reading showing he was acidotic (had a high measure of acid in his blood indicative of shock);vii) significant lactate reading from the same blood gas test, which was extremely high (a key warning sign of a critical illness);viii) the fact that all this was in a patient with a history which made him particularly vulnerable.
13. The second set of failings on which the prosecution rested related to subsequent consultations and the proper reassessment of Jack's condition. More particularly, these were that Dr. Bawa-Garba:
i) did not properly review a chest x-ray taken at 12.01 pm which would have confirmed pneumonia much earlier;ii) at 12.12 pm did not obtain enough blood from Jack to properly repeat the blood gas test and that the results she did obtain were, in any event, clearly abnormal but she the failed to act upon them;iii) failed to make proper clinical notes recording times of treatments and assessments;iv) failed to ensure that Jack was given appropriate timeously (more particularly, until four hours after the x-ray);v) failed to obtain the results from the blood tests she ordered on her initial examination until about 4.15 pm and then failed properly to act on the obvious clinical findings and markedly increased test results. These results indicated both infection and organ failure from septic shock (CRP measurement of proteins in the blood indicative of infection, along with creatinine and urea measurements both indicative of kidney failure).
14. Furthermore, at 4.30 pm, when the senior consultant, Dr. Stephen O'Riordan arrived on the ward for the normal staff/shift handover, Dr. Bawa-Garba failed to raise any concerns other than flagging the high level of CRP and diagnosis of pneumonia. She said Jack had been much improved and was bouncing about. At 6.30 pm, she spoke to the consultant a second time but did not raise any concerns….
16. The second detail is that for a short while, Dr. Bawa-Garba had a mistaken belief that Jack was a child for whom a decision had been made not to resuscitate: this was because she mistook Jack's mother for the mother of another child. Although this was said to be indicative of the degree of attention or care that Jack was receiving, it was underlined that this had no material or causative impact.
17. The case advanced on behalf of Dr. Bawa-Garba was that she was not at any stage guilty of gross negligence. Reliance was placed on the following details:
i) Dr. Bawa-Garba had taken a full history of the patient and carried out the necessary tests on his admission;ii) At 11.30 – 11.45 am, Jack was showing signs of improvement as a result of having been given fluids (although it was agreed that this improvement had not been documented). There were also clinical signs of improvement from the second blood gas results which were available at 12.12 pm; Jack had been sitting up and laughing during the x-ray and reacted to having his finger pricked.iii) Dr. Bawa-Garba was correct to be cautious about introducing too much fluid into Jack because of his heart condition.iv) A failure in the hospital's electronic computer system that day meant that although she had ordered blood tests at about 10.45 am, she did not receive the blood test results from the hospital laboratory in the normal way and she was without the assistance of a senior house office as a consequence. The results were delayed despite her best endeavours to obtain them. She finally received them at about 4.45 pm.v) Dr. Bawa-Garba had flagged up the increased CRP infection markers in Jack's blood to the consultant Dr. O'Riordan, together with the patient's history and treatment at the handover meeting at 4.30 pm. The consultant had overall responsibility for Jack.vi) A shortage of permanent nurses meant that agency nurses (who included Nurse Amaro) were being used more extensively.vii) Nurse Amaro had failed properly to observe the patient and to communicate Jack's deterioration to her, particularly as Dr. Bawa-Garba was heavily involved in treating other children between 12 and 3pm (including a baby that needed a lumbar puncture). The nurse also turned off the oxygen saturation monitoring equipment without telling Dr. Bawa-Garba and, at 3pm, when Jack was looking better, the nurse did not tell her about Jack's high temperature 40 minutes earlier or the extensive changing of the nappies.viii) Dr. Bawa-Garba had prescribed antibiotics for Jack at 3pm as soon as she saw the x-ray (which she agreed she should have seen earlier), but the nurses failed to inform her that the x-rays were ready previously and then failed to administer the antibiotics until much after she had prescribed them (an hour later).ix) At 7pm, the decision to transfer Jack to Ward 28 was not hers and she bore no responsibility for the administration of enalapril.x) The mistaken belief that Jack was "DNR" was made towards the end of her 12/13 hour double shift and was quickly corrected. It was agreed that her actions in attending with the resuscitation team and communicating this made no difference, although that incident would have been highly traumatic for Jack's family.
