The Bawa Garba case

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In 2011, Dr Hadiza Bawa-Garba was a junior doctor working in paediatrics in the United Kingdom.

She was singled out for blame after the sad death of a child from sepsis. Many believe that the death was contributed to by multiple issues including system failings - staff shortage, the lack of senior support, inappropriate paediatric drug administration policies and so on; and that, while she may have made mistakes, the mistakes probably wouldn't be made if she had not been given an impossible workload - so it was the system that was at fault, not the individual doctor.[1] (See Swiss cheese model of accident causation.[2])

An account of the events: "An account by concerned UK paediatric consultants of the tragic events surrounding the GMC action against Dr Bawa-Garba". There is another detailed account of the events in the GMC's response to the Williams review.[3]

After initially being reassured that she would not be prosecuted, this decision was reversed, and on 17th December 2014 Dr Bawa-Garba was charged with manslaughter on the grounds of gross negligence and found guilty on 4th November 2015, after 25 hours deliberation, on a majority verdict of 10 to 2. The judgement has, mysteriously, not been published. On 8th December 2016, despite the original conviction being almost universally viewed within the medical profession as wrong and a likely miscarriage of justice, she was denied leave to appeal.

The Bawa-Garba Principle for Medical Error has been proposed.

QuotationMarkLeft.png We need to rethink the role of the criminal law and medical manslaughter. Does it have any place in how we deal with things going wrong . . . because medical manslaughter means that you can pick someone, blame them, and imagine that you’ve solved the problem. And what you have actually done is exacerbated it… If there is a barrier to doctors doing what they signed up to do and then dealing with things going wrong, it is the intrusion of the criminal law and [Bawa-Garba] is a good example of that… Because she could be picked out, she could be prosecuted for medical manslaughter, and no one was concerned that she was looking after six wards in a new hospital without any induction, the IT system was down, and several doctors were on leave. In terms of human factors, she was walking into a disaster zone. But [a child] died and someone had to go — and that, in my view, suggests we should first ‘kill all the lawyers’.” … He said that the GMC’s work looking into wider issues around medical manslaughter “should consist entirely of ‘lets get rid of it’," and that it was “madness” to sue doctors when things went wrong. “There is another way… We should not sue doctors because that persuades them not to confess their mistakes—understandably so—because their career is about to be at risk… If we want to learn from errors then we have to expose them… Suing doctors confuses the need for compensation for a patient who has been harmed with culpability. We need to separate those two things.” QuotationMarkRight.pngProf Ian Kennedy QC.[4]

Contents

Issues raised by the Bawa-Garba case

A number of cultural and medicolegal issues resulted from the case, including:

  1. Why does the law allow involuntary manslaughter charges to be brought against doctors and other individuals without taking into consideration the system-wide issues? (And why has it been proposed that such sentences must be increased to at least 12 years?[5])
  2. Was the expert witness in this case, like Roy Meadow before him, acting outside his area of competence by commenting on Bawa-Garba's ability to cope with the pressures, rather than confining his comments to the likely consequences of treatment given (or not given) to Jack Adcock? Indeed, as an expert in working in a specialised tertiary referral centre, did he have sufficient expertise to comment on the situation in a (much less specialised) general hospital? Was this line of questioning pursued by Dr Bawa-Garba's defence lawyers? if not, why not?
  3. Why was this not treated as an industrial accident? (It has become an industrial accident which includes healthcare workers among the injured.)
  4. Given that nearly everybody views the original conviction as unsafe, why was permission to appeal refused? (Does this relate to the non-availability in the public domain of the original judgement?) Should the case not be referred to the Criminal cases review commission?
  5. Why are reflections and (in this case) Training Encounter Forms[6] made as part of doctors' personal development not legally privileged?
  6. Was the GMC correct to appeal this case? There are two parts to this; was it legally obliged to do this; and was it the correct thing to do if its role is to enhance patient safety. Nick Ross is particularly eloquent on this topic, as is Lord Darzi.[7]
  7. How does the GMC justify its claim that the MPTS undermined the court's decision? Quite apart from the fact that many consider the conviction to be unsafe, wrong; the MPTS was making a different decision with (appropriately) different criteria, not simply rubber-stamping the court's decision.
  8. Is it true, as a FOIA response appears to suggest (here), that the decision to appeal the MPTS decision was made by the GMC's chief executive Charlie Massey, acting alone? "Since 2004 neither the Chair of the GMC nor Council Members has played any role in individual decisions around fitness to practice investigations, or whether to appeal against tribunal decisions. As reported by the Health Service Journal on 6 February 2018, it was our Chief Executive who made the decision to appeal the determination reached by the Medical Practitioners Tribunal in June 2017 with regards to the case of Dr Hadiza Bawa-Garba… Accordingly, we do not hold any Council meeting minutes which relates to your query."[8]
  9. How does GMC justify the enormous legal costs (nearly £30,000 - which will have to be paid from doctors' subscriptions) of trying to get Dr Hadiza Bawa-Garba struck off? (It has emerged from freedom of information request by the Press Association that the GMC's legal fees in relation to the hearing before the High Court amounted to £11,974.75, and its Court of Appeal costs were £17,412.[9])

The case has important implications, including:

QuotationMarkLeft.png 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. QuotationMarkRight.pngSimon McCormick, inventor of #SchrodingersDoctor, on Twitter

  • Will doctors and other healthcare workers be willing to work in understaffed and under-resourced settings if doing so puts them at such a high risk. There is a real dilemma here:
  • if they work when they believe it is unsafe to do so, they put themselves and their careers in jeopardy - as well as the patients they may unintentionally harm as a result of being required to do more than they (or anybody) could be expected to do.
  • If they refuse to work in such circumstances, the settings will become even more unsafe, with even fewer (or no) staff available to care for patients.
  • Will doctors and other healthcare workers be willing to comply with appraisal requirements to reflect on actual or possible mistakes made, if these reflections could then be used against them or others in proceedings against them.

