Lawyers must fix the problems with gagging orders before it is too late
In 2015 Dr Hadiza Bawa-Garba was convicted of manslaughter by gross negligence following the death of 6 year old Jack Adcock, who had been a patient in Dr Bawa-Garba’s care at the Leicester Royal Infirmary in 2011.
Dr Bawa-Garba was a junior doctor. On the day in question she had recently returned from maternity leave, and had been assigned to work on a paediatric ward, an area of medicine in which she had relatively little experience. Evidently she was supposed to have had an induction course and a hand over meeting at the start of her shift, but the hospital was too busy, and she simply had to get on with looking after a large number of sick children. To make matters worse, the consultant in charge of the unit was not in on that day, and neither was the registrar. There was also an IT failure, which meant that the SHO in the unit was delegated to obtain test results by telephone. The patients that Dr Bawa-Garba had to look after were in 6 hospital wards, spread across 4 floors.
It is worth pausing to reflect on how she must have felt at the start of her shift. My guess is that she must have felt a huge sense of responsibility, and more than a little daunted.
It is also worth pausing to reflect on how the parents of a sick child might have felt that day, had they been aware of the fact that this one junior doctor would have so much responsibility, with such a lack of support. My guess is that they would have been profoundly worried.
Judging by the commentary online, Dr Bawa-Garba’s day was the stuff of TV medical dramas. She responded to crash calls, she stabilised seriously sick children, and dealt with numerous telephone calls from colleagues seeking her advice on sick children. Presumably she did all this whilst dashing around those 6 hospital wards, and going up and down between the 4 floors.
Jack Adcock was one of the very sick children that she was looking after. She didn’t ignore him, but in looking after him she made 3 mistakes relating to test results and medication. Together they caused Jack’s condition to deteriorate, and, tragically, he died. It later emerged that had a proper system of checks and balances been followed, Dr Bawa-Garba’s errors would have been picked up in good time, and Jack would not have died. A subsequent Serious Incident Inquiry at the hospital concluded that there was not a single root cause for Jack’s death – it was a combination of human error, and system failure.
I am a solicitor who specialises in medical negligence cases, acting for injured people and their families. I have been involved in this work for nearly 28 years, and in all of that time, I have never come across a case where I thought that the medical staff had behaved so badly that they should face criminal charges. On the contrary, most of the cases that I have dealt with have been tragic for both the family and the medical staff involved.
To put this in context, the claims I deal with are civil cases for compensation. They are about negligence, showing that there was a breach of a duty of care, and that it caused the injury complained of. They are not about blaming doctors – they are about people being compensated for injuries caused by mistakes that could have been avoided.
In some ways it is helpful to compare such claims to road accidents. Imagine you have been knocked over and injured in a hospital car park, and it emerges that the driver was a member of the hospital staff. The driver did not mean to hurt you, and you might not bear them any animosity, but nevertheless it is clear that they made a mistake, and so you would have no hesitation in making a claim on their insurance.
A clinical negligence claim is broadly similar, although the test for establishing the negligence is, quite rightly, much higher. A claim will only succeed if independent medical experts confirm that the care you received fell below a reasonable standard, and that this caused your injury.
I presume that the parents of Jack Adcock brought a claim in negligence against the Leicester Royal Infirmary, that liability was admitted, and that the case settled quite quickly. However, the thing that makes this case stand out is that the individual doctor faced criminal charges. I don’t specialise in criminal law, but I believe that the definition of gross negligence manslaughter is set out in the “Adomako Test”, from a House of Lords case in 1994:-
It is for the jury to decide whether the defendant’s conduct was so bad, in all of the circumstances, to amount to a criminal act or omission. Just how bad should the conduct be? The appeal courts have approved the approach taken by a judge who directed the jury to consider whether it would be appropriate to describe the doctor’s conduct as “reprehensible”.
Despite the fact that there has been lots of commentary about Dr Bawa-Garba, only those who were closely involved in the case will have heard all of the evidence. All that we can reliably say is that at the end of the trial, the jury, which was made up of 12 independent men and women, decided that Dr Bawa-Garba’s conduct was indeed so bad –perhaps even reprehensible – as to satisfy the test of gross negligence.
