David Oliver: The Bawa-Garba case, doctors, and the GMC—what next?BMJ 2018; 360 doi: https://doi.org/10.1136/bmj.k646 (Published 13 February 2018) Cite this as: BMJ 2018;360:k646
All rapid responses
Doctors should never be subjected to criminal charges concerning the outcome of their practice.
A special medical court has to be initiated in every single country. The case of Dr Bawa-Garba, which touches the heart of every sincere doctor, is an example of how system errors in the NHS are being twisted to be a personal error in an ugly shame and blame attitude. A root cause analysis based on a fish bone model in analysis of health care and industrial errors would be the ideal approach if there is a specialized medical court. The community is now punishing a dedicated young doctor as an example to all doctors. Corrective actions can be suggested as follows.
1. The introduction of computer assisted diagnosis may minimize the personal error in diagnosis and minimize the legal burden on doctors during their emergency shifts.
2. Setting standards for work hours and minimum number of doctors in each round.
3. Each medical student has to sign a consent on his criminal responsibilty on any medical error in order to put the necessary pressure on the legislative bodies to stop considering medical errors as a homocide.
4. I am not an expert on British law but I have a question: Concerning Dr Bawa-Garba’s case can a plea that she didn't sign any paper on her criminal responsibity on her unintended practice errors in her application papers for the job as a paediatrian make a legal point for a retrial?
Competing interests: No competing interests
Dr Bawa-Garba's situation has roused concern and/or outrage internationally.[1-4] Oliver has, as he always does, has captured many of its important features.[5 6] Taking his points in this and his previous article in order, I have a number of comments.
I shall not comment on the role of the GMC – others, including Oliver and Ross,[7-9] have already been eloquent on this topic.
I am not entirely familiar with the 2016 junior doctor contract, but I believe that the previous contract contained a clause about doctors being required to do “non-emergency” work in premium time in an emergency – this covered requiring doctors to do extra work to back-fill following an emergency, such as a train crash or other mass casualty incident. However, there was a clear limit to this – I believe it was until 48 hours after the incident. After this period, employers were expected to contract for any additional work, and doctors could not be required to do extra work. Clearly, any additional work would be outwith their normal contract, and they could decline (without penalty); agree, accepting the terms offered; or negotiate terms.
Not being an expert on the 2016 contract, I’m not sure if this remains the case – but let’s, for the moment assume it does.
I gather that the hospital where Dr Bawa-Garba was working had long-established rota gaps. If a gap is identified more than 48 hours before the start of a shift, is there any reason why junior doctors could not say that they will not be available to fill a gap? Or to negotiate terms (eg a much higher rate of pay than is routinely offered?) This might not have an immediate effect; but it will concentrate employers’ minds, as it would penalise them heavily, financially, for failing to fill gaps in rotas.
Oliver refers to the use of criminal law to prosecute Dr Bawa-Garba. This was clearly wrong. As Berwick put it in his report’s recommendations: “Recourse to criminal sanctions should be extremely rare, and should function primarily as a deterrent to wilful or reckless neglect or mistreatment.” Dr Bawa-Garba clearly wasn’t wilfully or recklessly negligent; she was overloaded. We must work to get the law changed.
Jack Adcock’s death was an industrial accident. The accident’s victims included Dr Bawa-Garba and Isabel Amaro.
Until we succeed in getting the law changed, we must get cleverer in defending doctors and other healthcare workers in her position. There must be an extensive literature on the issues of decision fatigue in stressful working environments. How else would the trade unions have succeeded in securing the early retirement and controlled working conditions of air traffic controllers and pilots? Perhaps the medical macho culture – the idea that we are superhuman, and of course we can cope, no matter what is thrown at us – has impeded our ability to study our frailties.
We – and especially the trade unions and the medical defence organisations (MDOs) – must gain a better understanding of this literature. Even if there's not a lot of evidence relating specifically to doctors, there must be evidence which is generalizable; and which, taken with testimonies about what it is actually like to be a doctor working in a short-staffed hospital, perhaps on a long shift with few breaks, could be used to make an unassailable case that Trusts that require doctors to work in this way are breaching the Health and Safety Act. We must ensure (working with the MDOs) that in any future cases evidence is presented to the jury on the effect of decision overload and other system pressures on the ability of an individual (any individual) to cope and to continue to make good decisions. Juries should be required to read Rachel Clarke's book "Your Life in My Hands" and Adam Kay's "This Is Going To Hurt".[11 12] Good descriptions of the impossible pressures doctors can be under - and that Dr Bawa-Garba clearly was under should be presented to them.