This could cause massive disruption as the medical profession challenges its regulator, and if staff decide that it's not worth the risk to themselves of working in unsafe conditions, even if this puts patients at risk. The NHS could become a culture of fear, blame and defensiveness.

In the longer term it is likely to lead to more doctors deciding not to pursue a career in higher risk specialities such as paediatrics - or, indeed, in medicine at all.[10] All too many commit suicide.[11]

Key documents

Key documents include:

  • Determination of the MPTS in 2017 - that Dr Bawa-Garba's registration should be suspended for one year, but she need not be permanently erased from the register ("struck off").

Updates

06 February 2018 Professor Sir Norman Williams Review announced

On 6 February 2018 the Health and Social Care Secretary, Jeremy Hunt, announced a review, to be led by Professor Sir Norman Williams. (Professor Sir Norman Williams Review page at GOV.UK Web site.) For more details see the Manslaughter page.

15 February 2018 application for permission to appeal lodged

Crowdjustice website reports that "Today, Dr Bawa Garba's legal team lodged an application for permission to appeal at the Court of Appeal to challenge the High Court decision allowing the GMC to erase her from the medical register. It included an application to expedite the hearing."

19 February 2018 Health Service Journal publishes information released following a Freedom of Information request

The HSJ's Shaun Lintern publishes an "exclusive" based on a freedom of information request, which revealed that the GMC's regulator, the PSA, had reviewed the GMC decision to appeal the MPTS decision, and concluded that the GMC’s decision was “very borderline”.[17] The original HSJ article is paywalled. According to a Doctors net uk report the following day:[18]

"The reviewer says the GMC had a policy of “deference” to panel decisions when they were based on clinical considerations. The GMC argued that the same “deference” did not apply when the panel made a decision following a conviction in courts of law.
"The reviewer states: “I am not clear that this argument is sustainable. In any event, the panel was required to consider the underlying facts of the conviction and have not sought to minimise them.
"“In my view the panel was not seeking to go behind the conviction or minimising it.”"

The original HSJ article apparent claimed that, according to the PSA documents:

  • PSA did not agree with the GMC appeal in Bawa-Garba case
  • Their analysis suggested the GMC appeal was trying to create new case law
  • Key elements of the General Medical Council’s bid to strike off a doctor convicted of manslaughter were “without merit”

(More detail is available, for those who cannot access the firewalled HSJ article, at Shaun Lintern's Twitter account.)

22 February 2018 Dame Clare Marx review of medical manslaughter

On 22 February 2018, after an outcry about Dr Hadiza Bawa-Garba's being struck off, the General Medical Council announced that Dame Clare Marx, Chair of the Faculty of Medical Leadership and Management, was to lead an independent review to explore how gross negligence manslaughter cases are initiated and investigated in the UK. For more details see the Manslaughter or GMC gross negligence manslaughter review page.

09 March 2018 GPs pass vote of no confidence in the GMC

On 09 March 2018 the UK LMCs conference passed a vote of no confidence in the General Medical Council (GMC) in light of the regulator’s actions in the Hadiza Bawa-Garba case.[19]

Zoe Norris, who proposed the motion, said that the GMC’s decision to challenge the tribunal service smacked of “an arrogance and a desire to continue to punish a doctor beyond the point of reason.”

She told the conference, “GPs have lost all confidence in the ability of the GMC to be objective and to genuinely balance patient safety against the reality of being a doctor in the modern NHS.

“When you—after your 14 hour day, in your eighth month of working [while] a partner down, with another sick, with your [practice] list going up and up—make a mistake, are you confident that the GMC will be fair, objective, and balanced in its investigation of you? GPs have no confidence in the GMC as our regulatory body.”

Some GPs have reported that they have received advice telling them not to provide written reflections in their appraisals.

Norris said, “Until there is absolute clarity over all types of reflection and GPs can be completely assured, then our role as representatives of the profession is to advise GPs to protect themselves, to not make them any more vulnerable than they already are. The statements made so far do not represent adequate safeguards—they do not protect GPs.”

The motion mandated the GP committee to urgently implement a system whereby GPs can make collective statements of concern regarding unsafe care. It also requested that the House of Commons health select committee review the GMC’s conduct in the Bawa-Garba case.

13 March 2018 GMC issues non-apology

According to Pulse Magazine:[20]

"The chair of the GMC has said he is ‘extremely sorry’ for the distress caused to the medical profession after the regulator went to High Court to strike off a junior doctor.
"Professor Terence Stephenson was speaking on The Emma Barnett Show on BBC Radio 5 Live, after it ran a report based on Pulse’s front cover and played audio clips from GPs who spoke about their own experience of system pressures leading to mistakes.
"Professor Stephenson also acknowledged that the case had damaged the regulator’s relationship with the profession.

