GMC to push for erasure of paediatrician convicted of manslaughter

The judgment in this case will be handed down on 25 January 2018 at 10.30am in court 19, Royal Courts of Justice [1].

Reference

[1]https://www.justice.gov.uk/courts/court-lists/list-cause-rcj

Where will the blame culture lead us? At some stage in the future will we think it worth checking the entire cast of doctors working for the GMC in a regulatory capacity for potential errors they may have been a party to, at some or any stage during their career? I doubt any doctor will be free from errors or omissions. They are usually the stimulus for greater anxiety and over careful management when faced with future situations. If we cannot have, as many respected commentators have mentioned, a ‘safe space’ to discuss these traumatic occurrences and debrief, learn and move forward, then what use is clinical governance? I grew up hearing stories of 4-day weekends sustained by milky coffee and courage, working alongside junior doctors who were likely burnt out; one even suicidal. All anecdotal, of course. As a medical student I tried to grasp the concepts of audit and risk management, only to later find myself and one colleague covering over 400 acute medical patients as night SHO’s. If Admissions was busy, the wards suffered and groaned while one or both of us diverted to clerking. The Registrar was seen flitting between wards and Admissions, certainly not responsible for chasing blood results or x-ray review, at least in the first instance. The House Officer would chase bloods, or the lab ring in worrisome findings. How can a registrar covering Children’s Assessment Unit, Accident and Emergency and the wards in a much busier teaching hospital in Leicester, be responsible for one tragic occurrence? No one can imagine the loss felt by the grieving family, but wouldn’t the healing thing to do be the explanation of what happened through a mediator, explaining that the tragic death was multifactorial and that Dr Bawa-Garba was not the cause? Surely we work as an MDT, and any death in such circumstances would be attributable to the MDT as a whole breaking down, perhaps through institutional problems such as poor staffing levels and inadequate senior support.

Rather than wreck the lives, reputations and careers of those onshift when a death occurs, the trust simply needed to arrange in-house reflections that culminated in better staffing, increased senior cover and re enforcement of early warning scoring systems to identify peri-arrest scenarios. It appears there are now 2 registrars in the Leicester Royal Infirmary doing the same, which speaks volumes. Isn’t this the very purpose of clinical governance-find errors, make changes, re-review the changes, feedback to patients and their families. Could not a series of meetings between the trust and the patient’s family, with mediators present, have averted this tragic hounding of one individual? Dr Bawa-Garba has been described as an ‘excellent doctor’ according to two consultant colleagues, Dr A and Dr D, as written in the recordings of the MTPS tribunal (1). Indeed, she worked for a further 4 years for the same employer-the inference would be that she was safe, which both the above-mentioned Consultants agreed verbally within this recording. What a great shame that this situation was allowed to go this far. GMC: do the honourable thing and prove your doubters wrong. Reinstate this doctor.

When a patient dies whilst on-shift, what are doctors’ feelings and thoughts? It is easy to blame a shell-shocked, possibly over-reflective doctor for the death of a patient. It is harder to pin down blame when faced with gross institutional failures. We live by the Multidisciplinary team, but abandon our colleagues as soon as a whiff of blame surfaces, perhaps from a grieving family lashing out. Without apportioning blame, a little analysis reveals many factors, as one would expect. Nursing and junior medical staff issues surface such as the unfortunate lack of repeating the blood gases despite being requested by Dr Bawa-Garba of her junior, the administration of enalapril despite it not being prescribed by Dr Bawa-Garba, or the seeming absence of early warning scores failing to cascade progressively senior clinician review by the nursing team. One point on the mention of bloods not being seen in the tribunal notes available online struck a chord-as a PRHO and then SHO in acute medicine, I reviewed the blood results of admitted patients rather than my registrar.

