Viewpoint: Dr Bawa-Garba case set back patient safety gains by 10 years

The message that the courts and the GMC have sent to doctors is that if a patient you are responsible for suffers harm, then you may be held criminally responsible and the context may not be considered. We need a change in the law and the GMC, says Dr David Wrigley, chair of Doctors in Unite.

The recent High Court decision on the case of Dr Bawa-Garba has caused us great concern. Doctors in Unite deeply regrets the tragic death of Jack Adcock in 2011, and any distress that may be caused by our comments. We have the utmost respect for Jack’s family and our sympathies are with them.

We believe however, that the issues raised are of grave importance to the future of the medical profession in the UK and must be addressed. The actions of our regulator, the GMC, has set back the gains made in patient safety by 10 years.

Jack’s death was the result of multiple failings. There were many issues that compromised his care, care which fell well short of the standards that any patient should expect. Multiple shortcomings were identified by the University Hospitals of Leicester internal report in to the events of that day, which made 23 recommendations and led to 79 actions by the trust.

The situation in which Dr Bawa-Garba was put was hugely challenging; returning from maternity leave, without proper induction, while covering for several absent colleagues, without proper senior supervision. The care she provided that day was inadequate, but she was under severe pressure in a hospital with inadequate staffing and faulty equipment. Following the event, she took responsibility for her actions, reflected upon them and engaged with the subsequent investigation and supervision.

Manslaughter conviction

We believe that her original conviction of gross negligence manslaughter was wrong, a guilty verdict requires a jury to find a defendant’s actions to be ‘truly exceptionally bad’. This statement is difficult to reconcile with her actions as they occurred in context, however contextual and mitigating evidence was not heard in court.

The Medical Practitioners Tribunal Service took appropriate account of these circumstances when it concluded that Dr Bawa-Garba should be suspended from the medical register, and that a further hearing should determine whether she is able to return in the future once her period of suspension was complete. This carefully reasoned, and clearly articulated decision was deemed unsatisfactory by the GMC. The GMC chose to pursue an appeal to the High Court, which was successful and Dr Bawa-Garba has now been removed from the register.

We contend this decision was the wrong one, that the sanction benefits no one, and ends the career of an otherwise competent doctor who presents no further risk to the public – apparently to satisfy a demand for blame and punishment.

Dangerous precedent

The criminalisation of medical error is a dangerous precedent and we believe will be directly harmful to improving patient safety. An individual who is reckless, or wilfully negligent should be pursued with the full force of law, but errors of judgement, particularly where there are mitigating circumstances should not generally be pursued through the courts.

Honest and open discussion of errors is essential to building a culture of safety. A system where people are afraid to admit mistakes due to potential personal consequences is the antithesis of what we need. If personal reflection can be used as evidence of criminal responsibility, how will we engage the professional in critical reflective practice? 

The message that the courts and the GMC have sent to doctors is that if a patient you are responsible for suffers harm, then you may be held criminally responsible and the context may not be considered. This is a very frightening message for all of us working at the front line of the NHS, we are struggling to perform to the best of our ability in a system under enormous pressure, with insufficient staffing and resources.

We will inevitably make errors, and unfortunately some of those errors will cause harm. As in the airline industry the best way to minimise harm is to not to blame individuals but to learn from errors, identifying the issues that allowed them to occur. Blaming individuals for systemic failures is counterproductive. We have made great progress in recent years in the NHS on safety culture, but we still have long way to go and these rulings are corrosive to the culture of learning and support that we must encourage.

Deeply damaging

These rulings are also deeply damaging to the doctor’s trust in the institutions which regulate them. The GMC must have the confidence of the profession. We urge the GMC, the Secretary of State for Health and Social Care and Health Education England to urgently review the decisions made around the use of personal reflection and the processes around investigation, and suspension or removal from the register.

The fundamental principles that need challenging are the use of criminal law to prosecute doctors who make genuine mistakes and the GMC ignoring the context in which doctors are working that have created the conditions for those mistakes. The GMC must take issues such as lack of staff, fatigue and under resourced services into account when determining whether to appeal the outcome of MPTS tribunals. We need a change in the law and the GMC.

These are difficult times in the NHS and the energy and commitment of doctors is enormous but not inexhaustible. We must have faith that the institutions which govern us are reasonable and just. We urge all bodies who represent the profession to consider how they will respond to this challenge.

  • Dr David Wrigley is chair, Doctors in Unite and a GP in Lancashire

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