Dr Chris Day - 12 December 2017

Last Thursday, I spent the day sat in something like a church pew in Court 3 of the Royal Courts of Justice. I was watching the General Medical Council take advantage of its relatively recently acquired right to appeal the result of a doctor’s fitness to practice hearing. The right of appeal was given to the GMC by an amendment to Section 40A of the Medical Act. As I watched the proceedings and the way the GMC argued the case, I wondered whether the GMC should have been given this right at all.

Sat in the public gallery, I found myself sitting next to the doctor at the centre of the case, Dr Bawa-Garba. This lady is a junior doctor who has been convicted of manslaughter for her part in the NHS’ negligent treatment of Jack Adcock, a 6 year old boy who died of sepsis at Leicester Royal Infirmary in February 2011. In amongst a catalogue of system failures and having to do the job of two doctors during a double shift, Dr Bawa-Garba failed to spot the early signs of sepsis, did not act on significantly deranged blood results and delayed starting antibiotics after wrongly making an initial diagnosis of Gastroenteritis. 

The GMC is challenging a decision made by the Medical Tribunal Practitioners Tribunal Service, one of its own committees that it claims to have functional independence from, to reject the GMC’s call to strike Dr Bawa-Garba off the medical register. The MPTS says it is there to protect patients by making independent decisions about a doctor’s fitness to practise. The GMC claims to recognise and respect the MPTS as a specialist tribunal and accepts that it would be improper for it to bring an appeal simply to invite the court to substitute one reasonable view of a case for another.

I have a 6 year old son and a 4 year old daughter and cannot even come close to imagining the pain that would come as a result of losing one of them, or the suffering of Jack Adcock’s family. But as I sat there next to Dr Bawa-Garba, I could see first hand, another kind of suffering that may well be just as difficult to imagine or understand.  Having suffered a bit myself as a result an NHS whistleblowing case, I wanted to show my support for a colleague in a very difficult situation. I find it hard to believe that a junior doctor has found themselves having to respond to legal action brought against them in the High Court by the General Medical Council - supposedly in the public interest, to challenge a decision by the MPTS not to strike them off the medical register.

As a father and a doctor I have no choice but to accept that I too could find myself being on either side of a terrible NHS mistake. We have to face facts that as a society we are making choices that will make such mistakes more likely to occur. The choices that are being made in relation to the NHS only seem to be getting worse hence the recent flurry of NHS crowdfunded litigation. Underfunding the NHS, driving out dedicated staff, unaccountable leaders and regulators, coupled with the recent fracturing of whistleblowing protections are already leading us to some dangerous places. The tragic case of Dr Bawa-Garba and Jack Adcock is a powerful warning to both patients and staff about where we are heading unless we change our path.

The nuts and bolts of the action brought by the GMC against Dr Bawa-Garba in the High Court relate to their objection to the way the Medical Practitioners Tribunal Service made their decision not to strike her off the medical register. The GMC take issue on the basis that the MPTS should not have been influenced in the way that it was by the multiple system errors at the hospital and numerous errors of others involved in Jack Adcock’s death. The GMC further stated that such information was not relevant given the manslaughter conviction and that such consideration would seek to ‘get behind’ the criminal conviction for manslaughter.  In their submissions the GMC accepted that not all doctors who are convicted of gross negligence manslaughter should be struck off. It is difficult to see how the MPTS was supposed to go about deciding what category Dr Bawa-Garba would fit into without exploring the wider hospital failures or the failures of other healthcare professionals involved in the case.  The GMC maintained that anything other than the erasure of Dr Bawa-Garba from the medical register would not be sufficient for the protection of the public. This emphatic GMC position is despite it being uncontested that Dr Bawa-Garba had an unblemished career and had been a good and safe doctor before and for some time after the events leading to the death of Jack Adcock. She also continued to be employed by the Trust following the tragic events and was only prosecuted 3 years subsequently when a decision not to press charges was changed by the Crown Prosecution Service.

