Third letter to the GMC regarding Dr Hadiza Bawa-Garba (reply to Professor Terence Stephenson)
Prof Terence Stephenson DM FRCP FRCPCH
Chair, General Medical Council
350 Euston Road
London NW1 3JN
14 February 2018
Dear Professor Stephenson,
I am grateful for your helpful and courteous response (12 February and www.bmj.com/content/360/bmj.k481/rr-4), which makes your position – and the difference between us - clear.
Importantly, we agree that criminalising clinicians for making well-intentioned mistakes could make doctors less likely to admit errors and thus endanger patients.
In my letter of 5 February I asked whether you are proud of the decision you took on Bawa-Garba and whether you would take it again; or whether, with hindsight, it was a mistake you would not repeat. You seem clear that you would make the same decision again and tell me you had no choice. Yet you also say you have learned important lessons from the affair.
As I said in my first letter (9 November) I regard those two things as essentially incompatible. Accordingly, I still hope I can encourage a meeting of minds.
It is not fair to defend your decision on the grounds that you had no choice. On the contrary, Council’s only purpose is to make choices. The decision you reached, no doubt after due deliberation, will have been recorded as such in the minutes. You say that had you not sought Bawa-Garba’s erasure you would have set a significant precedent. As I understand it, that is not so. For example, like Bawa-Garba and despite his ‘best of motives’, GP Ferdinand Becker received a two-year suspended sentence for manslaughter, but he was not struck off. Nor was Sudhanshu Garg, a consultant urologist convicted of gross negligence who actually served a year in prison but who returned to useful and subsequently unblemished service.
In fact my reading of the legislation which empowers you, the Medical Act 1983 and its subsequent amendments, clearly gives you choice. Under Section 35c you were bound to find Bawa-Garba’s fitness to practice ‘impaired’ but I see nothing to equate impairment with erasure. The Act allows for conditional registration or, as the tribunal decided, suspension. So I echo Sarah Wollaston’s request on behalf of the Commons Health Select Committee that Council should explain and justify what considerations – other than questionable legal advice – caused you to make that choice. At least let us see the legal opinion.
Even had there not been precedent, why would it have been undesirable to set one? The law can often be an ass or have unintended consequences – that’s why we change it from time to time. Indeed, the GMC is perhaps best placed to challenge aspects of the law that affect the medical profession. The principles of criminal negligence or manslaughter were framed without studying risks run by medical staff, yet have been pursued with rising cadence.
So far as I can establish, there were only seven reported prosecutions for medical manslaughter between 1867 and 1989 after which the use of criminal sanctions seems to have grown like Topsy, leaving doctors ‘in an almost uniquely vulnerable position regarding prosecution for making a mistake’ . If you believe, as you now say, ‘it is clear that there is a critical need to explore how negligent manslaughter is applied to medical practice’ then surely you could and should have held fire until you had concluded that review.
You also say you were advised that the medical tribunal, in choosing not to erase Bawa-Garba, had ‘erred in law by going behind the verdict of the jury’, and that, had the GMC not appealed, you would have ‘undermined the law’. I disagree with that description. To challenge law is not to undermine it, but to strengthen it. It is called reform and is a core feature of democracy. Nor is it wrong to challenge verdicts. There is a whole industry devoted to the inevitable mistakes and miscarriages of justice. After all, jurors are you and I, humans not gods; they are given selective facts which often presented with theatrical flourish; despite a context of uncertainty their conclusions must be binary; their decisions are reached in secret with no external monitoring for fairness or coherence; and until recently appeals could be permitted on grounds of novel evidence or legal mistakes alone. Lawyers themselves often make terrible errors – indeed, if a lawyer was disbarred for each case lost through negligently poor preparation, bad advice, bad advocacy or misdirection we would have very few solicitors, barristers or even judges to turn to. You surely do not believe citizens should accept legal outcomes without question. And in chairing the GMC you do not renounce your rights as a citizen. Nor do your colleagues do so as members of a regulatory authority. Official organisations can and should contest bodies of law, and even individual verdicts. Indeed, one such was set up by parliament specifically to challenge trial outcomes under section 17 of the Criminal Appeal Act 1995: the Criminal Case Review Commission.
I do not want to make it seem as though our positions are poles apart. As I say, we both believe patient safety is paramount – that lives are more important even than ideals of justice. We both believe clinicians should be able to learn and be rehabilitated after making genuine mistakes without facing criminal sanctions. I am pleased you are in discussions with Jeremy Hunt and others about legislative reform. We badly need tailor-made laws to deal with people who routinely make life and death decisions, and, either clinicians should be exempt from criminal charges for honest errors, or perhaps hospitals or trusts should shoulder criminal responsibility when things go wrong. I also sympathise with your fear of a public backlash should the GMC be seen as a doctors’ protection outfit rather than one which ensures safe medical practice. That is why it is so important for non-doctors like me to champion this debate. There are truly dangerous doctors from whom we need protection. There are qualified physicians who believe in quackery and need to be exposed. There are downright fraudsters who ought to be imprisoned, let alone struck off. But Bawa-Garba is so far removed from these – many of whom have been treated much less severely - as to make comparison odious.
I trust the public to make good decisions provided we are given balanced and proportionate evidence.
So let me try to sum up where we are, starting with the evidence on Bawa-Garba.
