Abstract
I came late to the Dr Bawa-Garba debate.
Dr Bawa-Garba is the middle-grade doctor in paediatrics who was found guilty in 2015 of manslaughter and given a two-year suspended sentence, after the death of a six-year-old boy under her care in February 2011. On referral to the Medical Practitioners Tribunal, it was decided that her fitness to practice was indeed impaired (February 2017) and later (June 2017) that she should be suspended from the register of the General Medical Council for one year. The GMC thought this was too lenient, and successfully appealed to the High Court to have this extended to the doctor being permanently ‘struck off’ the register.
This last happened in January of this year. Some ructions ensued. Not least amongst a variety of practising clinicians whose ‘there but for the grace …’ stance instigated much media coverage, with some of them threatening to report themselves to the GMC for mistakes they had made under pressure in the past.
The GMC's response was what sucked me in. It emailed all its members, saying it was hearing their concerns ‘loud and clear’. Alongside justifications as to why the GMC felt obliged in this case to ‘fulfil its statutory duty to maintain public confidence in the profession’, it enclosed advice on how doctors should progress their concerns on local pressures, with examples of how the GMC itself was helping. The cited example of GMC action was: ‘We will not hesitate to take action if the safety of trainees and patients is at serious risk – we required doctors in training to be removed from XX Hospital in March 2017, in response to poor levels of supervision’.
This missive hit my inbox on 2 February 2018. I wrote back to the GMC, asking what measures they took to help the hospital XX, now bereft of its junior staff. And also requested some details of the manslaughter case itself – since I had no inkling on how to judge their decision. At the end of March, I received, to be fair, a very full answer, a link to the GMC's website helpfulness, and a link to the judgement of the High Court appeal. In some ways, this achieved its goal. After reading the information and following the links, I felt I could see exactly why they had done what they did.
But I wasn't sure this had ‘eased my concerns’.
The GMC's own link to ‘FAQs’ revealed a colourful algorithm on ‘raising and acting on concerns about patient safety’, with helpful advice that I should NOT refuse to work if conditions are unsafe, but instead ‘raise concerns with a senior colleague’. This gave me pause. For many years, I was that senior colleague. The one who should ‘make sure people you manage have ample supervision … etc …’ And all those years it was clear to me that I had no ability, no authority, to do that. The GMC site also justified its insistence on increasing the doctor's punishment since ‘we have to consider how to protect the public in the fullest sense, which includes maintaining public confidence in the profession’.
But I was most enthralled by the linked appeal-court judgement. An extensive document. It begins with a summary of the original case hearing of 2015. It outlines the alleged failures of the accused doctor, catalogued for the benefit of the jury. Unfortunately, for a doctor, this list raises more questions than it answers:
The initial diagnosis of gastro-enteritis was wrong – it was pneumonia (no mention whether the child with vomiting and diarrhoea had any cough or spit or chest pain. Instead, the implication that making an incorrect diagnosis is intrinsically negligent. A chest X-ray was ordered by the accused doctor).
‘Obvious clinical findings’ were ‘ignored’: These are cited to include the diarrhoea and vomiting (as if this would not suggest gastro-enteritis?). Also, the child was lethargic and unresponsive (but later, following intravenous fluids, improved – was ‘sitting up and laughing’ at the time of the X-ray). The blood results should immediately have told her how bad things were … ‘blood gases showed he was acidotic … indicative of shock’ (always?).
‘Failed to obtain the results from the blood tests she ordered [c10.45] until about 4.15 pm’ (a failure in the hospital computers meant the results were delayed and not available ‘in the normal fashion’. There is a statement that she was unable to get these ‘despite best efforts’ – though that did come from her own QC).
‘Did not properly review a chest XRay … … failed to ensure [patient] was given appropriate [antibiotics] timeously (more particularly, until four hours after X-ray)’ (The X-ray was at 12.01. There was a delay in its becoming available. The doctor was not told when it did finally become available and eventually saw it at 3 pm. She wrote up the prescription for antibiotics immediately, but they were not given by the nurses until 4 pm … so she ‘failed to ensure … antibiotics … until four hours after X-ray’).