One of the things that I found most perverse about the GMC position in this case is their argument that “the wholesale collapse of the standard of care provided by [Dr Barwa-Garba] came out of the blue and for no apparent reason.” This GMC argument only gets off the ground if the multiple failures at the Trust are not referred to. As Counsel for Dr Bawa-Garba summarised in the MPTS hearing;

“The events leading to [Dr Barwa-Garba’s] conviction did not take place in isolation, but rather in combination with failings of other staff, including the nurses and consultants working in the CAU that day, and in the context of multiple systemic failures which were identified in a Trust investigation.”

The Judgment from the Court of Appeal refusing Dr Bawa-Garba leave to appeal her conviction set out several factors that Dr Bawa-Garba relied on in her defence of manslaughter; 

·       A failure in the hospital's electronic computer system that meant that ordered blood tests were delayed and not received from the hospital laboratory in the normal way and Dr Barwa-Garba was without the assistance of a senior house officer as a consequence.

 ·      Dr Bawa-Garba had flagged up the increased CRP infection markers in Jack's blood to the consultant, Dr O'Riordan, together with the patient's history and treatment at the handover meeting. The consultant had overall responsibility for Jack.

 ·       A shortage of permanent nurses meant that agency nurses were being used more extensively.

·    The nurse involved had failed to properly to observe the patient and to communicate Jack's deterioration to Dr Barwa-Garba, particularly as Dr Bawa-Garba was heavily involved in treating other children between 12 and 3pm (including a baby that needed a lumbar puncture).

·    The nurse also turned off the oxygen saturation monitoring equipment without telling Dr Bawa-Garba, at 3 pm, when Jack was looking better.

 ·      The nurse did not tell Dr Bawa-Garba about Jack's high temperature 40 minutes earlier or the extensive changing of the nappies.

·       It was correct to be cautious about introducing too much fluid into the [patient] because of his heart condition

The Crown Court also heard that, Dr Bawa-Garba’s Consultant, Dr O’Riordan was aware before Jack died that he had a serum pH of 7.084 and a blood lactate concentration of 11.4 mmol/L, which he wrote down in his notebook at evening handover. However, he did not perform a senior review of the boy because, he said, he was not specifically asked to by Dr Bawa-Garba. He said he would have expected her to “stress” these results to him.

From the High Court hearing, I heard that Dr Bawa-Garba was doing the job of two registrars on the particular day and that she was required to cover an additional unit by her employing NHS Trust.

When I look at some of the arguments advanced in the Crown Court by both the defence and prosecution I cannot quite believe such arguments were part of criminal proceedings. A significant amount of them were technical points relating to the clinical assessment of shock. How has a junior doctor found themselves in the dock in criminal proceedings arguing that they were “correct to be cautious about introducing too much fluid into the [patient] because of his heart condition”? Together with the prosecution, in order to gain a conviction making points about capillary refill and high levels of lactate in the blood. It was also decided to to use Dr Bawa-Garba’s educational ePortfolio reflections against her, this will have a catastrophic effect on a future doctor’s ability to reflect openly and honestly about serious incidents and mistakes.

There can be no doubt that the NHS grossly failed Jack Adcock. However when looking at the arguments for both the criminal prosecution and the defence it becomes clear, to me at least, that the jury room of a Crown Court is never going to be a place where justice will be served in complex medical cases like this. This is despite the best efforts of a jury and even if there is a faultless summing up by a judge.

In contrast, the specialist Medical Practitioner Tribunal Service with its panels of doctors, lawyers and lay people are much better placed to explore complex cases like this, maybe even more so than the senior courts which makes the GMC’s decision to challenge the decision of the MPTS in this case all the more surprising. The GMC accepted in the High Court that it should have deference to the expertise of such a tribunal, yet this only seems to apply when it agrees with them.

One of the first acts of Counsel for the GMC in the High Court was to proudly inform the court that since 2016, the GMC had made use of its relatively new Section 40A right of appeal no less than 18 times and that of those 18 applications, 11 had succeeded. It was almost as if there was a belief that the GMC’s winning streak would assist in the case before the court.

