A recent decision made in the Courts in England convicting a doctor of manslaughter has enraged many medical officers both in England and Australia; raising concerns that the court failed to look at the realities of practice in the public health system and the systemic wide failings that add pressure to an overworked and understaffed healthcare workforce.
However, when exploring this case it became apparent that it was not only one medical officer but also two nurses, also working in such conditions, who faced criminal charges following the avoidable death of a six year old boy. Jack Adock had Down’s Syndrome and a heart defect which had been successfully managed since his birth. He was described as a lively and energetic boy who attended a local primary school.
On 18 February 2011 around 10:30am he was admitted to hospital with symptoms of diarrhoea, vomiting and breathlessness. At 9:30pm the same day he died of systemic sepsis. That his death was premature was supported by evidence of a paediatric intensive care consultant who believed that ‘…. had he been properly diagnosed and treated, he would not have died at the time and in the circumstances which he did. .’ and, that ‘… any competent junior doctor would have realised Jack’s condition.’ (General Medical Council v Dr Bawa-Garba, 2018).
Following his death Dr Bawa-Garba a trainee paediatrician, and an agency nurse Isabel Amaro were charged and convicted of manslaughter by gross negligence. A third nurse Theresa Taylor was acquitted. The Court determined that the level of care Jack was given was “woeful” and “truly, exceptionally bad”.
As such, rather than the care simply falling short of the required standard, it was determined that it fell so far short that it reached the threshold of gross negligence and so, the threshold of criminality where a custodial sentence was appropriate for both accused who received a 24 month suspended sentence (General Medical Council v Dr Bawa-Garba, 2018). Professional disciplinary hearings followed where both practitioners were ‘struck off’ the register.
It was alleged that Bawa-Garba breached the standard of care expected of her when she failed to adequately assess Jack; failed to respond to clinical findings from laboratory tests indicating his deterioration and the need for reassessment; failure to keep proper clinical notes; and to refer to a consultant for further advice. Furthermore, Bawa-Garba confused Jack with another patient who was ‘DNR’ (“do not resuscitate”) and stopped his CPR until this view was corrected by another doctor and CPR was recommenced approximately two minutes later. However, this matter was not given any causative weight in Jack’s death, although it was argued that it was indicative of the overall level of care attention given to him.
It was also argued that Amaro had failed to undertake and record regular readings of Jack’s vital signs and oxygen saturation levels and, despite Jack being given IV fluids failed to keep the proper fluid balance record necessary for a deteriorating patient. In fact, her record keeping was described as ‘woefully incomplete’.
It was further argued that she failed to escalate her concerns regarding Jack’s deteriorating condition to senior nursing and medical staff which delayed his urgent reassessment and initiation of further treatment. Overall it was held that this significantly contributed to the deficiencies in his care and his subsequent death. Each accused put forward a number of mitigating factors in both the criminal and disciplinary hearings as to why they should not be found guilty of gross negligence or struck off the registrar.
These included, failings of the nurses and consultants, a shortage of medical and nursing staff, IT systems failures leading to abnormal blood test results not being highlighted, handover deficiencies, data availability at the bedside, high workloads and heavy reliance on agency staff.
While these were taken into consideration, they did not dissolve the responsibility of the practitioners. It is in part the failure to give consideration to these issues that has elicited the response from the medical profession and raised concerns that ordinary mistakes in practice will end careers.
From a disciplinary perspective, both practitioners were found to be impaired – not only because of public safety reasons but also ‘…. Because the conviction for manslaughter by gross negligence meant that public confidence in the profession would be undermined if no finding of impairment were made, and because a finding of impairment was required to promote and maintain proper professional standards’ (Ouseley J).
The High Court in deciding that suspension was an insufficient penalty for Bawa-Garba concluded that in these circumstances where the conduct had been described as exceptionally bad because of a series of failings where a patient died, due weight must be given to the verdict of the jury when imposing a sanction. As such, given that the verdict of manslaughter by gross negligence concerned a serious departure from the principles of “Good Medical Practice” and was fundamentally incompatible with being a doctor a sanction of erasure, was appropriate.
The Nursing and Midwifery Council also concluded that the appropriate and proportionate sanction to satisfy the public interest was a striking off order for Amaro concluding that the manslaughter conviction represented ‘…a fundamental departure from the relevant standards, that public confidence in the nursing profession and in the NMC as its regulator would be undermined were the panel not to impose a striking-off order’ (NMC v Amaro 2016).
It is not surprising there has been such a response to these findings as many health professionals feel the pressure of working in overloaded systems, and many consumers are demanding more accountability for adverse outcomes. Once again we are reminded of the need to consider what issues may be impacting on our own ability to deliver the necessary standard of care to meet our professional obligations and what we can do individually and collectively to minimise such risks.
General Medical Council v Dr Bawa-Garba  E WHC 76 (Admin) Nursing and Midwifery Council v Amaro (2016)
An expert in the field of nursing and the law Associate Professor Linda Starr is in the School of Nursing and Midwifery at Flinders University in South Australia