‘At 12.12 pm did not obtain enough blood from X to properly repeat the blood gas test’ (which, presumably, the layperson will think of as outrageous).
Lots of stuff like that. Things that sound really bad, but that any doctor can see how they might occur.
But, it has to be said, there were a number of failings. Some I would blame on the modern approach to the teaching and practice of medicine. By my reading, it seems that when the doctor did obtain the blood results, the abnormalities were not immediately obvious to her – no big red highlights or asterisks via the telephone. And the overall decision by the jury was that these failings achieved the judge's stipulation that things needed to be ‘truly exceptionally bad’ for the guilty of manslaughter verdict to be returned.
And I had to wonder. Are these failures really the definition of a ‘negligent’ doctor who is a danger to her future patients, and who should therefore be struck off, ‘erased’ from the medical register, for the rest of her life?
The original Tribunal, set up to assess this very thing, seemed to agree with me. Perhaps in view of ‘mitigating circumstances’, they decided she should be suspended from the register for one year.
The GMC was not pleased. It wanted the Full Monty. Permanent erasure. They took this to a court of appeal – a decision they admit ‘was not taken lightly’. But they had to act ‘… where a truly exceptional degree of neglect has been established’. And so the High Court (again) became involved, and, after hearing both sides as above, agreed with the GMC that the erasure should be permanent.
The principal reason for this decision is that the original Tribunal, perhaps in its efforts to be ‘fair’, had ‘gone behind the findings of the jury’ of the manslaughter trial. This isn't a phrase many of us use, though you will be aware of the principle. The Tribunal/GMC must accept a court of law's verdict as a starting point for further decisions. So if a doctor is referred to the GMC following a conviction for ‘Dangerous driving under the influence’ or some such, he cannot argue that he was not driving dangerously under the influence. That is a given. The courts have decided, and the tribunal cannot go ‘behind’ this verdict. He can only cite mitigating circumstances, perhaps illness, perhaps persuasions that this will not affect his functioning as a doctor.
So, Dr B-G's legal team expounded the sort of mitigating circumstances we have already mentioned. Plus others. Staff numbers were depleted. During the crucial time period, she was looking after many other children including a baby needing a lumbar puncture. No nurses told her that the boy's condition was worsening. No-one told her that someone had switched off his oxygen monitor … But the judges’ bottom line was: this has already been assessed by the manslaughter jury. The ‘mitigating circumstances’ were already taken into account by that jury. So you must take the verdict of ‘guilty of manslaughter’ at full value and strike her off.
It seems odd that the High Court can be used by an ‘independent organisation’ such as the GMC (see first line in website) to enforce its rulings – but it's all too complicated for me. And my first thought was that the court is likely to support the GMC rules, since by doing so they confirm the supremacy of their own procedures, not to be overthrown by a ‘Tribunal’ of amateurs. However, I did realise that, once the appeal is made, it is legally correct. Once the GMC had appealed, the court was obliged to come to that conclusion. It did, however, mean that the deliberations of a randomly-picked well-meaning jury – given a yes/no question, and eventually voting in favour of the arguments standing up for the memory of a tragic six-year-old child – become an absolute directive to a tribunal of mixed lay-persons plus professionals who might understand and explain any shades of grey. It is as if a bridge collapses, people are killed, and the architect is taken to court for manslaughter. The prosecution case is accepted by the jury, despite the architect's team claiming shoddy workmanship (just how are we going to find the shoddy workman?!) and he is found guilty. Later, the General Architectural Council (or whatever) convenes a panel of architects to decide his professional fate. They find NOTHING wrong with his plans. I am not saying that situation would replicate the one here, but even if it were so clear-cut, the GMC architects would insist on his being struck off. Just like Dr B-G.
