Regulatory justice following gross negligence manslaughter verdicts: Nurse/doctor differences

Abstract

Two professionals who treated Jack Adcock before his death were convicted of gross negligence manslaughter, receiving 24-month suspended sentences. His nurse, Isabel Amaro, was erased from the nursing register; but after reviews in the High Court and Court of Appeal, his doctor, Hadiza Bawa-Garba, was merely suspended. This article explores the proposition that nurses are at greater risk of erasure than doctors after gross negligence manslaughter through a close reading of the guidance for medical and nursing tribunals informed by analysis from the High Court and Court of Appeal in the Bawa-Garba cases. Examination of the relevant sections of the guidance for medical and nursing tribunals reveals no significant differences. An outline of the conduct that amounted to breach of duty of care by Amaro and Bawa-Garba shows that their conduct could satisfy the thresholds for erasure given in their professions’ respective guidelines for tribunals. Both presented similar mitigating evidence, although this cannot be weighed heavily in a professional tribunal setting. Thus, Amaro was treated more harshly than Bawa-Garba without a simple explanation. However, I suggest that the Nursing and Midwifery Council’s Conduct and Competence Committee made a mistaken ‘presumption of erasure’ for gross negligence manslaughter and misinterpreted the sway that sentencing remarks should hold over tribunals. Both of these types of error were criticised by the Court of Appeal in Bawa-Garba. Furthermore, the Conduct and Competence Committee did not flesh out its analysis of ‘public confidence’ or acknowledge Lord Hoffmann’s caution against ending ‘useful’ careers for the sake of public confidence, but Bawa-Garba’s legal team ensured these arguments were taken into account by the Medical Professional Tribunal. The Conduct and Competence Committee’s failures are not inherent to Nursing and Midwifery Council procedure or policy. Rather Amaro’s self-representation appears to have impaired her access to justice. Tribunals must accept their right, and responsibility, to reach their own conclusions.

Keywords

Erasure gross negligence manslaughter policy professional ethics regulator sanctions

Isabel Amaro and Hadiza Bawa-Garba

On 18 February 2011, Jack Adcock died in Leicester Royal Infirmary. Two of the professionals who cared for him that day have been convicted of manslaughter by gross negligence for failures relating to his care and both received custodial sentences of 24 months, suspended for 24 months.¹ His nurse, Isabel Amaro, was subsequently erased from the nursing register.² His doctor, Hadiza Bawa-Garba, was not erased, but was suspended from the medical register and, after reviews in the High Court and Court of Appeal, the General Medical Council (GMC) has accepted that she will practice again.³

Superficially, at least, there is asymmetry. Both professionals were found to have met the threshold for manslaughter of a patient by gross negligence, but one is permitted to return to practice, the other not. In the absence of relevant differences, this would be an injustice; in this article, I will explore both cases and attempt to draw out these differences.

The threshold for conviction which was met by these professionals was set out by Lord Mackay in Adomako. The defendant must have had a duty of care towards the victim who had died and must have breached that duty. That breach must have caused the death of the victim. After establishing this, the jury must go on to consider the extent to which the defendant’s conduct departed from the proper standard of care, specifically, ‘whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission’.⁴

Both Bawa-Garba and Amaro were found not only to have caused the early death of Jack Adcock by breaching their duty of care towards him, but to have departed from the standard of care they ought to have been providing to such a degree that it was criminal.

Although there have been criticisms of the law,⁵ the courts have reaffirmed its current state.⁶ Both Bawa-Garba and Amaro were subject to the same law; both their tribunals had to find a way to respond to conviction under this law as well as their significant failings in the care of Jack Adcock.

I will begin this article by outlining the guidance on sanctions that informed the tribunal decisions in both cases, before giving an overview of the ways that Amaro and Bawa-Garba fell short in their care of Jack Adcock, and examining their mitigation. In these respects, there is little to distinguish the two cases. I will then claim, in the light of the Bawa-Garba cases, that the Nursing and Midwifery Council’s (NMC) Conduct and Competence Committee (CCC) erred by ‘presuming erasure’ in gross negligence manslaughter and by giving too much weight to Nicol J’s sentencing remarks. Finally, I will draw attention to two crucial aspects of case law which did not feature in Amaro’s appeal.

