Some thoughts on Dr Bawa-Garba and our faith in the jury system

I’m loath to tread onto terrain that I do not usually cover in my modest knockabout criminal practice, but the case of Dr Hadiza Bawa-Garba has caused such tremors in the medical profession that I thought, vainly, that I might throw my two pence in.

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Misery is so ubiquitous in the criminal law that it feels trite if not otiose to start with the observation that this – as inevitably with any that makes the news – is a very sad case, but there is something about the cumulation of tragedies spinning out from Bawa-Garba that stands it out as particularly upsetting. A seriously ill six year-old child, Jack Adcock, died in hospital on 18 February 2011 after what were alleged to be  – and accepted by a jury as being – serious failings in diagnosis and treatment by Dr Bawa-Garba, the responsible doctor.

On 4 November 2015, she was convicted of gross negligence manslaughter and sentenced to a suspended sentence of imprisonment, having been initially informed by the CPS in 2012 that she would not be prosecuted at all. Her fitness to practise was found to be impaired by the Medical Practitioners Tribunal in June 2017, and she was suspended for a period of 12 months. Last week, the High Court ruled, following an appeal by the General Medical Council, that this sanction was insufficient, and substituted the sanction of erasure from the medical register – effectively ending Dr Bawa-Garba’s career.

I shan’t rehearse the complex medical evidence and arguments advanced at Dr Bawa-Garba’s original trial; a summary of the arguments can be found in last week’s judgment here (and in the judgment from the Court of Appeal dismissing her application for leave to appeal against conviction, here). But, reducing the arguments down to a digestible core, the prosecution, relying on the testimony of medical experts, argued that the decisions and omissions of Dr Bawa-Garba were so serious, and her conduct fell so far below the standard of care expected by competent professionals – “truly exceptionally bad” being the test set for the jury – that she was guilty of manslaughter by gross negligence, it being said that these failings caused Jack to die significantly sooner than he would otherwise have done. Dr Bawa-Garba, for her part, denied gross negligence, arguing (also with the support of expert evidence) that Jack’s case was complicated, and that excessive demands placed upon her by a multiplicity of systemic and (other) individual failings meant that she had done her clinical best in difficult circumstances.

The jury returned a guilty verdict, and professional disciplinary proceedings followed. The decision by the High Court last week to allow the GMC’s appeal has caused widespread upset among the profession (see this excellent blog by Dr Rachel Clarke for an explanation).

The reason for the High Court’s decision was that it found that the Tribunal had, in imposing a suspension instead of erasure, attached significant weight to the aforementioned “multiple systemic failures” at the hospital at the time, which included

“failings on the part of the nurses and consultants, medical and nursing staff shortages, failings by nurses and consultants, IT system failures which led to abnormal laboratory test results not being highlighted, deficiencies in handover, accessibility of the data at the bedside, and the absence of a mechanism for an automatic consultant review.”

What is the problem with this? Well, the High Court ruled that these systemic failures had already been considered by the jury at the criminal trial, and that the jury’s guilty verdict represented their finding that Dr Bawa-Garba’s mistakes were “truly exceptionally bad”, even taking into account the conditions in which she was forced to work. Therefore, the High Court concluded, the Tribunal fell into legal error in effectively disregarding the verdict of the jury and reaching its own views as to the level of culpability. If a jury has found Dr Bawa-Garba’s actions to be truly exceptionally bad notwithstanding the systemic conditions, it’s not for a professional disciplinary tribunal to try to form its own opinion based on the systemic failings and downgrade the doctor’s actions to only ‘really quite bad’, in other words.

Doctors who are plunged regularly, if not daily, into the type of systemic chaos that prevailed on that fateful day are now understandably panicked about the ramifications in the event of an avoidable tragedy. Not only, it seems to them, is there a risk of criminal sanction, but the professional regulator – the GMC – will seek to have doctors struck off for what are partially – if not mainly – failings caused by understaffing, lack of resources and defective working practices. What, it has been asked, is a doctor to do upon arriving at work to find themselves in Dr Bawa-Garba’s position? Do one’s best to help patients and risk the same fate? Or down tools citing unsafe working conditions?

For what little it’s worth, I understand the anxiety entirely. But I do wonder whether the consternation in fact burrows deeper than last week’s decision. Because there’s an undeniable logic to the High Court’s judgment: If a criminal court has found, beyond reasonable doubt, that someone’s actions are truly exceptionally bad, it’s a bit off for a different legal tribunal to decide that, actually, the actions were simply honest mistakes. And while anger at the lack of sympathy displayed by the GMC is natural, the ultimate “fault” lies a few stages back – with the verdict of the jury.

It was after all the jury that heard all the evidence of the systemic failures, the clinical decisions taken and not taken, and the errors on the ground, and was still sure of Dr Bawa-Garba’s extremely high personal culpability. It was the jury that weighed the competing expert evidence as to best clinical practice and concluded that these were not simple honest errors but something far, far more serious. And while I don’t seek to second-guess the verdict, nor the competence of the twelve men and women who tried what was no doubt an extremely difficult case to the best of their ability, this case provokes difficult questions as to the suitability of a lay jury to determine complex matters of professional competence.

Trial by a jury of one’s peers is one of the most proudly-hugged rudiments of our criminal justice system – Magna Carta and all that jazz – predicated as it is partially on the notion that disputes of facts falling within the experience of everyday folk should be settled by everyday folk. But where criminal liability hinges on competing interpretations of professional standards, we can see a tension rippling across the surface of our definition of “peers”.

There has been online debate among medics as to whether, based on the evidence summarised in the publicly-available judgments, Dr Bawa-Garba’s conduct was correctly determined to be grossly negligent. Clinical opinions have clashed and war stories of identical climates and narrowly-averted tragedies have been traded as doctors re-litigate the nub of the criminal trial, and in particular the question over whether the jury did, or could, fully appreciate and understand the reality on the ground. While I ordinarily fall into reproachful tutting at armchair juries, there is something about all of this that resonates, louder and more violently than I expected.

I think it’s because, for me, the thought of 12 non-lawyers being called upon to make judgments on my professional standards fills me with horror. Working in the criminal justice system on any given day is, I have no doubt, akin to working in the climate of systemic failure suffered by Dr Bawa-Garba and her colleagues. There is insufficient everything, both material and temporal. What there is, doesn’t work. It is often a miracle that anything resembling justice is fired out at the end of the production line of disorder that comprises many criminal cases. I worry about every single case I have – not simply because of the high stakes or the complexity, but because I cannot trust a single other element of the system to work as it should. Disaster is a heartbeat away at every turn. If I avoid its icy grasp, it’s been a brilliant day. When mistakes happen – and they do, for all of us – it is our individual responsibility of course, but I would plead that they usually arise against that backdrop. And if I found myself in a court of law, trying to convey that reality to twelve laypeople, I know for a fact that I could not even begin to make them understand. Neither could any expert, nor any other witness, no matter how eloquent.

