It is just over six months since the senior paediatric registrar, Dr Hadiza Bawa-Garba, won her appeal against the General Medical Council (GMC) to have her medical registration reinstated.¹ So ended a seven-and-a-half-year travail for this British doctor, which started in February 2011 when Jack Adcock was admitted to the Child Assessment Unit at Leicester Royal Infirmary with sepsis, sadly to die later that evening.

The subsequent years were to see both Dr Bawa-Garba and nurse, Isabel Amaro, charged and convicted of Gross Negligence Manslaughter (GNM) in November 2015; Dr Bawa-Garba receiving a suspended two-year sentence. In contrast to this finding, the Serious Untoward Incident investigation performed by the Leicester Hospital – while identifying 17 contributory factors to Jack Adcock’s death, and recommending 83 different changes to practice – could not identify any one single failing (or person) as the cause of death.²

In June 2017, in response to this criminal conviction, but mediated by knowledge of the complex circumstances in which Dr Bawa-Garba had been working, as well as her past training reports and excellent performance, the Medical Professional Tribunal Service (MPTS, a statutory committee of the GMC) imposed a sanction of 12 months suspension. The GMC took its own Committee to Court, and in January 2018, won the right to impose a lifetime erasure from the medical register on Dr Bawa-Garba.³ The news went viral around the world.

As we all know, this decision was successfully appealed in July 2018. In particular, the Lord Chief Justice of England and Wales noted ‘No concerns have ever been raised about [Dr Bawa-Garba’s] clinical competency… she is honest and reliable and has complete insight… her deficient conduct in relation to the care and treatment of Jack Adcock was neither deliberate nor reckless and she does not present a continuing risk to patients’.¹

Unfortunately, these glowing words from such an esteemed Law Lord in this particular Court, does not reverse or erase her criminal conviction.

What now?

This sequence of events raised significant concerns for doctors in the UK and Australia. The first, and most complex, is the difficult and contested intersection between healthcare safety issues; including medical error and criminal culpability. The second was the aggressive response of the GMC.

Medical error and criminal negligence

Australian prosecutions for criminal negligence

In Australia, the evidence that this is likely is simply not there. One study would suggest that there have been 33 prosecutions of doctors specifically for manslaughter in Australia between 1843 and 2012, with only four doctors found guilty.⁴ A more recent study of all criminal charges against healthcare practitioners between 1989 and 2013, demonstrated that there have only been three prosecutions for manslaughter, with only one conviction.⁵ Why this is, is conjecture. It may represent a societal lack of appetite to criminalise medical error, or it is felt by those chasing a doctor that there are other more appropriate (or lucrative, or punitive) avenues to pursue, or the various prosecution departments in every state feel that it is almost impossible to prove beyond doubt ‘that a doctor had, and demonstrated, recklessness, involving grave moral guilt’.⁶ In The Queen v Lavender (2005) the Court stated ‘that criminal liability must not be imposed in the absence of moral fault’,⁷ and this is a high bar to get over. Simple error will not cut it.⁸

The UK response

As a result of the Bawa-Garba case, the then Minister for Health, Jeremy Hunt, commissioned a Rapid Policy Review into GNM in healthcare, led by Professor Norman Williams.⁹ The terms of reference take a broad look at the factors that may lead a healthcare practitioner being charged with GNM, with a particular remit to review the role of the GMC and its right to appeal decisions made by the MPTS.

UK prosecutions for GNM

Despite concerns about a growing number of prosecutions of doctors within England and Wales (Scotland does not have the crime of GNM), the Williams report would indicate that there is not a torrential storm of activity. Between 2013 and 2018, out of 259,000 registered doctors, only five were prosecuted, resulting in one fleeing the country, one acquitted, two convictions overturned on appeal, and only one conviction standing (Dr Bawa-Garba).¹⁰

Going forward – the Williams report

However, in the next 25 pages of comment, evidence and recommendations, Prof Williams makes it clear that there is much wrong with the system. Since 2013, the Crown Prosecution Service (CPS) have undertaken 151 investigations involving all healthcare practitioners, resulting in only seven prosecutions.⁹ After summarising the current principles in Common Law defining GNM (which unlike Australian practice, does not include the concept of moral culpability) he opines that the police force, the CPS and the coronial services need to understand what GNM actually is, to gain consistency of referral and prosecution, and a reduction in unnecessary and stressful investigations.

Prof Williams recommends the establishment of specialist investigatory police units that have a much deeper understanding of the systemic and human factors at work in complex healthcare services, with input from medical and quality experts. ‘There will nearly always be factors in the delivery of healthcare beyond the actions of healthcare professionals… it is essential to establish a full understanding of all the causal factors’. Quoting Lord Mackay’s comment in 1994, as to whether the breach of duty by the doctor was gross negligence (and therefore a criminal act) ‘this will depend on… all the circumstances in which the defendant was placed when it occurred’.¹¹

Prof Williams’ final, scathing comment in this area of healthcare safety and adverse events was in relation to the complete failure of the NHS to learn from its mistakes. He reminded the UK Health Department that this point has been made time and again, from the Francis Report into the Mid Staffordshire Hospital failings¹² to the Morecambe Bay Investigation,¹³ ‘the NHS has proved resistant to change’.

