Excuse me a little, as I’ve personally been through the entire regulatory process, and I find the GMC decision in #BawaGarba very complicated. The timeline is even more complicated.
Understanding the law of gross negligence manslaughter has not been a great help to me. I studied this for my Bachelor of Law in 2009. I was restored onto the GMC register after a period of absence (2006-2014), and a protracted period of self-reflection has indeed helped me to understand the perspectives of the doctor and the traumatised.
The phrase ‘there but the grace of God go I’ is really no solace for a relative who will never forget ‘that day’ in hospital until he or she dies. When doctors proudly boast they have luckily escaped killing one of their patients, this runs the risk of appearing to be a testosterone-driven boast, and belies a sheer callous contempt of patients, where their job or career appear more important. What Doctors mean is that they are having to make risky decisions daily, and nothing has gone seriously wrong yet, presumably?
This genuinely worries me. Also worrying is nobody will actually ‘up sticks’ or ‘speak out’ against the system, unless something actually goes wrong. No ST6 will want to phone his or her Consultant on a busy on-call for fear of not appearing autonomous or confident, even though after the event it seems ‘good to talk’.
Saying to a devastated relative that there is a team ‘learning from mistakes’ when that relative might be traumatised that he or she was waiting for hours, the clinical assessment then seemed rushed or incomplete, and a relative dies, seems inadequate.
And indeed it seems entirely appropriate that the new sentencing guidelines does allow for actions or omissions causing for death in high risk healthcare environments as a significant mitigating factor, causing low ‘culpability‘.
The principles behind gross negligence manslaughter are clearer than one might expect. By assuming the duty bleep, the buck will stop at that ST6, in ‘assuming the duty of care‘. But an issue about whether the ST6 should ‘cop the bullet’ in the face of a plethora of other issues going wrong is important, as it potentially implies an imperfect doctor singularly working in a perfect world otherwise.
I intuitively feel though that medical manslaughter is different, otherwise you’re potentially subjecting highly skilled doctors, who work in high performance teams in highly stressful environments, such as acute medical care in the country’s national referral centres, to a situation where they’re being set up to fail.
And of course you can get highly complex medical cases in busy DGHs, and any rank of doctor, including experienced Consultants, can face the #BawaGarba situation. In other words, we need to encourage the brightest of doctors to face complex medicine, not be frightened of it.
There is a perception that certain doctors are very arrogant and don’t care about making mistakes. I agree that the GMC should show extreme sanctions for those doctors on the register who show complete contempt for the code of conduct, but I don’t feel #BawaGarba falls into that category.
In innovation, you have to crack an egg to make an omelette. For that matter, as a clinician, you may have to put up with risks and uncertainties in the clinical environment, often working with incomplete information, to function. I am not in any way promoting risky medical practice, i.e. not promoting patient safety, but I am suggesting that some doctors, for example doing highly complicated surgical operations or procedures, or dealing with highly complex medical cases, have to deal with a high element of risk.
And the law of manslaughter, killing someone through an act or omission, unintended, but through recklessness, has to be dealt with in the framing of medical manslaughter. Even if #BawaGarba is successfully struck off, but then successfully returned to the medical register at least five years later, she is bound to be at risk of being a much worse doctor than when she left the medical profession? And then what has been achieved? If #BawaGarba had shown no contrition, such a period of ‘punishment’ would have been perhaps justified, but, as far as I know, #BawaGarba says she will live with that day for the rest of her life. But the patient’s relative will be permanently emotionally scared too; “life changed”.
I don’t deny this. This will be a landmark for the rest of her life, and cause her immense trauma for years to come, whatever happens.
I hope the GMC can look at this sensibly, otherwise they might accidentally promote a culture of fear where mistakes or errors are driven underground, and the NHS truly has a secretive culture where doctors are adversarial with its regulator as well as patients.
There were no winners in that case. The outcome was truly heartbreaking and nothing will ease the pain ever.