Part I: Erasure in the sanctions guidance

Amaro’s erasure at the CCC was called for by the NMC. The GMC called for sanctions against Bawa-Garba at the Medical Practitioners Tribunal (MPT).⁷

Both tribunals had sanctions guidance available to them. The CCC had the NMC Indicative Guidance for Panels (NMC Indicative Guidance),⁸ produced as part of the NMC’s statutory responsibilities under the Nursing and Midwifery Order 2001:

Protect, promote and maintain the health, safety and well-being of the public;

Promote and maintain public confidence in the professions regulated under this Order; and

Promote and maintain proper professional standards and conduct for members of those professions.⁹

The NMC Indicative Guidance is supposed to provide consistency and transparency at the CCC (para 9). Although panels must exercise their own judgement (para 8), panels should generally follow this guidance (para 10). The NMC Indicative Guidance used in 2016 for Amaro’s tribunal remained in place until July 2017, and the new sanctions guidance has not changed in regard to erasure.⁸

The MPT used the GMC’s Sanctions Guidance for Members of Medical Practitioners Tribunals and for the General Medical Council’s Decision Makers (GMC Sanctions Guidance).¹⁰ Paragraph 14 states that sanctions are part of the GMC’s statutory duty to protect the public, in accordance with the Medical Act 1983, including the following.

Protecting the health, safety and wellbeing of the public

Maintaining public confidence in the profession

Promoting and maintaining proper professional standards and conduct for the members of the profession.¹¹

At paragraph 6, the NMC Indicative Guidance asserts the right of the CCC to remove people from the register. Similarly, the GMC Sanctions Guidance lists potential sanctions at 107, including the power to ‘erase the doctor’s name from the medical register’. Paragraph 14 of the NMC Indicative Guidance and paragraph 16 of the GMC Sanctions Guidance state that the principal function of any sanction is not primarily punitive but may have a punitive effect. The NMC Indicative Guidance cites Lord Bingham in Bolton v Law Society, ‘since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction’ (para 14), and the GMC Sanctions Guidance echoes this sentiment at paragraph 24.

Nevertheless both list potential mitigation. There are three sections to NMC Indicative Guidance on mitigation: evidence of insight, including an apology and efforts to prevent recurrence (para 21.1); evidence of good character and observing principles of good practice (para 21.2); and personal mitigation which includes stress or illness, inexperience and a lack of support (para 21.3). The GMC Sanctions Guidance echoes 21.1 at paragraph 25a and 21.2 at paragraph 25b, it divides 21.3 into circumstances including lack of supervision (para 25c) and personal and professional stressors (para 25d), and includes an additional mitigating factor: a lapse in time since the incident (para 25e).

After establishing impaired fitness to practice, both panels are required to undertake a proportional process to determine the appropriate sanction. The question after gross negligence manslaughter is whether suspension is sufficient, or whether the only appropriate sanction is striking off or erasure. (Both erasure (para 111) and striking off (para 71) mean that the individual is not permitted to practice in the United Kingdom and may only apply for restoration after 5 years.) NMC Indicative Guidance (para 71.1) asks whether striking-off is ‘the only sanction which will be sufficient to protect the public interest’ and GMC Sanctions Guidance (para 107) says that the tribunal may erase a doctor from the medical register ‘where this is the only means of protecting the public’.

Both sets of guidance are permissive. The NMC Indicative Guidance gives conditions which would make striking off ‘likely to be appropriate’(para 72) including ‘serious departure from the relevant professional standards’(para 72.2). However, regarding seriousness, the CCC is directed to the guidance on suspension (para 71.2).