I couldn’t do justice in words to the panic of having several hundred pages of tardy disclosure dumped on you by the indolent prosecution on the morning of a trial where your client is facing a possible life sentence, and having to take full impromptu instructions in the court cells as your violent, psychiatrically unwell client screams and smashes his head against the cell door, while the unsympathetic judge, conscious of the need to “get things started”, tannoys every ten minutes for you to return to court. I cannot paint an adequate portrait of the problems posed when the Crown Prosecution Service instructs you the night before on a trial that they have hitherto kept in-house, and which has not even been looked at by the CPS advocate, and the thudding pressure of arriving at court with a shopping list of urgent missing evidence, disclosure and legal applications, to find that the court WiFi is down, the CPS caseworker assisting you is covering two other courtrooms, the court forgot to book an interpreter for your witness  and your police officer in charge of the case has phoned in sick and sent a replacement bobby who knows nothing about the trial. I cannot convey to a layperson the sheer madness of the magistrates’ “list” system, where the most junior lawyers are dumped at a few hours’ notice with half a dozen badly prepared trials, all listed in the same courtroom before a bench of three non-legally qualified magistrates, and expected to prepare the trials, plug the gaps, chase the missing witnesses, advise and take instructions from overwrought CPS lawyers over the crackling phone lines, soothe the impatient bench and somehow run a series of seamless, effective, just trials.

 Unless you’ve been there, you simply can’t understand.

It is no different, I expect, for NHS staff. Unless you have been there, unless you know, you cannot absorb the experience vicariously. And if you don’t understand the reality, how can you properly, fairly, judge standards of competence exercised by someone ragged in the winds of unpredictability and chaos?

I make clear-  I am in no way doubting or otherwise seeking to undermine the verdict in this case. I was not present at trial, I was not privy to the evidence that went before the jury, and my personal knowledge of matters medical is at best below average. I am confident that the complexities of the evidence and the conflict between the competing experts was clearly explained and made intelligible to the jury by the highly experienced counsel and judge. Furthermore, Dr Bawa-Garba’s conviction has been considered by far better informed and brighter lawyers and judges than me, and has been upheld as safe. Nor am I calling for an immediate revolution in jury trials on the back of this single emotive case. But I do think this raises provocative questions that we in the system perhaps do not pause to examine.

Maybe it’s simply special pleading. Maybe I’m guilty of rank arrogance in assuming that mere members of the public can’t begin to understand the pressures upon us in the ‘traditional professions‘, and am dismissively oblivious to the extraordinary strains placed upon all manner of people outside of law and medicine, and the ability of juries to digest and empathise. I may well be – subconsciously or otherwise – simply writing out my mitigation, or my excuses, to be relied upon at a later date when my professional competence is held up to scrutiny and found wanting. I don’t know. It’s difficult to write objectively about these things.

But what I think I do know is that, while the virtues of jury trial are drummed home from first-year law school, we shouldn’t be afraid to re-examine our shibboleths, particularly when the underlying concepts – juries of our peers – are stretched and strained. I like to think that the expert presentation of complex criminal cases is sufficient to ensure that juries have all the tools to arrive at informed and just verdicts. But I do have sympathy for the anxiety of those who feel that explanation and experience are too different, too far apart, for the former to be a proper substitute for the latter.

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80 thoughts on “Some thoughts on Dr Bawa-Garba and our faith in the jury system

  1. And I wish I had any confidence in the jury or the GMC not being biased by the fact that the defendant was a women with brown skin and from her photo a practising muslim. She didn’t stand a chance.

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    • How do you even know someone is a practising Muslim just from looking at her photo?! How to make a serious case and not making it puerile, silly or party-political…not!

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  2. Pingback: Some thoughts on Dr Bawa-Garba and our faith in the jury system – seftonblog

  3. I’ve been following your blog since a frustrating jury service experience so apologies for my lay perspective. I have some sympathy with this point of view (I’m also a medical professional) but I would argue that many people facing judgement by jury face unique and chaotic backgrounds that, unless experienced by jurors themselves, are extremely difficult to understand. We don’t apply a special case for them in terms of juror experience so I’m not sure that traditional professions should be afforded this luxury. Whilst there is clearly a difference between errors committed in one’s daily life and during professional conduct (particularly in the context of public service), I feel it should be up to the parties involved to persuade the jurors of the merit of relevant evidence and then leave it to their judgement.

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  4. It is very awkward for anyone with professional liability when they are put in the position they cannot do their job properly, eg an overworked doctor. Phone in sick and they are free and clear. Come in and try to do their best and they can lose their career or even liberty. The law needs to recognise this and pass the liability up the chain of command to where it belongs.

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  5. Turning to other areas for such difficulty – How can a jury try a soldier accused of murder or manslaughter in an internal security or battle environment if they have not been there, not seen the difficult decisions and shortness of time when considering the issues, been subject to the unique pressures and emotions that go with that environment? How can a jury try a company accused of corporate manslaughter if they have not had to balance the interests of stakeholders, taken advice from numerous sources and take a decision about what money to spend on complex changes that are required to comply with the latest legal requirements? The reality is that the Jury is directed to assess the situation and reach a decision to the criminal standard – not balancing the interests as a judge might in a civil case – and I always understood that it is in that standard we find the protection of the individual, isn’t it? That is why we say that a person is innocent until proven guilty and, without more, a person who is acquitted is, and should be treated as, innocent of the crime for which they have been accused and acquitted.

    That does not diminish the difficulties and in my view, the problem with special pleading after difficult cases is that it is very like hurried legislation after difficult cases – the reality is that only the most difficult cases get to be tried in full – and we need to review the situation dispassionately after the cases, but on the whole, unless there is some specific change that is required to meet a particular problem, changes in the law will almost always result in new difficulties, probably sooner rather than later – and so the body of law becomes increasingly difficult and unwieldy; and potentially uncertain.

    It is often said that difficult cases make for bad law – and, however sad it is, in this case, Dr Bawa-Garba, however well intentioned and however put upon by her circumstances (which were for her and, for others, continues to be exceedingly difficult), was found guilty of criminal conduct in a trial at which the issues were aired and examined – assuming that the Court of Appeal decision stands. No one “wins” a criminal trial – particularly in this very sad case.

    This is not my field (indeed, I have only a passing (and very out of date) acquaintance with the criminal law too), but the difficulties of making changes in a rush to meet hurried criticism that is made in the heat of what is often, partially (in both senses) informed opinion are, in my view, very risky.

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  6. I’m sympathetic to your argument, but I don’t think a jury’s ability to digest and empathise is limited to professional and / or complex cases. I’ve been a juror and, frankly, it was one of the most depressing episodes of my life. It was obvious that various members of the jury weren’t particularly engaged, and in some instances adopted quite a sneering attitude with regards to the victim or were overly sympathetic to what impact a guilty verdict could have on the accused. So, how should we select juries? Do we start taking social, professional, racial and religious background into account? Should potential jurors be vetted to test their intellect and engagement? I don’t know. My (admittedly) limited experience left me feeling that the jury system doesn’t work, but is there a fairer system and how do we find it?

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  7. I used to work for the NHS; when I retired I erased myself from the GMC’s register so that they could never attack me.

    You describe a scenario where you are in court with no assistance; the CPS caseworker is elsewhere. If you want to try to correspond with the NHS, then imagine that you are expected to be in three courts simultaneously, but still without help. You are running between three courts, but not really keeping up. You can ask for an adjournment; you can’t really tell emergency patients to call back tomorrow as you are too busy today.

    As for experts and their evidence. My experience is that lawyers don’t have the understanding that comes from years of training and practice in another field. They may appear to understand, but this is very superficial. In the case of R v. Sally Clarke neither the expert, counsel, the judge or the Court of Appeal understood enough statistics to appreciate where the statistical error was. And I doubt if you would want me, after reading up on the law overnight, to defend you in court.

