David Nicholl: Bawa-Garba—From blame culture to just culture

Hadiza Bawa-Garba, a paediatrician convicted of gross negligence manslaughter, has been granted leave to appeal her erasure from the medical register. The General Medical Council’s (GMC) argument that a manslaughter conviction should automatically see a doctor banned from medicine was rejected. This welcome news is only the first step in an epic journey if we are to reduce professional anxiety and improve patient safety. The challenge should not be under-estimated, whatever the outcome. If she wins, Bawa-Garba will still be left with a criminal conviction for manslaughter, although this has not precluded others from returning to work.

The Chair of the GMC stated he was “extremely sorry” for the distress caused to the medical profession.  However, despite that the GMC opposed Bawa-Garba’s appeal. Last year, doctors warned the GMC that “this case could define its future.” Win or lose, this may well prove true. As one of her many supporters, clearly I hope that she wins, but the significance of the case extends well beyond the plight of one paediatrician. The GMC’s own regulator, the Professional Standards Authority, has pointed out that the GMC did not have to appeal the MPTS (medical practitioners tribunal service) decision to suspend rather than strike off Bawa-Garba. This contrasts with the GMC’s failure to take action against convicted sex offenders. There is a higher rate of complaints about BME doctors to the GMC. My fear is that if the GMC lose the appeal court hearing, these aspects will be brushed aside, there will be a rush to blame, and a failure to properly investigate. Neither the Williams nor Marx reviews will fully address the wider issues of how gross negligence manslaughter is relevant to all healthcare professionals, not just doctors, for example, the nurse Isabel Amaro was given a suspended prison sentence following the death of Jack Adcock.

Beyond the GMC, there are many questions to be addressed by Hadiza Bawa-Garba’s employer, her previous medical defence organisation, the Coroner’s inquest, and the role of expert witnesses. By way of comparison, if Jack Adcock had died in Scotland, this case would likely have never come to Court. There is no offence of gross negligence manslaughter in Scotland. Culpable homicide is the nearest equivalent and there have been no successful prosecutions for doctors in Scotland. The barrister who led the inquiry into disgraced surgeon, Ian Paterson, has called for a complete rethink. “If we want to learn from errors then we have to expose them,” he added. “Suing doctors confuses the need for compensation for a patient who has been harmed with culpability. We need to separate those two things.”

Perhaps now is the time to look at alternative no fault compensation systems, such as Denmark. Compensation is awarded if reviewers determine that the care was sub-optimal, or if the patient experienced a rare and severe complication that was “more extensive than the patient should reasonably have to endure.” There is still a Danish medical negligence system, which can still be controversial. Recently, the Supreme Court in Denmark overturned the conviction of a junior doctor in a case with strong parallels to the Bawa-Garba case.

We need a legal system and regulator that will “deal forcefully with doctors that are deliberately and repeatedly dishonest rather than a conscientious doctor who made a single clinical error.” We need the Ian Paterson’s of this world kicked out of medicine, and the Hadiza Bawa-Garba’s supported. That would be the just culture we need, and show we have truly learnt from the tragic death of Jack Adcock.

David Nicholl is a consultant neurologist at City Hospital, Birmingham.

Competing interests: DN has campaigned on behalf of Bawa Garba.