She found it hard to diagnose a potentially fatal condition in a six year old boy, as a result of which the child died. That was a gross and tragic error. One witness at her trial declared that she had missed a ‘barn door’ case of sepsis. No doubt that dramatic flourish played well with the jury, and whether Bawa-Garba’s own witnesses were as flamboyant, or whether her defence lawyers were a match for the prosecution, I don’t know. But I have questioned several doctors who tell me sepsis is not always easy to identify, can mimic other conditions, that there is a debate about the most appropriate criteria for diagnosing sepsis in clinical practice, that there is a high death-rate anyway, and that a prescription medicine, enalapril, administered in good faith by the child’s mother but not divulged to Bawa-Garba, could have made matters worse or even tipped the scales.
Moreover, there were many mitigating factors which are well known to you and some of which I listed in my last letter. Since neither Bawa-Garba’s consultant nor her NHS Trust were on trial, their roles largely slipped into the shadows. To put it bluntly (and forgive me but I am a journalist at heart) she was abandoned by her consultant, shafted by her employer and then tormented by the courts and finally persecuted and made unemployable by you. I wonder if you looked behind the court decision at the staffing levels and the work load on that fateful day – an absent consultant, a woeful shortage of trained nurses, no rest break and so on - and whether you would consider them to be prudent and acceptable. If so, perhaps you would be kind enough to publish them so that we can all see what the GMC regards as a safe working environment.
Thus, setting aside the principle of whether anyone should be prosecuted for a crime which they did not intend to commit - let alone an overworked doctor who was trying to save a child’s life - and ignoring the matter of whether the jury was allowed to see the full context of what happened (or even the fact that a suspended prison sentence is more severe than many defendants get for intentional offences - some 30,000 people each year get so-called ‘out of court’ disposals even for violence; about 40% of offenders escape custody even after 15 or more previous cautions or conviction), here is a case in which many other clinicians feel that, save for the grace of God, it might have been them. You will have seen the outpouring on this since the Bawa-Garba story broke. At least one consultant, the cardiologist Peter Wilmshurst, has confessed to failings in his career which he suspects contributed to patient deaths, although the courts didn’t get to hear about them, and has asked you to consider his erasure too. The disquiet is not just here in the UK but internationally. Bawa-Garba’s failures were, by your profession’s own very public admission, not a gross exception.
Yet , suppose they had been. The most important question about fitness to practice is this: is Hadiza Bawa-Garba a competent physician? The answer, according to her colleagues, is yes. Consultants are not always supportive of their junior staff. Some are irascible, rude and dismissive to juniors and intolerant of mistakes. Yet Bawa-Garba caused no concerns before this tragic episode, and went back to work uneventfully for four years afterwards prior to the court proceedings. I know of no criticisms of her general professionalism and have heard reports that she is an ‘excellent’ doctor. In fact I was told by your chief executive, Charlie Massey, that the GMC had no reasons to doubt her competence. As I said in my first letter to you, given her terrible experience, she is likely to be one of the safest, and perhaps most overcautious, paediatricians in the country – and certainly one of the best at diagnosing sepsis.
Thus, where you and I still seem to disagree is about the individual doctor whose career has been ended by your actions and whose life has been ruined. We cannot hold you responsible for the insults that have been heaped on her – the racist and anti-Islamic slurs or the cruel and preposterous charge that she let the boy die because he had Down’s syndrome (she has a disabled child herself). But you could have stood up for her. As chair of the GMC you could have acknowledged that she was being made a scapegoat. And, even if you could not have stood your ground in your official capacity as guardians of the GMC, you could, as I proposed before, have resigned.
There are other issues which could do with clarification. You have maintained that so-called ‘training encounter forms’ – frank self-reflections by trainee doctors - are not disclosed to lawyers and did not form part of Dr Bawa-Garba’s trial. As you will know, Bawa-Garba’s educational supervisor has refuted that and says these documents were seen by the prosecution and informed her interrogation in court. You maintain that adversarial process has no part in GMC inquiries and yet doctors I have spoken to say the whole process is adversarial, and even intimidating. They feel they are treated as guilty until exonerated, which could take months, often have to pay their own costs and can be summoned to a hearing hundreds of miles from where they live. I wonder how you and I can hear such starkly different accounts of how sensitive the GMC is to the life-and-death pressures doctors face every day on duty.
Where I hope we are at one is on the way forward. The law is unfair, unwittingly dangerous and needs to be changed. I hope you will seize the moment and drive that change with a sense of purpose and urgency. The public are not mere bystanders in this. We lay people need to be involved and should be asked our views about the trade-offs between blame and candour, the harms as well as benefits of defensive medicine, and what we expect of front-line staff in a healthcare system which is overworked and under-resourced. As I say, I believe in the good sense of citizens when we are properly presented with both sides of a story.
Could you and I agree on what to do should a case similar to Bawa-Garba’s arise before the review is completed? I hope you would stand up for your principles, acknowledge that the law is not always perfect, announce that it conflicts with your personal ethics and with public safety, and either delay a decision or decline to intercede.
So let me rephrase the question I posed before, and add another which flows from your response.
This whole issue is complicated, of course, and I sympathise with your dilemma. You remain adamant that you were obliged to act as you did. But…
Will you acknowledge your regret that Bawa-Garba was struck off to protect the reputation of her profession and not because she is not a generally competent physician?
And, now that you have announced a review, would you at least postpone a decision should a similar case come before you?
Once again, thank you for your courtesy in engaging in this correspondence. I repeat my conviction that you and your colleagues are good people trying to do the best thing. It is sometime healthy to disagree – and even healthier if we can come to an accord.
With good wishes.
Hannah Quirk, School of Law, University of Manchester, Crim. L.R. 2013, 11, 871-888. [https://www.escholar.manchester.ac.uk/api/datastream?publicationPid=uk-a...
Competing interests: No competing interests