Re: GMC to push for erasure of paediatrician convicted of manslaughter; irrational, unjust appeal
Dr Sundar (17.11.17) questions “whether the Jury has been specifically aware of this increased mortality risk that is present even in promptly treated patients because of the disturbance in the adaptive immune system that is intrinsically present in Downs syndrome patients.” Alternatively, he seems to be suggesting, had the jury been aware of the same, they may have come to a different conclusion. Without sight of the transcript of trial, it is not possible to say with any certainty whether such evidence was advanced at the original trial; the appeal court’s judgment [1] does not appear to shed any light in this regard either.
However, the issue of causation was clearly challenged on appeal, and para.33 to 36 of judgment [1] aptly summarises points raised in this regard by Dr Bawa-Garba’s counsel and the court’s response.
With regard to causation, at para.29, it is said:“Although a coronial case, it is also worth referring to R(Khan) v West Hertfordshire Coroner [2002] EWHC 302 (Admin) because Richards J (as he then was) there seeks to illustrate that causation can be established without showing that the deceased would have survived. He went on (at [43(ii)]):
“But that is because it can be established by showing in the alternative that death, although inevitable, was hastened by the conduct in question. … the case [R(Dawson) v Coroner for East Riding and Kingston upon Hull [2001] EWHC 352 Admin] does not support the proposition that causation can be established simply by showing that there was an opportunity to render care. It must be shown to the requisite standard of proof that care would have been rendered and that it would have saved or prolonged life. “Thus, as with Rose LJ, Richards J uses the formulation "death, although inevitable, was hastened" synonymously with "care … would have saved or prolonged life".”
In fact the trial Judge “was emphatic that the jury had to be sure "that Jack died significantly sooner" because of the negligence (by which it is clear he meant gross negligence) of the defendant whose case was being considered” [1].
Further, "the point of no return" was duly addressed at the trial, and the appeal court found at para34, “later negligence could not be causative and that he [Judge] had failed also to explain this direction by reference to the facts of the case, in particular the evidence of Dr Nadel that he could not be sure that this point had not been reached as early as 2.30 pm. However, in the light of the direction on this issue which we have set out above, this submission is untenable.”
In the light of the above, even if the jury was aware of the information which Dr Sundar cites, it is unlikely that they would have come to a different verdict. Of course, juries ability to grasp complex medical and scientific evidence put forward by experts is a contentious issue, just as it is difficult to assess to what extent their subconscious biases could affect the decision making.
If “the General Medical Council is perhaps between a rock and a hard place” as Dr Sundar suggests, then it is due to their wilful desire to get into such difficult situations by acquiring rights to challenge the decisions of its own adjudication arm, MPTS. Further, the GMC is at a distinct advantage as the cost of litigation does not appear to be an issue, thanks to the fee-paying doctors.
Long before, the GMC acquired powers to appeal decisions of the its own tribunal (MPTS), three Law Lords expressed some remarkable words of wisdom [2] :
“13.The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment. As was said in A Commitment to Quality, A Quest for Excellence, a recent statement on behalf of the Government, the medical profession and the National Health Service: "The Government, the medical profession and the NHS pledge … without lessening commitment to safety and public accountability of services, to recognise that honest failure should not be responded to primarily by blame and retribution but by learning and by a drive to reduce risks for future patients."
The MPTS’ decision makes it abundantly clear that, among other things, the above sensible words of the Privy Council were applied to the case of Dr Bawa-Gaba when they considered the sanction [3]. Similarly, the tribunal was at pains to explore the public protection issue and went onto set out both mitigating and aggravating factors in detail before imposing a 12 month sanction. The thoroughness of the tribunal’s analysis of risks is further amplified by their finding at para.36 [3], “you do not have complete insight” and their decision to review the suspension order prior to its expiry. Hence, one wonders as to what were the shortcomings in the tribunal’s analysis and reasons which it has set out, seemingly to a standard well above what is expected of a first-tier tribunal. Similarly, it is puzzling, how could any reasonably competent legal professional say with confidence that GMC’s appeal has a real prospect of success on appeal given the high standard of tribunal’s reasoning for their decision.
As for Dr Anand’s query (13.11.17), “why the BMA is silent. Should it keep hiding itself?”, I would say, I am not surprised at all. By not intervening as an interested party to this appeal or expressing their concerns formally, the BMA has simply shown their insensitivity to doctors it represents, in particular to BME doctors. One would say, the BMA has scored another own goal.