The GMC Sanctions Guidance states that ‘erasure may be appropriate’ where it is necessary to maintain public confidence (para 108) and that ‘any of the following factors may indicate erasure is appropriate (this list is not exhaustive)’ (para 109). In Bawa-Garba’s appeal, the Court of Appeal read this passage as permissive:

We consider it is clear that none of those provisions necessarily required the sanction of erasure in the present case. [This paragraph] makes that explicit with the word ‘may’ in its first sentence, as well as the word ‘indicate’, which is also permissive, not mandatory. ¹²

In the GMC Sanctions Guidance, too, some information can be gleaned from the guidelines for suspension, although these are also permissive.

The NMC Indicative Guidance states that suspension

may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome…this is likely to be the case when some or all of the following factors are apparent. (para 68)

The GMC Sanctions Guidance is equally understated: ‘suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction…’ (para 92). It would be almost tautological to state that erasure is appropriate where conduct is ‘fundamentally incompatible with continued registration’, so it is curious that the GMC couches this with the word ‘likely’ and the NMC with ‘may’. Since it is difficult to conceive of an alternative to erasure where conduct is ‘fundamentally incompatible with continued registration’, the NMC and GMC are evidently both reluctant to mandate the erasure of any doctor, and value the tribunal’s independence so highly, that they are willing to accept the potential compromise to the procedural transparency aimed for at paragraph 9 of the NMC Indicative Guidance and the NMC’s document ‘Our Role’.¹³

The guidance that is in place provides a framework for tribunals to explain their decisions. NMC Indicative Guidance suggests erasure may be indicated by

doing harm to others or behaving in such a way that could foreseeably result in harm to others, particularly patients, either…negligently or through incompetence. The panel will need to consider the seriousness of the harm in coming to its decision. (para 72.2)

Similarly, GMC Sanctions Guidance states that erasure may be indicated by ‘doing serious harm to others (patients or otherwise) either deliberately or through incompetence’ (para 109c) and directs the tribunal to consider paragraphs 129–132, which include cases where the doctor ‘has failed to provide an adequate level of care, falling well below expected professional standards’ (para 129) some of which will be

irremediable. This is because they are so serious or persistent that despite steps subsequently taken, action is needed to maintain public confidence. This might include where a doctor knew, or ought to have known, they were causing harm to patients and should have taken steps earlier to prevent this. (para 132)

Although not directing the tribunal, these passages certainly permit a tribunal to erase any doctor or nurse convicted of gross negligence manslaughter.

There are two relevant differences between the guidelines. As well as allowing the passing of time to mitigate against erasure, the GMC Sanctions Guidance also directed the MPT to consider recklessness. In the GMC Sanctions Guidance, recklessness and deliberately poor care increase the appropriateness of erasure at paragraphs 107b, 107c and 129. However, in the NMC Indicative Guidance, recklessness and deliberately poor care are only mentioned at 72.2, where they are treated as equivalent to ‘negligence’ and ‘incompetence’; the CCC is not directed to consider recklessness if negligence has already been established.

Aside from minor differences, both tribunals begin with similar guidance that is open to interpretation. Both sets of guidance meticulously avoid mandating erasure, leaving that up to the tribunal, but certainly permit erasure following any conviction for gross negligence manslaughter.

Part II: Events and mitigation

Jack Adcock was cared for by Amaro and Bawa-Garba. In this section, the events leading to their convictions for gross negligence manslaughter will be outlined.

Bawa-Garba’s key errors related to her failure to promptly diagnose and treat sepsis, including failure to escalate concerns to the consultant.¹⁴ She first met Jack Adcock in the Children’s Assessment Unit (CAU) at Leicester Royal Infirmary. She initially misdiagnosed him with gastroenteritis.¹⁵ The computerised blood test results system was not working so, 6 hours later, Bawa-Garba sent one of her juniors to collect the results in person.¹⁶ Jack Adcock had a chest x-ray and, after a delay, Bawa-Garba reviewed this at 3 pm, at which point she prescribed antibiotics.¹⁷

