The case of Dr Bawa-Garba – could it happen in Ireland?

On 4 November 2015 Dr Hadiza Bawa-Garba, a specialist registrar in year-six of postgraduate training, was convicted of manslaughter on the grounds of gross negligence of six-year-old Jack Adcock, who died at Leicester Royal Infirmary on 18 February 2011.

In June 2017, in the wake of this conviction, the Medical Practitioners Tribunal Service (MPTS) determined that Dr Bawa-Garba should be suspended for 12 months from the medical register. The General Medical Council later successfully appealed the MPTS decision, its own subcommittee, to the High Court, which ordered that Dr Bawa-Garba should be erased from the medical register. Dr Bawa-Garba appealed this decision and in August 2018 the High Court decision was over-turned and Dr Bawa-Garba’s name was restored to the medical register, a small victory in a tragic case.

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Although still exceptionally rare, the number of health professionals prosecuted for gross negligence manslaughter in England has increased very significantly over the last 20 years. The question that many clinicians in Ireland may be asking themselves, in the wake of the Bawa-Garba case, is could there be a prosecution of a clinician in Ireland in similar circumstances? The answer is yes.

<h3 class=”subheadMIstyles”>Death of Jack Adcock</h3>

Six-year-old Jack Adcock was brought to Leicester Royal Infirmary on the morning of 18 February 2011, suffering from diarrhoea, vomiting and difficulty breathing. He had Down’s syndrome and a known heart condition.

Dr Bawa-Garba was on her first shift in an acute setting following her return from maternity leave. She was the most senior doctor covering the clinical assessment unit (CAU), the emergency department and the ward attached to the CAU.

She assessed Jack at approximately 10.30 hours and she prescribed a fluid bolus, ordered blood tests and a chest x-ray.

Dr Bawa-Garba was busy treating other children until approximately four-and-a-half hours after her initial assessment, when she returned to review Jack. She noted evidence of a suspected chest infection on the x-ray and prescribed antibiotics (which were not administered for over an hour after prescription). The hospital’s electronic computer system was down and meant that the urgent bloods ordered at 10.45 hours were not available until 16.15 hours. The blood results were abnormal.

At 16.30 hours Dr Bawa-Garba gave one, of two handovers, to the consultant on-call, Dr Stephen O’Riordan. She noted a raised CRP level, the serum pH of 7.084 and the lactate concentration of 11.4mmol/L. Her working diagnosis was pneumonia. Dr Bawa-Garba did not, however, ask Dr O’Riordan to review Jack. She reported that Jack was much improved and at a second handover at 18.30 hours she, again, did not raise any specific concerns.

At 20.00 hours a crash call went out and Dr Bawa-Garba was one of the first responders. For a period of between 30 seconds and two minutes, she mistakenly confused Jack with another patient and called off the resuscitation. Her mistake was quickly rectified and resuscitation attempts were recommenced. (Expert evidence at trial revealed that this error did not contribute to the death). Despite extensive resuscitation attempts, Jack died at approximately 21.20 hours, as a result of complications arising from sepsis.

<h3 class=”subheadMIstyles”>Investigations</h3>

Following Jack’s death, Dr Bawa-Garba was embroiled in seven years of various investigations, including internal hospital investigations; an inquest; an initial prosecution by the Crown Prosecution Service (CPS), which did not proceed; reconvening of the CPS investigation; a conviction for gross negligence manslaughter with a custodial sentence of 24 months suspended for 24 months; a quashed appeal against that conviction; a 12 month suspension from the General Medical Register; an appeal by the GMC to the High Court increasing the suspension to erasure; and a successful appeal to the Court of Appeal, seeking reinstatement on the medical register.

Nurse Isabel Amaro, who also treated Jack at Leicester Royal Infirmary on that ill-fated day, was also convicted of gross negligence manslaughter, a fact that is often overlooked in the furore of the Bawa-Garba case.

The maelstrom that has arisen out of the erasure from the GMC Register of Dr Bawa-Garba, appears to have overlooked one of the central issues in this entire case, which is the reasonableness of Dr Bawa-Garba’s prosecution and conviction for gross negligence manslaughter in the first instance.

<h3 class=”subheadMIstyles”>Legal test for gross negligence manslaughter</h3>

Gross negligence manslaughter has no statutory footing in England and Wales or in Ireland. The parameters of the offence have been defined through case law. Gross negligence manslaughter in a healthcare setting lacks the element of moral culpability, which one would usually associate with common crimes.

To secure a conviction against a health professional for gross negligence manslaughter, the prosecution must prove beyond a reasonable doubt that there was a duty of care; a breach of that duty; causation of death; and the death must have been caused by ‘gross negligence’. The ultimate decision as to whether an individual has been grossly negligent rests with the jury, following directions from the judge on the parameters of the legal test for gross negligence.

Judge’s directions in gross negligence cases have provided varying descriptions of what types of conduct amount to gross negligence. These include conduct that is so <em>‘reprehensible’</em>, so <em>‘atrocious’ </em>and so <em>‘truly exceptionally bad’</em> that it deserves to be criminally punished.