What I found most troubling about the GMC’s position in this case is its reluctance to accept the significance that serious system failures can have on patient safety and a doctor’s ability to offer safe care. By bringing the case against Dr Bawa-Garba, they have also sought to challenge the MPTS’s attempt to understand the wider context of these tragic circumstances. The GMC’s emphatic justification of such an approach was that it is the duty of a doctor not to put themselves in a dangerous position in relation to competence and skills, not the hospital’s duty.

This chimes with my experience of the GMC. In my own case they failed to act or initiate investigations into very serious, now accepted safety and staffing issues and they misled the profession on a gap in whistleblowing law that has been preventing the issues in my case being heard by a court for over 3 years. The GMC even failed to provide a response to a letter sent to it by 1,000 doctors challenging its actions in my case.

When the High Court turned to considering whether or not the public interest would be served by not striking Dr Bawa-Garba off the medical register, astonishingly one of the GMC’s arguments on this was that no one could be found that could describe Dr Bawa-Garba as an exceptional doctor and the people they did speak to were only prepared to say that she was in the top third of doctors in training. A statement like this speaks volumes about the GMC’s attitude to this case and to doctors that find themselves in Dr Bawa-Garba’s position.

The fact that Dr Bawa-Garba is from a black and ethnic minority background is somewhat of an elephant in the room in this case. It sits uncomfortably with the GMC’s defeat in the Supreme Court last month to Dr Michalak, another doctor that the GMC chose to pick a fight with in the courts. In that case it attempted to argue that its actions in respect to Dr Michalak and all other doctors should not be subject to equality legislation in employment tribunal proceedings. This includes situations when the GMC is accused of discriminating against doctors on account of race and other protected characteristics. Dr Michalak has already won her case against the NHS and received over £4 million pounds of compensation, so it is very likely that the GMC will have some serious questions to answer about their treatment of her. Questions that the GMC has tried its best, at huge expense, to avoid having to answer.

Statute imposes an overarching objective on the GMC to protect the public. This includes: to protect and promote the health, safety and wellbeing of the public; to promote and maintain public confidence in the medical profession and to promote and maintain proper professional standards and conduct for members of the profession.

Striking off a doctor who has an unblemished record and who was clearly in an under-resourced and unsafe situation will set a dangerous precedent. In an NHS at breaking point, with many doctors struggling to cope with increasing workloads, this will only lead to more cover ups, more doctors leaving the profession or the country and more pressure on remaining staff. This in no way protects or promotes the health of the public, and definitely does not maintain confidence in the medical profession. It seems to me that the GMC has lost the plot with the Dr Bawa-Garba case and it is important for NHS safety and transparency that the public does not join them.

1.  Bawa-Garba v R [2016] EWCA Crim 1841. Court of Appeal.  16 Dec 2016.  http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2016/1841.html&query=(Bawa-Garba

2. Medical Practitioner Tribunal Service Decision Dr Bawa-Garba. MPTS. 13 June 2017. https://www.mpts-uk.org/static/documents/content/Dr_Hadiza_BAWA-GARBA_13_June_2017.pdf

 3.     Michalak v GMC UKSC 2016/0084.Supreme Court. 1 November 2017.  https://www.supremecourt.uk/cases/uksc-2016-0084.html

 4.    Letter to GMC by Dr Max Neun signed by 1,000 doctors dated March 2016. http://www.54000doctors.org/letters/letter-to-the-gmc-signed-by-1000-doctors.html

 5.     Letter to GMC by Dr Chris Day dated March 2016. http://www.54000doctors.org/letters/gmcs-response-to-open-letter-signed-by-1000-doctors-dr-days-letter-of-reply.html

 6.     COMPLETE LACK OF MEDICAL LEADERSHIP' AT INTENSIVE CARE UNIT . SHAUN LINTERN Health Service Journal.  13 July 2017.  http://www.54000doctors.org/blogs/complete-lack-of-medical-leadership-at-intensive-care-unit.html

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