Criminalising health professionals when the ward is not a cockpit
The UK government has ordered an urgent review of the law on criminal negligence but the criminalisation of medical mishap is happening in many other countries. In France, for example, a nurse from Saint Vincent de Paul Hospital in Paris was placed in police custody for two days over Christmas 2008 following the death of a 3 year old boy she was treating. There was no suggestion she had acted deliberately to harm the child but her care was not considered good enough. It was another eight years before the courts also condemned the senior health manager, chief pharmacist and hospital authority. In another case, a doctor in Montpellier committed suicide after being peremptorily removed from work by a director whose own management was already cause for concern. In a familiar pattern, neither the French Haute Authority de Santé (in charge of quality and security of care) nor professional organisations of peers stood out against these events as they should have.
What makes the Bawa-Garba case different is the unprecedented professional outcry. This might prove to be a turning point; from vindictiveness to an open culture of learning, even one that recognizes the well-intentioned erring clinician as a “second victim” (1) of medical error. However, the GMC continues to march out of step. It has promised a period of “reflection” in an attempt at damage limitation, but also, absurdly, proposed that doctors should make formal records each time they feel under-resourced or unsupported – which is much of the time in many health systems.
The often quoted airline industry serves as an inspiring beacon, but is not a simple transferrable blueprint.(2,3) Other work, such as Reason’s model of organizational failures and Charles Vincent’s ALARM method, did not originate from aviation.(4) Safety culture is paramount in scheduled flying. Aircraft do not take off without a full crew on board, a completed engineering checklist and a full complement of ground and air traffic controllers, and this lesson transfers relatively well to elective procedures. However, it cannot be applied in uncontrolled situations: busy, overcrowded clinics, or hospitals which are routinely under-resourced and understaffed, and where morbidity/mortality and emergencies are everyday occurrences. In these conditions, clinicians have a much harder job juggling risks, yet they are held personally liable in a way pilots and air traffic controllers are not. Sokol, a medical ethicist and barrister, claimed that a late change of surgeon may invalidate a patient’s consent(5); but why should this be an issue when a change of pilot is not? Yet again, without clear justification, individual doctors and nurses are held accountable in a way that is unknown in other more successfully improving safety-critical areas. The airline comparison takes us only so far. Better intellectual, ethical and legal reasoning needs to be applied to this difficult situation.
1 Wu AW. Medical error: the second victim: the doctor who makes the mistake needs help too. BMJ2000;320:726.
2 Ladher N, Godlee F. Criminalising doctors. BMJ 2018;360:k479.
3 Amalberti R, Auroy Y, Berwick D, Barach P. Five system barriers to achieving ultrasafe health care.
Ann Intern Med 2005;142:756-64.
4 Vincent C, Taylor-Adams S, Chapman EJ et al. How to investigate and analyse clinical incidents:
clinical risk unit and association of litigation and risk management protocol. BMJ 2000;320:777-81.
5 Sokol D. Who will operate on you? BMJ 2016;355:i5447.
Competing interests: No competing interests