    In an adversarial system, the truth seems to be assumed to lie on a via media between the two sides; it doesn’t seem possible to ‘look outside the box’. I do wonder if we would not be better off with an inquisitorial system.

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      • There was a case there a few years ago, a nurse accused of killing patients in hospital. But that was a ‘Prosecutors’ Fallacy’, not a failure of the system.

        I expect that in both systems, and I’d include Inquiries under the same systems, that whatever the conclusion is become ‘legal fact’, even when later shown to be complete rubbish. Have a look at ‘Kerry Babies’ for an Irish example.

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    • You cannot ‘self-erase’ yourself from the GMC register, only surrender your own licence to practice…your name (and registration, and the fact of the surrender) (normally) remains recorded and available (unless you have a VERY good reason, such as having a spent conviction and entering a new healthcare-related ‘regulated’ profession outside of medicine which requires a new enhanced CRB/DBS, or now live under a new identity supplied by the police).

      Did you just lie outright?! Not a good sight when you are arguing about how (the now) ‘Dr’ Hadiza Bawa-Garba is being let down by the system!

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      • Just after I was retired, I wrote to the GMC and requested that they erase my name from the register. They did this. They said I could reregister in the future, but that I would need to show fitness to practice. This wasn’t yesterday.

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  8. Generally thoughtful, but I do wonder if this is the case for doctors to go to town on. Note that in her appeal, Dr Bawa-Garba essentially ran causation points – that the jury could not be sure that her actions and omissions were more than minimally causative of the victim’s death. The (implied) finding of the jury that, whatever the systemic difficulties, they were sure that Dr BG had been guilty of negligence that was “truly exceptionally bad” was not challenged. It also appears that in the initial trial there was no defence submission of no case to answer which, if systemic failures had loomed so large, one would have expected.

    It seems to be the case that there were, leaving aside systemic failings, serious errors by Dr BG herself. The only issues in the criminal case were (1) were the errors sufficiently bad to attract criminal sanction and (2) if so, did these errors more than minimally contribute to Jack’s death. Once the trial jury found there were and the Court of Appeal rejected the appeal, I cannot how she could not be struck off. How would public confidence in the medical profession be effected if a doctor with a conviction for causing the death of a patient was to continue to be allowed to practice?

    As for whether a trial by non experts is appropriate, I appreciate the difficulties highlighted, but the alternative – trial by other doctors (or lawyers) – seems to me much worse. If you start with the principle that you should be tried by people who have similar experiences to you, where do you stop? A trial of a heroin addict burglar by a jury of heroin addicts as only they would understand what pressures he is under? Not to mention that such a system would be viewed entirely cynically by the public of a closed shop, old boys (and girls) network (it also reminds one of the medieval Church’s claim that clergymen should only be tried by other clergymen as the secular courts couldn’t possibly judge God’s servants).

    Yes, this is a tragic case all round, but I can’t see there are any wider lessons to be drawn from it.

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    • There were undoubtedly errors made by Dr Bawa-Garba, but my fear (and the fear expressed by many of my colleagues) is that nothing she did was beyond the type of mistake that we either have made or could imagine making in similar circumstances. Clearly the jury did not share this view, but given that many in the profession do, the question arises as to how we as a profession failed to communicate this to the jury?

      Usually when reading these cases we can identify something – a wrong decision or an oversight – that we can learn from and ensure we don’t ever make a similar error. This is the basis for reflective practice, significant event analysis, morbidity and mortality meetings etc in medicine. It is crucial to reduce the risk of harm to our patients in future.

      The problem in this case is that the numerous systemic factors and errors by multiple people mean that many in the profession can only read the details of Dr Bawa-Garba’s case and think ‘there but for the grace of God go I’. Making an error that results in patient harm or death is already one of most doctor’s greatest fears. Add to that the suggestion from this case that mistakes in a single patient’s care in an otherwise unblemished career may mean we will face criminal prosecution in addition to the already arduous GMC processes and suddenly medicine seems like a very dangerous career path.

      Please see the blog below for more info re the concerns held by some doctors.
      http://thehealthcareblog.com/blog/2018/01/30/to-err-is-homicide-in-britain-the-case-of-dr-hadiza-bawa-garba/

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    • The issues that are causing NHS staff including doctors like myself such concern are related to 2 main issues which are interrelated.

      Firstly concern that individual culpability is very difficult to ascertain and that the information that is circulating in medical realm (I do not know the full details of the trial firsthand) is that the court was not allowed to hear full details of the systematic failings. This, if it is indeed the case, causes us concern for the rights of the doctor involved but also of doctors who are working in similar situations now in the NHS.

      Secondly concern about the institutional response to adverse outcomes in healthcare. Huge strides have taken place in understanding of system safety in healthcare, generated partly from within and learning greatly from other sectors including aviation, nuclear, military but that so far is scarcely in play when consideration of criminal proceedings are taken.

      A key concept that safety systems experts highlight that is relevant to this is that healthcare is a complex system not a complicated one. In a complicated system each element can be analysed independently. With enough time, fully accurate plans and the right equipment it would be possible to produce a fully functioning space rocket. In a complex system, such as healthcare, the interactions between multiple elements of the system cannot be analysed separately.

      The legal process essentially (as far as I understand) tries to view everything as a complicated system rather than a complex one.

      This case highlights how very unhelpful the processes we have are to all affected by adverse outcomes in healthcare including the relatives of the patient, the staff involved and the wider system. Following such an event there are:
      1 Internal reviews
      2 Coronial processes
      3 Parliamentary Health Service Ombudsman investigation
      4 Criminal law
      5 Civil law/litigation
      6 Healthcare professional regulators (GMC, NMC)

      The effect of these on staff involved of this multiple jeopardy that plays out over years and vicariously for those who fear they may be involved if a case they are involved in ends badly is huge. It also hampers speedy learning and improvements and is also very traumatic and drawn out for relatives.

      There is also alot spoken about maintaining public confidence. As a member of the public as well as a health service employee my confidence in the healthcare system would be increased by knowing that everything possible is done to learn from the past in making the healthcare system of the future as good as it can be. That requires complete openness and external review that is focused on improvement not blame.

      This would involve merging of the functions of all the above mentioned entities into a single system whose main function was understanding and improvement. Of course there are occasionally individuals who set out to do harm who deserve punishment but the juries hearing those cases should hear the whole of the picture including the full investigations by the human factors and systems experts as well as the police etc.

      I do not think that professionals should be tried by juries of other professionals but those who sit on juries do need to be presented with the very best picture and understanding of the whole system that prevailed and each juror be able to understand that information.

      Thank you also secret barrister also for your description of the work of the legal system and the difficulties of providing a fair trial. It is the first I have ever read where there parallels between the legal process and healthcare and the other areas mentioned are clear.

      Liked by 1 person

  9. In response to the above comment by Darren white, yes Dr Bawa-Garba did make mistakes on that day. However with failure of the pathology IT system, inadequate doctor cover in the paediatric wards and a consultant supervisor that was off the hospital site, any doctor working in the NHS could have made that mistake. Not just Doctor Bawa Garba

    The problem for doctors is that they cannot just adjourn the proceedings if their work conditions are that appealing. As a professional and as a good human being, Dr Bawa-Garba continued to work for the sake of the children in that hospital.