The spectrum of cases in England where there has been a conviction of a clinician for gross negligence manslaughter are extremely varied.

The case of <em>R v Misra</em> concerned the mismanagement of toxic shock in a 31-year-old patient following routine knee surgery. The two senior house officers involved were convicted of gross negligence manslaughter on the basis of a failure to respond to obvious signs of infection in a timely manner and to follow up blood test results that would have resulted in the administration of antibiotics. Their conviction rested on the jury accepting that <em>‘in the face of an obvious and serious risk of death, their failure to respond was truly exceptionally bad’</em>.

In recent years, there have been a slew of legally significant, game-changing cases in England and Wales, which highlight a marked shift in the Court’s approach to gross negligence manslaughter, in the healthcare context. These include the successful appeal in 2017 by optometrist Honey Rose, in relation to her conviction for gross negligence manslaughter of seven-year-old Vincent Barker, who died following a missed diagnosis of papilloedema. In 2016, the case for gross negligence manslaughter against Dr Joanne Rudling and her GP colleague Dr Lyndsey Thomas, for the death of 12-year-old Ryan Morse from undiagnosed Addison’s disease, was dismissed by the trial judge on the basis that the doctors had no case to answer.

The case of <em>R v Sellu</em> also demonstrates an apparent shift in the law of gross negligence manslaughter. Mr David Sellu was a general surgeon at a private hospital in London. The deceased patient had undergone routine knee surgery and in the aftermath of the procedure developed a spontaneous colon perforation. Mr Sellu was asked to review the patient. Despite diagnosing the perforation, surgery to repair the bowel was not carried out until some 24 hours after the initial diagnosis, at which point the patient was already in acute organ failure. He died of overwhelming sepsis.

Mr Sellu was convicted of gross negligence manslaughter and sentenced to two-and-a-half years imprisonment and his sentence was not suspended. Historically, doctors convicted of gross negligence manslaughter were given suspended sentences. The trial Judge remarked that Mr Sellu demonstrated a lack of candour in witness statements provided to the Coroner’s Court and statements provided during the criminal investigation into Mr Hughes’ death. This apparent ‘dishonesty’ may have led to the imposition of a more severe sentence.

Mr Sellu appealed his conviction and having already served 15 months of his sentence his conviction was deemed unsafe by the Court of Appeal, on the basis that the Judge’s direction to the jury on the legal test for gross negligence was not sufficiently clear as the explanation of the threshold for conviction had not been set high enough. The Court of Appeal also sounded a warning about the importance of reminding the jury that they, and not the experts engaged by the Court to comment on the standard of care, are responsible for determining whether the conduct in question constitutes gross negligence.

These recent cases highlight that the Courts’ approach to the legal test for gross negligence manslaughter, in England and Wales, is shifting from an objective test of what constitutes gross negligence, to a requirement for a finding that a defendant knowingly took a risk endangering a patient’s life. The test is, therefore, moving more towards a finding of subjective recklessness. Unfortunately, for Dr Bawa-Garba, this apparent shift in the law happened after her conviction for gross negligence manslaughter in 2015.

<h3 class=”subheadMIstyles”>Reform to the law of gross negligent manslaughter in England and Wales</h3>

Dr Bawa-Garba’s case generated huge publicity in the UK and highlighted a growing mistrust between medics and their regulatory body.

In the wake of the controversy, the Secretary of State commissioned Professor Sir Norman Williams, former President of the Royal College of Surgeons to lead a review into gross negligence manslaughter in the healthcare setting. Prof Williams’ rapid policy review was released in June 2018. Prof Williams has made many welcome recommendations including that a working group should be set up to provide a clear explanatory statement on the law of gross negligence manslaughter in England.

The GMC also commissioned Dame Clare Marx, also a former President of the Royal College of Surgeons of England to prepare a report looking into how cases of gross negligence manslaughter in England, and culpable homicide in Scotland, are initiated and investigated. Dame Marx’s report is awaited.

<h3 class=”subheadMIstyles”>Gross negligence manslaughter in Ireland</h3>

To the author’s knowledge, there have been no convictions of a health professional for gross negligence manslaughter in Ireland.

The test for gross negligence manslaughter in Ireland was set out in the case of <em>The People (Attorney General) v Dunleavy</em>, which concerned a taxi driver who killed a cyclist whilst driving on the wrong side of the road in his unlit car.

The parameters of the test for establishing gross negligence manslaughter in Ireland are similar to the test in England and Wales. It is, therefore, not inconceivable that a case such as Dr Bawa-Garba’s could come before the Irish Criminal Courts.

However, some comfort can perhaps be drawn from the fact that there would appear to be little appetite in this jurisdiction to prosecute clinicians for gross negligence manslaughter. Furthermore, the UK would appear to be on the cusp of reforming the law on gross negligence manslaughter in the healthcare context, by making the test clearer and the threshold for conviction higher. Ireland will hopefully follow suit in due course.

Ms Joanne O’Sullivan is Healthcare Partner at Kennedy’s Law, Dublin, specialising in healthcare defence litigation and medical law