Rapid Response:
Re: GMC to push for erasure of paediatrician convicted of manslaughter; irrational, unjust appeal
Dr Sundar (17.11.17) questions “whether the Jury has been specifically aware of this increased mortality risk that is present even in promptly treated patients because of the disturbance in the adaptive immune system that is intrinsically present in Downs syndrome patients.” Alternatively, he seems to be suggesting, had the jury been aware of the same, they may have come to a different conclusion. Without sight of the transcript of trial, it is not possible to say with any certainty whether such evidence was advanced at the original trial; the appeal court’s judgment [1] does not appear to shed any light in this regard either.
However, the issue of causation was clearly challenged on appeal, and para.33 to 36 of judgment [1] aptly summarises points raised in this regard by Dr Bawa-Garba’s counsel and the court’s response.
With regard to causation, at para.29, it is said:“Although a coronial case, it is also worth referring to R(Khan) v West Hertfordshire Coroner [2002] EWHC 302 (Admin) because Richards J (as he then was) there seeks to illustrate that causation can be established without showing that the deceased would have survived. He went on (at [43(ii)]):
“But that is because it can be established by showing in the alternative that death, although inevitable, was hastened by the conduct in question. … the case [R(Dawson) v Coroner for East Riding and Kingston upon Hull [2001] EWHC 352 Admin] does not support the proposition that causation can be established simply by showing that there was an opportunity to render care. It must be shown to the requisite standard of proof that care would have been rendered and that it would have saved or prolonged life. “Thus, as with Rose LJ, Richards J uses the formulation "death, although inevitable, was hastened" synonymously with "care … would have saved or prolonged life".”
In fact the trial Judge “was emphatic that the jury had to be sure "that Jack died significantly sooner" because of the negligence (by which it is clear he meant gross negligence) of the defendant whose case was being considered” [1].
Further, "the point of no return" was duly addressed at the trial, and the appeal court found at para34, “later negligence could not be causative and that he [Judge] had failed also to explain this direction by reference to the facts of the case, in particular the evidence of Dr Nadel that he could not be sure that this point had not been reached as early as 2.30 pm. However, in the light of the direction on this issue which we have set out above, this submission is untenable.”
In the light of the above, even if the jury was aware of the information which Dr Sundar cites, it is unlikely that they would have come to a different verdict. Of course, juries ability to grasp complex medical and scientific evidence put forward by experts is a contentious issue, just as it is difficult to assess to what extent their subconscious biases could affect the decision making.
If “the General Medical Council is perhaps between a rock and a hard place” as Dr Sundar suggests, then it is due to their wilful desire to get into such difficult situations by acquiring rights to challenge the decisions of its own adjudication arm, MPTS. Further, the GMC is at a distinct advantage as the cost of litigation does not appear to be an issue, thanks to the fee-paying doctors.
Long before, the GMC acquired powers to appeal decisions of the its own tribunal (MPTS), three Law Lords expressed some remarkable words of wisdom [2] :
“13.The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment. As was said in A Commitment to Quality, A Quest for Excellence, a recent statement on behalf of the Government, the medical profession and the National Health Service: "The Government, the medical profession and the NHS pledge … without lessening commitment to safety and public accountability of services, to recognise that honest failure should not be responded to primarily by blame and retribution but by learning and by a drive to reduce risks for future patients."
The MPTS’ decision makes it abundantly clear that, among other things, the above sensible words of the Privy Council were applied to the case of Dr Bawa-Gaba when they considered the sanction [3]. Similarly, the tribunal was at pains to explore the public protection issue and went onto set out both mitigating and aggravating factors in detail before imposing a 12 month sanction. The thoroughness of the tribunal’s analysis of risks is further amplified by their finding at para.36 [3], “you do not have complete insight” and their decision to review the suspension order prior to its expiry. Hence, one wonders as to what were the shortcomings in the tribunal’s analysis and reasons which it has set out, seemingly to a standard well above what is expected of a first-tier tribunal. Similarly, it is puzzling, how could any reasonably competent legal professional say with confidence that GMC’s appeal has a real prospect of success on appeal given the high standard of tribunal’s reasoning for their decision.
As for Dr Anand’s query (13.11.17), “why the BMA is silent. Should it keep hiding itself?”, I would say, I am not surprised at all. By not intervening as an interested party to this appeal or expressing their concerns formally, the BMA has simply shown their insensitivity to doctors it represents, in particular to BME doctors. One would say, the BMA has scored another own goal.
References
[1] http://www.bailii.org/ew/cases/EWCA/Crim/2016/1841.html
[2] http://www.bailii.org/uk/cases/UKPC/2001/42.html
[3]https://www.mpts-uk.org/static/documents/content/Dr_Hadiza_BAWA-GARBA_13...
Competing interests: Do not trust the BMA