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.
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.