Expert witnesses should be called to testify as to the impact of the long hours, lack of induction, lack of a consultant presence, covering other people's work on an individual's ability to cope. Possibly an industrial psychologist or similar.
Employers have a duty both under civil and criminal law (the Health and Safety at Work Act 1974, and regulations – mostly derived from EU directives – such as the Management Regulations 1999) to do that which is reasonably practicable to ensure both physical and mental health of employees – there is no need to prove damage, and employers must undertake a proactive risk assessment. Surely, doctors working in conditions as overloaded – such as in Bawa-Garba’s situation – are doing so in breach of these laws? Should we not press the HSE to issue notices and bring prosecutions against trusts? And should this not be put in mitigation if and when doctors are prosecuted?
Another question for the courts surely relates to the expertise of expert witnesses. Should juries not be made aware that, while the expert witness might be expert in this particular patient’s condition, they are not a peer of the doctor in the dock, and may be less expert than the accused in juggling all the conflicting demands placed on that – and that's the sort of expertise that is relevant.
Should it not be routine to balance the ivory tower, specialist-in-what-the-patient-happened-to-have testimony of other "expert" witnesses with the testimony of experts in the impact of the long hours, lack of induction, lack of a consultant presence, covering other people's work on an individual's ability to cope?
McCormack said that “The @gmcuk have invented Quantum Staffing with the creation of Schrodinger’s Doctor. A doctor who is simultaneously not working because of unsafe conditions but also working because they need to keep patients safe.” Doctors are indeed in a dilemma.
REPORTING SYSTEM PRESSURES – AND USING THE INTELLIGENCE
Oliver hints at possible steps towards a solution with his question “Why can’t reporting be just a one or two click app?” (instead of the junior doctor having to follow the GMC’s complex-looking algorithm.) As a public health doctor, this is an idea that appeals to me. Part of the longer term solution must be better ways to hold employers to account over these unsafe conditions.
Of course, it’s not just junior doctors who can and should report system pressures. Others – other doctors, nurses, other HCPs, managers, indeed all staff – should also be recording such pressures. Systems will not work unless they minimise the time it takes to record the fact that the workplace is unsafe (especially at the time of reporting, when there is no time to waste).
The data must be comprehensive enough to allow meaningful analysis, so that we can study the epidemiology of the conditions that can lead to such industrial accidents. Just as with, say, MRSA or E coli bacteraemias, employers should be obliged to report on the level and frequency of unsafe working practices (by week, month, and quarter, with trend data) – in their clinical governance boards and at public board meetings. The BMA and other trade unions (it’s not just doctors who are effected) should work with employers to develop suitable datasets and systems for data collection; and BMA local negotiating committees (LNCs) are well placed to understand the data, and to hold employers to account.
Gathering this sort of intelligence will help us, over time, to make such working conditions much less common.
1. Jha S. To Err is Homicide in Britain – The Case of Dr. Hadiza Bawa-Garba. The Healthcare Blog, 2018; Updated January 30; Accessed: 2018 (01 February): (http://thehealthcareblog.com/blog/2018/01/30/to-err-is-homicide-in-brita...).
2. Damania Z. To Err Is Homicide? Why We Should Support Dr. Bawa-Garba (Incident Report 142). YouTube (ZDoggMD), 2018; Updated 13 Feb 2018; Accessed: 2018 (15 Feb): (https://youtu.be/Jcy5KyIqR4I).
3. Han E. Australian doctors 'disturbed' by manslaughter conviction against Dr Hadiza Bawa-Garba. Sydney: Sydney Morning Herald, 2018; Updated 01 Feb 2018; Accessed: 2018 (15 Feb): (http://www.smh.com.au/national/australian-doctors-disturbed-by-manslaugh...).
4. Bullen J. Dr Bawa-Garba: Who's to blame when a medical tragedy occurs? Health Report: ABC News, 2018; Updated 14 Feb 2018; Accessed: 2018 (15 Feb).
