“Anything you reflect on can, and will, be used against you” : the medical Miranda rights

In the light of recent events regarding the Dr Hadiza Bawa-Garba case, The Medical Student in collaboration with medical students at the UEA, decided to publish an article written by Briony Keir in The Murmur – a medical magazine written and edited by medical students at Norwich Medical School, UEA. The Murmur can be accessed on http://www.ueamedsoc.co.uk/medsoc-murmur.html 

 

27720858_10213545987035368_162022348_nIf you’re anything like me, you may well have snoozed, Candy Crushed and WhatsApped your way through most of your medicolegal lectures as a medical student. The case law is incomprehensible and seemingly contradictory, the legal process just plain convoluted, and what the heck is a tort when it’s at home? All that being said, please believe me when I say that the recent High Court case1 of GMC vs Bawa-Garba is one for which you should put your phone away, sit up, and pay attention, because you’re definitely going to be tested on this.

In February 2011, Dr Hadiza Bawa-Garba, then an ST6 in paediatric medicine, returned to full-time work at the Leicester Royal Infirmary after 13 months maternity leave. One morning, a six year old boy, Jack Adcock, was admitted and triaged by Dr Bawa-Garba as ‘seriously unwell’2. His blood pH was 7.08 and his lactate was 11, a fact which Dr Bawa-Garba’s supervising consultant was aware of but failed to act upon2. Unfortunately, a number of systemic failings including a critical IT failure, understaffing, failure of other healthcare professionals to escalate clinical concerns, and a lack of trust induction or adequate handover led to Dr Bawa-Garba giving substandard care, which resulted in Jack’s tragic and untimely death at 9:30pm that evening.

27661499_10213545986875364_559523420_nThe culture of openness which medicine has moved towards over the last decade – known in human factors terms as a ‘just culture’ – encourages us to accept that often mistakes are not solely one individual’s fault, but instead a result of multiple micro-errors stacking up over time like holes in a block of Swiss cheese3. In this model, the only way we can prevent future incidents is to learn from previous issues and resolve what causes we can before we begin apportioning blame and punishment. However, in this case, Dr Bawa-Garba was convicted of manslaughter by gross negligence in 2015, and suspended for 12 months by the Medical Practitioners Tribunal Service (MPTS) in 20172. Shortly afterwards, the GMC chose to appeal this decision through the High Court, pushing for her full erasure from the medical register4. They wanted to strike her off.

There are many issues at play here, and no one article could cover them all (although Dr Chris Day4 and Dr Saurabh Jha5 both do a good job). There are real concerns from a justice perspective; despite 79 issues being identified by the Trust as systemic failings related to the case6, the GMC and the criminal justice system placed the blame squarely on Dr Bawa-Garba’s shoulders. The issue that is most unpalatable for the medical profession, however, is the admission of her own reflective portfolio as evidence against her in the High Court, while at the same time the Trust’s own report identifying systemic failures was prevented from being heard in her defence7,8.

As medical students and medical educators will know, reflective practice is considered the gold standard for continuing professional development, and is required of all doctors by the GMC as part of their Good Medical Practice guidelines9. We do not know the content of her reflection, but it is likely to be self-critical in the least, potentially bordering on merciless. And yet that document was used to prove her errors were “truly, exceptionally bad”; twisting her words and her grief into self-incrimination. How, then, are we now supposed to reflect openly and honestly on mistakes and errors, if there is legal precedent to use those reflections – our thoughts and feelings at some of the lowest moments of our careers – against us?

This is the crux of the issues surrounding this case, and several experts have weighed in on this. Rob Hendry (medical director of the Medical Protection Society) said, after the verdict was announced, that “The … implications [of this case] will understandably be of concern to the healthcare community. This appeal decision may jeopardise an open, learning culture in healthcare at a time when the profession is already marred by low morale and fear”10. Martin Bromiley (a champion of human factors in healthcare, and the widower of Elaine Bromiley, who died in 2005 after a routine operation went catastrophically wrong) commented on Twitter after the verdict that “Inadvertent errors, freely reported, should not attract punishment but learning … The #BawaGarba case is tragic for all concerned. In a just culture, learning is prioritised and systemic issues are fully explored first, and if appropriate individuals are then held accountable”11. Within days of the verdict being announced, thousands of doctors took to social media to voice their concerns regarding the impact of this decision on patient safety, and as of 30th Jan over £230,000 has been raised to fund a legal challenge to the court’s decision. Several unofficial medical organisations are threatening to boycott written portfolio appraisals in the wake of this case as they do not wish to inadvertently self-incriminate12, and even the notorious Jeremy Hunt MP has weighed in against the GMC, saying he is “totally perplexed” and “deeply concerned” by their behaviour8.

