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Wednesday, 25 July 2018

Doctor convicted over child's death should not be struck off, judges told

Written by Jan Colley

A decision to suspend rather than strike off a doctor found guilty of gross negligence manslaughter over the death of a six-year-old boy was "humane and balanced", the Court of Appeal has heard.

Hadiza Bawa-Garba (pictured) is fighting a decision made in January by two High Court judges to substitute erasure for the lesser sanction of a year's suspension imposed by the Medical Practitioners Tribunal (MPT) in June last year.

Their ruling followed a successful appeal by the General Medical Council (GMC), which argued that suspension was "not sufficient" to protect the public or maintain public confidence in the medical profession.

Jack Adcock, from Glen Parva, Leicestershire - who had Down's Syndrome and a known heart condition - died at Leicester Royal Infirmary in 2011 after he developed sepsis.

After a 2015 trial at Nottingham Crown Court, Dr Bawa-Garba was sentenced to two years in prison suspended for two years.

The prosecution said Jack died after a series of failings by medical staff, including Dr Bawa-Garba's "failure to discharge her duty" as the responsible doctor.

At the Court of Appeal on Wednesday, Dr Bawa-Garba's counsel James Laddie QC told the Lord Chief Justice Lord Burnett, Master of the Rolls Sir Terence Etherton and Lady Justice Rafferty that in the 70th anniversary year of the founding of the NHS, the case had turned out to be "something of a lightning rod for the dissatisfaction of doctors and medical staff in this country".

He added: "They are baffled and angered by an outcome which has left the NHS deprived of the services of a young and talented paediatrician who suffers from no character flaw rendering her unsuitable to practise medicine and who, it is agreed, poses no risk to patient safety."

He said there is particular concern at the decision to disregard "systemic failings" which contributed to the environment in which Dr Bawa-Garba came to make the mistakes which led to court.

Dr Bawa-Garba and Jack's family listened in court as Mr Laddie said his mother Nicola had told an interviewer the vocal support for the doctor had caused people to forget she and her husband had lost their son.

"We have not forgotten. Our client - a mother herself - has not forgotten and she will bear the guilt, the memory and the stain for the rest of her life," he said.

Paying tribute to their "articulate and impassioned" campaign, he said it is apparent their grief is "hardly less raw" now than seven years ago.

"Our arguments are not intended to diminish their sense of loss, but we submit in this sensitive area that public confidence in the medical profession demands, or at least permits, a sanction other than erasure to be applied."

The MPT's decision was "humane and balanced", he added.

"If it had been allowed to stand, Dr Bawa-Garba would have in all probability spent today and tomorrow treating sick and injured children in an East Midlands hospital ward, and we say that is where she should be and not sitting in this court room."

Urging that the appeal should be allowed, Mr Laddie said: "The MPT concluded that suspension was an appropriate sanction which was necessary in the public interest.

"That conclusion was within its margin of judgment and was rational. Indeed the MPT's conclusion was correct.

"The ordinary intelligent citizen recognises that NHS doctors work under intense pressure in environments where systems are less than perfect and where one-off mistakes may have tragic consequences.

"The same citizen recognises that to err is human and that public confidence places a greater value on remediation and redemption than on retribution."

In written argument before the court, Ivan Hare QC for the GMC, said the appeal should be dismissed because the High Court was correct to decide that the MPT failed to apply the relevant rule of the GMC (Fitness to Practise) Rules Order of Council 2004 and undermined the rationale for making criminal convictions conclusive evidence of the offence committed in disciplinary cases.

The High Court plainly had regard to the individual circumstances of the case and its reasoning was straightforward and correct, he said.

"The MPT undermined the 2004 Rules and the jury's verdict by reaching its own conclusion on Dr Bawa-Garba's individual culpability by reference to systemic failings and the failings of others."

The hearing is expected to last a day-and-a-half with judgment reserved.

Copyright (c) Press Association Ltd. 2018, All Rights Reserved. Picture (c) Leicestershire Police / PA Wire.