5. Oliver D. David Oliver: The Bawa-Garba case, doctors, and the GMC—what next? BMJ 2018;360, DOI: 10.1136/bmj.k646 (http://www.bmj.com/content/360/bmj.k646).
6. Oliver D. David Oliver: Should NHS doctors work in unsafe conditions? BMJ 2018;360, DOI: 10.1136/bmj.k448 (http://www.bmj.com/content/360/bmj.k448).
7. Ross N. GMC to push for erasure of paediatrician convicted of manslaughter (rapid response). BMJ, 2017; Updated 13 November 2017; Accessed: 2018 (30 January): (http://www.bmj.com/content/359/bmj.j5223/rr-13#).
8. Ross N. Second letter to the GMC regarding Dr Hadiza Bawa-Garba (letter). BMJ 2018;360, DOI: 10.1136/bmj.k667 (http://www.bmj.com/content/360/bmj.k667).
9. Ross N. Letter to the GMC chair regarding Hadiza Bawa-Garba. BMJ 2018;360, DOI: 10.1136/bmj.k195 (http://www.bmj.com/content/360/bmj.k195).
10. Berwick D, Bibby J, Bisognano M, Callaghan I, Dalton D, Dixon-Woods M, et al. A promise to learn – a commitment to act. Improving the Safety of Patients in England: National Advisory Group on the Safety of Patients in England, 2013(August); (https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil...).
11. Clarke R. Your Life In My Hands: A Junior Doctor's Story: Metro Publishing, 2017:1-320.
12. Kay A. This is Going to Hurt: Secret Diaries of a Junior Doctor: Picador, 2017.
13. McCormick S. Schrodinger's Doctor (Twitter post). Twitter.com, 2018; Updated 28 January 2018; Accessed: 2018 (14 February): (https://twitter.com/DrSimonMc/status/957545724799078401).
Competing interests: I have a position in the BMA (Chair of the Public Health Medicine Committee (PHMC)), and am in employment. I was until recently, and for over 10 years, the chair of a local negotiating committee (LNC). This response, while it draws on my professional experience, is an entirely personal response. It does not represent the position of the BMA, the PHMC, or my employer.
This being an area of fast breaking news even since my column this week went on line, there has been a lively exchange between journalist and broadcaster Nick Ross and General Medical Council Chair Professor Sir Terence Stephenson on these very pages which I commend to readers
And there was also a public exchange of letters  between the Chair of the Parliamentary Health Select Committee Dr Sarah Wollaston MP and the GMC's Chief Executive, Charley Massey about the issues raised by the Bawa Garba Case
Readers can interpret these exchanges for themselves but my distillation and paraphrasing of the GMC's responses to criticisms and questions is
1. "We had no choice but to appeal the medical practitioners' tribunal service decision not to recommend Dr Bawa-Garba's erasure from the register. It was based on legal advice and was upheld in the high court."
2. "We would seek erasure for any doctor convicted of such a serious crime but medical manslaughter convictions are vanishingly rare and in the words of the criminal trial verdict "truly, exceptionally bad" so jobbing doctors going about their business even in pressurized systems have nothing to fear and shouldn't conflate everyday error with her plight" (I think jobbing doctors will beg to differ as the circumstances Dr Bawa-Garba found herself in that day would be more than familiar to many of us and many feel it could just as easily have been us)
3. "We would fail in our duty to maintain public confidence in the profession if we didn't seek to strike off the register, someone convinced of gross negligence manslaughter"
4. "We would never use reflective diary entries in regulatory action or investigation of a doctor but we can't stop the courts from using them but you should keep on using written reflection come what may"
5. "We along with other national bodies will do some work looking at how criminal sanctions including gross negligence manslaughter are used against doctors but we have no power to change statute or common law or the workings of the civil, criminal or coroners' courts nor the Crown Prosecution Service"
6. "We will make no attempt to apologise or even express regret or self-doubt or reflection or organizational learning from the way we have handled this whole saga including our mistakes in communications strategy as we have done nothing wrong and have nothing to apologise for"
7. "We certainly cannot and will not in any way be swayed by reaction on line or in correspondence or protests from doctors concerned about our role in this"
Competing interests: No competing interests