    Doctors in the UK have mistakenly placed their faith in the justice system, so that it would take account of the incredibly stretched system they are working in. I believe that this attitude and this good faith will now end, which could mean the end of the national health service.

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  10. Thanks for the excellent blog. I totally understand your hesitation in calling the jury much less fit for purpose than you have and appreciate that you have started the debate so eloquently.

    Leaving such high-stake decisions to jury of lay people needs significant reform. Again it’s not the fault of the ‘lay people’ who cannot even refuse becoming a jury member, and may have no option but to view positively the other incentives of participating in the process. The judge cannot even change the verdict even if he has significant reservations. These lay people will not even be accountable or identifiable to anyone except via the oath or affirmation they must make. Most public don’t even know that the justice process involved only the lay citizens that are responsible for convicting people of serious crimes leading to life imprisonments or acquittal from equally serious allegations.

    And I’m a hospital doctor and totally agree with narrow escapes on a daily basis unless us professionals don’t approach it as a war like situation with absolute alertness. But I often often see many of my colleagues not taking it as seriously as I feel they should, as it’s human nature and there is a point where your empathy and compassion gets exhausted after a long shift. If it’s true for expert professionals, it would be more likely for the non-expert lay people and also the legal professionals.

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  11. Excellent parallels expressed, but my understanding is that in fact the systems errors and finding of such in the internal investigation were excluded from evidence heard at the trial which found her guilty. I totally agree the average lay person would struggle to get their head around the type of workload and infrastructure issue which resulted in this poor little boys death and her unfair verdict, but the jury wasn’t even given the benefit of the doubt that they might understand-it wasn’t explained to them. They had no chance of using their intellect to reach a fair verdict

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  12. The background and day to day experience of the expert witness(es) may be of interest. Is it comparing apples and oranges? Does either have practical day to day experience of the other? One a tertiary level consultant intensivist and the other a trainee generalist: that is exercising a lot of medics, believe me. And the MPTS is the trial by peers, so how much is the GMC flexing muscle is also a cause for extreme concern. At least the CEO of the GMC allegedly receives a nice private medical insurance package to supplement his salary.

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  13. Reading the rantings of the parent-disability activists about this on Twitter, it was obvious that they were relying on authority: this court and that tribunal had ruled that she made 20 or so mistakes and it was upheld on appeal and the doctors just can’t handle it that they are now being held accountable. Now reading this it seems that the court’s ruling in upholding the GMC’s appeal was based on the same appeal to authority, in this case the jury’s: the jury heard that argument, they dismissed it, therefore that’s what her professional regulator must judge her against, not their own expert opinion. One of the people I’m referring to has a PhD, which I’m sure she didn’t get by peppering her thesis with those sorts of arguments, as they’re basic logical fallacies.

    The fact is that juries have got it wrong on many occasions, and their mistakes have been upheld on appeal on countless occasions. Do we need to remind ourselves of the Guildford Four, whose wrongful conviction was upheld by Lord Denning? Or of the Buck v Bell case, in which the US supreme court upheld the state of Virginia’s right to forcibly sterilise a young woman on grounds which were spurious but then fashionable? The jury that found Lindy Chamberlain guilty of killing her daughter despite expert evidence that a dingo in fact did it, as she says (and the prosecution was driven by resentment against “out-of-touch” elitist experts who think they know better than the public)? There are so many examples all around the world. Do I have much faith in juries? No I don’t, because they’re opaque and unaccountable, and because they could well be formed of people who read the Sun and the Daily Mail and imbibe their prejudices.

    I think the establishment sensed that the public wanted to see someone nailed to the cross rather than a trust fined or a “culture” blamed (as in Kane Gorny’s case) and as luck would have it, a person whose “face didn’t fit”, i.e. a foreign, Black, Muslim woman (and I think her sex was much less relevant than the other details), was partially responsible. The “justice for…” crowd is particularly receptive and not particularly concerned about the obvious racial aspects (they’re all white, as far as I can tell).

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    • Some wild conspiracy theories here! The fact is, if the DPP and the CPS had refused to prosecute, Patient A’s (Jack Adcock) parents would then have been perfectly entitled to bring a private criminal prosecution regardless (as long as they had managed to secure enough of their own funding).

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  14. “It is no different, I expect, for NHS staff”

    You are correct. It’s remarkably similar. So much so that reading your description of your writing conditions is very hard for me, an NHS GP. It’s empathy provoking. I feel your suffering. If anything goes wrong, for any one of my patients, how will anyone understand?

    I notice with interest that various people are suggesting some system to capture the systemic failings in a timely, straight forward way – hopefully soon “there’s an app for that”. In the meantime, would it perhaps be sensible for doctors to reflect in their appraisal, and put in writing their misgivings about systematic failings, to ensure they can refer back to this when the inevitable patient harm occurs?

    I am thinking of a letter to the Secretary of State for Health and social care, cc your local NHS governance. I will try to draft something simple and factual over the next couple of days. If we can get this shared more widely, perhaps then the RT Hon. J Hunt MP will be a co defendant in the next episode of “Regina v Dr unfortunate”.

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  15. Having read what is publicly available, I cannot believe she should have been convicted. It seems apparent there is more than reasonable doubt about what has occurred.
    Does she have any further legal options however? If she has been refused grounds to appeal, then is that the end of the road as far as trying to overturn the guilty verdict?

    To my mind, there seem numerous errors in the thought process of the expert witness for the prosecution (though I am basing this on what has been reported and my reading of the court proceedings).
    Their evidence, as I read it, was that this was clearly sepsis, based on some clinical parameters and a high lactate. The case is that her diagnosis and then appropriate treatment was unduly delayed which directly led to the childs death.
    (NB – the lactate was incredibly high – to the point of being predictive of a high mortality even with best treatment – and should have mandated immediate senior review and escalation of care. Such a grossly abnormal result would in every hospital I have worked at (around 10 or so) have been immediately called through to the treating doctor to flag it – and we know this did not occur as no such system was in place that day – something that was common (possibly ubiquitous?) for other hospitals at the time).

    There seem large issues with this
    – for one the clinical parameters and lactate are not only consistent with sepsis (contrary to what the paediatric intensivist appears to have testified for the crown), but equally with severe dehydration or even heart failure (and this child had congenital heart issues and presented with diarrhoea which can dehydrate. The intensivist generally sees a lot of sepsis, so of course its ‘obvious’ to them that this is what it is. However, diagnosing sepsis is notoriously difficult at times. And many clinicians have missed sepsis before.

    The delay in review seems more understandable given how many directions she was being pulled in that day. Though, if she was aware of the lactate and ignored that so long I would agree that there is a huge issue in her care. The other parameters were reported to her by phone to have improved so the lactate is the main issue she should not have ignored.

    The lactate then seems to be the crux of the argument. But this is where I struggle to see how it is proven she knew. The blood system was down and she received the results over the phone at some stage. Unless she has documented in the notes her awareness of the lactate and the time she received it, we have no way of really knowing if she ignored it. I have certainly been given the wrong number (for blood results) over the phone before. My experience of gettting through to hospital labs is that it takes time even on a good day, let alone when the reporting system has failed. I can well imagine somewhat short tempered lab staff rattling results off too quickly to write down or make sense of. And without clarification on this point, we all feel like this could be us – not hearing the grossly abnormal reading over the phone but being accountable for it all the same.

