The well-publicised case of Dr Bawa-Garba, has caused considerable disquiet. The paediatric registrar was convicted by a UK jury, of gross negligence manslaughter, and received a two year suspended sentence following a child’s death. 

 

The key question in many minds is whether the same outcome could happen here in Australia?   

Like any other person, a health professional may face criminal charges for an act or omission that is deemed to have been deliberate or reckless and caused harm.   

Doctors may face criminal charges arising from their clinical judgement and the care they provide if it is considered to be “grossly negligent”.  Gross negligence can be interpreted as care that falls short of a reasonable standard and involves a high risk of death or other harm.  

Dr Bawa-Garba had recently returned from 14 months maternity leave.  During her first shift in an acute setting, following her return to work, she was required to cover the emergency department, a child assessment unit and a ward.   

Her assessment and diagnosis of the child was that he was likely suffering from gastroenteritis. She initiated appropriate investigations and treatment for that provisional diagnosis.  However, the child was suffering from pneumonia, which led to septic shock and tragically, his death.   

Despite the circumstances of the work environment and the fact that Dr Bawa-Garba had an “unblemished record”, she was found guilty of gross negligence in her failure to diagnose and treat the pneumonia. 

A paediatric intensivist considered:  

  • the boy’s treatment was initially appropriate in part 
  • the misdiagnosis did not initially amount to negligence  
  • there was clear evidence from later blood results that he was in shock, which any competent junior doctor would realise  
  • proper diagnosis and treatment would have prevented his death.   

MIGA’s stance is that criminal law should rarely intervene in the provision of healthcare.  Any intervention should be restricted to extreme or exceptional cases, usually involving intentional or reckless conduct.   

Investigation of incidents, root cause analyses and coronial investigations provide opportunities for improvement.  The Medical Board of Australia protects the public by taking necessary action against doctors where there are concerns about fitness to practice.  Injuries and other harms are remediated via civil damages claims.  Absent exceptional circumstances, these mechanisms deal appropriately with errors and harms in healthcare without need for the application of criminal law.   

The UK response to Dr Bawa-Garba’s situation has been swift.  A crowdfunding campaign is raising money to explore options to quash Dr Bawa-Garba’s conviction.  The UK Government has announced a review into the use of gross negligence manslaughter charges in healthcare.  Recently, Dr Bawa-Garba was granted leave by the UK High Court to appeal against the General Medical Council’s decision to strike her off.  

Importantly, cases of criminal charges against Australian doctors involving their clinical judgment are rare, and convictions even rarer.  It is difficult to identify a case similar to that of Dr Bawa-Garba having occurred in Australia.   

Although the chances of a similar case occurring in Australia are probably remote, MIGA acknowledges the potential for the unnecessary use of criminal law in healthcare.  We advocate that doctors who act in good faith should not face criminal sanction.  Recent examples where we have expressed this view include: 

  • seeking preclusions against the use of open disclosure and apologies made by a doctor as evidence against a doctor; 
  • arguing for protections for doctors in cases of inadvertent or unknowing breaches of consent and medication prescription requirements; 
  • clarification of laws around withdrawal or withholding treatment in end of life care; and 
  • advocating against regimes which could allow genuine mistakes to be criminalised. 

Timothy Bowen
Senior Solicitor – Advocacy, Claims & Education 

¹ Dr Andrew McDonald, ABC Radio National Health Report interview 12 February 2018, available at www.abc.net.au/radionational/programs/healthreport/dr-bawa-garba-outcry-over-doctor-struck-off-medical-register/9421624 

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