Bawa-Garba v R, Court of Appeal - Criminal Division, December 08, 2016, [2016] EWCA Crim 1841

Issuing Organization:Criminal Division
Actores:Bawa-Garba v R
Resolution Date:December 08, 2016
 
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Neutral Citation Number: [2016] EWCA Crim 1841

Case No: 201505475B1

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM

Mr Justice Nicol

T20157629

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 08/12/2016

Before :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

(SIR BRIAN LEVESON)

MR JUSTICE OPENSHAW

and

MR JUSTICE MALES

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Between :

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Zoe Johnson QC and Julian Woodbridge

(instructed by RadcliffesLeBrasseur, London) for the Appellant

Andrew Thomas QC and Matthew Corbett-Jones

(instructed by Crown Prosecution Service) for the Respondent

Hearing date : 29 November 2016

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Sir Brian Leveson P :

  1. On 4 November 2015, in the Crown Court at Nottingham before Nicol J and a jury, Dr Hadiza Bawa-Garba was convicted of manslaughter (by gross negligence). On 14 December 2015, she was sentenced to a term of two years' imprisonment the operation of which was suspended for two years. She was also ordered to pay £25,000 towards the costs of the prosecution. A nurse on duty at the time (Isabel Amaro) was also convicted of the same offence; the ward sister (Theresa Taylor) was acquitted.

  2. Dr Bawa-Garba now renews her application for leave to appeal against conviction after refusal by the single judge (Edis J). In the event, the Crown were directed to attend on the basis that, if leave was granted, the case would be considered on the basis that it constituted the hearing of the appeal.

    The Facts

  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 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 a close family, local doctors and learning support assistants and he was a thriving little boy, who attended a 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 it 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...

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