Bawa-Garba v The General Medical Council & Ors, Court of Appeal - Civil Division, August 13, 2018, [2018] EWCA Civ 1879

Resolution Date:August 13, 2018
Issuing Organization:Civil Division
Actores:Bawa-Garba v The General Medical Council & Ors
 
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Case No: C1/2018/0356

Neutral Citation Number: [2018] EWCA Civ 1879

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Gross LJ and Ouseley J

[2018] EWHC 76 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 13/08/2018

Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

THE MASTER OF THE ROLLS

and

LADY JUSTICE RAFFERTY

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Between :

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James Laddie QC and Sarah Hannett (instructed by Tim Johnson/Law) for the Appellant

Ivan Hare QC (instructed by GMC Legal) for the Respondent

Jenni Richards QC and Nadia Motraghi (instructed by Capital Law) for the First Intervener

Fenella Morris QC (instructed by Browne Jacobson LLP) for the Second Intervener

Karon Monaghan QC (instructed by Sarah Dodds, Medical Defence Shield) made written submissions for the Third Intervener

Hearing dates : 25 and 26 July 2018

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Judgment

Lord Burnett of Maldon CJ, Sir Terence Etherton MR and Lady Justice Rafferty :

1. This is an appeal from the order dated 25 January 2018 of the Divisional Court of the Queen's Bench Division (Gross LJ and Ouseley J) by which it: (1) allowed the appeal of the respondent, the General Medical Council (``the GMC'') from the decision of the Medical Practitioners Tribunal (``the Tribunal'') on 13 June 2017 to suspend the registration of the appellant, Dr Hadiza Bawa-Garba (``Dr Bawa-Garba''), from practice for a period of 12 months; and (2) quashed that decision of the Tribunal, and substituted in its place a direction that Dr Bawa-Garba's name be erased from the Medical Register.

2. The central issue on this appeal is the proper approach to the conviction of a medical practitioner for gross negligence manslaughter in the context of fitness to practise sanctions under the Medical Act 1983 (``MA 1983'') where the registrant does not present a continuing risk to patients.

The factual background

Events prior to the criminal proceedings

3. The following is a brief summary of the facts taken from the judgment of the Divisional Court and from the judgment of Sir Brian Leveson P, sitting in the Court of Appeal (Criminal Division) in R v Bawa-Garba (Hadiza) [2016] EWCA Crim 1841, which is sufficient to understand the factual context of this appeal. A much fuller factual account can be found in those judgments.

4. 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 (``the Hospital'') after 14 months of maternity leave. She was employed in the Children's Assessment Unit of the Hospital (``the Unit''). That was an admissions unit of 15 beds 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. The case concerns Dr Bawa-Garba's care and treatment of Jack Adcock.

5. Jack was six years of age in February 2011. He had been diagnosed from birth with Downs Syndrome (Trisomy 21). He was also born with a ``hole in the heart'', which required surgery. As a result 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. He was, however, well supported by a close family, local doctors and learning support assistants. 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.

6. 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 very concerned. 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.

7. 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 Dr Bawa-Garba, 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 and dehydration. After an x-ray he was subsequently treated for pneumonia with antibiotics. The responsible staff were Dr Bawa-Garba, Ms Isabel Amaro, a nurse on duty at the time, and Ms Theresa Taylor, the ward sister.

8. In fact, when Jack was admitted to the Hospital, he was suffering from pneumonia (a Group A streptococcal 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), Jack died at 9.20 pm.

The criminal proceedings

9. The police investigated the matter. Dr Bawa-Garba was told by the Crown Prosecution Service (``the CPS'') in 2012 that no charges would be brought against her. Following the inquest into Jack's death in 2013 the CPS reviewed its decision, and in December 2014 she was told that she would after all be prosecuted. She continued to be employed at the Hospital.

10. In due course, the Crown brought charges against Dr Bawa-Garba, Ms Amaro and Ms Taylor. They were tried at Nottingham Crown Court before Nicol J and a jury in 2015.

11. The evidence at the trial was that Jack was at risk of death from his condition on admission (quantified as being in the range 4-20.8%). The clinical signs of septic shock were present in Jack at the time of admission to the Unit (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.

12. 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 of competent professionals that it amounted to the criminal offence of manslaughter by gross negligence.

13. The evidence for the prosecution was that the results of the initial blood tests, together with Jack's medical history, his physical condition and responses and his symptoms would have shown any competent junior doctor that Jack was in shock. There were many specific criticisms of particular failings on the part of Dr Bawa- Garba, including: failure properly to review a chest x-ray taken at 12.01 pm which would have confirmed pneumonia much earlier; failure properly to request the blood gas test; failure to ensure that Jack was given appropriate antibiotics timeously (more particularly, until four hours after the x-ray); failure to obtain the results from the blood tests she ordered on her initial examination until about 4.15 pm, and then failure properly to act on the obvious indications of both infection and organ failure from septic shock; failure to make proper clinical notes recording times of treatments and assessments; and failure to express concerns to a consultant at any stage, other than when the senior consultant, Dr Stephen O'Riordan, arrived on the ward for the normal staff/shift handover at 4.30 pm, to whom she mentioned the high level of CRP and diagnosis of pneumonia. She said that Jack had much improved and was bouncing about. At 6.30 pm, she spoke to the consultant a second time but did not raise any concerns.

14. The case advanced on behalf of Dr Bawa-Garba at the criminal trial was that she was not at any stage guilty of gross negligence. She relied on a series of matters. Among them were that a failure in the Hospital's electronic computer system that day meant that, although she had ordered blood tests at about 10.45am, 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 officer. The results were delayed despite her best endeavours to obtain them. She finally received them at about 4.15pm. Further, a shortage of permanent nurses meant that agency nurses (who included Nurse Amaro) were being used more extensively. Further, Nurse Amaro had failed properly to observe the patient and to communicate Jack's deterioration to Dr Bawa-Garba, 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 his nappies. Dr Bawa-Garba also said that she had prescribed antibiotics for Jack at 3pm as soon as she saw the x-rays (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 an hour after she had prescribed them.

15. 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 evidence (from Dr Samuels) to...

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