Jenny Vaughan looks at the end of a case that’s lit the blue touch paper for a whole generation of doctors

Last month a medical practitioners tribunal ruled that Hadiza Bawa-Garba can return to work under close supervision. It was agreed that her suspension, which is due to end in July 2019, has served the public interest and any higher sanction would be “disproportionate and punitive.” Before allowing her to resume practice, the Medical Practitioners Tribunal Service (MPTS) wanted to be sure that she had insight into the consequences of her actions and it is now satisfied that she does. Bawa-Garba’s journey through the criminal justice system is widely known and has been followed with close interest by the medical community.

When the General Medical Council (GMC) appealed for her to be struck off the medical register, it lit the blue touch paper for a whole generation of doctors working in very challenging conditions across the country. Many of these doctors were simply not prepared to accept the High Court’s subsequent verdict in January 2018 that Bawa-Garba should be erased from the medical register. And while the GMC’s appeal was initially successful, its pyrrhic victory was to be short lived. An unprecedented crowdfunding appeal raised more than £350 000 for Bawa-Garba to hire a new legal team and launch an appeal. In August 2018 the appeal court rejected the High Court’s decision to allow the GMC to erase Bawa-Garba’s name from the medical register.

Jack Adcock should have received better care: there are many lessons to be learnt from his death. However, Bawa-Garba was not the only one whose honest errors contributed to his death. The hospital’s systems also broke down that day, which contributed to the mistakes that were made. It is hard for a jury to gain a real understanding of just how far these systemic factors can impact the decision making of a doctor. It was these system level issues that struck a chord with many doctors following the case. Yet subsequent reports of the case have described how even after Jack’s death there was still evidence at the Leicester Royal Infirmary of “poor staffing levels; communication problems and poor handovers; IT systems not working.” There were also ongoing issues of senior staff supervision of trainees.

Recent guidance from NHS Improvement raises questions about the decision to prosecute individuals working in scenarios where there have been system failings. As their “Just culture” guide says, “Action singling out an individual is rarely appropriate. Most patient safety issues have deeper causes and require wider action.”  Ian Kennedy QC has called for a rethink of the criminal law in cases of medical manslaughter. And Robert Francis QC has directly raised doubts about the ability of a lay jury to understand what is “truly, exceptionally bad” when it comes to medical error compared with other types of crime, e.g. theft, where the jury are told what the elements of the offence are. In gross negligence manslaughter, the risk is that the jury have to apply a retrospective judgment as to the “seriousness” of what happened. This can give rise to inconsistencies in healthcare because of the complexities that commonly provide the backdrop to a clinical case, including the role of others and hospital systems.

Bawa-Garba was convicted of gross negligence manslaughter, and while the safety of such a conviction may be challenged in the future, it remains in place for now. The findings of a GMC independent review into gross negligence manslaughter and healthcare are awaited, but it is hoped that they will make recommendations to usher in a fairer culture in healthcare. Scottish law appears to have allowed the development of a less punitive culture in healthcare, and it would be useful for any learning from this system to be adopted in England and Wales.

The landscape has changed considerably after the successful appeal against conviction of the surgeon David Sellu. Yet we still await further guidance on how a better understanding will be achieved between the Crown Prosecution Service, medical experts, and the defence societies as to what kind of avoidable deaths should be examined in a criminal court. The training of medical experts in human factors would help to make a difference, but a range of recommendations will need to be acted upon. Otherwise, we risk a whole generation of those who want to care simply voting with their feet.

This case has caused enormous controversy. Bawa-Garba may be planning to return to work early next year, but doctors across the world remain concerned that, as a result of this case, if they miss a diagnosis they might be convicted of manslaughter and erased as Bawa-Garba was. Undertaking a lecture tour of both Australia and New Zealand recently, I had the privilege of speaking to doctors from across the globe. The appetite for trying to understand how the UK managed to convict a paediatric trainee, in such demanding circumstances, remains undimmed.

It is encouraging that politically there is now much more of an acceptance that the “blame culture” in the NHS must end and be replaced by a just culture. In an extraordinary move, the then health secretary Jeremy Hunt intervened to question the judgment of the GMC when it appealed to have Bawa-Garba struck off and he has subsequently called her reinstatement “excellent news.”

Going forward, our focus should be on building a truly just culture in healthcare and ensuring that the wider system, including hospital systems (both NHS and private), do not escape scrutiny. The Williams review suggested that the Care Quality Commission should be informed of all gross negligence manslaughter referrals to the Crown Prosecution Service, so that they can consider if a parallel investigation is required to determine the role of systemic and human factors and identify any changes which might be needed.

The GMC’s authority as a regulator has been weakened by these events. The Williams review recommended that the GMC’s right to appeal MPTS decisions should be removed. Yet the fact that it is still appealing these decisions has raised questions in the minds of many as to whether it has truly learnt from what happened. As the BMA chair Chaand Nagpaul said at the time: “The GMC’s decision to appeal a decision of its own tribunal service meant it lost the trust and confidence of many doctors.” Many expected greater insight, especially as this quality appears to be so important in GMC investigations and is expected (rightly) of the individual doctor. Ramesh Mehta, president of BAPIO, noted that [The GMC should] “reflect on the immense stress that their processes have caused to doctors who are often unnecessarily put through lengthy regulatory investigation.” This spotlight on the GMC has focused our minds on the excess referral rates that BME doctors experience for fitness to practise investigations. Many factors underpin this and the GMC has constructively instructed Roger Kline and Doyin Atewologun to undertake a review, which is due to report soon.

In pursuit of a more just culture, and as part of the Doctor’s Association, we have launched a campaign “Learn Not Blame,” currently led by Cicely Cunningham and Samatha Batt-Rawden who rightly point out that “fear, blame, and criminalisation of honest error . . . does nothing for patient safety.” The current efflux of trainees abroad, coupled with senior doctors retiring early, is creating an unsustainable health service with a worsening blame culture. Bawa-Garba herself has said that she hopes her journey will in “some way improve [the] working conditions of many junior doctors” (BBC Panorama) and many would echo that wish.

Organisational learning is vital so that politicians, hospitals, and our regulator conduct their business in a fairer way, with a better understanding of the pressures facing all frontline clinicians. We must, however, remain accountable. No progress can be made if we fail to bring all parties within the patient safety movement with us.

The full decision of the tribunal and the relevant conditions can be found here.  

Jenny Vaughan is a consultant neurologist and medical law campaigner. She is the law and policy lead for the Doctor’s Association and co-founder of Medical Manslaughter. She was chair of the Friends of David Sellu FRCS and acted as the medical lead in the successful overturning of his conviction for gross negligence manslaughter in November 2016. She has also been an active supporter of Hadiza Bawa-Garba for more than two years, and was awarded The BMJ‘s prize in 2018 for speaking “Truth to Power.” Twitter @DrJennyVaughan

Competing interests: Nothing further to declare.