    Finally, the general feeling among my colleagues is that the actions of the consultant were questionable. And if the family truly want justice, I would hope they would have highlighted his lack of repurcussions for his actions as the responsible doctor on that day. It’s reported he was informed of the lactate but declined to review because he hadn’t been explicitly asked. Even in 2011, it would be usual for a senior doctor to review all young children attending hospital and certainly those being admitted within a few hours of arrival. Even if at 6 years, he didn’t meet the age threshold for immediate consultant review, his cardiac history should have mandated it. The idea that a consultant would not review this child immediately when informed of that blood result seems bizarre without significant clarification. He should not have needed to be asked, it should have been automatic.
    (Given the route cause analysis identifying numerous systems issues – presumably lack of senior oversight was one of the major issues found – and if the consultant had to be in multiple places at the same time, it may not be their fault they did not have time to review all children admitted that day.)

    The other issue that has not been given much scrutiny is the ACE inhibitor given by the family – which could easily be the precipitant for the cardiac arrest and death – certainly it would be difficult to get specialists to agree on this point, so surely reasonable doubt to the point it should be excluded from the trial?
    The idea that you need to tell the family not to give medications to their child in hospital is well outside common practice. This hospital appears to be unique in allowing it to occur. Everywhere else, if it isn’t prescribed it’s not to be given – and given her lack of induction to the hospital, I wonder how she can be held responsible for this. It would be unusual in my observation of numerous medical records to meticulously document this for every drug a patient arrives in on (if not best practice, it would certainly be by far the most common practice). Commonly doctors of her level may defer prescribing drugs and wait for the consultant to review and make a decision on them, at which point hopefully something would be documented (though frequently not). Hence, the disquiet that practicing in accordance with a body of her peers, seems to be no protection on this point – and was part of the ‘catalogue of errors’ she was deemed to have made.

    Liked by 1 person

  16. I’ve sat on a jury. I am an educated person with 2 professional qualifications. The comments and opinions of my fellow jurors soiled my faith in the jury system. At least when judges come out with victim blaming statements they get pilloried (hopefully), but a jury room houses a lot of ingrained misogyny and racism that cannot be talked about outside the deliberation room… So I can’t give the examples I heard first hand!

    ‘A jury of your peers’ has lost all meaning in today’s increasingly partisan society. I’d probably still trust a jury if a case against ME came to court; but only because I’m white, well spoken and have a winning smile. I acknowledge my privilege and shout, “THIS ISN’T HOW JUSTICE SHOULD WORK!!!”

    Liked by 1 person

  17. Darren White: conveniently we have systems like that in place to use as a comparison. The various police complaints authorities are derided from all sides exactly because of their willingness to find even the most egregious misconduct to deserve no sanction. There’s also the entire parallel military legal system that has similar problems with often less publicity because they’re also a secret legal system.

    I suspect that a “jury of experts” might be more workable, just on the observation that experts are often more willing to accept expertise and the problems that experts have. “peer” in this sense being used to mean “meaningfully similar” rather than the legal definition of “also subject to the law”. But as Darren points out, why just experts? Why not brown skin? In this case… would a jury of female, Muslim, doctors have convicted? Would their verdict have been acceptable to the Daily Mail and the bastion of rich white male privilege that is the house of lords?

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    • The HoL are a bastion of rich white male privilege?! You need to get yourself a VPN subscription with UK IP addresses to watch some of the proceedings in BBC Parliament lately! (In HoL parlance, your proposal is nothing but a transparent attempt to give a deliberate UNFAIR advantage to defendants who are not IC1 or IC2 males (to use the UK Police parlance in use in England and Wales).)

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  18. I wonder how many of the failures by BG were “failure to obtain proper legal representation and advice”? And like AliB, I fear there’s a lot of “failure to convince white men that a brown woman has anything worthwhile to say”. I have a real fear that in ten years time we’ll be re-litigating this when it turns out that the rate of deaths like this is primarily determined by NHS funding shortfalls.

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    • Doctors are advised to obtain ‘insurance’ from one of the defence societies. While these no longer pay out for negligence in hospitals — this is covered through ‘crown indemnity’ — they have excellent lawyers and resources.

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      • Just ‘advised’?! Have you ever been in the medical profession (I mean, full GMC registration) in the first place?!

        The pre-existing Clinical Negligence Scheme of NHS England is not remotely the same as the Crown Indemnity…two completely different schemes…the Crown Indemnity covers civil servants working in the DOH and other Whitehall departments. Did you just graduate from Prague Charles University School of Medicine last year?!

        Liked by 1 person

      • Yes.
        AFAIK there is no requirement in law for docs to obtain medical indemnity. It may be a condition of the contract of employment.

        I graduated from a Uni within the UK, but not recently.

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  19. The decision didn’t cause me to question jury trials (or, not any more than I have questioned them in the past), but it did make me question the role of criminal proceedings in this sort of case. Was a prosecution really in the public interest when the regulatory consequences would be decided by a different tribunal? Should there be criminal liability where what has occurred is a series of (if the jury was right) seriously bad mistakes, but mistakes nonetheless. There did not appear to be any suggestion of a wilful disregard for safety/patient welfare or a failure to keep up with regulatory requirements; I realise that’s not the test for gross negligence manslaughter but I wonder if it’s in that offence that the problem lies. For once that was the verdict, I find it difficult to see how the Dr could continue to practise.

    Liked by 1 person

    • The difference between voluntary and involuntary manslaughter. I don’t think the now plain Mrs Bawa-Garba was found guilty and convicted of the former.

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  20. I have expert knowledge of treating sepsis. If it is true that the patient was given enalapril (an ACE inhibitor) by the parents and then died 45 mins later then this is enormously significant in the cause of death. The experts have not displayed much expertise if they have downplayed this factor. I wasn’t there and have only read some of the reports, but I’ve seen a lot of sepsis and I find it impossible to believe that this death can be so wholeheartedly attributed to one person. The idea that ‘but for’ the actions/omissions of this one doctor the patient would have survived doesn’t chime with the biological truth of septic shock.

    Liked by 3 people

  21. Well written and reasoned piece – certainly from the various aspects of the case I have been able to find, the question of what a ‘peer’ is is relevant. if it is just 12 people of the same age that is a loose definition – but if it is a group of similarly educated and experienced people, that is very different. The complexity for an average jury in this case is huge, and the ability to look at concepts like ‘systems failure’ may be beyond some jury members if picked at random. Having tried to glean some of the facts of the case, it does raise questions about who is responsible – it used to be the ‘consultant in charge’, who was in another city at the time…. The other concern is the use of the Doctors own portfolio entries, which are supposed to be part of a formative and not summative document – she was effectively convicted in part on evidence available before a caution could have been given, and written for her own education and learning – like how to ensure this never happens again. Now junior doctors are going to stop writing important notes about errors or near misses in their appraisal records for fear of self incrimination, thus paradoxically increasing the risk of similar things happening again, because the underlying causes are not recorded or discussed. I reflect as a retired GP who could probably find moments in a 35 year career – particularly early on – which either might have gone this way, or in one or two cases, at least quite a long way towards it had things worked out differently.

    Liked by 1 person

  22. Interesting reading especially about the validity of 12 “peers” on the Jury. I do a bit of expert witness work for the police in child abuse cases. I have found that even highly educated lawyers struggle to understand the subtleties of what I am saying. It usually boils down to “do you think evidence in your specialist area confirms that the child was beaten up”; “yes”; “ok that will do us”. Occasionally I am asked for the science behind this. This is met with “I don’t really understand, but it sounds impressive”.