Let’s talk about why individual doctors may allow this type of allegation to be levelled against them, without necessarily being able to rebut effectively what was not their fault. A study of over 7,000 doctors to investigate health and psychological welfare after a complaint found their anxiety and depression scores increased with the severity of the complaint, most emphatically after GMC referral (2). No surprise there. 38% felt bullied, and they were twice as likely to have experienced thoughts of self-harm. I wonder whether one eventually starts to believe the anger within the grief of family bereaved, and acquiesce to the blame being levelled. In a study on paediatric registrars’ responses to child death, 91% of registrars think of a particular baby or child who died, and many of these thoughts related to doubt about management and unresolved issues (3). Potential reasons why the courtroom scene played out in this fashion..

Now to the conviction-many would argue that this is not gross negligence, but could well be a gross injustice. Cases that involve the tragic loss of life through supposed medical negligence should require, in my humble opinion, a specialist jury-one trained in medicine, perhaps. Certainly one able to accommodate situations where there could be a systems failure rather than individual culpability, however shell-shocked the defendant. Juries faced with the sad death of a child may be more likely to be sympathetic to the family in grief-we are only human, after all. Further analysis needs to be done in this field, and research is scanty, however what is known is that there is subconscious prejudice when a jury deals with BME defendants (4).

References:

(1) MPTS Public record of determinations page 6, found at https://www.mpts-uk.org/static/documents/content/Dr_Hadiza_BAWA-GARBA_13...

(2) Tom Bourne et al. The impact of complaints procedures on the welfare, health and clinical practise of 7926 doctors in the UK: a cross-sectional survey. BMJ Open. Volume 5, Issue 1. Found at http://dx.doi.org/10.1136/bmjopen-2014-006687

(3): A Baverstock. Specialist Registrars’ emotional responses to a patient’s death. Arch Dis Child. 2006 Sep; 91(9):774-776 doi: 10.1136/adc.2005.076760

(4): found at http://www.thejuryexpert.com/2012/05/subtle-contextual-influences-on-rac...

Dr Sundar (17.11.17) questions “whether the Jury has been specifically aware of this increased mortality risk that is present even in promptly treated patients because of the disturbance in the adaptive immune system that is intrinsically present in Downs syndrome patients.” Alternatively, he seems to be suggesting, had the jury been aware of the same, they may have come to a different conclusion. Without sight of the transcript of trial, it is not possible to say with any certainty whether such evidence was advanced at the original trial; the appeal court’s judgment [1] does not appear to shed any light in this regard either.

However, the issue of causation was clearly challenged on appeal, and para.33 to 36 of judgment [1] aptly summarises points raised in this regard by Dr Bawa-Garba’s counsel and the court’s response.

With regard to causation, at para.29, it is said:“Although a coronial case, it is also worth referring to R(Khan) v West Hertfordshire Coroner [2002] EWHC 302 (Admin) because Richards J (as he then was) there seeks to illustrate that causation can be established without showing that the deceased would have survived. He went on (at [43(ii)]):
“But that is because it can be established by showing in the alternative that death, although inevitable, was hastened by the conduct in question. … the case [R(Dawson) v Coroner for East Riding and Kingston upon Hull [2001] EWHC 352 Admin] does not support the proposition that causation can be established simply by showing that there was an opportunity to render care. It must be shown to the requisite standard of proof that care would have been rendered and that it would have saved or prolonged life. “Thus, as with Rose LJ, Richards J uses the formulation "death, although inevitable, was hastened" synonymously with "care … would have saved or prolonged life".”

In fact the trial Judge “was emphatic that the jury had to be sure "that Jack died significantly sooner" because of the negligence (by which it is clear he meant gross negligence) of the defendant whose case was being considered” [1].
Further, "the point of no return" was duly addressed at the trial, and the appeal court found at para34, “later negligence could not be causative and that he [Judge] had failed also to explain this direction by reference to the facts of the case, in particular the evidence of Dr Nadel that he could not be sure that this point had not been reached as early as 2.30 pm. However, in the light of the direction on this issue which we have set out above, this submission is untenable.”

In the light of the above, even if the jury was aware of the information which Dr Sundar cites, it is unlikely that they would have come to a different verdict. Of course, juries ability to grasp complex medical and scientific evidence put forward by experts is a contentious issue, just as it is difficult to assess to what extent their subconscious biases could affect the decision making.