It is important, at this point, to be clear that true reflective practice is not merely a modern-day confessional (Forgive me, Professor, for I have sinned …), whereby a student or doctor may write an account of an incident, slap a SMART target on it and consider themselves absolved. It is a real and emotionally difficult process to confront your own mistakes, especially ones which have led to the suffering or death of a child, and it is absolutely right that in situations where doctors fail to engage with the system or whose errors were too great to resolve, that erasure may be necessary. In this case, the original MPTS verdict specifically found that erasure was disproportionate and punitive2. And yet the GMC sought to overturn this decision, seeing fit to admit evidence that was written for private reflection and which should not be considered a balanced account of the event.

In the context of other high-profile medicolegal issues such as Dr Chris Day’s sacking, ostensibly after blowing the whistle in 2015, doctors are feeling the pinch of a catch-22 situation in which they can neither escalate concerns about systemic failures, nor safely attempt to wade through them and do their best for patients. Our profession is rapidly becoming stuck between a rock and a hard place in terms of maintaining patient (and doctors’!) safety, and this problem is likely to get worse before it gets better.

To put this into a more familiar context for medical students, imagine if you were on your first day of placement in a new hospital, expecting to shadow the post-take ward round, and you were asked to clerk a new, unwell patient on behalf of the overstretched medical team. Because of the computers being down and the patients having moved beds without telling you, in your clerking you make a few errors which your consultant notices but doesn’t correct you on, and the patient suffers as a result. You discuss this with the consultant and conscientiously decide to write this up in your next portfolio appraisal. The medical school mark your report and decide that you should be expelled from medical training on the basis of the evidence you submitted for your own assessment.

Would you want to go to a medical school that did that?

 

References

  1. General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin).(2018). http://www.bailii.org/ew/cases/EWHC/Admin/2018/76.html. Accessed January 30, 2018.
  2. Medical Practitioners Tribunal Service. Record of Determinations – Allegation and Findings of Fact.(2017). https://www.mpts-uk.org/static/documents/content/Dr_Hadiza_BAWA-GARBA_13_June_2017.pdf. Accessed January 30, 2018.
  3. Reason J. The contribution of latent human failures to the breakdown of complex systems. Philos Trans R Soc Lond B Biol Sci. 1990;327(1241):475-484. doi:10.1098/RSTB.1990.0090.
  4. Day C. Whose interests are the GMC really trying to serve in the Bawa-Garba case? 54000 Doctors. http://www.54000doctors.org/blogs/whos-interests-are-the-gmc-really-trying-to-serve-in-the-bawa-garba-case.html. Published 2017. Accessed January 30, 2018.
  5. Jha S. To Err is Homicide in Britain – The Case of Dr. Hadiza Bawa-Garba   | THCB. The Health Care Blog. http://thehealthcareblog.com/blog/2018/01/30/to-err-is-homicide-in-britain-the-case-of-dr-hadiza-bawa-garba/. Published 2018. Accessed January 31, 2018.
  6. Daybdeen L, Klonin H, Wariyar S, Speight N, Holt K. An account by concerned UK paediatric consultants of the tragic events surrounding the GMC action against Dr Bawa-Garba. 54000 Doctors. http://54000doctors.org/blogs/an-account-by-concerned-uk-paediatric-consultants-of-the-tragic-events-surrounding-the-gmc-action-against-dr-bawa-garba.html. Published 2017. Accessed January 30, 2018.
  7. Cohen D. Back to blame: the Bawa-Garba case and the patient safety agenda. BMJ. 2017;359:j5534. doi:10.1136/BMJ.J5534.
  8. Dyer C. Bawa-Garba case has left profession shaken and stirred. BMJ. 2018;360:k456. doi:10.1136/BMJ.K456.
  9. General Medical Council. Reflecting on your practice | Good Medical Practice. 2012. https://www.gmc-uk.org/guidance/ethical_guidance/11817.asp. Accessed January 30, 2018.
  10. Dyer C. Paediatrician convicted of manslaughter must be erased from register, rules High Court. BMJ. 2018;360:k417. doi:10.1136/BMJ.K417.
  11. Bromiley M. Tweet. 2018. https://twitter.com/MartinBromiley/status/956806907674677249.
  12. Bostock N. GPs boycott reflective entries for appraisal after Bawa-Garba case. GPOnline. https://www.gponline.com/gps-boycott-reflective-entries-appraisal-bawa-garba-case/article/1455704. Published 2018. Accessed January 30, 2018.
  13. Jawahar K. Bawa Garba: The fear now among doctors is – “You will be scapegoated for systemic failures” – The i newspaper online iNews. iNews. https://inews.co.uk/opinion/comment/bawa-garba-fear-now-among-doctors/. Published 2018. Accessed January 30, 2018.

 

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