The tragic death of Jack Adcock

Jack Adcock

Jack Adcock was born on 15 July 2004.  He died at Leicester Royal Infirmary on 18 February 2011.  The clinical cause of his death was sepsis - a condition explained by the NHS and also see Sepsis Trust.  According to the Trust five people die every hour due to sepsis - "Sepsis can initially look like flu, gastroenteritis or a chest infection. There is no one sign, and symptoms present differently between adults and children."

The BBC Panorama coverage of this case is an excellent, detailed and very moving programme. 
It really must be viewed. The picture which emerges is complex.  This post takes an overview of the legal proceedings which ensued and also at a number of reports.

Leicester NHS Report:

The NHS Trust conducted its own investigation into Jack's death and, on 24 Augsut 2011, produced a report.  Pulse Today has this information regarding the report and offers a link to the redacted report - University Hospitals of Leicester NHS Trust

Criminal proceedings:

When he was admitted to Leicester hospital, Jack came under the care of Dr Hazida Bawa-Garba.  As a result of Jack's death, Dr Bawa-Garba and two nurses were charged with gross negligence manslaughter.   On 4 November 2015, in the Crown Court at Nottingham before Nicol J and a jury, the doctor 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.

It appears that the trial jury was not informed about the findings in the Leiecter NHS Trust report.

On 8 December 2016, the Court of Appeal (Criminal Division) - Sir Brian Leveson P, Openshaw and Males JJ - refused permission for Dr Bawa-Garba to appeal against her conviction.  The court's reasons are set out at [2016] EWCA Crim 1841.  The court noted (para 36) that - "the prosecution had to show that what a defendant did or didn't do was "truly, exceptionally bad". Suffice to say that this jury was (and all juries considering this offence should be) left in no doubt as to the truly exceptional degree of negligence which must be established if it is to be made out."

Medical Practitioners Tribunal (MPT):

Prior to the criminal trial, the Medical Practitioners Tribunal made an Interim Order of Suspension for 18 months against Dr Bawa-Garba - Medical Act 1983 section 41A(10).   That Order was discharged by the High Court on 24 March 2015.

The Tribunal's website has a helpful page for accessing relevant Legislation and Rules including an amended version of the Medical Act 1983.

On 13 June 2017, the Tribunal suspended Dr Bawa-Garba from practice for a year having found that her fitness to practise had been impaired.

Divisional Court:

The matter next went to the Divisional Court - General Medical Council v Dr Bawa-Garba [2018] EWHC 76 (Admin)- Gross LJ and Ouseley J - (25 January 2018).   The GMC appealed against the decision of the MPT that Dr Bawa-Garba should be suspended from practice for one year. The GMC appealed on the ground that the Tribunal should have ordered that she be erased from the register.

The General Medical Council (GMC) exists to protect patients and improve medical education and has a statutory right to bring such an appeal.  Under the Equality Act 2010 section 53, the GMC is a "qaulifications body."

The court considered that it followed from the criminal trial jury's verdict that Dr Bawa-Garba's failings were "truly exceptionally bad" and that this was not properly reflected or respected in the Tribunal's Decision on Sanction.  The court concluded that the Tribunal was wrong regarding the sanction and ordered "with sadness but no hesitation" (per Gross LJ) that Dr Bawa-Garba be erased from the register.

The Court of Appeal:

On 13 August 2018, the Court of Appeal (Civil Division) Lord Burnett of Maldon CJ, Sir Terence Etherton MR and Rafferty LJ held that the Divisional Court was wrong.  The judgment and an explanatory media statement may be seen via the Judiciary website.

The media statement notes -

"Undoubtedly, there are some cases where the facts are such that the most severe sanction, erasure from the Medical Register, is the only proper and reasonable sanction. This is not one of them. Once it is understood that it was permissible for the Tribunal to take into account the full context of Jack’s death, including the range of persons bearing responsibility for that tragedy and the systemic failings of the Hospital, as well as the other matters relied upon by Dr Bawa-Garba, and that the Tribunal plainly had in mind its overriding obligation to protect the public for the future, it is impossible to say that the suspension sanction imposed by the Tribunal was not one properly open to it and that the only sanction properly and reasonably available was erasure.  Contrary to the approach taken by the Divisional Court, there is no presumption of erasure in the case of serious harm.  The appropriate sanction will always depend upon the precise circumstances of the particular case.