18. Dr. Bawa-Garba gave evidence in her own defence and relied on her previous good character including positive character evidence. She had worked a double shift that day (12/13 hours straight) without any breaks and had been doing her clinical best, despite the demands placed upon her. She also called supportive expert advice (from Dr. Samuels) to the effect that septic shock was difficult to diagnose and Jack's was a complicated case in which the symptoms were subtle and they were not all present. Finally, as intervening events, reliance was placed on the conduct of Nurse Amaro (including the delay in administering the antibiotics she prescribed), the problems with the computer system and the administration of the enalapril…
22. Dealing with the prosecution and defence cases on this issue, Nicol J summarised:
"The prosecution say that while Jack was seriously ill on his arrival he had a real chance of survival and probably would have survived if he had been properly treated. At the very least, they say you can be sure he would not have died when and in the circumstances that he did if he had been properly treated by Dr. Bawa-Garba…
…The prosecution accept that it is for you to decide whether the timing and circumstances of Jack's death were or may have been inevitable at some earlier point in the day [than when he was transferred to Ward 29] but they submit the negligence of Dr. Bawa-Garba prior to that point did significantly contribute to the timing and manner of Jack's death…
36…But she rightly recognised that the judge had correctly directed the jury that the prosecution had to show that what a defendant did or did not do was "truly exceptionally bad". Suffice to say that this jury was (and all juries considering this offence, should be) left in no doubt as to the truly exceptional degree of negligence which must be established if it is to be made out."
"There was a limit to how far these issues could be explored in the trial, but there may be some force in the comment that yours was a responsibility that was shared with others.
I turn to the mitigation which has been extremely capably advanced by your counsel. Hadiza Bawa-Garba, you were 35 at the time of this offence. You had wished to become a doctor since the age of 13. Medicine was your vocation. As a result of this offence, your career as a doctor will be over.
I received numerous testimonials that spoke in graphic terms of your skill as a doctor, your dedication to your patients and the high regard in which your colleagues held you. You were two years away from completing your training and being able to apply for posts as a consultant. All that is over now. Like Isabel Amaro, you have no previous convictions.
Both of you have also had to wait some considerable time before these two proceedings have come to an end. I am told that in April 2012, the CPS wrote to both of you to say that you would not be prosecuted."
The Tribunal hearings
The statutory framework
"(1A) The over-arching objective of the General Medical Council in exercising their functions is the protection of the public.
(1B) The pursuit by the General Medical Council of their over-arching objective involves the pursuit of the following objectives –
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession.
40A – Appeals by General Council
This section applies to any of the following decisions by a Medical Practitioners Tribunal –
a decision under section 35D giving -
a direction for suspension, including a direction extending a period of suspension;….
(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient –
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the medical profession; and
(c) to maintain proper professional standards and conduct for members of that profession.
(6) On an appeal under this section, the court may –
(a) dismiss the appeal;
(b) allow the appeal;
(c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or…."
"(3) Production of a certificate purporting to be under the hand of a competent officer of a Court in the United Kingdom or overseas that a person has been convicted of a criminal offence or, in Scotland, an extract of conviction, shall be conclusive evidence of the offence committed…
(5) The only evidence which may be adduced by the practitioner in a rebuttal of a conviction or determination certified in a manner specified in paragraph (3) or (4) is evidence for the purposes of proving that he is not the person referred to in the certificate of extract."
"(i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
(v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standard in the profession and sanctions, with diffidence: see Fatnani at paragraph 16: and Khan v General Pharmaceutical Council  UKSC 64;  1 WLR 169, at paragraph 36.
(vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal…": see Council for the Regulation of Healthcare Professionals v GMC and Southall  EWHC 579 (Admin);  Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC  UKPC 29;  1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee…but the [appellate court] will not defer to committee's judgment more than is warranted by the circumstances."
(vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public."
"17. The first of these strands may be gleaned from the Privy Council decision in Gupta v General Medical Council  1 WLR 1691, para 21, in the judgment of their Lordships delivered by Lord Roger of Earlsferry:
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society  1 WLR 512, 517 – 519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: 'The 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.' Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.
18. The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This, it seems to me, engages the second strand to which I have referred."
"17. 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 it imposes is appropriate and proportionate, the reputation of the profession as a whole is more important than the interests of any individual doctor.
19….Action is taken where a serious or persistent breach of the guidance has put patient safety at risk or undermined public confidence in doctors."
"32. However, there are some cases where a doctor's failings are irremediable. This is because they 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."
"Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (i.e. for which erasure is more likely to be the appropriate sanction because the Tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)."
"102. 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.
103. Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive).
a) A particularly serious departure from the principles set out in Good Medical Practice where the behaviour is fundamentally incompatible with being a doctor.
b) A deliberate or reckless disregard for the principles set out in Good Medical Practice and/or patient safety.
c) Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 123 – 126 regarding failure to provide an acceptable level of treatment or care)."
