Nurses may find it harder to get justice than doctors, according to a review exploring why a nurse convicted over the death of a child was struck off while a doctor involved in the same case can continue to practise.
In a paper published in the journal Nursing Ethics, doctor and researcher Nathan Hodson compares the fate of nurse Isabel Amaro and doctor Hadiza Bawa-Garba who were both convicted of manslaughter due to gross negligence for their role in the death of Jack Adcock.
“One wonders exactly what conception of public confidence was being used”
Both received a two-year suspended sentence for mistakes they made in the care and treatment of six-year-old Jack who had Down’s syndrome and a heart condition, and who died in 2011 from a cardiac arrest caused by sepsis after being admitted to Leicester Royal Infirmary.
However, the paper suggests Ms Amaro was treated “much more harshly” by professional regulator the Nursing and Midwifery Council, resulting in her being removed from the nursing register in August 2016.
In contrast, Dr Bawa-Garba was told she can return to practice by the Medical Practitioners Tribunal Service following a period of suspension – a decision backed by the Court of Appeal after it was challenged by the General Medical Council.
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According to the paper, the difference may be because the NMC panel got various things “wrong” when deciding on an appropriate sanction for Ms Amaro.
Dr Hodson, who is an academic foundation programme doctor based at Northampton General Hospital and the University of Leicester, told Nursing Times he was “really surprised” by differences in the way the nurse and doctor’s cases were handled.
“As I undertook the project, I was expecting to find some big difference between the two that could explain their different treatment and the different responses of their professions, but I just couldn’t find anything that really separated them,” he said.
His paper highlighted similarities between the two healthcare professionals, including the fact both had long, previously unblemished careers and continued to work safely for several years after Jack’s death without further incident.
During their trials and regulatory hearings, both flagged up “systemic issues” at Leicester Royal Infirmary that may have contributed to lapses in care.
While Ms Amaro failed to record basic observations and Jack’s fluid balance, she claimed she did raise concerns about the child, which were dismissed because she was an agency nurse.
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Meanwhile, the paper explained that both had undertaken appropriate retraining and there was no question they posed a risk to future patients.
The NMC conduct and competence committee (CCC) that heard Ms Amaro’s case agreed the failings in her practice that led to her conviction had been remedied.
However, it ruled she should be struck off because “public confidence in the nursing profession and in the NMC as a regulator would be undermined were the panel not to impose a striking-off order”.
In his paper, Dr Hodson suggested there was “no reason” why a nurse with professional legal representation should be struck off for gross negligence manslaughter in circumstances where a doctor was not.
He highlighted key differences in the way the Medical Practitioners Tribunal and CCC interpreted the law.
“What I do hope is that no similar mistakes are made in the future”
He told Nursing Times that he believed the NMC panel had made a number of “mistakes” including seemingly presuming that a conviction for gross negligence manslaughter should automatically result in a nurse being struck off – which is not the case.
His paper also suggested that the NMC panel was unduly influenced by comments made by the judge who sentenced both the nurse and doctor and told them their careers were over – instead of making its own independent decision.
Dr Hodson, who is studying the impact of the case on the law around gross negligence manslaughter, said one of the main messages to come from Dr Bawa-Garba’s appeal was that “every tribunal has to make its own decision – there’s no deferring to somebody else’s decision and that element of responsibility is important”.
Meanwhile, there were key differences in the way the medical tribunal and NMC panel explored the concept of “public confidence”, he noted.
The medical tribunal considered established case law that means judicial bodies should take into account the views of a “fully informed and reasonable member of the public”, in order to avoid a “trial by media”.
“Guidance on erasure is not significantly stricter for nurses than for doctors”
The paper stated: “Since the CCC did not attempt to flesh out 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,” it said.
The medical tribunal also took into account a ruling by judge Lord Hoffman who warned against “sacrificing the career of an otherwise competence and useful doctor” for the sake of public confidence.
“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,” said the paper.
This is despite the fact similar points had previously been raised by legal advisors in other NMC fitness to practise hearings.
Dr Hodson told Nursing Times the fact the NMC panel in this case failed to consider these issues in coming to their decision about Ms Amaro meant “arguably her career was sacrificed on the altar of public opinion”.
“There is a reason there is a legal member on the panel and they need to make these points really clearly,” he added.
“They have often raised some of these cases, but legal advisors need to make sure they are doing it every time especially when they have got someone who is self-representing,” he said.
“This could be due to the difference in average pay between doctors and nurses”
His paper goes on to suggest the fact Ms Amaro represented herself “appears to have impaired her access to justice”.
Overall, Dr Hodson told Nursing Times he was “shocked” by the disparity in legal and other support available to Dr Bawa-Garba compared with Ms Amaro.
While the doctor was represented by “an expensive legal team” and her legal fees on appeal were supported by a crowdfunding campaign backed by thousands of fellow doctors, Ms Amaro represented herself at her hearing without the same level of attention or outcry from fellow nurses.
“Guidance on erasure is not significantly stricter for nurses than for doctors, but access to justice may be harder for nurses,” said the paper.
It said: “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.”
NMCWatch, an organisation that supports nurses and midwives going through fitness to practise cases and campaigns for improvements in FtP processes, agreed lack of legal representation was a key factor in the outcome.
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“Representation for both sides needs to be at the same level and of as good quality otherwise the advantage will always fall with the NMC,” said a spokeswoman.
“The CCC hearing should be about establishing the facts and getting to the bottom of any misconduct and not dependent on which side can put across the best case,” she said.
A campaign to highlight the “injustice” to Ms Amaro and raise funds was established. However, NMCWatch said nurses found in her situation found it harder to get the backing they needed.
“Nursing professionals who go through this process do not seem to be able to secure the same support as our doctor colleagues and this is very sad but a symptom of where our profession is currently,” said the spokeswoman.
NMCWatch confirmed it had offered support and advice to Ms Amaro and explored the possibility appealing the striking-off order but it was clear she had been “extremely damaged” by the process so this did not go ahead.
Dr Hodson said it was “completely understandable” why some people decided not to challenge FtP sanctions they felt were unfair.
“We can see from what Dr Bawa-Garba has gone through over the last four years that it is not nice to try and get your profession back,” he said.
“It’s a really horrible experience and I would completely understand if Isabel Amaro didn’t want to do that,” he said. “What I do hope is that no similar mistakes are made in the future.”
“We are exploring how we can facilitate a limited amount of pro bono support”
Clare Strickland, deputy director of fitness to practise at the NMC, said: “In August 2016, an independent panel took the decision to strike Ms Amaro off our register after hearing all of the evidence in the case and taking her conviction and suspended custodial sentence into account.
“Following this decision, no appeal was made by Ms Amaro in relation to this case,” noted Ms Strickland.
“While many nurses, midwives and nursing associates have excellent sources of support from professional bodies or unions, we recognise that others may not,” she said.
“As we to continue to develop our approach to fitness to practise, we are exploring how we can facilitate a limited amount of pro bono support for those who may not be represented,” she said.
She added: “We will also be introducing a new, independent, support line for professionals going through our fitness to practise process.”