Article Text
Abstract
Although some doctors celebrated when the Court of Appeal overturned Hadiza Bawa-Garba’s erasure from the medical register, it is argued here that in many ways the ruling is by no means good news for the medical profession. Doctors’ interests are served by transparent professional tribunals but the Court of Appeal’s approach to the GMC Sanctions Guidance risks increasing opacity in decision-making. Close attention to systemic factors in the criminal trial protects doctors yet the Court of Appeal states that the structural circumstances surrounding Bawa-Garba’s failings were only of peripheral relevance to her conviction. Public confidence in the profession is undermined when convicted doctors return to work because the public de facto do not understand the nuance of gross negligence manslaughter law. Rather than changing the law to make the regulator more lenient towards doctors, it would be better to ensure that doctors are only convicted of gross negligence manslaughter when their conduct is so serious that they ought to be struck off.
- negligence
- criminal law
- philosophy of medicine
- bills, laws and cases
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The criminal law is an inappropriate way to address complex failures leading to death in hospital according to Samanta and Samanta.1 They argue that the current law inappropriately targets front-line professionals rather than systems or managers, that unintended errors should not be criminalised because moral culpability is contingent on freedom of choice and that gross negligence manslaughter law is an inappropriately punitive approach to a patient safety issue.1
Anxiety among doctors became particularly marked in January 2018 when the High Court ruled that Hadiza Bawa-Garba should be struck off.2 Many felt victorious when the Court of Appeal overturned this decision.3 Samanta and Samanta suggested that this ruling was a step in the right direction.4 Although I agree with many of their other conclusions, I will suggest that there are reasons to think this ruling takes the protection of doctors in the wrong direction.
Indeed, this paper argues that if we accept that doctors’ interests are served by transparent professional tribunals, close attention to systemic factors in the criminal trial and the maintenance of public confidence in the profession, the Court of Appeal ruling remains by no means good news.
Opacity at the tribunal
In overturning the High Court ruling, the Court of Appeal described the circumstances under which an appeal against a tribunal decision could be upheld. After explaining why reticence is demanded of any appeal court, it stated that that the ’general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts’.5 At paragraph 97 the ruling determines that ’bearing in mind the respect due to such an expert body in reaching its evaluative judgment, there were no grounds for allowing the appeal under section 40A of Medical Act 1983 on the basis that the Sanction Decision was wrong because the only sanction properly and reasonably open to the Tribunal was erasure'.3
These comments firmly reject the approach of the High Court. The Court of Appeal ruling elevates the Tribunal, and its decision, because of its expertise and then emphasises that the Tribunal was not plainly wrong to suspend Dr Bawa-Garba because erasure was not the only option. This is exactly the kind of comment that Dr Bawa-Garba’s supporters (and financial backers) were hoping for.6
Samanta and Samanta rightly argue that ‘erasure heralds the end of a doctor’s medical career and must be made using due process that is transparent’.1 Giving primacy to the decision of the tribunal also adds procedural uncertainty in this instance. The Court of Appeal addressed paragraph 103 of the GMC Sanctions Guidance:
Any of the following factors being present may indicate erasure is appropriate … (c) Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients.7
At paragraph 85 the Court of Appeal found that ‘none of those provisions necessarily required the sanction of erasure’ drawing attention to ‘the word ‘may’ in its first sentence, as well as the word ‘indicate’, which is also permissive, not mandatory’.3 Such understated language is typical of the GMC Sanctions Guidance; paragraph 92 states that ‘erasure is more likely to be the appropriate sanction’ for conduct ‘fundamentally incompatible with continued registration’.3 This ‘more likely’ could be said to allow the tribunal discretion even in the almost inconceivable case that a doctor acting in a way fundamental incompatibility with continued registration did not require erasure. It is noteworthy that elsewhere the GMC is not afraid of using direct language: Good Medical Practice includes very clear statements beginning ‘you must’ and ‘you should’.8 The Court of Appeal defends the discretion of the Tribunal and this approach is in keeping with the spirit of the GMC Sanctions Guidance.