And the question is … why?
Is it to protect the public? Does a 30-odd year-old doctor with a previously blameless record (indeed three further uneventful years after the incident and before the trial), who on a single occasion returns from maternity leave, is unexpectedly left in charge of an admissions unit (plus covering the emergency department and a ward), with computers down and support staff depleted, and who fails to cope with it … . a danger to the public?
No.
Indeed, they admit, no.
It's not to protect the public, but to ‘uphold public confidence in the profession’. They apparently believe that the general public will be more impressed by doctors as a rule, because one of their number is banned sine-die. Rather than suspended, retrained, and returned to useful work.
But does that make sense?
If a Police Department increases its arrest rate for murder, does that improve the general public's confidence in … the general public? Would we think better of Glasgow, or Birmingham, or Manchester, because 60 murderers were caught this year, and only 20 last year? No. That makes us less happy about the cities.
… Though maybe more impressed by the police …
And there's the rub.
‘Striking off’ a doctor doesn't improve the reputation of medics. It improves the reputation of the GMC. As they are seen to be ‘doing something’.
And that, it appears, may be what they care about.
Their reply to my concerns included the statement: ‘This was a really tragic case; a little boy lost his life, a family lost a loving son and a doctor lost her career’.
Very reasonable. Shows empathy. Shows they care.
Very corporate. Very ‘management-speak’. Very ‘I’m sorry for your loss’.
The sorrow is in the death of a young boy, and the fact that it was ‘preventable’. That's what makes it tragic. And the loss of a young doctor's career was not only preventable, it had been prevented – until the GMC stepped back in, to insist that adherence to their rules superseded any Tribunal's idea of natural justice. For them to include the loss of the doctor's career in their listing of the tragedy verges on hypocrisy. They caused the end of the doctor's career. They insisted on it. They cannot claim that is tragic. That would be inconsistent, illogical. Their stance can only be that the doctor deserved to lose that career, that it is great news that they will no longer practise and, presumably, endanger the public. They should be celebrating!
But they are not.
Because, I believe, their true feelings are betrayed by the desperation of the management-speak. They realise that they probably didn't follow the ways of ‘natural justice’, that they sacrificed one scapegoat for ‘appearances’, to show the world that they are still in control. Which is, of course, one way to show you are not.
The GMC is an odd hybrid. A ‘society’ that doctors pay to belong to, yet whose main function appears to be the policing of their actions, to the level of threatening their livelihood. While many doctors of my acquaintance understand its necessity, I cannot think of one who holds it in high regard. It is an uncomfortable allegiance to an organisation dedicated to the benefit and protection of ‘the other party’ in their daily professional dealings. Meanwhile, the general public also views the GMC with suspicion, thinking it exists to ‘cover up’ misdeeds, and acts to the benefit and protection of doctors.
As news comes through that Dr Bawa-Garba will be allowed to appeal, I reflect on my long-held suspicions that neither is correct, and that the GMC exists and acts mainly for the benefit and protection of the GMC.
Meantime …
This season's SMJ includes documentation of the effects of a new ‘recreational drug’, both on its users and on the admission patterns in a Lothian hospital. Two other original papers look separately at our use of investigative blood tests – both diagnostic and ‘precautionary’ – and wonder whether the ease of availability of such tests might lead us to underestimate their drawbacks, or even dangers.
There follows the usual eclectic collection of case reports. The surgeons give us an unusual first-presentation of rectal prolapse, and also a cautionary tale of a possible collective blind-spot re the possibility of pregnancy in patients presenting with unconnected problems. The subject of my own first-ever published case-report, Adult Still's Disease, appears in yet another guise, while the authors of the final case bypass my musings as to whether a urinary catheter and bag changing colour is a clinical sign, and get on with explaining its possible significance.
And we have a letter to the editor!
A quarterly journal doesn't particularly lend itself to fast-tracked comment, but it is certainly happy to receive any.