The present case is unusual. No concerns have ever been raised about the clinical competence of Dr Bawa-Garba, other than in relation to Jack’s death, even though she continued to be employed at the Hospital until her conviction. The evidence before the Tribunal was that she was in the top third of her Specialist Trainee cohort. The Tribunal was satisfied that her deficient actions in relation to Jack were neither deliberate nor reckless, that she had remedied the deficiencies in her clinical skills and did not present a continuing risk to patients, and that the risk of her clinical practice suddenly and without explanation falling below the standards expected on any given day was no higher than for any other reasonably competent doctor. 

The Tribunal was an expert body entitled to reach all those conclusions, including the important factor weighing in favour of Dr Bawa-Garba that she is a competent and useful doctor, who presents no material continuing danger to the public, and can provide considerable useful future service to society.

In those circumstances, the Court of Appeal allows the appeal, sets aside the decision of the Divisional Court, restores the decision of the Tribunal and remits the matter to the Medical Practitioners Tribunal Service for review of Dr Bawa-Garba’s suspension."

It remains to be seen what the MPT will decide when that review is completed.

Interveners:

It is interesting to note the Interveners in the Court of Appeal.   They are shown in this extract from the court's judgment.

Interveners are a growing presence in litigation and seem to be here to stay - see this New Law Journal article.  Written submissions are not always published whereas oral submissions would be made in open court.  Also, court judgments do not always deal with the submissions of interveners so it is not possible to ascertain what, if any, impact their submissions have on the outcome.

Other:

Race?


This article at Spiked-Online 21 August 2018 which looks at a campaign which accused the GMC of having racially disciminated against Dr Bawa-Garba.

Earlier this year, the British Association of Physicians of Indian Origin (BAPIO) wrote to the GMC to accuse it of an inherent bias against black and minority ethnic doctors, as reflected in its ‘pursuit’ of Dr Bawa-Garba. The letter was widely covered in the medical press. And a few days later, the Muslim Doctors Association, an organisation with over 6,000 members, claimed that striking off Dr Bawa-Garba ‘highlights the important issue for debate concerning the treatment and fate of BME doctors working in the NHS’.
 
The charge of racism against the GMC spread to the mainstream press, with the Daily Mail quoting BAPIO president Dr Ramesh Mehta as saying that ‘the GMC may have been partly influenced by the fact that Dr Bawa-Garba, a Muslim who moved to Britain from her native Nigeria in 1994, wears a headscarf’. ‘We are saying that racism is one of the parts of it’, he claimed.

The court judgments do not reveal any racial motivation in the actions of the GMC in bringing the appeal against the MPT decision not to remove Dr Bawa-Garba from the register.  As noted above, the GMC has to adhere to the Equality Act 2010 and there appears to be no evidence to suggest that it failed in this regard.

Concerns:

The Bawa-Garba case caused considerable consternation in the medical profession - Pulse Today 25 June 2018.where it is reported that - "More than half of doctors fear they will be blamed for making a medical error made because of systemic pressures in the NHS."  It is also said that that a survey of 8,000 doctors found that only a quarter are willing to record written reflections.

The need for a culture of working to improve patient safety was brought to the fore by a previous inquiry in 2013 conducted by Professor Don Berwick- see Berwick Review into patient safety.

In April 2018, the Leicester NHS Trust issued a position statement relating to Dr Bawa-Garba's case.  This stated that - "We continue to work closely with clinicians, our Clinical Senate, doctors in training and Medical Education teams seeking to foster a culture where we learn from our mistakes and are open to suggestions from our patients, staff and the public to improve our systems and processes."

In February 2018, the Health Secretary (then Rt Hon Jeremy Hunt MP) appointed Sir Norman Williams to conduct a "rapid review" of medical malpractice cases - BBC News 6 February 201. The report was published on 11 June 2018 - Gross negligence manslaughter in healthcare: the report of a rapid policy review

Interestingly, the review recommended that "the Professional Standards Authority (PSA) should retain its right to appeal a decision of a fitness to practise panel to the High Court on the grounds of insufficient public protection. The duplicate power provided to the General Medical Council (GMC) to appeal decisions of the MPTS to the High Court should be removed. This will ensure a consistent approach to appeals across healthcare professions that are statutorily regulated."
 

Dr Bawa-Garba