There is Australian commentary on the case involving Dr Hadiza Bawa-Garba. See Esther Han ‘Australian doctors ‘disturbed’ by manslaughter conviction against Dr Hadiza Bawa-Garba’ The Age (Online) (February 1, 2018). See also my earlier post on this case, Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018). There are however things that are problematic in the article in The Age.
First, a doctor is quoted as saying ‘Generally, criminal convictions have been against those with criminal intent, or who were unethical or doing something illegal, whereas this case is different, and it’s truly disturbing.’ That’s simply wrong. Offences such as murder require a proof that the accused intended to kill. And one can be guilty of manslaughter by an unlawful and dangerous act; but there has always been offences that do not require either an intent or illegal conduct. Manslaughter by criminal negligence along with dangerous driving and negligent driving are examples of those sort of offences. This doctor just doesn’t know the law. but that doesn’t make the law knew or unknowable.
As for the question ‘”How on earth was the doctor convicted of manslaughter? We don’t understand it…’ The issue was determined by a jury. A jury represents the community standard. Placing the matter before a jury of 12 reassures the community that it is not the profession protecting its own. Rather it is asking the community whether or not the defendants conduct was so far below the standard of care expected from a reasonable practitioner as to warrant criminal punishment. As the High Court said ‘Full respect had to be given by the Tribunal to the jury’s verdict: that Dr. Bawa-Garba’s failures that day were not simply honest errors or mere negligence, but were truly exceptionally bad.’ hat is the jury heard the evidence about the systemic failings and the contribution of those failings to this outcome but nonetheless they determined that Dr Bawa-Garba’s mistakes were not ‘mere mistakes with terrible consequences. The degree of error, applying the legal test, was that her own failings were, in the circumstances, “truly exceptionally bad” …’
The problem is that this was not a lessons learning process; this was a criminal process. Further some commentary has blamed the General Medical Council (the GMC) or ‘the system’, for example ‘it was “inconceivable” that a system designed to support patients and doctors would wholly and excessively lay the blame on a doctor for its failures.’ But the Criminal Justice system is not designed to support patients and doctors, it is there to determine whether or not there has been a breach of the criminal law.
In my study with the US Forest Service they acknowledged that whilst they could adopt a no-fault fact-finding inquiry, they couldn’t determine what others such as the police or Crown Prosecution Service (in the UK; the Director of Public Prosecutions in Australia) might do. Equally here this outcome is not a function of the hospital or medical lessons learned process. If it is true that ‘prosecutors used sections of Dr Bawa-Garba personal appraisals – required in the UK for learning and reflection – as evidence against her’ (something that is not discussed in the decisions of the Court of Appeal or the High Court) that is problematic. I do not that in the inquest into the Sydney Lindt Café siege, the coroner accepted that documents and reflections produced by police in after action review should not be admissible, and there are provisions in Australian evidence law to limit the use of the sort of documents referred to here, but without more detail one can’t know what the implications here would be.
The problem with building a learning culture that aims to be no fault etc is that it must at times run into conflict with the criminal law that has its own objectives. Whilst most judges would say that part of the aim of the criminal law is to identify fault and then communicate via the finding and punishment both what legal wrong was done and to warn others not to do it, it is the case that it is not a ‘learning system’. Whilst reform of the criminal law may be in order it’s a long way to go from the work currently being done on reforming the way agencies and those that claim to be a no-fault tribunal (the Royal Commission and the Coroner) go about their business.