The form of "apology" which says "I am sorry that you felt distressed" - but not "I am sorry, I did something wrong" - is widely recognised.

14 March 2018 BMA publishes report Working in a system that is under pressure

Not directly related to the Bawa-Garba case, this report relates to the pressure that she was under, and considers what can be done, and how doctors can be supported.[21]

19 March 2018 It emerges that the GMC has launched multiple appeals against the MPTS

According to an article in Pulse, the GMC has launched appeals against the MPTS 23 times in less than a year, and 7 doctors (including Dr Bawa-Garba) were struck off the register as a result.[22]

28 March 2018 The Court of Appeal grants Dr Bawa-Garba permission to appeal

The Court of Appeal granted Dr Bawa-Garba permission to appeal on 28 March 2018.

Moosa Qureshi writes:

There are some important points to note about the Court of Appeal decision issued by Lord Justice Simon today:

  1. The CoA has decided to go straight to allowing a second appeal without asking for Hadiza's legal team to justify their application in an oral hearing. This can be construed as a strong signal that the CoA sees very clearly that Hadiza has an arguable case.
  1. This is a second appeal so the judge is not allowed to even grant an appeal process unless they believe there is a REAL chance of Hadiza succeeding.
  1. In this case, the judge has made the extraordinary decision that Hadiza's case meets the test for allowing a second appeal in ALL respects. In other words, he has ruled that Hadiza has a real chance of success, AND her case raises an important point of principle or practice, AND there is another compelling reason for the Court to hear her case.
  1. Lord Justice Simon has expedited the appeal hearing to before the end of July 2018, which is extraordinarily fast for the appeal process and suggests that the CoA thinks this is an important case.

03 April 2018 BMA registers interest in Bawa-Garba’s appeal against erasure

It was reported on 03 April 2018 that:

"The BMA is applying to intervene as an interested party in the appeal by the paediatric trainee Hadiza Bawa-Garba against her erasure from the UK medical register.
The doctors’ trade union has instructed Mary O’Rourke QC, who acted for the consultant paediatrician David Southall in 2010 when he won an appeal against a High Court decision that he should be struck off the register.2 O’Rourke has a strong record of defending doctors against the General Medical Council (GMC), Bawa-Garba’s opponent in the appeal"I[23]

(Also reported in Pulse magazine.[24])

Update - permission granted - see below.

14 April 2018 The Lancet editorial calls for resignations at the GMC

The Lancet anonymously published a strongly worded leader article, concluding that:

The GMC's leadership has lost the trust of the profession and public. Empty apologies and further reviews are not enough. To rebuild confidence in the GMC, its Council Chair Terence Stephenson and Chief Executive Charlie Massey must resign.[25]

19 April 2018 Marx Review Terms of Reference published

The GMC's Marx Review of gross negligence manslaughter and culpable homicide (in Scotland) were published on 19 April 2018 (or possibly before that date - the document is undated), and the page linking to it gives no indication of when the TsoR were published).[26]

See Dame Clare Marx Review of gross negligence manslaughter section of manslaughter or GMC gross negligence manslaughter review page for more information.

21 April 2018 GMC commissions new research into fitness to practise referrals

The GMC receives a disproportionate number of complaints about black and minority ethnic doctors. Roger Kline and Dr Doyin Atewologun have been commissioned by the GMC to lead a major project to better understand why some doctors are referred to the regulator for fitness to practise issues more than others.[27]

09 May 2018 BMA granted permission to intervene in Dr Bawa-Garba's appeal against erasure by GMC

After applying to register interest in the appeal (see above), this has been granted by the Court of Appeal.

30 May 2018 Paediatricians say they would employ Dr Bawa-Garba

On 30 May 2018 159 paediatricians published a letter stating:[28][29]

"We who have signed below are 159 Paediatricians who have followed the case of Dr Hadiza Bawa-Garba closely.
"We understand the family's grief and anger following Jack Adcock's death from sepsis.
"However, we believe that the punitive approach that has been taken by the GMC and the Courts against one doctor against a background of numerous systemic failures will make our NHS less safe.
"As individuals working in Paediatric Units, and having followed this case closely, we are confident to employ Dr Bawa-Garba with supervision in a training position upon her re-instatement to the medical register and pending her employment in a substantive post that will facilitate her return to work when she is re-instated.
"42 people originally wanted to sign anonymously but were felt unable to supply their names and addresses to The BMJ"

11 June 2018 Changes to be announced following the Williams review

The Williams Review's report has been published.[30] Details here.

27 June 2018 BMA resolution calls for a public enquiry into GMC’s handling of Bawa-Garba case

At the BMA Annual Representative Meeting on 27 June 2018 a motion was passed declaring no confidence in the GMC, and calling for a public enquiry into the GMC's handling of the Bawa-Garba case.[31][32]

24 July 2018 Doctors' Association UK press release

The GMC's serious error of judgement in aggressively pursuing Dr Hadiza Bawa-Garba has set the safety culture back decades".[33]

This press statement was issued just prior to the appeal court hearing scheduled for 25th-26th July 2018.

25-26 July 2018 - appeal court hearing scheduled

The appeal court hearing - at which doctors hope to overturn the court of appeal's decision that Dr Bawa-Garba should be permanently struck-off the medical register - is scheduled for 25-26 July 2018.[34]

A group of doctors will be holding a vigil outside the court.[35]

Reporting of the hearing

The hearing took place, as scheduled, and the judgement was announced on 13 August 2018.