    In court the jury never understand beyond the “in your opinion was the child beaten up, yes or no?”. This is not to dismiss the jury as stupid, it is just that they don’t have years of specialist training to understand, and it is too complex to easily be understood or easily explained. They hear “waffle, waffle, waffle, mumbo jumbo, the child was beaten up”.

    I have been in one trial where the judge really understood and it was a revelation.

    Given this I do think there is a problem with jury trials where guilt or innocence boils down to multiple complex and relatively specialist arguments as would probably have been the case in the Dr B-G trial.

    Do jury trials work in the cases I am involved in? Yes, I think it does. I am only a small cog in the wheel, and comprehension of the science is probably not important to understand the message.

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  23. I think you’re right that the issues here mainly go to the conviction for manslaughter itself, rather than the consequent striking off. The “test” for gross negligence manslaughter seems to be found in R v Adomako [1994] 3 WLR 288 (also a case of medical negligence resulting in death), where Lord Mackay said this:

    “On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.

    The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission…

    It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. ”

    I do not find that a remotely satisfactory “definition” – it is almost completely circular and leaves the critical question in the lap of the jury. I do not believe that this woman should have been convicted in circumstances where she was in good faith doing her best in difficult circumstances to help the child. There was no “guilty mind”.

    Liked by 1 person

  24. I have only once been on a jury. Up until that point I was in favour of the jury system. What changed my mind were two things: 1) the mouthiest man declared himself foreman and then 2) declared ‘well, if he hadn’t done it, he wouldn’t be here, would he?’ No amount of evidence swayed him and he talked everyone but the most stubborn down (I and one other were the two stubborn jurors).

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    • Then why did you not report this to someone called ‘the [Court’s] Clerk’?!

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  25. While I agree with much of what you say about the jury system, I think changes to that would be a sticking plaster. The underlying issue is the Great British Public’s desire for villains, and reluctance to accept that “the price of perfection is prohibitive”*. Hence, I suggest, the GMC’s value signalling/backside covering action. And the only solution I can see to that is education, education, education. Or perhaps takeover by the PRC 😦

    *something shared by many in the legal system 🙂

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  26. The initial medical tribunal of the GMC decided that Dr Bawa-Garba should not be struck off because she had a hitherto good record and the mitigating circumstances were highly significant. I understand the legal point that the jury found otherwise, but the findings of the tribunal clearly trump those of the jury in terms of ‘trial by peers.’ In this context the actions of the GMC in challenging the decision of their own tribunal are very hard to understand. Also it suggests an unacceptable inflexibility in the legal system that an appeal was denied, GIVEN the findings of the tribunal. I write, of course, from the point of view of a concerned doctor rather than one with any legal knowledge.

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    • What is the point in having a judiciary in the first place, if the courts do not actually have jurisdiction over the GMC and the MPT and the decisions thereof?! No mention of ‘excluding medicine’ when the UKSC describe themselves as having ‘unlimited civil and criminal jurisdiction’! (And you can’t have a proper Supreme Court in the UK if Parliament were to suddenly decide to arbitrarily exclude the regulation of the medical profession from judicial oversight!)

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      • The point, as made by The Secret Barrister, is that we are supposed to have trial by our peers (established as a principle some time in the Middle Ages). This was not a trial by peers. I am also pointing out that it is not the job of the GMC to make sure that the law is applied in the letter rather than the spirit. The end intended is surely justice, not legalistic pedantry.

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  27. Pingback: Dr Hadiza Bawa-Garba, racism and the appeal to authority | Indigo Jo Blogs

  28. Pingback: Medical negligence and the law | Quality Street

  29. I am a parent of someone with learning disability and concomitant medical problems. I can honestly say that our experience of medical care can be patchy. The time an a&e doctor shouted because she assumed there was deafness, the GP who assumed they knew everything about the neurological difficulties, the specialist who was deeply offended because I questioned their recommendation of adult sized medication, and so on…Parents with LD children often have a rough ride and it’s the testimonies and judgments such as those described in this case that move the treatment of people with cognitive problems forward. The jury may not be experts in the field but many ordinary people sometimes have a keener understanding, and empathy, than the professionals.

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  30. One single point will get this doctor off the hook. Who administered the Enalapril drug to the sick child? No one seems to know that enalapril should never be given to a patient who is preshocked and septic. It will precipitate cardiac arrest within 30 minutes to 2 hours- the duration during which the drugs action is at its maximum. As per reports submitted to the court the drug was given at 7 pm and the child suffered cardiac arrest sometime around 8 pm. If its the child’s mother who administered the drug to the child unauthorised and ‘illegally’ then she should be held responsible and a possible motive explored.

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    • I am NOT a barrister but:
      Historically (as I understood) it is considered “bad form” for the defendant to shift blame on a grieving relative (or in this case) when there is no certainty of causation (of the ultimate circulatory collapse) or malicious intent.

      Given that the mother is one of the most vocal and unrelenting critics of Dr BG, with no hint of awareness or her responsibility of contributing to the catastrophic shock event directly resulting in her son’s death, then there is good reason to wonder if the legal team of the defendant (provided by MPS) has mounted a suitable legal and medical argument that Dr BG cannot be held solely responsible for the final collapse.

      On that basis I agree with HS Moorthy that causation of the final fatal event can be partially or even mostly attributable to the action of “good faith”.

      This should be one of the avenues for recourse and appeal for the original criminal case; if this appeal is successful then GMC’s successful appeal in the High Court will collapse.

      I too support the move to get an independent legal opinion on this case. I am flabbergasted how the original criminal conviction, the denial of permission to appeal this conviction, and the GMC’s successful appeal in the High Court can happen with the legal team supplied by MPS; it is almost like falling through the Swiss Cheese Analogy in systemic failures, except for one constant factor in every one of the failure.

      Although lawyers can be persecuted for negligence nowadays, I wonder if this makes the case?

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      • I can’t reply to your post about crown indemnity directly. In the early 1990s the costs of medical indemnity were rising so much and so rapidly that I calculated that my entire income would go on it in a few years. It was then that ‘crown indemnity’ was introduced.

        Yes, I have been fully registered with the GMC. I had a number that originally began with an ‘I”, indicating that I had been registered in the UK but outside the UK.

        I have worked in the nationalised health service. I have not worked in the NHS, well, not in the sense of being employed in it. You need to be aware that there can be differences.

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  31. I am left questioning the wisdom of the Crown Prosecution service in bringing this case against the single doctor. Would it not have better served the public interest and been more appropriate to have considered bringing a case of corporate manslaughter against the hospital authorities, not least an HR department that allowed a trainee doctor, newly returned from maternity leave covering 4 colleagues without a senior doctor on hand in the department?

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  32. Pingback: Some thoughts on Dr Bawa-Garba and our faith in the jury system – The Secret Barrister – leftwingnobody

  33. This has been the most impressive and helpful of commentaries of this case that I have seen.
    I too have wondered whether Dr BG’s advocate made a category error in the way he/she framed the appeal. And if this prevents her ever being able to challenge the primary conviction that is appalling. Is that indeed the case, in which case how did cases like the Guildford Four get reconsidered?
    I too would love you lawyers to explain to us medics WHY it is reported that some of the contextual information about her working circumstances were not admissible. The letter by 5 consultant paediatricians clarifying the sheer enormity of the system dysfunction blew me away. See:

    http://54000doctors.org/blogs/an-account-by-concerned-uk-paediatric-consultants-of-the-tragic-events-surrounding-the-gmc-action-against-dr-bawa-garba.html

    We can never know whether prejudice affected the 10 jurors who believed she was guilty. 2 didn’t. That speaks volumes reading others’ experiences juries in these replies.

