Nicola Edgar

The failures

Dr Bawa-Garba was on her first day back to work after a 14 month period of maternity leave on 18 February 2011 when she treated Jack, who was suffering from symptoms of sickness and diarrhoea. She subsequently admitted to underestimating the severity of his condition and he died that evening. Dr Bawa-Garba has never denied that she made mistakes and admitted to failing to recognise the symptoms of sepsis, which should have been treated with antibiotics earlier. An inquest later heard that if Jack had received better care, he would likely have made a full recovery.

However, in addition to Dr Bawa-Garba’s own mistakes, there were numerous other failures: a number of medical staff were absent for much of her shift, including the Consultant who was supposed to be in charge that Day - Dr O’Riordan - who had not arrived for work due to teaching commitments elsewhere; Dr Bawa-Garba was covering two wards and caring for other seriously ill children; she’d had no break during her 12 hour shift; and there was an IT system failure which meant that blood test results were delayed and the alert system which flags abnormal results was not functioning.

Leicester Royal Infirmary published its own investigation report which, separate from the errors made by Dr Bawa-Garba, listed 23 recommendations for improvement and 79 actions necessary to prevent a repeat incident. These included introducing procedures for staff returning to work after extended leave, a dedicated presence of consultants, and better visual prompts for staff of abnormal blood results.

Criminal charges

The public outcry came when, despite recognition of these extensive systemic failures within the hospital, criminal charges were brought against Dr Bawa-Garba. In 2015 she was found guilty of gross negligence manslaughter and received a 24 month suspended jail sentence.  

Fit to practice?

In addition to criminal proceedings, there was also the question of whether she should continue practising as a doctor. The Medical Practitioners Tribunal decided she could continue her training and practice after a one-year suspension. However, the General Medical Council successfully appealed this decision to the High Court, on the basis that it was too lenient, and she was then struck off. The Court of Appeal has now overturned this decision, reinstating her. This means that she will be able to practice in future, albeit Jack’s parents have vowed to fight this decision by taking the case to the Supreme Court.

Whilst Jack’s family argue there is no accountability for their son’s avoidable death or repercussions for Dr Bawa-Garba, her supporters argue that doctors take on a huge responsibility by trying to save lives and they should not be penalised for making mistakes. They consider it crucial in protecting patients that an open learning culture is promoted within the NHS, as opposed to scapegoating and aggressively pursuing individuals.

Open and honest reflections

Immediately after the incident, Dr Bawa-Garba started noting down her reflections on what had gone wrong. This is how doctors are trained to analyse situations so that they can consider what they should have done differently. A week later, Dr O’Riordan asked to meet Dr Bawa-Garba and they continued this reflective process. Dr Bawa-Garba was open and honest, discussing each of the things she could have done better, with Dr O’Riordan taking notes. Following the meeting, Dr O’Riordan transferred his notes onto a training encounter form which Dr Bawa-Garba refused to sign as she didn’t agree with all that was noted. Nevertheless, this document was an important part of the later criminal proceedings.

Open and honest reflections allow doctors to learn from their experiences with the aim of protecting future patients. They are fundamental in ensuring the NHS operates as effectively as possible, creating an environment where practitioners can learn from their own and each other’s mistakes, without reproach. The fact that this was used against Dr Bawa-Garba in court was alarming for the medical profession and will undoubtedly cause practitioners to think twice about doing this in future, in order to protect themselves and their careers. Should it not be that doctors can reflect and try to learn from their experiences without fear of repercussions or legal action? Furthermore, if blame culture is fostered within the NHS, will it not discourage people from working there, exacerbating the bigger issues of under-staffing?

It is reported that NHS staff are under constant, unbearable pressure and fear making mistakes due to the issues they experience on a daily basis such as under-staffing, IT issues and communication problems. In my own experience of handling medical negligence claims, rather than mistakes occurring during complicated medical procedures, mistakes are often simple and avoidable. Many cases occur as a result of administrative failures, such as failure to follow up on tests or appointments, or due to poor staffing levels meaning that the care required simply cannot be provided. In the context of a place of work where there are limited resources, it is reasonably foreseeable that mistakes will occur, they are inevitable and are a result of systemic failures, as opposed to being the failure of any one individual. In these circumstances, is it just that an individual should suffer devastating personal and professional consequences whilst working in such an unsupportive, strained environment?

Is the test for negligence outdated?

In order to be successful in a civil case against the NHS, it is necessary to show that the care received was negligent. To do so, it must be established that:- (1) there was an accepted practice; (2) that practice was departed from; and (3) the treatment carried out was one that no reasonably competent practitioner would have done.

However, this test does not directly take into account the other pressures which exist in the individual’s working environment. Should it also be necessary to analyse the other contributing factors, as opposed to laying the blame solely at the feet of individuals? Is that contributing to the blame culture which appears to be developing within the NHS, compounding the problem? Should there be greater emphasis placed on other external factors when considering whether or not acts or omissions constitute negligence?

The future

The NHS is a much celebrated and cherished British institution and we all want it to thrive and continue to be a source of pride. For it to work effectively, we need to ensure that talented, ambitious practitioners want to work there and promote a culture where they can learn and develop in a supportive environment without fear. Things will go wrong and mistakes will be made, however, the challenge is to find a balance between redress for injured patients and support for practitioners who are trying their hardest to save lives. Ultimately, this is the best way to protect patients. It is to be hoped that one positive from this tragic situation is that there is constructive thought on how this balance can be sought.

Nicola Edgar is an associate at Morton Fraser