Amaro’s errors concerned her failure to keep accurate records and to escalate concerns appropriately.¹⁸ During Jack Adcock’s time on CAU, Amaro was his nurse. As part of standard nursing care, it was her responsibility to make hourly observations of his temperature, respiratory rate, oxygen saturations, blood pressure and pulse rate; however, she failed to keep such a record for Jack Adcock, reporting afterwards that he had been ‘moving around a lot’.¹⁹ Jack Adcock was receiving intravenous fluids to support his renal function and therefore an accurate fluid input–output record was essential to his care. Again, Amaro failed to record this.¹⁹

Amaro reported that she was afraid that Jack Adcock had sepsis, but her concerns were dismissed when she reported these to another nurse. The other nurse told Amaro not to escalate her concerns further because she was a bank nurse. Accordingly Amaro did not escalate her concerns.¹⁹

Later on that day, Jack Adcock was moved to a different ward and cared for by a different nurse. During this time, he was given enalapril and went into cardiac arrest.²⁰ Upon arriving at the scene, Bawa-Garba initially called off CPR, mistaking Jack Adcock’s mother for the mother of a different patient who had a DNACPR order in place. After the confusion, CPR resumed but, as in the vast majority of in-hospital attempts at CPR, was unsuccessful.²¹ Although this final mistake was not a causal factor in Jack Adcock’s death, it caused great distress to his family.

Mitigation

There are striking similarities in the mitigation raised by Amaro and Bawa-Garba.

Both professionals reported long, previously unblemished careers. Amaro had qualified 21 years earlier in Portugal having always wanted to be a nurse.¹⁹ She had received excellent feedback and had positive references to show to the tribunal.¹⁹ Bawa-Garba had pursued a career in medicine since the age of 13 and had been approaching consultant level. Her consultants reported that her abilities were among the top one-third of doctors at her level.¹²

Systemic issues at Leicester Royal Infirmary interrupted normal care. Bawa-Garba’s practice was undoubtedly impeded by the failure of the IT system, as well as the shortage of registrar cover and the patchy availability of consultant support. Furthermore, it was her first day back from maternity leave and she was working a 12–13 hour shift.²² In Amaro’s mitigation, she was on her 11th consecutive working day. In addition, she argued, hospital rules precluding agency nurses from giving intravenous drugs or cannulating resulted in other nurses taking her opinion less seriously regarding whether a child was sick. Amaro reported that there were equipment shortages on CAU although this did not render the necessary observations impossible.¹⁹

After Jack Adcock’s death, both Amaro and Bawa-Garba remained employed until 2015 without further incident.^23,24 Amaro undertook additional training and told the panel that she would go ‘above and beyond’ should she experience problems escalating concerns in the future, leading the tribunal to agree that her failings had been remedied and that this was a ‘one off isolated instance’.²⁵ Similarly, the MPT found that Bawa-Garba’s clinical failings had ‘already been remedied’ and accepted the submission that her failings had come ‘out of the blue and for no apparent reason’.²⁶

The effusive praise of Bawa-Garba’s consultants, even calling her ‘excellent’, was one difference between them.²⁷ Also, the MPT took into account the time elapsed since the events, whereas the CCC was not directed to.²² Another difference is that Bawa-Garba had not apologised to Jack Adcock’s family prior to the tribunal,²⁸ but Amaro had met with the family and ‘made peace’.²⁹

However, as acknowledged in both the NMC Indicative Guidance and the GMC Sanctions Guidance, the professional tribunals were not making a punitive judgement but a judgement regarding public confidence, and therefore the extent to which they could take such mitigation into account was limited by Lord Bingham in Bolton.³⁰ In summary, the sanctions guidance would have justified both tribunals erasing somebody convicted of gross negligence manslaughter, and their similar levels of mitigation presented no obstacle to erasure as it carried less weight than it would at a criminal sentencing. It is not obvious why Amaro received a harsher sanction than Bawa-Garba. The next section will examine the reasoning given by the CCC for erasing Amaro and compare it with the rulings relating to Bawa-Garba.

