‘Scapegoating’ the elephant


I listened to Dr BawaGarba in the evening of the 13th of August 2018, a few hours after the Appeal Court decision reinstating her right to practice as a doctor in the UK. Her tone betrayed the unmistakable strain of a seven-year journey through the criminal justice system. Her experience had served to highlight a decline in the working conditions of junior doctors not just in the UK, but around the world. At the centre of the controversy was the unfair treatment of a single frontline individual whose fatal errors could easily have been made by ‘any of us

“I am sorry for my role in what has happened to Jack.”

On the 18th of February 2011, Jack
Adcock, a six-year-old boy with Down’s syndrome and a history of respiratory infections was admitted to the Children’s Assessment Unit (CAU) at the Leicester Royal Infirmary (LRI) with diarrhoea, vomiting and difficulty in
breathing. Dr Hadiza Bawa-Garba, a specialist registrar in her sixth year of postgraduate training (ST6) in paediatrics was the ‘most senior junior doctor’ on duty in the CAU.

At 8pm that evening, Jack suffered a cardiac arrest and by 9.20pm, he had died! The cause of death (misdiagnosed for five crucial hours during his eleven-hour admission) was group A streptococcal (GAS) sepsis resulting from pneumonia.

On the 4th of November 2015, the jury at Nottingham Crown Court was directed to deliver a verdict of Manslaughter on the grounds of ‘gross negligence’ only if it was convinced that the act of negligence was ‘truly exceptionally bad’ and caused or significantly contributed to the death of the victim.

The jury heard how Dr Bawa-Garba, having just returned from fourteen months of maternity leave, was covering six wards across four floors while supervising two junior colleagues who were both new to paediatrics at the time. Her supervising consultant was also unavoidably absent and the hospital IT system had been down for several hours
Dr Bawa-Garba and Portuguese-trained agency nurse, Isabel Amaro were found guilty and given two-year suspended sentences. Both were subsequently ‘struck off’ by the General Medical Council (GMC) and Nursing and Midwifery Council (NMC) respectively. A third defendant, CAU sister Theresa Taylor was cleared of all charges.

A conviction of gross negligence manslaughter requires the breach of an existing duty of care, causing death from conduct ‘so bad in all the circumstances as to go beyond the requirement of compensation and to amount to a criminal act or omission’. Although sentencing may take into account any number of mitigating factors, the charge of gross negligence manslaughter rests entirely on the ‘seriousness of a breach of duty’ committed by a single individual.

The complex interactions and interdependence of multiple systems so often a feature of primary and secondary care make it difficult to apportion culpability to the actions or omissions of a single person. Indeed, a serious untoward incident (SUI) review conducted in the weeks following the death of Jack Adcock identified multiple systemic failings and ‘no single root cause’ for his death.

A tendency to deflect liability very often lends itself to a corporate culture of blame and ‘scapegoating’. Reason et al. (2001) describe a triad of self-perpetuating ‘organisational pathologies’ inherent in the cause of many adverse clinical events. The essential characteristics of this ‘vulnerable system syndrome’ (VSS) are – a denial of entrenched systemic errors, an inappropriate pursuit of the wrong kind of excellence (targets and tick boxes!) and a tendency to blame frontline individuals for errors and organisational failings.

Despite the LRI’s own internal findings of
contributory systemic error, not a great deal has been mentioned about the prospect of corporate prosecution in this instance. The first attempted prosecution of a National Health Service (NHS) hospital duly collapsed in 2016,
giving credence to the suggestion that it is infinitely more feasible to pursue a charge of gross negligence manslaughter against an individual health care professional (47 cases vs 1 since 1994!) than an allegation of corporate manslaughter against a healthcare institution.

And so this brings us to the elephant in the
room! The NHS is the largest employer of Black, Asian and Minority Ethnic (BAME) staff in the UK. Approximately 200 000 NHS staff (one-third of all doctors and one-fifth of nurses and midwives) are from BAME backgrounds. 5
per cent of doctors on the UK medical register are foreign medical graduates from Nigeria (1.7%), Egypt (1.4%) and South Africa (1.8%).

With Brexit firmly on the horizon, the Home Office on the 6th of July 2018 lifted its
so-called ‘Tier 2’ visa cap on the recruitment of doctors and nurses from outside the European Union (EU), paving the way for thousands more highly skilled medical professionals from nonEU, Commonwealth and African countries.

‘Over-representation’ in MPTS tribunal

Although no evidence exists to suggest discrimination in fitness to practice procedures in either organisation, the GMC and NMC conclude that there is an ‘over-representation’ of BAME registrants (doctors and nurses) in tribunal hearings and official complaints made to both healthcare professional regulators.

Of the 324 fitness to practice decisions made by the Medical Practice Tribunal Service (MPTS) in the last twelve months, 26 (8%) have involved foreign medical graduates from Nigeria, including 5 ‘erasures’ from the medical register, 7 suspensions of varying lengths and other forms of sanction deemed ‘in the interest of public confidence in the profession’.

In the specific case of Hadiza BawaGarba,a disproportionate focus on racial diversity may not be entirely helpful to the discourse at hand. The numbers are rather too ‘small’ (7 BAME doctors out of 9 convicted since 2004) to conclude the same degree of over-representation in prosecutions for alleged gross negligence manslaughter.

Dr Bawa-Garba is indeed a Muslim woman from the northern part of Nigeria who also happens to wear the hijab! A Freedom of Information (FOI) request submitted on the 5th of November 2015, did also reveal that she graduated as a doctor from the University of Leicester in 2003. Her entire medical orientation has been in the NHS and she is not known to have practised in any other country.

On the 70th anniversary of the founding of this worldwide exemplar of publicly-funded healthcare, of far greater importance is the need to harness the benefits of diversity and to pursue a mutual understanding of the needs and nuances of meaningful coexistence of all contributors within a meritocracy of aspirations and ideals

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Disclosure forms provided by the author are available at NEJM.org.

Editor’s note:

Author Affiliations

Tokunbo Shitta-Bey is an NHS GP with a special interest in chronic disease, medical education and Out-of-Hours care. He is the Editor of the BHQJ.

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1st October 2018

BHQJ 2018 ; 001:34-36

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