As expected, the judges reserved their judgment, which, according to justice.gov.uk (via timjohnson-law) is scheduled to be published on Monday, 13 August, 2018, at 3 O'clock.

The Tim Johnson Law Bawa-Garba page posted links to the following documents (links correct and working on 27 July 2018):

​*The PSA submissions

The BMJ carried a brief report.[37]

30 July 2018 - Dame Marx replaced by Leslie Hamilton as Chair of the GMC gross negligence manslaughter review

The GMC statement posted on 30 July 2018 starts:

"Dame Clare Marx has been appointed by the Privy Council as the new Chair of the General Medical Council (GMC) to succeed Professor Sir Terence Stephenson in January 2019. She becomes the first woman to hold the Chair since the GMC was established 160 years ago.
"Dame Clare joins a growing body of women leaders in healthcare. She is the immediate Past President of the Royal College of Surgeons of England. Elected in 2014 for three years, she was the first woman in the history of the College to hold this role. She worked as an orthopaedic surgeon at Ipswich Hospital NHS Trust for over 20 years before becoming Associate Medical director for appraisal and revalidation in 2013. Clare is also currently the Chair of the Faculty of Medical Leadership and Management and will demit from that role at the end of this year.
"Clare chaired the Trauma and Orthopaedic Specialist Advisory Committee for the Royal College of Surgeons when the new trauma and orthopaedic surgery curriculum was written. In 2008-09, she was President of the British Orthopaedic Association and whilst on the Council of the Royal College of Surgeons chaired the Invited Review Mechanism from 2011-14.
"She will stand down with immediate effect as Chair of the independent review of gross negligence manslaughter and culpable homicide in medicine, which was commissioned by the GMC in February 2018.
"The independent review working group will now be chaired by Leslie Hamilton …"

13 August 2018 - appeal hearing judgement announced

QuotationMarkLeft.png The Court of Appeal unanimously allows the appeal. It holds that the Divisional Court was wrong to interfere with the decision of the Tribunal. The Court of Appeal sets aside the order of the Divisional Court that Dr Bawa-Garba should be erased from the Medical Register and restores the order of the Tribunal that she be suspended from practice for 12 months subject to review QuotationMarkRight.pngCourt of Appeal (media statement)

QuotationMarkLeft.png [The MPTS tribunal] found that [Dr Bawa-Garba's] deficient conduct in relation to the care and treatment of Jack was neither deliberate nor reckless and that she did not present a continuing risk to patients. QuotationMarkRight.pngThe appeal court judgement

The judgement from the appeal court hearing of 25-26 July was read out in court at 15:00 UK time on 13 August 2018. A copy of the judgement has been posted here, with a media statement.[38][39]

At 15:07 Dr Chris Day tweeted "Dr Hadiza #BawaGarba has won her appeal." This was confirmed on the Justice for Dr Hadiza Bawa-Garba facebook forum at 15:10, by both Jenny Vaughan and Chandra Kanneganti‎.

This appeared promptly at the Doctors' Association UK web page; and this at Sky News at 15:14.

Other commentary:

"Master of the Rolls Sir Terence Etherton, who announced the ruling, said "no concerns" had "ever been raised about the clinical competence of Dr Bawa-Garba, other than in relation to Jack's death".… "The evidence before the tribunal was that she was in the top third of her specialist trainee cohort," he said… He added that the tribunal was satisfied her actions in relation to the boy were "neither deliberate nor reckless", and did "not present a continuing risk to patients"."
Press commentary prior to the announcement of the judgement

This includes:

13 August 2018 - DAUK call for a public inquiry into the GMC

On 13 August 2018 The Doctors Association UK invited members to sign a letter calling for a public inquiry:

"The judgement of the Court of Appeal has shown, unequivocally, that pursuing Dr Bawa-Garba’s erasure through the courts was a serious error of judgement on the part of the General Medical Council. We feel that the GMC has shown it cannot be trusted to take a balanced and non-punitive approach in the context of system failures
"We therefore call upon the General Medical Council to refer itself to the Parliamentary Select Committee for Health & Social Care, so that the Dr Bawa-Garba case and the circumstances surrounding it undergo the full degree of independent scrutiny and analysis that is expected by the medical profession, and so that the wider implications for the future are given full consideration. We have taken the liberty of forwarding our petition to Dr Sarah Wollaston, Chair of the Health & Social Care Committee for the consideration of a public inquiry."
Update 23 August 2018 - DAUK announce that Dr Philippa Whitford MP joins their call for a public inquiry

From DAUK website:[46]

"Dr Philippa Whitford MP joins The Doctors’ Association UK in leading the call of over 1200 UK doctors for a public investigation into the GMC’s handling of the Bawa-Garba case."

21 August - Drs' petition GMC to find alternative means (not their subscriptions) to pay Bawa-Garba’s court costs

A petition was created to "Stop the GMC from using doctors’ GMC fees for their failed Bawa-Garba appeal".[47]

17 September 2018 - Appeals court criticises GMC for appealing another MPTS decision

Again, the GMC has been criticised by the Appeals court.[48][49] The MPTS had found that his actions ‘were not such that public confidence in the profession would be undermined’ if his fitness to practise was not found to be impaired and therefore decided to only impose a warning. The GMC appealed to the high court, which overruled the MPTS decision; but at appeal, the high court's decision was quashed.