Part III: The CCC’s reasoning

In reaching its decision, the CCC considered Nicol J’s sentencing remarks, the serious harm and its context, and the impact of this case on public confidence in nursing and the NMC. Each of these issues was discussed at greater length in the Bawa-Garba case.

A presumption of erasure?

The CCC decided that Amaro’s mitigation was ‘outweighed by the serious nature of the criminal conviction [which] related to incidents which occurred in a clinical setting’. This seems to be a reference to paragraph 72.2 of the NMC Indicative Guidance which states that ‘doing harm to others…particularly patients or other people the nurse or midwife comes into contact with in a professional capacity’ may be incompatible with professional registration. The CCC specified that it had taken into account both ‘the conviction, and the context of the conduct to which it relates’³¹ although, after establishing Amaro’s impaired fitness to practice, the panel had not discussed this conduct further and was ‘mindful that it cannot revisit the factual matters found proved at the criminal trial’.²⁹

This was the issue at the heart of the Bawa-Garba appeals. In the High Court, Ouseley J criticised the tribunal for failing to ‘respect the verdict of the jury as it should have’, finding that ‘it reached its own and less severe view of the degree of Dr. Bawa-Garba’s personal culpability’.³² However, the Court of Appeal rejected Ouseley J’s reasoning, claiming that Ouseley J had adopted an impermissible approach by effectively introducing a presumption of erasure in cases of gross negligence manslaughter.³³

There is no guidance that states that nurses and doctors convicted of gross negligence should be erased. The Law Commissions of England, Wales, Scotland and Northern Ireland reviewed the legal framework for professional regulation and concluded that professionals should be erased automatically if, for example, they are convicted of murder, trafficking people for exploitation or rape,³⁴ but not for manslaughter by gross negligence. The Williams Review confirmed that there are no plans to introduce automatic erasure for gross negligence manslaughter.³⁵

However, presuming erasure is different from automatic erasure in that the tribunal can, in rare circumstances, choose not to erase the professional. GMC Sanctions Guidance effectively presumes erasure for child sex offences, stating that they ‘seriously undermine patients’ and the public’s trust and confidence in the medical profession and breach a number of principles set out in Good medical practice’(para 151) and ‘the tribunal should consider whether the public interest demands that their registration be affected’(para 152). The section concludes that such a conviction ‘inevitably brings the profession into disrepute. It is therefore highly likely that, in these cases, the only proportionate sanction will be erasure’ and that ‘If the tribunal decides to impose a sanction other than erasure, it is important that it fully explains the reasons’ (para 153). NMC Indicative Guidance has a similar policy:

In all cases of serious sexual misconduct, it will be highly likely that the only proportionate sanction will be a striking-off order. If panels decide to impose a sanction other than a striking-off order, then they will need to be particularly careful in explaining clearly and fully the reasons. (para 45)

The Court of Appeal summarised Ouseley J’s unintentional presumption of erasure in two steps. First, the tribunal had to accept that a gross negligence manslaughter verdict represented truly exceptionally bad care and very serious harm. Second, such culpability would require a sanction of erasure in order to maintain public confidence, unless there were significant reasons for imposing a lesser sanction. These two steps together are ‘materially the same as a presumption that a conviction for manslaughter by gross negligence should lead to erasure in the absence of exceptional or truly exceptional circumstances’, and observed that Ouseley J had earlier denied that such a presumption existed.³⁶

The reasoning of the CCC was not explicit enough to confirm the suspicion that it was operating under the presumption subsequently rejected by the Court of Appeal. However, it expressed reticence about revisiting the facts of the case, accepted all of Amaro’s mitigation and could not recommend any additional remediation, and yet still seems to have believed that a striking off order was the only way to protect the public. This could be due to the ambiguity of 72.2 in the sanctions guidance. Paragraph 72.2 permits erasure where patients are harmed through incompetence but, as stressed by the Court of Appeal in relation to its counterpart in the GMC Sanctions Guidance (para 109c), does not mandate erasure;¹² the CCC may have read this clause as mandating erasure and presumed that erasure was demanded by a conviction for gross negligence manslaughter.

