Posted by Judith Leach, Barrister
The Dr Bawa-Garba case – will Jeremy Hunt’s recommendations improve patient safety?
Judith Leach, barrister in our medical negligence team who also trained as an intensive care nursing practitioner and midwife, takes a look at Jeremy Hunt’s recommendations released yesterday in light of the Dr Bawa-Garba case.
The case of Dr Bawa-Garba has received widespread media attention, with extensive coverage about what happened and her subsequent removal from the General Medical Council’s (GMC) register.
In the wake of the case of Dr Bawa-Garba, the Health Secretary Jeremy Hunt commissioned a report led by Professor Sir Norman Williams. The report, entitled ‘Gross Negligence Manslaughter in Healthcare’ was published on 11 June 2018.
The report followed also wide-spread concern amongst doctors who claimed that Dr Bawa-Garba was scapegoated, given the multiple system failures that led to the death of six-year-old J.
What does the report say?
The circumstances surrounding the case were reviewed. The report looked at when and how the line is drawn between gross negligence manslaughter and negligence and what processes are gone through before initiating a prosecution, suggesting more clarity was needed. The report also indicated that if the wider health service was to learn from such mistakes, and to prevent such tragedies from occurring in the future, the NHS needed a dramatic shift away from the current culture of blame. With fears of criminal charges for doctors they would be less likely to admit mistakes and this would make them more prone to defensive practice.
It is easy to see why there needs to be more clarity on the issue of gross negligence manslaughter. Doctors make risk-based assessments all the time. If the option of doing nothing (for example) is death in any event, then does the risk of being charged with gross negligence manslaughter mean that the risk of a small chance of success is not taken? On this analysis, the threat of prosecution does little to promote the welfare or safety of patients or medical professionals alike.
What has the Dept. of Health and Social Care recommended?
Following the report’s release, Jeremy Hunt made a number of recommendations for how deaths on the NHS should be investigated in future. The main recommendations are:-
- an overhaul of guidance for investigatory and prosecutorial bodies to clarify gross negligence manslaughter. Laws should apply in healthcare and ensure that criminal investigations focus on rare cases where and individual’s performance is so truly exceptionally bad it requires a criminal sanction;
- all unexpected deaths which are not reported to the coroner will be investigated by senior medical examiners to improve investigations into the cause of death. Such medical examiners will then be able to refer cases directly to the coroner;
- the GMC is to be stripped of its powers to appeal against fitness to practice decisions made by the Medical Practitioners Tribunal Service (MPTS);
- further investigation of concerns about the over-representation of black, Asian and minority ethnic healthcare professionals in fitness to practice cases;
- more support for bereaved families;
- legal protection for the doctor’s reflective notes, on the basis that patients safety could only be guaranteed if doctors felt able to report errors and reflect on their own mistakes openly without the fear that these reflections would be used in evidence against them at a later stage.
Are the recommendations realistic?
It is unclear how the suggestion of medical examiners will differ from the existing NHS investigative process under the serious incident framework, and why it is more likely lessons will be learned from this recommendation over and above the existing investigative process.
Also, assuming such senior examiners will be practising clinicians, when are they going to find the time to undertake such detailed investigation? Bearing in mind any delays in investigating only serve to compound relatives’ distress.
Will the recommendations actually improve patient safety? Doubtful
Those of us who work in the field of clinical negligence understand all too well that damage to patients is rarely the responsibility of an individual practitioner. Of course an individual doctor can stray so far from acceptable practice resulting in avoidable harm and/or death, but the more common scenario involves a set of circumstances which, when combined, serve to create a high-risk environment.
In a nutshell, there is invariably system failure. For example, leaving a sleep-deprived, overworked senior doctor with inadequate supervision and/or junior assistance, there is often poor risk assessment and pro-activity to prevent such a scenario from occurring, as in the case of Dr Bawa-Garba.
From the clinician’s perspective, all too often there is a knee-jerk reaction when something goes wrong and of course, the inevitable medical/nursing scapegoat is found. This, coupled with the GMC’s arguably often over-zealous approach, can lose the NHS a valuable resource (either nursing or medical).
Sadly, there is still a blame culture in many NHS Trusts that creates an environment which flies in the face of the duty of candour. Why admit your mistake if you risk getting reported to the GMC and Nursing and Midwifery Council (NMC), or worse, being accused of gross negligence manslaughter?
Putting the thorny issue of government funding to one side; when bringing claims, it is important that we identify and argue system failures when addressing negligence, raising allegations not just against nurses and doctors but also managers.
Cases of gross negligence manslaughter are very rare but have a devastating impact on all involved. It is hoped that every time there is a medical death, the fear of a doctor being prosecuted for gross negligence manslaughter will not override the duty of candour.
The focus should therefore not be on closing the stable door after the horse has bolted but on prevention. Some Trusts seem to have an inability to learn from mistakes, so I think recommendations such as these will do little to reduce the number of medical errors in the NHS.
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