Dr Bawa-Garba: could it happen here?

The case of Dr Bawa-Garba in England, and the resulting collision between the medical community and the criminal justice system, sent shockwaves around the world. It’s somewhat understandable that doctors are now afraid that if their care of a patient is judged to be seriously deficient, a criminal prosecution and even imprisonment might follow.

It’s a fear shared by New Zealand doctors.

Dr Bawa-Garba: at a glance

• Dr Bawa-Garba was convicted of gross negligence manslaughter (GNM) in 2015, following her part in the death of six-year-old Jack Adcock in 2011.

   

• She was given a two-year suspended sentence and was subsequently suspended from the UK medical register for one year by the Medical Practitioners Tribunal Service (MPTS).

   

• The UK General Medical Council (GMC) appealed the Tribunal’s decision and sought agreement from the High Court to instead erase her from the medical register. The appeal was supported by the High Court.

   

• Medical Protection instructed a number of the country’s top QCs to represent Dr Bawa-Garba in these hearings, and we were extremely disappointed at the outcome.

Much of the outrage in the UK was triggered by the GMC’s actions. The message many in the medical profession felt this conveyed was that those who hold doctors to account are far from developing the open, learning culture promoted as essential to patient safety. In New Zealand, people are asking what the Medical Council of New Zealand (MCNZ) would do in the same situation.

There is also widespread concern at the decision to prosecute Dr Bawa-Garba for GNM in the first place. So how could this area of criminal law develop in the wake of this case?

The position in New Zealand

In New Zealand there is a statutory definition of GNM that mirrors the English legal test.  Manslaughter by gross negligence is a statutory offence under the Crimes Act 1961, making it possible for New Zealand courts to treat the circumstances giving rise to the Dr Bawa-Garba case in a similar fashion to the English courts.

However, for more than 20 years there have been no GNM prosecutions in New Zealand, and the system for holding doctors to account has developed in a very different way. The existence of two distinct bodies, unique to New Zealand, significantly reduces the likelihood of such prosecutions:

• The Accident Compensation Corporation (ACC)

When the ACC was set up in the 1970s it introduced a form of no-fault compensation for personal injury and, since then, an adversarial approach to medical error has not developed. Due to the scheme’s statutory ban on bringing civil proceedings against medical practitioners for injury, injured parties can instead seek compensation through a bureaucratic process. This means there are fewer barriers to doctors being entirely candid with patients when things go wrong. That said, if the ACC identifies a risk to the public health and safety, they may refer the matter to the MCNZ to consider a doctor’s competence.

• The Health and Disability Commissioner

Healthcare professionals may not be accountable through the Civil Courts in New Zealand but they can be held to account by the Health and Disability Commissioner (HDC) if it is thought that they have infringed patient rights, as set out by the Code of Patient’s Rights. Where the HDC has serious concerns about an individual’s conduct or performance, they can refer them to the Health Practitioners Disciplinary Tribunal and the MCNZ. 

Professional failings are therefore usually regarded as a regulatory, rather than criminal, matter. The main purpose of criminal prosecution is to punish the offender, the other is to serve as an example in order to minimise the risk of recurrence. In New Zealand, the MCNZ and the HDC effectively fulfil both these purposes, as they are afforded broad discretion in investigating, prosecuting and disciplining medical professionals accused of negligence. So while the ACC does not give medical practitioners immunity from criminal proceedings, criminal prosecution in the absence of ill intent is seen as purposeless.

The position in England and Wales

GNM is a common law offence in England and Wales and has evolved from the same set of tests that apply to the civil test for negligence. So what gives rise to such cases appearing in front of a criminal court? There are two essential components to this:

The position in Scotland

Interestingly, the criminal law in Scotland has developed rather differently to that in England and Wales. Scotland has a separate legal system; manslaughter is not a term that features and the nearest comparable offence is culpable homicide, which is defined as the killing of a person in circumstances that are neither accidental nor justified, but where the wicked intent to kill – required for murder – is absent. In short, the unlawful act giving rise to the death must be intentional or, at least, reckless and/or grossly careless. You can read more on the Scottish position here.

A watershed moment

The Dr Bawa-Garba case has been something of a watershed in the history of professional accountability. In England and Wales, Medical Protection has provided evidence to the UK Government’s rapid review into GNM in healthcare. At the heart of our recommendations is a call for the legal bar for a GNM conviction in England and Wales to be raised.[1]

As unlikely as it is, if a doctor in New Zealand was to be charged with GNM as a result of an adverse patient outcome, Medical Protection has access to the most experienced lawyers and barristers in the country, who we can instruct to build a robust defence.

We continue to monitor the New Zealand medicolegal environment. Any change in attitude towards the question of criminal prosecution against medical practitioners will be firmly challenged through our influence and resources. Hard-working doctors cannot face unfair blame and castigation and we will resist any attempts to make them do so.

For more information, watch our webinar Dr Bawa-Garba case – the implications for New Zealand doctors