However, there is no proof that the panel believed it was obligated, rather than permitted, to strike off Amaro. There is, on the contrary, evidence that the panel felt it had to follow the sentencing remarks of Nicol J.

Sentencing

The CCC stated that ‘the panel bore in mind the judge’s sentencing remarks. He had heard all the evidence called at the criminal trial and was able to assess the seriousness of the case and the extent of your individual failings’.³⁷ This is a reference to Nicol J’s sentencing remarks, ‘You had been a nurse for nearly 20 years. With your conviction, it is inevitable that this career will come to an end’.³⁸ It is striking that Nicol J made similar comments about Bawa-Garba that day: ‘Medicine was your vocation. As a result of this offence, your career as a doctor will be over’.³⁹ Each received a sentence of 24 months suspended for 24 months.¹

The guidance to tribunals acknowledges the challenges in interpreting sentencing comments. NMC Indicative Guidance states ‘the sentence previously imposed in a criminal context is not necessarily a reliable or definitive guide to the seriousness of the conviction’ (para 47). The GMC Sanction Guidance echoes this sentiment and suggests, ‘There may have been personal circumstances that led the court or regulatory body to be lenient. For example, the court may have expressed an expectation that the regulatory body would erase the doctor’ (para 117).

At Amaro’s tribunal, the NMC argued that the panel should place significant weight on Nicol J’s sentencing comments. Nicol J was an experienced High Court judge and had heard all the evidence from the prosecution and the defence. Because of this, argued the NMC, he was better placed to assess ‘the true seriousness of the case’ than the panel who had ‘heard only the summary of evidence’.³⁹

However, in all cases related to Bawa-Garba, the sentencing remarks were effectively disregarded. The MPT reached a different sanction than that anticipated by Nicol J. In the High Court, Ouseley J asserted that he had reached his own conclusions, unaffected by Nicol J’s expectations.⁴⁰ The Court of Appeal went further, stating that the tribunal should not necessarily follow the sentencing comments of the trial judge: ‘it would be quite wrong to suggest that his assumption should in some way have influenced the Tribunal to give effect to it through the sanction it ordered’.⁴¹ It is difficult to reconcile these remarks with the weight placed by the CCC on these sentencing remarks.

Public confidence

After a discussion of ‘the seriousness of [Amaro’s] conviction’,³¹ the final reasoning offered by the CCC was as follows:

[T]he public interest outweighs your interests. The panel concluded that your conviction represented such a fundamental departure from the relevant standards, that public confidence in the nursing profession and in the NMC as its regulator would be undermined were the panel not to impose a striking-off order. ³¹

Again, the idea that public confidence can only be maintained by erasure is tantamount to a presumption of erasure. The cases relating to Bawa-Garba display an alternative approach, with three main differences reported by the MPT: deliberateness and recklessness, the fully informed member of the public, and the wastefulness of ending a career in order to satisfy a need for punishment.

The MPT found that ‘public confidence in the profession would not be undermined by a lesser sanction; [Bawa-Garba’s] actions were neither deliberate nor reckless’.²⁷ This was relevant because paragraph 107 of the GMC Sanctions Guidance suggests that recklessness would make erasure more likely. Since the NMC Indicative Guidance does not mention this, the CCC did not explore this as a basis for reducing Amaro’s sanction.

The MPT considered that ‘a fully informed and reasonable member of the public would view suspension as an appropriate sanction, given all the circumstances of [Bawa-Garba’s] case’.⁴² This is a reference to Collins J stating, in Giele, that public confidence refers to a fully informed and reasonable member of the public.⁴³ This rule is fundamental to protecting doctors from a situation where, as the British Medical Association has warned, ‘the public confidence criterion could lead to “trial by media”‘.⁴⁴ The concept of the ‘fully informed and reasonable member of the public’ was approved by Ouseley J and by the Court of Appeal.⁴⁵ Although many ‘reasonable’ members of the public would say that committing manslaughter against a patient is fundamentally incompatible with being a doctor, the words ‘fully informed’ imply an appreciation of the nuance of involuntary manslaughter and the systematic challenges faced by Bawa-Garba.