Lord Justice Bean said in the judgement that the MPTS…

‘were well placed to make an evaluative judgment of the nuances of how the various individuals had interacted and that judgment should have been accorded great weight, not only by the court but by the GMC in deciding whether to bring an appeal at all… The discretion given by section 40A(3) to appeal against any decision which the GMC consider not sufficient for the protection of the public is a wide one, but in my view it is a discretion to be exercised with restraint where it involves a challenge to a finding of fact in the practitioner’s favour.’

For further information see the Raychaudhuri case.

07 November 2018 DAUK reports on its meeting with the GMC

In the first week of November 2018 The Doctors Association UK met with the GMC. They report that they conveyed the profession's anger over matters including the Bawa-Garba case. They also discussed continued appeal of MPTS decisions, weaponisation of GMC referrals, accountability of NHS managers, and mental health and wellbeing of doctors under investigation.[50]

Crowdfunding to fight this case

See also

Background - mortality in Leicestershire hospitals at the time

A report by Ron Hsu and Lucy Douglas-Pannett reviewed:

"deaths of patients following emergency admission to hospital in Leicester, Leicestershire and Rutland in order to understand where lessons about care could be learned in general practice, acute hospitals and community services.
"… a review of 381 cases by 49 local doctors and nurses. They found that 208 (55% of 381 cases) had significant lessons to learn, of which 89 (23% of 381 cases) had an aspect of their care considered to be below acceptable standard. The report concludes:
“Reviewing cases can only identify issues and themes. A system-wide approach through co-operation and collaboration is required to identify solutions and make improvements. Solutions need to take into account the intangible and intrinsic aspects of healthcare delivery such as organisational culture. Learning from this review, and any subsequent work, requires partnership with input from a cross‑section of clinical and managerial staff and, most importantly, patients.”

General comments

  • Excellent blog by the Secret Barrister, saying the problem here was the original criminal conviction, and possibly the nature of the jury system (swayed, as it may have been, by the family's vitriolic campaign against Dr Bawa-Garba).[56]
  • Anonymous Guardian article saying that we should respect the court decision and the GMC view that Bawa Garba should be struck off because. Well, just because. Even if the prosecution was wrong and the court decision was unsafe.[62] As somebody put it on a medical forum: "[the anonymous author] stated that Hadiza should never have been convicted of GNM - but now that she has, we should just suck it up respectfully". Nick Ross has (again) written a great riposte (even though the Guardian wouldn't print it).[63] It is not clear if the person who wrote the original, anonymous article is a registered medical practitioner, although it is clearly implied that they are. It should be noted that the GMC is very clear - doctors who publish (including tweets or other comments on social media) and who say they are doctors MUST identify themselves fully: medical anonymity is not permitted. We shall see whether the author of this article will be investigated and censured by the GMC for this breach.

GMC comments

Many doctors have been outraged at what they see as the GMC's wrong decision to appeal the MPTS decision in this case, and see the GMC's reported decision to push for automatic erasure when a doctor is convicted of a serious crime as doubling down on, rather than confronting, their error.[64]

They have produced more information about their review of gross negligence manslaughter, including information about how to get involved. Additional information includes:

GMC Bawa-Garba portal

Since their original statement was published, the GMC have put together a portal - a web page with links to their output relating to this case.

BMA comments

The BMA has created a web page The Bawa-Garba case and its wider implications with background to the case, guidance on BMA support for doctors and the most recent news relating the BMA’s work on gross negligence manslaughter and on working in a system under pressure.[66]

Earlier BMA comments included:

Comments from medical royal colleges

Comments from the Royal College of Paediatrics and Child Health
Comments from the Academy of Medical Royal Colleges
Comments from the Royal College of General Practitioners
  • RCGP statement in support of Academy of Medical Royal Colleges statement.
  • RCGP statement following the RCGP Council on 23 February 2018. "The implications for general practice, specifically, are significant given that we work independently, largely on our own, seeing the greatest number of patients on a daily basis in the health service. We do this without effective mechanisms to control our increasing workload, and a vital part of our role is to deal with uncertainty and manage risk on behalf of the NHS… We have shared guidance with our trainees on how to reflect in the safest possible way… There was considerable concern at Council over the GMC's approach to Dr Bawa-Garba's case, and the way it was handled, and the College will be raising this with the regulator directly… It would not be right for us to comment on the judicial process and verdicts, but we have welcomed the Government's review into cases of gross negligence manslaughter. We will be responding to this."[72]

Comments from medical defense organisations

The Medical Protection Society has commented, in response to the Bawa-Garba case, that "that a "striking feature" of the law in England and Wales is that "intent, carelessness, or recklessness" is not required for a conviction, and that opportunities to reform the law "have not been seized"."[73] (See also MPS medical director Dr Rob Hendry's article in the BMJ, below).

Articles about this case in the BMJ

(Where not elsewhere in the list)

  • BMJ article outlining the case and describing concerns about the use of reflections. "The BMJ has learnt that, five days after Jack’s death, Bawa-Garba was asked to meet Stephen O’Riordan, the duty consultant at the time of the incident, in the hospital canteen. At the meeting she was asked to reflect on the circumstances and to sign a trainee encounter form setting out what she should have done differently. She was sent home immediately afterwards and told not to come back until she was asked to.… O’Riordan took the notes and typed them up. The BMJ has seen a copy of the form.“ [74]
  • To paraphrase: We've all made mistakes, so we should all be struck off (as should the MPTS tribunal members…)"[79]

Academic articles about or relating to the Bawa-Garba case and its sequelae

NB - many more articles are listed at PubMed.