    It all rests on this initial verdict doesn’t it, unless the GMC wants to back its own Tribunal in recognition of how the jury system is incapable of factoring into its judgements the degree of incompetence / error / neglect that this doctor showed in comparison to their peers in this particular context.

    I read it was her first day back after 14 months mat leave… OMG.

    The human cost of this case is horrific.

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  34. Pingback: Dr Hadiza Bawa-Garba – part 2: what did the courts actually say? | Raj A.C. Explains

  35. Try explaining “negligence”

    Then try explaining “gross negligence”

    How about “manslaughter by gross negligence”?

    Why can’t we consider manslaughter by Lawrence Recklessness?

    Just because the courts decided manslaughter by cLawrence
    Recklessness cannot exist doesn’t mean it does not occur?

    Take your time, as long as you want.

    Then get the thirty odd respondents here so far to define all these terms and explain an example in their own words.

    And all you need to do is to give a pass fail grade.

    Good luck if you think all of the better educated non legal readers here can pass that.

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  36. Pingback: After the Bawa-Garba judgment. Some responses from the Court of Appeal, CPS, Criminal Cases Review Commission and GMC. – Alexander's Excavations

  37. Secret barrister, this time I disagree. No, of course we can’t claim an exemption from the jury system for us in the legal and medical professions.
    It’s the jury system altogether that is deeply flawed, and the more complex the case, the less well it works.
    Have no one seen “12 angry men”?

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  38. Some questions that I need to ask:
    1) Clinical negligence cases are usually levelled against a hospital / health board. Why was a criminal charge brought about against an individual doctor?
    2) What exactly made the CPS change its mind after initially deciding there was no case against Dr.BG?

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    • It really is a very difficult case. I don’t know whether more evidence came to light or there was just pressure from the family.
      Charges were brought against Dr Bawa-Garba because of a catalog of mistakes for which she was directly responsible. A lot of Doctors feel that these mistakes were understandable given the pressures that she was under but there are a few that stand out to me as possibly being “truly exceptionally bad.”

      One was a high lactate on an initial blood test. I think most doctors would have known that this needs immediate action and had it been acted upon it may have saved Jack’s life.
      The second was that she failed to acknowledge Jack’s need for oxygen on arrival.

      It’s an awful case that shakes my foundations as a junior doctor – if I was that stretched could I have made those mistakes? If I am truly honest, I do not think I would have disregarded the lactate, and that could have saved Jack’s life.

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  39. “I think it’s because, for me, the thought of 12 non-lawyers being called upon to make judgments on my professional standards fills me with horror”.

    Err….barristers make judgements on those they are prosecuting everyday and the witnesses involved, often seeking to discredit them. You’ve also made a judgement about jurors if you read your own piece.

    “Maybe it’s simply special pleading. Maybe I’m guilty of rank arrogance in assuming that mere members of the public can’t begin to understand the pressures upon us in the ‘traditional professions‘”

    You are indeed being arrogant. Juries can often understand more than barristers think. And of course with the brilliant legal minds explaining it all to the great unwashed as you subsequently point out…what could go wrong?

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  40. One has to accept that in today’s world if a child dies as a result of an error by a doctor, the parents will take the view that there can be no justice for the deceased child, or closure for the grieving parents, unless the doctor who made the error is struck off and imprisoned.
    There will be no sense of nuance, still less of compassion for the hapless doctor that made the error.
    Moreover the CPS staff nowadays so deeply imbued with the concept that their duty is to foster the interests of victims that they will do everything they can to support the grieving parent in achieving justice and closure.
    One comes then to the law of manslaughter.
    The leading case is to the effect that the jury must decide whether the conduct which caused the death and which departed from reasonably good practise “was such that it should be judged criminal ” .
    In other words, on analysis, the judge just tells the jury to go away and decide what the law is and what sort of conduct ought to be “judged criminal” and then decide whether the facts are such as to prove that that law has been broken beyond reasonable doubt, just then adding lots of adjectival strengtheners “grave, exceptional serious “etc which do not in reality assist.
    You cannot determine whether somebody has broken a law until you know what the law is, and what the judge says to the jury is– you the jury must decide what conduct “should be judged criminal ”
    It is obvious that a jury confronted by bereaved parents who manifestly, by their comportment at the trial, feel that they cannot obtain justice for the child, or closure for themselves , unless there is a conviction, will tend, out of ordinary human sympathy, to come to the view that an act which caused such unspeakable suffering must be of the kind which should be treated as criminal and must satisfy all the adjectival strengthener requirements
    So this whole situation with our current patterns of thought will get worse and worse until the law is changed and manslaughter in the context of medical practise is confined to cases where the death arose because the doctor was(a) lazy, or (b) dishonest or (c) departed from good practise in the full knowledge that this might put the patient at risk or () was effected by alcohol or drugs.

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  41. I also spent many years deep in the maws of the criminal justice system ( in Queensland). Everything you have said is true about the chaos, dangers, and general lunacy of being defence counsel, whether in a busy arrest court or a murder trial. However, to quote a line from the godfather; ‘This is the business we’ve chosen.’
    Professional sportsmen stress their bodies into dangerous places. Police get spat at. Soldiers die. All professions carry their own particular problems. I do have sympathy for the situation Dr Bawa-Garba was in, but it was a problem that many doctors face in the early part of their career. My point is not that it is right, but neither is trying to see 27 people in the cells before 10 am on a Monday morning, or receiving critical material on the morning of a murder trial. My point is that these are problems inside the known perameters of that particular profession.
    I did not go to the trial so I do not know how it went or how Dr Bawa-Garba was represented, and anyone who tells you that the transcript alone is enough to make a judgement hasn’t run many real life trials. On first glance she appears to have got a raw deal.The Appeal court let the verdict slide through, and while they don’t always get it right, they rarely miss absolute slam dunk errors.
    I am now retired, so at less risk if I am honest about the realities of the street than someone still in practice. Do I think the Doctor was incredibly unlucky? Yes. Do I think that race may have played a part in it? Yes. Do I think Jack Adcock should have got more from her than he did? Yes.
    In medicine, as in law, you have to have some antenna to survive safely. Certain clients are potentially more dangerous than others, and if you cannot work out which, you are probably in the wrong profession. There may be an impossibly large number of people in the cells, but the HIV positive, violent, suicidal, mentally disturbed client picked up on a five year old warrant and not brought to court for 4 days because of a long weekend should trigger warning bells. When Jack Adcock presented at the hospital he had Down’s Syndrome, a known heart condition, had been suffering from diarrhoea and vomiting and had difficulty breathing. He had been sent to the hospital by his GP after being taken there by his mother and grandmother, who were concerned that his condition was beyond his normal traumas. He should have been identified immediately as a high risk situation for the Doctor as well as himself (I am talking about professional survival not just empathy and diagnosis), however much other stuff was going on around the place.
    I am not arguing either way about the conviction or Dr Bawa-Garba’s subsequent treatment by the Medical Boards. I am saying, that like most tragedies, it required a whole series of things to go wrong, was probably avoidable, and should have been an obvious potential disaster from the moment the boy arrived at the hospital.