Since the CCC did not attempt to flesh out of the concept of public confidence in the Amaro ruling, one wonders exactly what conception of public confidence was being used. It is possible that the public envisaged by the panel was heavily swayed by headlines about manslaughter but not necessarily fully informed about the challenges facing Amaro as an agency nurse at Leicester Royal Infirmary.

The MPT also took into account Lord Hoffman’s remarks, in Bijl, that concern for public confidence must ‘not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment’.⁴⁶ The Court of Appeal approved this approach, noting that Bawa-Garba ‘can provide considerable useful future service to society’.⁴⁷ Lord Hoffman’s comment was made in the context of a statement from the government, the medical profession, and the NHS, promising to ‘recognise that honest failure should not be responded to primarily by blame and retribution but by learning and by a drive to reduce risks for future patients’.⁴⁸ It has also been raised by the legal adviser in two other NMC CCC tribunals.^49,50 It is in the spirit of Lord Hoffman’s remarks that the career of an otherwise useful nurse should not be terminated in order to satisfy a need for blame and punishment, but the CCC in Amaro’s tribunal did not consider this.

Part IV: Access to justice

Bawa-Garba and Amaro were in similar positions following their sentencing. In their care of Jack Adcock, each had fallen far short of the expected standard. Each had a reasonable amount of personal mitigation and each could partly attribute their failures to systemic issues at Leicester Royal Infirmary. I have shown that both tribunals had similar guidance available to them, the only minor differences concerning the significance of ‘recklessness’ and of time elapsed since the negligent breach.

To summarise, there is evidence that the CCC presumed erasure was required following gross negligence manslaughter – an approach rejected by the High Court and Court of Appeal in the Bawa-Garba cases. The CCC panel misunderstood how closely it should follow Nicol J’s sentencing remarks; in the Bawa-Garba cases, the High Court explicitly made its own evaluation and the Court of Appeal stated that tribunals are not bound by sentencing remarks. In judging public confidence, the CCC did not expand on its conception of the public, leaving Amaro at risk of ‘trial by media’. Nor did it take into account Lord Hoffmann’s warning against sacrificing useful careers.

One explanation for these legal oversights could be that Amaro was without legal representation.⁵¹ Her difficulty was evident in the ruling; the panel noted that she had sent some certificates and references to the wrong place.²⁵ It is remarkable that she made such a fair attempt at defence, but unsurprising that Mr Kewley for the NMC was able to ensure its preferred sanction was imposed. Conversely, Bawa-Garba was represented by Tim Johnson Law and Radcliffes Le Brasseur and her legal fees at appeal were supported by an extensive crowdfunding movement of doctors.^52,53 Her expensive legal team was able to draw attention to use all relevant case law, including Bijl and Giele, in her defence.

Conclusion

Guidance on erasure is not significantly stricter for nurses than for doctors, but access to justice may be harder for nurses. This could be due to the difference in average pay between doctors and nurses, but also because, from medical school onwards, British doctors have a culture of belonging to a defence organisation.

The key lesson from the Bawa-Garba appeal is that tribunals have the right, and the responsibility, to reach their own decisions. The CCC was wrong to follow the sentencing comments rigidly and it was wrong insofar as it presumed that erasure followed from a gross negligence manslaughter conviction. The tribunal, the sentencing judge and the trial jury, must each undertake its own decision-making process; they are, according to the Court of Appeal, ‘different bodies, with different functions, addressing different questions and at different times’.⁵⁴ In a tribunal where the nurse is professionally represented, there is no reason for nurses to be erased after gross negligence manslaughter under circumstances where a doctor would not.

Footnotes

Author’s note

Nothan Hodson is now affiliated with College of Life Sciences, University of Leicester.

Conflict of interest

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

ORCID iD

Nathan Hodson -0001-6022-2260

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