While these recommendations are heartening, they skirt some fundamental questions. Should the legal (criminal) response to error depend solely on patient outcome, leaving other significant errors untouched? Is there any place at all for criminal charges where a inadvertent error has been made, as opposed to reckless and culpable intent?^{14 15} Paterson argues that ‘manslaughter is an unhelpful form of accountability’ and depending on the desired outcome, there are a number of different, more productive pathways: coronial, regulatory, civil.16 As the Williams report notes, nearly all hospital related events are multifactorial, and prosecuting and imprisoning one doctor will not make ‘the system’ safer.

Finally, all of us working in hospitals expect the right personnel and functioning equipment to enable us to do our job. Is there a case for the crime of ‘corporate gross negligence manslaughter’ to be laid against hospitals who fail to provide this infrastructure – in effect, an extension and criminalisation of a hospital’s civil non-delegable duty of care.¹⁶ It was Kirby P’s (as he was then) dissenting opinion in Ellis, that ‘hospitals are under a duty to organise and ensure… a safe hospital system’.¹⁷

The regulatory case

Superficially, the medical regulatory framework in the UK is similar to Australia, with the Professional Standards Authority having a similar role to AHPRA, overseeing nine Councils – the GMC being one. However, in 2012, the GMC created the MPTS (reporting to it and the PSA) to undertake fitness to practice hearings, separating out the investigatory and adjudication functions of the GMC. Since 2015, the GMC has had the right to appeal decisions, often ones considered too lenient made by the MPTS, to the Courts. This has created an organisation almost at war with itself.

On the one hand, the GMC is concerned with public opinion, with a remit to ‘ensure public confidence in the organisation’ how ever they ascertain what this is. On the other hand, the MPTS’s role is to assess a doctor’s ability to continue practising safely. In a recent case where a practitioner was simply issued a warning following an insignificant single event, the GMC demanded full erasure. The response of the Court was peremptory ‘the MPTS is well placed to make an evaluative judgment of nuances’, and rapped the GMC on the knuckles for even bringing the case to the High Court.¹⁸ It is little wonder that doctors in the UK are both angry and fearful and feel that the GMC is not fit for purpose, demanding radical change. It is also not surprising that the Williams report recommended succinctly that this right of appeal should be taken away from the GMC.

Conclusion

The Williams report promises much, yet fails to grapple with some of the real concerns of medical practitioners working in the grossly under-resourced environment of the NHS, a situation familiar to Australian practitioners in our public system. We can take more comfort in our legal and regulatory systems, but our public health system still leaves doctors, especially trainees, at risk.

1. Bawa-Garba v General Medical Council. 2018, EWCA Civ 1879.
2. University Hospitals of Leicester: Investigation Report. 3 Jan 2012. Available from: www.whatdotheyknow.com/request/460255/response/1128108/attach/2/FOI.SUI%20REPORT%20FOI%20Redacted.pdf
3. General Medical Council v Bawa-Garba. 2018, EWHC 76 (Admin)
4. Carter, DJ. Correcting the record: Australian prosecutions for manslaughter in the medical context. JLM. 2015;22:588-609.
5. Bonython W, Arnold BB. Mind the information gap: quantifying the courts’ role in responding to patient harm, 1989 to 2013. JLM. 2018;25:549-71.
6. R v Patel. 2010, 202 A Crim R 53.
7. The Queen v Lavender. 2005, HCA 37.
8. Dobinson I. Medical manslaughter. The University of Queensland Law Journal. 2009;28(1): 101-12.
9. Gross negligence manslaughter in healthcare: The report of a rapid policy review. 2018. Available from: www.gov.uk/government/publications/williams-review-into-gross-negligence-manslaughter-in-healthcare
10. Vaughan J, Quick O, Griffiths D. Medical manslaughter: where next? RCS Bulletin. 2018;100(6):251-4.
11. 3 WLR 288, (1994) 98 Cr App R 282.
12. Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry: Executive summary. 2013. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/279124/0947.pdf.
13. The Report of the Morecambe Bay Investigation. 2015. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/408480/47487_MBI_Accessible_v0.1.pdf.
14. Merry A. How does the law recognize and deal with medical errors? J R Soc Med. 2009;102:265-71.
15. Glauser W. Should medical errors ever be considered criminal offences? CMAJ. 2018;190(16):e518-9.
16. Beuermann C. Do hospitals owe a so-called ‘non-delegable’ duty of care to their patients? Medical Law Review. 2017;26(1);1-26.
17. Ellis v Wallsend. 1989, 17 NSWLR 553.
18. Raychaudhuri v GMC and PSA. 2018, EWCA Civ 2027.