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    • Hi Howard

      Let us know when a barrister in Queensland (unlike UK) can be persecuted for professional negligence.

      Or maybe they can’t, according to Keefe v Marks?

      A barrister can ask for leave or postponement if things are going wrong, you didn’t have enough time or help and you can convince the judge to carry on will result in an injustice and mistrial.

      Sure it doesnt always work but there is a small and reasonable chance

      But you cannot ask God or Fate or whatever you believe in to stop things happening like people getting sicker or die, while Dr Bawa-Garba tries to keep things going inspite of doing 3 doctor’s work and the multiple systematic flaws that happened that day.

      And please…. do not try the “‘This is the business we’ve chosen.” logic.

      Dangerous work meant there are things in place to stop shit from happening.

      And for most people (except soldiers, doctors, nurses, paramedics, police, firemen) they can choose to not work if the workplace safety net fails.

      I am sure how much details you know from the original criminal case (its not just about Dr Bawa-Garba alone) but if she knew that if she refuse to work that day, someone would suffer or die from her absence.

      We focused on her one fatal failure that day; what about the many other lives she had saved that same day? Is she defined by the one death that day and not the lives saved, by working against the odds and everything in the employment and training rulebook for safe medical practice?

      Furthermore, not just the clinical and OH&S failures on that day, the NHS, BMA and MPS who are meant to support her through these ordeal also failed her terribly.

      I am aware you are neither for or against the conviction but your comparison of wrongful detention without due court appearance by days is nothing compared to Jack Adcock who had only hours in the hospital (and actually looked better from Dr BG’s ‘negligent’ management) before her mother decided to give him a drug not approved by Dr Bawa-Garba which probably directly helped contributed to the dramatic crash he had within an hour or so.

      And the judges thought that drug given “in good faith” has no direct bearing on the outcome of the child’s death?

      And the involvement of 2 nurses in his care?

      The only course of action any doctor with “safety antenna” you talk about, given the incredible amount of faults and flaws that day and knowing now how the system ‘rewarded’ her dedication, is not to work that day.

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  42. The GMC is now apparently looking for powers to erase doctors from the Register when they have been convicted of a serious crime. There will be no enquiry under these powers.

    I wonder, have they considered what happens when the conviction is later overturned, as does happen, sometimes years later?

    I don’t see apologies or even compensation.

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  43. I was always taught that the ‘Bolam defence’ could be applied for cases of where medical practice was in question. This sits within Common law and in my understanding the medical practice is defensible if several peers (medical practitioners in the same speciality) could be found to agree that it fell within acceptable clinical practice.

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  44. I’ve just become aware that evidence of mitigation was not permitted to be heard at the original court. I don’t know why this decision was reached; while I don’t know what the evidence would have been, I can imagine that it concerned staffing, IT, induction etc.

    The Court of Appeal said that the original jury had heard and considered all the evidence; it seems clear that they had not heard all the evidence. I would expect that the Tribunal did hear such evidence; this certainly goes a way to explaining their view of the appropriate sanction.

    Research into juries is prohibited in the UK. How can the Appeal Court know what the jury thought of the evidence presented to them? It seems that they take a jury finding as a ‘legal fact’ when a ‘legal fiction’ might be more appropriate; that is, when something cannot be determined, the Court must make a decision as to what it might be.

    And what of the ACE inhibitor? Do lawyers know what this is and when it is contra-indicated? Do lawyers know how rapidly or slowly antibiotics work? Was all this explained neutrally to the jury (and the lawyers)?

    There are a lot of medical and legal problems in this case; is this really how we do things in the UK?

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    • Hi korhomme

      There is definitely cause to appeal on the basis of the enalapril alone

      The child was clearly stablised while being managed by Dr BG in what was considered a ‘negligent manner’, not withinstanding the multiple lapses in care by other health professionals in providing the care Dr BG prescribed.

      The drug given ‘in good faith’ is a major (if not the main) accelerant and contributor to that circulatory collapse event that proved to be fatal, even though ultimately AD would have the collapse at some point later if the treatment he received did not improved.

      But who knows, he could have lived longer without the collapse, and the current or next shift of health care professionals could have picked up the errors and resolved the situation by timely intervention BEFORE he collapse?

      What may stop some of us from making this a big deal is that fact if this is openly discussed before the appeal or re-trial of the criminal case, then you may have a lot of trouble getting a group of jurers who have not been tainted by the media, on this matter

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      • Agreed; any appeal will be before judges. A retrial, if it comes to that, will be with a jury. Judges unlikely to be biassed; do jurors read blogs like this beforehand? If picked as a juror, they might well do a bit of forbidden research. If an appeal is successful, what are the chances of a retrial?

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      • The ACE inhibitor was given by a family member. It was listed as an error that Dr. Bawa-Garba did not expressly say that it should not be given, though she had documented this in the notes and not prescribed the drug. This, in my mind, is not an error which can be attributed to dr. Bawa-Garba. I would never expect a patient to be given a drug that I had not prescribed, especially if I had documented that they were not to receive it in the notes.
        Also, I find it exceptionally hard to believe that this was the main contributor to Jack’s circulatory collapse. He must have been fairly close to decompensating had this been the case, and also with good resuscitation if the ACE inhibitor were the main cause I would expect a patient to recover. We would be able to mitigate the drop in blood pressure by giving drugs to increase blood pressure.
        I think it is far more likely that he would have arrested either way.

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      • Discussion about ACE inhibitors is outside my expertise.

        Dr Phil Whitaker wrote a piece in the New Statesman about this recently. (I can’t find it on line). He asked if we would fly in a commercial plane with a similar reduction in staffing levels as experienced by Dr BG. Clearly we wouldn’t. There was a follow-up letter in the next issue:

        Dr Phil Whitaker describes the unhappy case of Dr Hadiza Bawa-Garba (16-22 February 2018), likening her situation to the First Officer in an airline when all the other crew members are absent; ‘Not one of us would agree to be a passenger on that flight’ he says. Indeed we would not, though in medicine there is often little choice but to fly even with a reduced crew — and staffing levels in the NHS are, at best, lower than in western Europe. The General Medical Council says to note what’s wrong and carry on.

        Nearly four years ago, the New Statesman carried an article by Ian Leslie (4 June 2014) about what happened to Martin Bromiley’s wife in hospital; she died from ‘human error’. Rather than suing, Bromiley, an airline pilot, investigated the cause; he found errors similar to those that had been previously recognised in the airline industry. Rather than start a ‘blame game’ the airline industry now investigates what happened when something goes wrong. And all crew members can use code phrases such as ‘this is not safe’ to stop and reassess any situation.

        And yet medicine still has a ‘blame culture’, one in which a ‘legal truth’ not only devastates the individual, but will certainly ensure that other medics will fear for their livelihoods and reputations if they dare say to management ‘this is not safe’.

        I’m quite certain that Nye Bevan and Clem Attlee, when told ‘this is not safe’, would stop and investigate. Why is this still impossible in the NHS?

        It’s quite clear to me that the ‘blame game’ has failed Dr BG, the patient, his parents and the staff; it is a systemic failing in the legal system. The GMC hasn’t made things easier with their ‘just carry on’ idea. We really need a similar system to that used in aviation if we honestly want to change things; but then, blame is so much easier.

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