Commentary

Protecting Non-Consultant Hospital Doctors (NCHDs):  The Fallout from the Bawa-Garba Case

The case of a young UK paediatrician Bawa-Garba has been met with widespread worry by junior doctors both nationally and internationally.  Irish NCHDs have expressed their concern to their training Colleges and trainers.  Bawa-Garba was found guilty of negligence manslaughter and given a two years prison sentence, suspended for 24 months.  The Medical Practitioners Tribunal (MPT) subsequently suspended her from practice for 1 year.  The MPT took into account a number of extenuating factors associated with the case.  The General Medical Council (GMC) subsequently challenged the MPT decision in the High Court.  The GMC won the appeal and erased Bawa-Garba.  It maintains that the preceeding, successful criminal prosecution means that she is unfit to be on the register. 

The charges leveled against the paediatrician related to her medical management of a young child admitted through the emergency department with evolving sepsis.  The child sadly died from Group A Streptococcal sepsis.  The case was further complicated by the child’s background history of Down’s syndrome and heart condition.  Ultimately, there were two victims in this case, the child and his family and secondly the doctor involved in the clinical event. The chilling effect on doctors of the criminalization of healthcare and its potentially adverse effect on future safe practice should not be underestimated.  The medical profession now feels less supported and more vulnerable in its efforts to care for patients in a system with many unpredictable pressures. The most worrying element of the case was that the doctor was found criminally negligent in a complex medical case with many systemic factors.  In addition her logbook comments on the case were appended to a consultant’s witness statement.  Although it the contents of the logbook were apparantly not subsequently used during the proceedings, a wave of anxiety has been raised.   Something has changed.  The practice of medicine has become more stressful particularly for doctors in training. The series of events surrounding the case have generated widespread concern among junior doctors.  It strikes at the heart of clinical training, which is essentially an apprenticeship.  The logbook is a record of the trainee’s level of skills, knowledge and competencies.  It is the documentation of the individual’s progress through his or her training.  The ‘medical apprentice’ is constantly encouraged to reflect as follows ‘what I have done well and what could I have done better’.  There is now justified anxiety that the ‘what I could have done better’ can be used in criminal charges against a trainee.  Physicians have become aware for the first time that their reflections are not protected.  The implication is that the reflective process can expose a doctor to either criminal or medicolegal exposure or both.  

The consensus among trainees is that they will need to be more circumspect about their logbook entries into the future.  Some doctors in the UK have threatened to stop putting their reflections in writing.  If this comes to pass, it will fly in the face of the quality improvement movement.  This programme is based on the open, non-blame discussion of patient management.  The objective is to constantly get better at what we do by discussing deficiencies in clinical care.  The worry is that the current case will drive evaluation underground.  The GMC has stated that reflection is central to learning and good practice.  It is built in to the processes of appraisal and validation.  The Bawa-Garba case, however, has put matters in jeopardy.  Doctors can’t be expected to openly participate in reflection if they are at risk of incriminating themselves.  Doctors’ trust in the current systems has been clearly eroded at this present time.

The case has provoked a widespread response in the UK.  The Royal College of Paediatricians and Child Health at its annual meeting (March 15) stated ‘this College considers the criminal prosecution of dedicated doctors for gross negligence manslaughter, following systemic errors, impairs the advancement of safe medical healthcare for patients1.  The statement went on to say that Bawa-Garba’s criminal conviction and the GMC’s successful appeal to the High Court to erase her from the medical register inhibits learning from errors.  In addition the decisions fail to understand the wider context of how care is provided.  The vote expressed the wish of the College to speak up on behalf of trainees. Separately, the GP leaders expressed no confidence in the GMC and advised their colleagues to disengage from written reflection in their appraisal and revalidation until adequate safeguards are put in place. The President of the College of Anaesthetists stated ‘it cannot be right, with the current knowledge of human factors and risk management, for any individual to be held solely culpable for tragedies that have been contributed to by systemic failures’.

On foot of the widespread concerns expressed by UK doctors the Government has set up the Williams inquiry into the issue of gross negligence manslaughter.  The GMC in its submission has stated that it will not ask doctors to submit their reflective records2.  However it admits that it does not control the actions of the courts.  It concedes that recorded reflections, such as e-portfolios are not subject to legal protection.  The GMC has also acknowledged that the strength of feeling about this case among medical practitioners was far greater than it had expected. The Medical Protection Society supports a change in the law to make reflective documents legally privileged.  There is a precedent for this in the airline industry. The Medical Defence Union, who has represented 34 doctors in manslaughter cases, has challenged the practice of gross negligence manslaughter (GNM).  It points out that only one case in ten results in a prosecution.  Its senior solicitor said that GNM should be about identifying and prosecuting only those cases that are the medical equivalent of deliberately driving down the motorway on the wrong side.

In its submission to the Williams inquiry the GMC emphasises its responsibility to maintain public confidence in the medical profession2.  On the other hand there is no mention of the need for doctors to have reassurances that society will treat them in a fair and balanced way when they doing their best to care for critically sick patients.  It is not sustainable if doctors go to work in constant fear of being criminally blamed for adverse outcomes.  Ian Kennedy, Queens Council barrister, states that we need to rethink the role of the criminal law and medical manslaughter3.  Picking someone, blaming him, doesn’t solve the problem.  On the contrary it exacerbates it.  This is the age-old debate about where responsibility lies in a clinical adverse outcome.  Whether the institution bears culpability or whether the doctor shoulders all the responsibility. These events in the UK have prompted doctors in Irish training programmes to seek guidance how they document clinical cases in their logbooks.  There are no clear answers at present.  No reassurances can be given.  The default position is that all documentation, both written and electronic, relating to a case is discoverable.   This includes clinical notes, communication with colleagues, and material entered into training logbooks.

Leo Kearns, RCPI, states that doctors must feel psychologically safe in the workplace.  The College is acutely aware of the disquiet among NCHDs and the importance of restoring their confidence in all sections of their training and evaluations.  Currently there are discussions between the RCPI and the Medical Council with a view to having agreed, written guidelines in relation to reflective learning and writing. These recent events in the UK have been viewed very negatively by NCHDs.  They are concerned that one of them could find themselves in a similar situation.  Training Colleges and regulatory bodies need to provide trainees with new and clear guidance.

JFA Murphy
Editor

References
1. Torjesen I. Paediatricians condemn treatment of Bawa-Garba. BMJ 2018;360:K1255
2. Dyer C. GMC calls for law change to make doctors’ reflections legally protected BMJ 2018;360:K1416
3. Rimmer A. The role of medical manslaughter must be reconsidered, says leading lawyer. BMJ 2018;360:K1376

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