A time for reflection, a need to re-focus
It is hard to believe that almost 3 years have passed since we began to look at the influx of gross negligence manslaughter cases being brought against doctors, in our blog " A dark approach to clinical responsibility". 2015 saw prosecutions brought against Optometrist Honey Rose, Anaesthetist Errol Cornish and, most notably, Paediatrician Hadiza Bawa-Garba. These convictions not only shot fear of criminal prosecution throughout the medical profession for types of errors witnessed on a daily basis throughout the NHS, but sparked a bitter battle between doctors and the very organisation they rely upon to protect them and patients alike; the General Medical Council ("GMC").
Whilst all of the cases mentioned above raise important matters within the debate, the case of Dr Bawa-Garba has been the most high-profile. During the last three years she has been convicted of gross negligence manslaughter, given a suspended sentence, stripped of her certification to practice medicine, and has this week won an appeal to have this reinstated. This blog looks back at the events of the last 3 years, and considers what is yet to come for the medical profession and patients alike.
The case of Jack Adcock
It was the tragic death of Jack Adcock in 2011 that led to the investigation against Dr Bawa-Garba. She was his treating paediatrician at Leicester Royal Infirmary when a catalogue of errors led to a failure to diagnose and treat sepsis and, ultimately, Jack's death. Amongst others, some of these errors included:
- Delay in receiving blood results;
- Delay in diagnosis of pneumonia on X-ray;
- Failure to ensure timely administration of antibiotics;
- Failures by nursing staff to report deterioration;
- Mistaking patient as having a Do Not Resuscitate order.
These errors were all in the background of overworked and under-resourced staff which had been flagged up to the hospital on multiple occasions before. There was a shortage of Consultant's in the hospital, with junior doctors being required to fill senior roles within the rota.
Whilst certainly not acceptable levels of practice, the errors identified in Jack's case are not unusual and regularly feature in medical negligence cases brought throughout the country. It was therefore a shock to doctors and lawyers alike, when it was announced that Dr Bawa-Garba was to be charged with Gross Negligence Manslaughter.
Conviction of Gross Negligence Manslaughter
To be found guilty of the offence, it must be proved that:
- The doctor breached their duty of care (i.e. their actions cannot be supported as being acceptable by a responsible body of doctors);
- It was reasonably foreseeable that the breach would lead to a serious or obvious risk of death;
- The patient died;
- The doctor's conduct was so bad in the circumstances that it amounts to being criminal.
Once all of the evidence has been presented, it is up to a jury to decide whether or not the doctor's actions should be held to be criminal.
It is understandable that the Alcocks hold Dr Bawa-Garba responsible for Jack's death, and you can see why the jury may have thought the same; quite simply, she was the doctor charged with making him better, and the Court found that her actions led to his death. However from a medic's perspective, the sequence of events and actions of Dr Bawa-Garba were no different to those experienced by thousands of doctors across the country. They do not say that it is acceptable that mistakes happen, but that doctors are human, and in the environment of the overstretched NHS, mistakes happen, just as they do in every other job the world over.
General Medical Council ("GMC")
The GMC is the body responsible for regulating the medical profession. It decides whether or not doctors are fit to practice, and investigates allegations of wrongdoing. At the start of 2018, a GMC appeal tribunal struck Dr Bawa-Garba from its Register, repealing its previous decision to simply suspend her for one year.
The rationale was that it was necessary to maintain public confident in the profession. "Would people want to learn that Dr Bawa-Garba was still treating patients?"
The result led to protests, crowd-funding campaigns and calls for change from within the medical and legal profession. The NHS has a duty to admit mistakes and encouraged to investigate incidents without a blame culture, and the overwhelming response from the profession was that the action taken against Dr Bawa-Garba would prevent this out of fear of prosecution. A cover-up culture might develop, and that would undoubtedly lead to more deaths.
Court of Appeal
Members of the public and the medical profession raised well in excess of £300,000 to pay for Dr Bawa-Garba's appeal of the GMC decision. Yesterday, the Court overturned the tribunal decision and Ordered that she be restored to the Register.
The GMC appears to have rolled over and accepted the Court's decision. It has published a statement on its website and indicated that it will not challenge the verdict.
Where are we now?
On the face of it, this week's decision appears to be a step in the right direction. If no challenge to this week's decision is lodged, it resets the status quo that only reckless doctors, or those deliberately meaning to cause harm, are likely to find themselves facing the GMC and the criminal courts. But does it let doctors off the hook too easily?
In our experience as clinical negligence lawyers bringing civil claims for monetary compensation for avoidable injuries to patients as a result of negligence, this open and honest culture of acknowledging errors and learning from them is not as deep rooted as doctors taking part in this debate would like you to believe.
Many see their duty of candour as a box ticking exercise; simply a formality of informing the patient or that family that something went wrong, but not actually admitting to neglect or investigating the root cause of it. We see Serious Incident Reports that show evidence of failings, but the conclusion is worded so as to obscure and sometimes even directly contradict the facts so as to suit the hospital's own agenda.
If the doctors are not policing themselves, and we are giving in to pressure to reverse decisions when external authorities do, are we properly holding doctors to account at all?
This weeks' verdict follows the release of a policy review ordered by the Secretary of State for Health. This was just one of many reviews commissioned into the issue of Gross Negligence Manslaughter within the medical profession. The GMC is also conducting its own review, to be published next year.
The government review's panel was headed by Sir Norman Williams, and in its report recommends the following to deal with the issue that have plagued the medical profession over the last 3 years:
- A review of the guidance given to those investigating and prosecuting regarding the threshold for proving Gross Negligence Manslaughter and focus on cases where the conduct is "truly exceptionally bad";
- A consideration of the context of the incident and systemic factors, alongside the actions of individuals;
- Removal of the GMC's right to appeal its own fitness to practice decision – aimed at addressing the mistrust caused by the GMC's decision to challenge Dr Bawa-Garba's fitness to practise;
- Ban on disclosure of reflective material prepared by clinicians to the GMC and similar regulatory bodies for the purpose of fitness to practice investigations – it is hoped that this will encourage the open and honest learning culture that the NHS depends upon to maintain and improve standards.
This is not an exhaustive list, but features the recommendations designed to combat many of the problems that have led to the Bawa-Garba saga. We will have to wait to see if and how these are implemented, and what the results of it will be.
BBC's Panorama aired "Doctors on Trial" on 13 August 2018. The programme can be viewed online on the BBC's website for a limited time, and contained commentary from Dr Bawa-Garba, the Adcock family and others involved in the case.
You can also view our historic blogs on the issue of Gross Negligence Manslaughter on our website:
- " Paediatrician and Nurse convicted of manslaughter charges" – 9 November 2015
- " A week of sentencing for medical malpractice" – 15 December 2015
- " Tragedy, mystery, curiosity?" – 28 January 2016
- " Landmark Conviction for negligent optician" – 18 July 2016
Originally published 15 August 2018
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