Dr Bawa-Garba was subsequently referred to the General Medical Council, which regulates the medical profession. A Panel of the Medical Practitioners Tribunal Service considered her fitness to practise, and decided to suspend her for a period of 12 months. Thereafter, the GMC used its power of appeal to the High Court, and the suspension order was replaced with erasure from the register, meaning that she can no longer practice medicine. Given the conviction for gross negligence manslaughter, the decision of the High Court is hardly surprising.
Having said all of that, and on the basis of what I have been able to learn about the facts, I am very surprised that Dr Bawa-Garba was prosecuted in the first place. Such prosecutions are incredibly rare, and whilst the care provided to Jack Adcock probably amounted to medical negligence, it seems to me that this was because of near impossible circumstances at Leicester Royal Infirmary, rather than a criminal failing by an overworked junior doctor.
Dr Bawa-Garba’s case has caused outrage within the medical profession, and there is crowd funding for appeal costs. I understand why that has happened, and would be relieved if her conviction was overturned by the Court of Appeal, because it would suggest that she was indeed a good doctor who tried to her best. In saying this, I would not suggest for one minute that any negligence claim against the NHS Trust responsible for the hospital and its staff should also be overturned. As I try to explain above, civil claims for negligence are about avoidable mistakes, and the death of a child who would have lived had he received proper medical care was just such an avoidable mistake.
Much of the online commentary has also focused upon how, following this case, doctors will be even more reluctant to admit to their mistakes, meaning that learning opportunities will be lost. This ties in with the proposals for “safe spaces” in which medical staff can discuss mistakes in a confidential setting, safe in the knowledge that their comments will not be repeated elsewhere. There is also a link to the “Duty of Candour” regulations that have been in force since late 2014. In broad terms, they require hospitals to inform patients when there has been a poor medical outcome that should have been avoided.
Others have written about both of these subject and so I will not discuss them at length. All that I will say is that whilst the emotional response to Dr Bawa-Garba’s case is understandable, I think that the Duty of Candour approach is the correct one, and that we have to continue to be open and transparent when considering medical mistakes.
It is perhaps worth noting that Dr Bawa-Garba’s case predated the Duty of Candour regulations, and since they have been introduced (as far as I am aware) there has been no increase in prosecutions of doctors as a result of comments or admissions made in Duty of Candour investigations. Moreover, in the cases that we deal with, we see very few Duty of Candour reports, and colleagues in other firms say the same, although I am not aware of any data on how widely the regulations are being followed.
I think it all boils down to a simple point – honesty and openness is a good thing for all concerned, and this is a persistent theme in the various reports that look at the growing cost of clinical negligence claims within the NHS. All of the evidence suggests that transparency at an early stage not only avoids claims, it also makes things less painful for all concerned.
Most of us, at some stage in our lives we will be patients of the NHS. Many of us will also be healthcare professionals working within the NHS. That brings me to Jeremy Hunt – the Secretary of State for Health, and effectively the man in charge of the NHS. Evidently he tweeted his deep concern about the High Court’s decision in Dr Bawa-Garba’s case, and he has announced that there will be a Government enquiry into how doctors are treated when they make mistakes.
Leaving aside the fact that as a Government minister he should respect the independence of the judiciary, I would respectfully suggest that he is looking through the wrong end of the telescope, and that he would do better to focus on what goes in to the NHS. Jack Adcock died in 2011. For the last few weeks our television screens have been full of reports about the NHS being in a state of crisis, and our junior doctors seem to be working under even more difficult circumstances than those faced by Dr Bawa-Garba 7 years ago. As for the patients being admitted to those hospitals, they are facing an even worse lottery than poor Jack Adcock did.
Terrence Donovan is the head of the clinical negligence and personal injury team at Kingsley Napley. If you have been affected by the issues discussed in this blog, you can contact him at firstname.lastname@example.org. Alternatively you can contact us on 0207 814 1200, or email us at email@example.com.
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