- On May 1, 2018
- May/June 2018
Could it happen here?
The case of UK doctor Hadiza Bawa-Garba has resonated with medical professionals around the world, particularly those in Australia, who work in a similarly stressed health system.
Dr Bawa-Garba was a paediatric registrar in the United Kingdom who was convicted of manslaughter following the death of a six-year-old patient. She subsequently had her medical registration cancelled permanently by the General Medical Council following an appeal by the GMC to the High Court of the United Kingdom of the original decision by the Medical Tribunal to suspend her registration.
Dr Bawa-Garba had an otherwise unblemished record as a doctor and there was no evidence put before the Medical Tribunal that there had been any other concerns raised about her clinical competency. The Tribunal noted that on the day in question Dr Bawa-Garba had recently returned from maternity leave, it was her first shift in an acute setting and she was covering the Child Assessment Unit, the Emergency Department, and the ward. It also noted that there were multiple systemic failures identified by the NHS in an investigation following the patient's death.
The Medical Tribunal initially imposed a suspension of Dr Bawa-Garba's medical registration until after her two-year suspended sentence for manslaughter was completed. The High Court overturned this decision on appeal and held that Dr Bawa-Garba's name had to be erased from the medical register as a finding of manslaughter reflected a particularly serious departure from accepted standards, which is fundamentally incompatible with being a doctor, and was necessary to maintain public confidence in the profession and its procedures for maintaining professional standards.
If the same or similar events had occurred in New South Wales, a root cause analysis would have been undertaken and the matter would have been referred to the Coroner. The focus of these processes is to identify and make recommendations to correct any system issues or failures that may have contributed to the death of the patient, rather than to place blame on individual practitioners. If, during these processes, significant concerns were identified about Dr Bawa-Garba's individual performance as a medical practitioner, then she may have been the subject of a disciplinary investigation and possible action by the Health Care Complaints Commission and/or subject to a civil legal claim for compensation. The threshold for referring a medical practitioner for criminal prosecution in New South Wales following an inquest is high and happens infrequently.
Whilst we cannot say definitively that Dr Bawa-Garba would not have been prosecuted and convicted of medical manslaughter in New South Wales, a review of previous cases in Australia indicates that it is less likely that the matter would be referred, or if it was referred, it is unlikely her conduct would have been found to have amounted to gross criminal negligence, as was found in Dr Bawa-Garba's case.
Under the Health Practitioner Regulation National Law NSW, the paramount consideration in disciplinary proceedings against a medical practitioner is the protection of the public. In the United Kingdom High Court decision, it was said that the decision to suspend rather than de-register was inconsistent with the conviction for behaviour that was "truly exceptionally bad", that insufficient weight was given to the verdict of the jury and Dr Bawa-Garba's personal responsibility. Each case that comes before the NSW Civil and Administrative Tribunal will be determined on its merits. While there is undoubtedly an emphasis on the conduct (and insight) of the practitioner who is the subject of the hearing, in New South Wales, the surrounding circumstances including the unexpected workload of the day, IT failings, consultant absences, staffing levels and experience, and Dr Bawa-Garba's otherwise unblemished records are all matters that would be relevant to the Tribunal's determination.
Dr Bawa-Garba was granted leave to appeal the decision of the High Court to deregister her and the appeal will be heard later this year.
Written by Dominique Egan, Partner and Zoe Hamilton, Senior Associate