UK media articles and programmes about the Bawa-Garba case and its sequelae

Selected bloggers' comments on the Bawa-Garba case

Minh Alexander's blog

Dr Alexander has written an excellent blog,[86] balancing the concern about scapegoating an individual with concerns that in some instance the opposite occurs - system errors are focused on to avoid blaming culpable individuals.

Gordon Caldwell's writing on how human factors affected the case

This beautifully-written piece, by Dr Gordon Caldwell is in the form of a letter, and it addresses and explains the human factors that make "multi-tasking" impossible, despite the fact that it is a requirement for doctors in Bawa-Garba's position.[87]

Kailash Chand's writings on the case

Dr Chand is a GP. He is a prolific writer, and is honorary vice president of the BMA. His writings on the Bawa-Garba case include the following (there are more to add):

"The GMC’s actions against Dr Bawa-Garba were purely punitive against a trainee who was simply juggling too many balls in an under-resourced department. The GMC has been found severely wanting. … Medical errors can often be a source of serious distress amongst doctors. Over the past decade (between 2005 and 2015) there have been over 100 deaths - including 28 deaths by suicide - among doctors under fitness-to-practice investigation, without a fact being proven against them. … Surely the GMC and doctors on their panels have a duty of care to individuals they are investigating… The GMC proceedings are at odds with natural justice. … Doctors are demanding a better performance from its own regulator and it must deliver sooner rather than later."
"The GMC proceedings were at odds with natural justice… the GMC is out of touch with the challenges of working on the frontline and worse still, its actions are viewed as diluting patient safety… has been found wanting… Pursuing Dr Bawa-Garba’s erasure through the courts was a foolish error of judgement on the part of the GMC head, Mr Charlie Massey. Mr Massey has not apologised, and on several past occasions implied that he would take similar action again in such a scenario… cannot be trusted to take a neutral and non-punitive approach when the fault lies in system failures… since early 2000, the profession, including the BMA, has often expressed lack of confidence in the GMC. A thorough and radical root and branch reform of the GMC is required… Trust between the GMC and the profession has completely broken down, and not for the first time the public will have no faith in the judgement that the regulator passes on either errant or safe doctors who happen to be subject to its investigations."
John Cosgrove's blog

John Cosgrove is a GP.

  • Why are doctors being convicted? John explores societal factors and consequences of the convictions of Dr Bawa-Garba and Mr Sellu. "… the GMC and politicians have all conspired to fuel this blame culture and make patients less safe. The courts rely on evidence not of a doctor's peers at the short-staffed, cash-strapped coalface but disease experts who expect perfection and more. In the Bawa-Garba case, the GMC too yielded to the rule of the mob by rejecting the nuanced view of the doctors of its Medical Practitioner Tribunal Service and instead relied solely upon the arguably flawed judgement of the court. And politicians routinely promise more, better and faster treatment without finding the much-needed money."[90]
Peter English's blogs

Peter English is a public health doctor, and one of the ganfyd editors.

David Garner's blogs
Phil Hammond's comments

Phil Hammond is a doctor who has campaigned about patient safety and whistle-blowing, and who also writes and performs.

He sometimes publishes in Private Eye magazine under the pseudonym MD, and at least some of this writing also appears on his own website.

His comments on Bawa-Garba include:

  • A convenient scapegoat. An image is available here; an online version, The GMC’s handy scapegoat, subsequently appeared on 24 August 2018 at http://www.private-eye.co.uk/columnists, but this may not be a permanent link.[96] A version of the article subsequently (09 Sep 2018) appeared on his blog.[97]
  • Court unawares - more discussion of how and why, in Hammond's opinion, the GMC should have known that it was wrong to appeal the MPTS decision, regardless of the legal advice it claims to have received.[98]
Iona Heath

Ganfyd apologises if Iona has written a great deal on this topic, and we've only singled out this one reference… This article is about values in the NHS. It is a great read on the NHS and what we must not lose as commissioning and austerity all nibble away at it.

One of these is support for trainees and junior colleagues. She writes (ganfyd's emphasis):

"The failure of a small minority of senior colleagues to take responsibility for juniors when things go wrong seems to have become more frequent and appears symptomatic of this particular breakdown of continuity of care. When I was a doctor in training, the NHS was less than half as old as it is now and, at that time, although I worked very long hours, I never felt unsupported, unprotected, or afraid. Regrettably, this is not the experience of too many junior doctors today, as the shocking treatment of Hadiza Bawa-Garba exemplifies."[99]
Dr Edwin Jesudason's blog

Dr Jesudason is another doctor who suffered after "blowing the whistle".

In this blogpost, "Picking doctors to pick on", he discusses the quandary the GMC finds itself in. (Ganfyd hopes this summary is accurate - do read the original blog for yourself.) Jesudason says the GMC has two, conflicting objectives:[100]

  1. keeping patients from harm (“Safety”); and
  2. upholding confidence in the profession (“Reputation”)

Keeping patients from harm is best done by a non-judgemental culture of "candour" - when things go wrong, the reasons are identified - including errors made by doctors and others. (After all, if a doctor "makes a mistake" when they are doing their best to juggle 17 different tasks, is it their fault for making the mistake, or the system's fault for not allowing them to focus, undistracted, on that one task?) Unless there is candour, the errors made and the reasons why they were made will not be identified, and so future errors are harder to prevent.

