The day Leicester trainee paediatrician Dr Hadiza Bawa-Garba was struck off by the High Court for her involvement in the death of six-year-old Jack Adcock, Health Secretary Jeremy Hunt posted a tweet expressing his deep concern about possible unintended consequences of the ruling. He was referring specifically to the impact on patient safety.
At a stroke, efforts to build a culture of open learning – a cause Hunt champions – had been set back decades. You don’t get people to talk honestly about critical mistakes by threatening them with prison and professional ruin.
There may be other consequences that Hunt didn’t anticipate. Comparisons with another safety-critical industry – aviation – are instructive. On the day Jack died, from undiagnosed sepsis, Bawa-Garba was functioning as would a first officer on an aircraft. The plane’s captain was elsewhere, training other pilots on a simulator in a different city. The chief steward had failed to report for duty, so Bawa-Garba was expected to oversee cabin service as well as fly the plane single-handed.
The aircraft’s IT systems had gone down, meaning one of the stewardesses was permanently occupied looking out of the window to ensure they didn’t collide with anything. Another stewardess was off sick, and her replacement was unfamiliar with the type of plane and its safety systems. And Bawa-Garba herself had just returned from a year’s maternity leave. She’d done quite a lot of flying in the past, though, and the airline clearly believed she could slot straight back into action – they arranged no return-to-work programme, dropping her in at the deep end.
Not one of us would agree to be a passenger on that flight, yet that kind of scenario is commonplace in hospitals throughout the country. Critically ill patients have no awareness of how precarious their care is, and would have no choice about it if they knew. Since the Bawa-Garba ruling, doctors have been bombarding the General Medical Council (GMC) for advice as to what they should do when confronted with similarly parlous working conditions.
The GMC’s response has been to issue a flowchart detailing whom medics should tell about concerns. But it has failed to confirm that doing so would protect doctors should a disaster occur. Nor does it support worried doctors simply refusing to work under unsafe conditions. This is akin to telling the first officer they must inform the airline that things are bad, very bad, but that they still have to fly the plane regardless.
Jeremy Hunt has responded to the crisis by announcing an urgent review into gross negligence manslaughter, the offence of which Bawa-Garba was convicted. This is welcome, and long overdue, but it still serves to retain the focus on individuals and their performance, and keeps attention away from the failing systems that let down doctors and patients daily.
An action by the British Association of Physicians of Indian Origin is, arguably, more important than Hunt’s review. The organisation has written to Leicestershire police requesting that they investigate Bawa-Garba’s hospital trust for alleged corporate manslaughter. I sincerely hope a prosecution follows. I’m no fan of litigation, but change is only going to come when those who manage the NHS know that they are going to carry the can when things go wrong.
We need clear statements of what constitute minimum acceptable staffing levels, both in terms of numbers, and training and experience. When departments, or even whole hospitals, fall below these – or when unexpected problems such as IT failures occur – managers, faced with the real prospect of corporate lawsuits, will close the unit, rather than keep operating in unsafe conditions, as routinely occurs.
Only when enough hospitals shut down, and do so often, will those with true responsibility – Jeremy Hunt and the rest of the Conservative government – finally act to resource the health service properly.
This would be an unintended consequence from the Dr Bawa-Garba case that would be welcome indeed.
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This article appears in the 15 Feb 2018 issue of the New Statesman, The polite extremist