David Oliver: Should NHS doctors work in unsafe conditions?BMJ 2018; 360 doi: https://doi.org/10.1136/bmj.k448 (Published 31 January 2018) Cite this as: BMJ 2018;360:k448
The case of Hadiza Bawa-Garba—the paediatrics registrar convicted of gross negligence manslaughter when Jack Adcock, an acutely septic, learning disabled child, died at Leicester Royal Infirmary—highlights a very specific issue with no useful answer as yet.
In 2016 the General Medical Council (GMC) made it clear in public advice that, if doctors believed that their workload, staffing, or supervision was unsafe, they had a professional obligation to report this up the line and to have a clear paper trail of the concerns they had flagged.1
But the GMC stopped short of telling doctors to down tools if those conditions put their patients’ or their own health at risk. The new junior doctors’ contract, meanwhile, contains a clause that in “occasional emergencies and exceptional circumstances”2 they may be asked and expected to take on additional duties and responsibilities (consultants and juniors alike were doing plenty of this through December and January, to keep the acute hospital show on the road under intense pressures).
As is now well documented, on the day that Jack Adcock died, Bawa-Garba had just returned from maternity leave and was working in an unfamiliar unit, with her consultant not on site. She was also covering another registrar’s work, battling IT systems, and supervising junior doctors brand new to paediatrics while short on nursing staff.34
The court decided, nonetheless, that she (not her hospital or the wider NHS) was personally and criminally culpable. This led, after the GMC’s decision to take its own Medical Practitioners Tribunal Service to the High Court, to Bawa-Garba (who had a previously unblemished record) being struck off the register.5
Whatever the rights and wrongs of the criminal conviction and Bawa-Garba’s erasure, this case has far reaching implications for an open reporting and learning culture—as the health secretary, Jeremy Hunt, has acknowledged in saying that he was “deeply concerned” about the implications of the ruling.6
Where does this leave us? Commentaries on common law have suggested that wider system factors won’t protect individual practitioners from negligence claims.7 The judgment in Bawa-Garba’s appeal against her criminal conviction and the subsequent High Court ruling show that, however broken the systems around doctors may be, they still risk being held personally culpable for failings.8
When Charlie Massey, GMC chief executive, was confronted by the BBC’s Justin Webb on the Radio 4 Today programme about whether doctors should down tools and refuse to work in unsafe conditions, he evaded the question.9 He spoke instead about their duty to flag any staffing and workload problems and to document a clear paper trail.
Massey said that the GMC’s High Court case was all about establishing a legal precedent that the practitioners’ tribunal service couldn’t go “behind a criminal conviction”9 (although many doctors with criminal convictions have remained on the medical register). He played down any risks to the vast majority of doctors, stating that striking off and gross negligence manslaughter convictions were vanishingly rare.
We risk creating a vicious circle of endless reports on unsafe staffing, consuming the time of doctors and managers
On the same day, the GMC’s director for education and standards published a “Responding to your concerns” blog reiterating the need for doctors to highlight workload and safe staffing issues, as well as risks to patient care or their own wellbeing.10 But it too ducked the big question of whether they should refuse to work or take on additional duties in such conditions: they should use their own professional judgment to protect patient safety and their own health. It’s not much like Toyota’s “Stop the Line” process11 or the airline industry’s rigorous safeguards around staffing, rest periods, or pilots returning from long spells off work.12
This equivocation isn’t helpful—effectively leaving all responsibility with individual doctors, still. We know from numerous workforce surveys,13141516 and from intelligence gathered by Care Quality Commission inspectors,17 that workforce and rota gaps, high volume, and acuity of patients combined often make doctors and nurses feel as though conditions are putting patient safety and their own health at risk. Even in the GMC’s own workforce report18 a third of junior doctors said that their training was compromised by rota gaps. But the acute NHS can rarely say no, and it must keep absorbing patients.
If the GMC’s guidance is followed we risk creating a vicious circle of endless reports on unsafe staffing, consuming the time of doctors and managers, when the only solution is usually to put further pressure on existing staff to take on more duties to cover gaps. It also leaves doctors with a classic “rock and a hard place” dilemma: refuse to cover extra duties, minimising the personal risk of legal sanction while breaching their contracts—or do the arguably safer thing for patients and colleagues, risking a “there but for the grace of God” fate, like that of Bawa-Garba.
Competing interests: See www.bmj.com/about-bmj/freelance-contributors/david-oliver.
Provenance and peer review: Commissioned; not externally peer reviewed.
Follow David on Twitter: @mancunianmedic