BUT (the GMC seems to believe), discussing - and airing in public - errors made reduces public confidence in the profession will harm the public confidence in the profession. Public opinion could be: "Those doctors - they are constantly trying to work out what went wrong so they can prevent it from happening again".

But the GMC is concerned that public opinion will, instead, be "Those doctors - they are constantly making mistakes".

So, in order to maintain public confidence in the profession (or, perhaps more accurately, in the GMC as its regulator), the GMC fudges things and, rather than supporting an open, fair-minded investigation into the reasons for errors, punishes doctors who admit to mistakes.

Dr Jesudason goes on to argue cogently that this is done unevenly, with black and minority ethnic (BAME) group doctors being more likely to be punished than others.

Dr Jesudason has written other excellent blogs on the Bawa-Garba case, and the higher jeopardy for BAME staff (two examples cited). [101][102]

Helena Mckeown's blog

Helena Mckeown is a GP in Salisbury, and is (at the time of the blog) deputy chair of the BMA representative body. Her blog "Bearing the brunt"[103] starts: "When a doctor makes a mistake, they can find themselves in the loneliest place. For all the sympathy of friends and colleagues, they’re on their own. There will only be one person’s face on the front of the newspapers, or in the dock… The causes of that mistake may well have been systemic - but all too often the consequences are borne by individuals…". The blog also relates to system pressures, and to the BMA report (led by Helena Mckeown) on this.[104]

Fred Nath, a consultant physician's blog
  • Blog by Fred Nath, a consultant, expressing the view that if any doctor should have been held to account, it was the consultant, not the junior doctor.[105]
David Nicholl, a consultant neurologist's blogs etc
David Oliver, geriatrician and columnist
Shibley Rahman's blog

Shibley Rahman has both medical and legal qualifications. He suffered from addiction, was suspended from the medical register by the the GMC, but overcome his addiction and trained as a lawyer. He has since written books on the subject of dementia.

Nick Ross' correspondence with the GMC

Nick Ross is a journalist with an interest in health and. He has expressed very clearly the reservations that many feel about the role of the GMCin this case.

Nick Ross has since published criticising the terms of reference of the Marx review into gross negligence manslaughter.[119][120]

Jonathon Tomlinson's comments

Dr Tomlinson is a GP who tweets as mellojonny.

He writes wonderful reflective blogs on the nature of medical practice, particularly (but not exclusively) as a GP.

In this blog (also republished at the CHPI website he comments on the nature of complaints, and how poorly they reflect practice.

"…many doctors grow cynical, hateful of the GMC and the tabloid media and suspicious of patients… These are problems of culture and psychology far more than they are technical and legal."
Jenny Vaughan's comments

Jenny Vaughan is a medical law campaigner.

International comment and outrage about this case

Comment from the USA

Commentary from Saurabh Jha
The Doctor Who Thwarted the Charge of the General Medical Council – Part 1

In this piece, published on 04 August 2018 Saurabh Jha, a UK trained radiologist who now works in the USA, interviews Dr. Jonathan Cusack, a consultant neonatologist at Leicester Royal Infirmary (LRI), and a former supervisor and mentor of Dr. Bawa-Garba.[126]

Dr Cusack explains how well Dr Bawa-Garba managed Jack Adcock's case, given the very difficult circumstances.

This is as clear a description of the day's events as any.