If “the General Medical Council is perhaps between a rock and a hard place” as Dr Sundar suggests, then it is due to their wilful desire to get into such difficult situations by acquiring rights to challenge the decisions of its own adjudication arm, MPTS. Further, the GMC is at a distinct advantage as the cost of litigation does not appear to be an issue, thanks to the fee-paying doctors.

Long before, the GMC acquired powers to appeal decisions of the its own tribunal (MPTS), three Law Lords expressed some remarkable words of wisdom [2] :

“13.The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should 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. As was said in A Commitment to Quality, A Quest for Excellence, a recent statement on behalf of the Government, the medical profession and the National Health Service: "The Government, the medical profession and the NHS pledge … without lessening commitment to safety and public accountability of services, 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."

The MPTS’ decision makes it abundantly clear that, among other things, the above sensible words of the Privy Council were applied to the case of Dr Bawa-Gaba when they considered the sanction [3]. Similarly, the tribunal was at pains to explore the public protection issue and went onto set out both mitigating and aggravating factors in detail before imposing a 12 month sanction. The thoroughness of the tribunal’s analysis of risks is further amplified by their finding at para.36 [3], “you do not have complete insight” and their decision to review the suspension order prior to its expiry. Hence, one wonders as to what were the shortcomings in the tribunal’s analysis and reasons which it has set out, seemingly to a standard well above what is expected of a first-tier tribunal. Similarly, it is puzzling, how could any reasonably competent legal professional say with confidence that GMC’s appeal has a real prospect of success on appeal given the high standard of tribunal’s reasoning for their decision.

As for Dr Anand’s query (13.11.17), “why the BMA is silent. Should it keep hiding itself?”, I would say, I am not surprised at all. By not intervening as an interested party to this appeal or expressing their concerns formally, the BMA has simply shown their insensitivity to doctors it represents, in particular to BME doctors. One would say, the BMA has scored another own goal.

References

[1] http://www.bailii.org/ew/cases/EWCA/Crim/2016/1841.html
[2] http://www.bailii.org/uk/cases/UKPC/2001/42.html
[3]https://www.mpts-uk.org/static/documents/content/Dr_Hadiza_BAWA-GARBA_13...

Like most responders to this article I am appalled by the GMC’s decision and the injustice it seeks to inflict on Dr Bawa Garba. But I am not surprised.

The GMC in its present incarnation is a strange institution that mighty well have been created in the mid-20th century when the journalist Henry Fairlie proclaimed the existence of the Establishment.

It is a registered charity whose activities are overseen by a council of twelve members. Six of them are doctors and the other six are quaintly described as ‘lay members’, presumably because they are medically unconsecrated. All of them are appointed by the Privy Council, none are elected.

The chair of the GMC is a medical knight with a distinguished academic record worthy of recognition. The other counsellors are, no doubt, equally worthy citizens. Information published by the GMC reveals that each of them is a seasoned quango and/or committee sitter gifted £18,000 a year, plus expenses, for ‘up to’ three days work a month for the GMC.

The present chair of the council stresses that potential members have to appear before an ‘independent panel’ chaired by himself presumably to judge their suitability before they are appointed. The most recent panel consisted of a baroness who is Deputy Chair of the British Council, a member of the Board of the Office of the Scottish Charity Regulator, and the knighted Chairman of London Works who is also a Trustee of the Mayors Fund For London… I think I get the drift.

In the second half of the 20th century the GMC flirted with the idea of reforming itself but, as is the way with flirtation, the affair was confused and temporary. Then, early in this century, while public attention was distracted by the Shipman scandal, our masters imposed a system that included devolving regulatory governance to an unelected body populated by sort of folk who, in Henry Fairlie’s time, were described as the Great and the Good.

The treatment of Dr Bawa Garba shows just how remote this type of regulator can be from the world inhabited by those it seeks to regulate.