Other examples include violence and dishonesty.
"Failing to provide an acceptable level of treatment or care
123. Cases in this category are those where a doctor has not acted in a patient's best interests and has failed to provide an adequate level of care, falling well below expected professional standards…. Particularly where there is a deliberate or reckless disregard for patient safety or a breach of fundamental duty of doctors to 'Make the care of [your] patients [your] first concern' (Good Medical Practice, paragraph 1)."
"126. However, there are some cases where a doctor's failings are irremediable. This is because they 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 a patient and should have taken steps earlier to prevent this."
The Tribunal's Decisions: impairment
The Tribunal's Decisions: Sanction
In mitigation the Tribunal had regard to the following factors:
- Other than this matter, you have an unblemished record as a doctor
- You were of good character prior to your offence
- You remained employed by the Trust up until your conviction in 2015
- There is no evidence of any concerns being raised regarding your clinical competency before or after your offence
- The length of time which has passed since your offence
- Before the events of 18 February 2011, you had recently returned from maternity leave and whilst you had completed come on-call shifts, this was your first shift in an acute setting
- On the day in question, you were covering CAU, the emergency department and the ward
- The multiple systemic failures identified in the Trust investigation following the events of 18 February 2011
- There is no evidence to suggest that your actions on 18 February were deliberate or reckless.
The Tribunal balanced those mitigating factors against what it considered to be the aggravating factors in this case:
- Patient A was vulnerable by reason of his age and disability
- Your failings in relation to Patient A were numerous, continued over a period of hours and included your failure to reassess Patient A following your initial diagnosis or seek assistance from senior consultants
- Even though you expressed your condolences to the family of Patient A, there is no evidence before this Tribunal that you subsequently apologised to them."
"26. The Tribunal was mindful that your actions marked a serious departure from Good Medical Practice, and contributed to Patient A's early death and which continues to cause great distress to Patient A's family.
27. It reminded itself of its findings in its determination on impairment, namely:
- It was satisfied that you had remediated the deficiencies in your clinical skills and had practised safely for a period of almost 4 years; both Dr. Barry and Dr. Cusack described you as an excellent doctor.
- It was satisfied that the risk of you putting a patient at unwarranted risk of harm in the future was low.
- The basis of the Tribunal's finding on impairment was that public confidence in the profession and upholding of proper standards would be undermined if a finding of impairment were not made in your case.
28. The Tribunal had regard to the oral evidence of Dr. Cusack, who stated that following the events of 18 February 2011, a Trust investigation was carried out which highlighted multiple systemic failures which existed at the time of these events. These included failings on the part of the nurses and consultants, medical and nursing staff shortages, IT system failures which led to abnormal laboratory test results not being highlighted, the deficiencies in handover, accessibility of the data at the bedside, and the absence of a mechanism for an automatic consultant review. The Tribunal therefore determined that whilst your actions fell far short of the standards expected and were a causative factor in the early death of Patient A, they took place in the context of wider failings.
29. The Tribunal was satisfied that the evidence of Dr. Cusack was honest and reliable and that he could appropriately testify to your level of insight and remorse as he met with you regularly in a supervisory capacity…
The Tribunal accepted the evidence of Dr. Cusack that you had reflected deeply and demonstrated significant and substantial insight in your conversations with him. However, the Tribunal was unable to conclude that you had complete insight into your actions as it did not hear from you directly."
"31. Further, the Tribunal was of the view that a fully informed and reasonable member of the public would view suspension as an appropriate sanction, given all the circumstances of your case. It was therefore satisfied that the goal of maintaining public confidence in the profession would satisfied by suspension of your registration.
32. The Tribunal also considered whether it would be appropriate to erase your name from the Medical Register. However, in the circumstances of the case, balancing the mitigating and aggravating factors, the Tribunal, concluded that erasure would be disproportionate. In reaching this decision, it considered paragraphs 101 – 105 and 126 of the Sanctions Guidance. In the judgment of the Tribunal, in all of the circumstances of this case, your actions and subsequent conviction are not fundamentally incompatible with continued registration. It also concluded that public confidence in the profession would not be undermined by a lesser sanction; your actions were neither deliberate not reckless. Although your actions resulted in the early death of Patient A, you do not present as a continuing risk to patients. The Tribunal did not consider that your failings are irremediable; indeed it has already found that you have remedied them."
The parties' submissions
LORD JUSTICE GROSS