To Err is homicide in Britain
  • Polemical article by Saurabh Jha, a UK trained radiologist who now works in the USA, in which he blames system problems for the errors that occurred, describes the events in this case and takes well-aimed swipes at a number of those involved.[127] (The article was subsequently republished in Medscape).
  • Making the common analogy with the aviation industry, he comments that Dr Bawa-Garba was "…flying the plane and serving food to the passengers. … She was not surfing on the web whilst, unbeknownst to her, Jack’s organs were being attacked by streptococcus – she was performing lumbar punctures, attending to codes, taking referrals from GPs, managing several wards, all by herself."
  • He is critical of the fact that, despite Dr Bawa-Garba having clearly stated in her plan that the enalapril should be stopped, it was nevertheless given (and she was blamed for this).
  • He criticises very lucidly the use of her e-portfolio reflections.
  • He comments that in the UK, where compensation pay-outs are unusual, families quite legitimately look for other ways to express their anguish, and faute de mieux this often means pressing for criminal charges against a scapegoat (and, as others have, suggests that racism plays a part: "…a black, Muslim, female physician wearing a headscarf, who should have been the face of NHS’s glory became the face for all its failings"). (Edit - the GMC has since denied this, although a representative of Manslaughter and Healthcare responded that "We know there is an excess in referrals of BME doctors for GMC investigations. I’ve seen it at the sharp end myself with criminal prosecution, but underneath all that there is an excess in BME doctors being referred for fitness to practise processes… There is a problem here, and what we need to know is whether there is prejudice and whether there is a racial bias. We have to answer those questions."[128])
  • He says that the court exposed system failures "…but Dr. Bawa-Garba was being held responsible for each failed component. It was as if she was all of NHS and all of NHS was her on February 18th". He comments, re the expert witness testimony that: "There was tremendous certainty in the counterfactual. Diagnostic medicine is a fog of uncertainty until you know what the patient had… The difference between jail and exoneration in Britain for a trainee physician is a multiple-choice question about a medical emergency.".
  • He is extremely critical of the supervising consultant who "was either incompetent or lazy. Or there’s another explanation – perhaps sepsis in a child is difficult to diagnose, even for a seasoned consultant pediatrician. … [he] should have sniffed out trouble. … Why could [the jury in the original prosecution] not see that an apprentice had been thrown under the bus?"
  • He is highly critical of the GMC. "Like hyenas drawn to a carcass, the GMC began circling Dr. Bawa-Garba. It was not enough that she was wrongly convicted of manslaughter. It was not enough that Health Education England withdrew her training number – i.e. annulled her residency position. They wanted to make sure she could never practice medicine again. They wanted to erase her name from the medical register. In stead of rescuing the wounded soldier, they wanted to stab her whilst she was exsanguinating. … Though they seem as cold-hearted as a serial killer lack of empathy isn’t the issue. … if there is a chance that a physician, who has been investigated for fitness to practice, will bring the profession into disrepute, the GMC axes them from the register. … [it] knows it can’t monitor quality in physicians, ex ante. So, it signals its own quality and purpose by taking a ruthless stance against the doctors. The GMC investigations are known to cause night terrors – many doctors have committed suicide whilst being investigated by the GMC. For the GMC, Dr. Bawa-Garba was irresistable fodder. … To save face in the public eye, the GMC had to make sure she could never practice medicine again. The GMC wanted to stay internally consistent. The law was an ass so, for the sake of consistency, the GMC had to be an even bigger ass. [they] seemed uninterested in the truth. … They seemed uninterested in making sure that another Jack doesn’t die from sepsis. … How was the GMC able to reason away the compelling evidence attesting to her competence? How did the GMC convince itself that she was a perennial threat to the public? What goes on behind the scenes at the GMC? I ask these questions not rhetorically but with incredulity – is the prime regulatory body of doctors in Britain no longer fit to regulate? Who regulates the regulator? … If the GMC genuinely can’t see any mitigation in Dr. Bawa-Garba’s circumstances that fateful day, they are beyond redemption. My concern isn’t that the GMC is dishonest or corrupt – these can be remedied by the right leadership. My concern is that the GMC does not understand clinical medicine. … The GMC can’t see that when a physician with an unblemished track record fails to make a diagnosis then perhaps, just perhaps, there may be something tricky about the diagnosis."
  • He comments on the climate of fear that this case has caused or exacerbated: "Dr. Bawa-Garba’s case has sent a chill down the junior doctors. Instilling a fear of prison for an error of judgment isn’t the best way to raise the morale of the foot soldiers. Dr. Bawa-Garba’s case has sent a chill down the junior doctors. Instilling a fear of prison for an error of judgment isn’t the best way to raise the morale of the foot soldiers. [Another, good doctor; a friend of Dr Bawa-Garba] hasn’t slept well since hearing about [this case]. He is, for the first time in his life, frightened to work in the NHS."
  • He proposes some changes. "In the short term, junior doctors must, without compromise, be protected from manslaughter charges. This has to be built into the employment contract. The principle of respondeat superior must be installed. The hospital must assume complete responsibility for the actions of junior doctors, contractually."
  • He finishes off: "A competent doctor’s career was torn by a virulent entity which has a mortality as high as 80 %, and against which the NHS is neither any safer nor any wiser, though its life blood, the junior doctors, will have coagulated a bit. In prosecuting Dr. Bawa-Garba and the agency nurse who, sadly, was struck off the register, too, attention has been diverted from the shortcomings of the NHS. The General Medical Council has contributed to the grand public deception. The actions of the General Medical Council will outlive them."
Commentary from Zubin Damania (aka zdoggmd)
  • A passionate piece to camera on Youtube from Dr Damania as his ZDoggMD persona. As a paediatrician (or, as he's in the USA, a pediatrician) he has a lot of outraged and specific comments to make on this case. He points out that "any of us" could have been in Dr Bawa-Garba's position, and calls for doctors around the world to agitate about the case.

Comment from Australia

  • ABC article quoting paediatrician Andrew McDonald as saying that "the Australian system is better at recognising "system error""… The New South Wales Medical Board or the Australian Health Practitioner Regulation Agency (AHPRA) are not perfect but I've never seen anything as vindictive and poorly informed as this.[129] - also accompanying radio programme discussion of this case.
  • "Could it happen here?" asks Charlie Corke in the MJA. "I fervently hope not, and think not, but that is not the point. The fact that it has occurred somewhere makes it a reality in the mind of junior doctors everywhere… These events will reinforce those feelings of vulnerability that are the cause of so much anxiety for junior doctors. Mental welfare has been profoundly set back."[131]

Related issues

"Going behind" a court's decision

The GMC has issued statements about how the MPTS decision "goes behind the court's decision".

Ganfyd would be very interested to know if this is a recognised concept in law, or merely a meaningless (but significant-sounding) form of words. If it is a legally established phrase or concept, what does it mean? Does it mean what the GMC thinks it means?

Whistleblowing

The Bawa-Garba case is not directly about whistleblowing, but there are overlapping issues - for example, Dr Bawa-Garba was working in an unsafe system; and in some previous cases where doctors have flagged up unsafe systems, managements appear to have found it more expedient to silence the whistleblower than to address the unsafe systems. See Whistleblowing for more information.

See also

References

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