Today we publish a blog by Dr Jenny Vaughan, a consultant neurologist and medical law campaigner. She is the co-founder of the website Manslaughter and Healthcare and has been actively involved in the defence of medical practitioners who have been convicted of gross negligence manslaughter (GNM).
It is an important blog that reflects upon the case of Dr Hadiza Bawa-Garba who found herself at the centre of a series of events involving the tragic and avoidable death of Jack Adcock at Leicester Royal Infirmary.
Although Hadiza made mistakes that contributed to the death of Jack Adcock, she had a record of being a diligent doctor. There were other contributory factors, including major failings within the wider hospital environment, that contributed to Jack’s death. It is for these reasons that many health professionals protested against the conviction of Hadiza for gross negligent manslaughter.
However, at the heart of the controversy is an undeniably difficult challenge of creating a system for holding individual healthcare professionals accountable whilst balancing it against two other needs: first, the need to also protect healthcare professionals from the fact that clinical practice involves making difficult judgements and taking actions that may prove wrong; and second, the need to recognise that individual behaviours and clinical practice are hugely determined by systemic factors such as staffing levels, workload pressure and levels of morale and motivation.
Mistakes in medicine are inevitable; and because of the inherent risks and serious ‘life and death’ nature of medicine, there will always be an association between mistakes and tragic outcomes. Equally, patients need to be protected from clinicians who are grossly negligent, reckless and malign.
In terms of the former, the NHS has generally had good systems designed to minimise mistakes and optimise safety. Historically, such systems have been located within a culture of professionalism and public service which are critical ingredients to creating a foundation of trust between the NHS and the general public, and a system that is capable of protecting both patients and clinicians.
Critically, neither patients nor clinicians will benefit from a breakdown in trust or from healthcare practitioners behaving over-defensively for fear of unwarranted blame or criminal prosecution. Defensive medicine can lead to inappropriate and unsafe (paradoxically) treatment. A fear of unfair or over-zealous regulatory action may cause healthcare professionals to be less than fully honest and candid, or to attempt covering-up mistakes.
Moving in this direction would diminish the NHS as an institution, but also add the distress and pain of families who have been affected by a tragic mistake.
This is a complex set of issues that involves a system of professional regulation working in harmony with the legal system.
A first step is to clarify the role of criminal courts in dealing with medical errors. As a result of recent appeals and a review by Norman Williams (described in Jenny’s blog) the legal test gross negligent manslaughter (GNM) is tighter. The Williams review also recommends that the Crown Prosecution Service meets with the medical defence societies and work towards a joint understanding of GNM. This should mean that only medical practitioners who have acted in a “truly, exceptionally bad” manner will be charged and that those who have made tragic mistakes will not be treated as criminals but be dealt with professionally.
The Government has also established the Health Services Safety Investigation Branch (HSIB) which is currently carrying out reviews of major patient safety incidents – not with the intention of identifying culpable individuals, but to learn from medical errors.
However, as parliament considers draft legislation to give HSIB wide-ranging powers to carry out investigations in a highly confidential way, concerns are being raised about whether the right balance is being struck between the desirability of learning from mistakes and errors, and ensuring that there is real and transparent accountability. Patient groups fear the potential for a cover-up: professional regulators fear that they will be unable to carry out fitness to practise assessments of healthcare professionals.
Going forwards, CHPI intends to contribute to this debate by conducting research and analysis on the issue, and sharing different viewpoints on the issues around professionalism, accountability, learning and transparency.
In addition, we must ensure that adequate attention is placed on the systemic factors the create unsafe situations for patients and clinicians alike. Inadequate staffing, poor management practices and the neglect of staff morale and motivation should not be tolerated. For this, we also need mechanisms to hold policy makers and managers for negligence and unfit practice.