The disadvantage is that this discretion increases opacity. Vague rules make it difficult for doctors to know whether their conduct merits erasure and means they have no measure against which to defend themselves. Emphasising the authority and expertise of the Tribunal, rather than adherence to guidelines, puts the Tribunal’s decisions above the potential objections of doctors or the public.
Circumstances at trial
There is also a degree of opacity in the test for gross negligence manslaughter. This has made it difficult to direct the jury, and one conviction was recently overturned because the jury was misdirected.9
The test for gross negligence manslaughter law comes from Adomako. The extent to which the defendant departed from the proper standard of care must be assessed and, in order to convict, the jury must find that ’the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission’.10 Environmental, technological and teamwork factors must be taken into account. Dr Bawa-Garba’s failings mainly related to diagnosis and timely treatment, but were interconnected with the systemic failings.
However, the Court of Appeal minimised the significance of circumstances at paragraph 74. ’Systemic failures on the part of the Trust were only ever of peripheral relevance to the guilt or absence of guilt of Dr Bawa-Garba for gross negligence manslaughter. That issue turned on whether her own failings in the care and treatment of Jack were truly exceptionally bad’.3 This is alarming because it emphasises individual guilt and sidelines the circumstances, which is contrary to what the medical profession hoped for. Previously, doctors may have been reassured about working under adverse circumstances believing they would not be held criminally responsible for harm caused by structural failings but this comment calls such a defence into question.
‘Circumstances’ are at the centre of the definition in Adomako, but these comments marginalise ‘circumstances’, creating uncertainty about this defence at the criminal trial. It raises the prospect of a jury being directed that systemic failings are only of peripheral relevance leaving doctors even more vulnerable to conviction for gross negligence manslaughter.
Public confidence
Samanta and Samanta cite a journalist who claimed ‘as a layperson his confidence [in the GMC] has been shaken by disproportionate regulatory action’.1 Among the majority of the population without such nuanced appreciation of the situation, however, the final outcome will, I suggest, undermine public confidence in doctors. Samanta and Samanta go on to argue that ‘regulatory action should aim for a calibration balanced to the beliefs of stakeholders who are affected or impacted on’1 which would entail changing the Medical Act because presently the statutory responsibilities of the GMC are (a) protecting the health of the public, (b) maintaining public confidence in the medical profession and (c) promoting proper professional standards, not a balance between the interests of patients and of convicted doctors.11 The Tribunal found that Dr Bawa-Garba’s clinical failings had already been remedied so the question of her erasure came down to public confidence.12 The Court of Appeal looked closely at whether the public confidence could be maintained by any sanction less than erasure, noting Collins J’s comments in Giele that the Tribunal had to consider the well-informed and reasonable member of the public.13 This adjustment is essential because it avoids trial by media.14 However, in reality the public, as reasonable as they may be, are not always well-informed, but dependent on the fallible information sources; Giele introduces a necessary legal fiction.
The Tribunal considered that ’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’.15 Members of the public may well see suspension as appropriate if they have a nuanced appreciation of gross negligence manslaughter law, including its limitations and an awareness of the unique problems at Leicester Royal Infirmary on the day of Jack Adcock’s death.
Unlike Samanta and Samanta’s journalist, most members of the public will just see the headlines: ‘[m]um’s anger as doctor is allowed to practise again after death of son’,16‘[j]unior doctor struck off after being convicted over death of boy, 6, WINS appeal against decision’17 and '[w]ould you want a doctor convicted of manslaughter to care for YOUR child? How the colleagues of Dr Bawa-Garba who made fatal blunders in case of boy, six, want her to return to work’.18 When doctors are convicted of gross negligence manslaughter and return to work, or their colleagues campaign for them to return to work, it de facto weakens public confidence in the profession. Rather than changing the law to make the regulator—the protector of patients—more compassionate towards doctors, an alternative solution would ensure that doctors are only convicted of gross negligence manslaughter when their conduct is so serious, perhaps involving recklessness,19 they ought to be struck off.
Acknowledgments
The author would like to thank Jose Miola for his insightful and encouraging comments on an earlier draft.
Footnotes
Contributors NH planned and drafted the manuscript.
Competing interests NH is a junior doctor practising in Northampton, UK.
Patient consent Not required.
Provenance and peer review Commissioned; internally peer reviewed.
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