By MAYURA DESHPANDE
I once made a serious error. The patient had taken an overdose of paracetamol, but because I was single-handedly covering three inpatient acute psychiatric wards due to sickness of two other trainees which medical HR had been unable to cover, with a lot of agency nurses who did not know any of the patients well at all, and also because this patient frequently said she had taken overdoses when she had not, and declined to let me take bloods to test for paracetamol levels, I believed she was crying wolf. She collapsed several hours later, and died. I was overwhelmed with feelings of guilt, inadequacy, but also fear – was this the end of my career? I was a trainee psychiatrist at the time – and was immensely fortunate in that my supervising consultant was robust in his defence of me, supported me, whilst fronting the complaint from the patient’s family and attending the inquest. He had been covering two outpatient clinics himself while I was on the ward.
The patient was only 26 years old. Her parents were very angry with me, and not unreasonably so; at the time, it seemed to me that they wanted me to suffer. Twenty years later, I believe they wanted to understand how I made the decision I did. Eventually, the consultant arranged for me to meet the parents. They were very kind to me, all of them, I realise that now. I wasn’t able to give them the answers they wanted. I just cried and said I was sorry.
The mother sent the consultant a letter afterwards which he gave me when I was about to complete that training placement. I did not read it for many months. When I did, I cried. The mother described her daughter’s childhood, the family’s loss, and her own incomprehension that the NHS – which she and generations of her family had venerated as a great institution – could have failed her child. It said very little about me, certainly didn’t seek to blame me, but said a few times that she wanted justice for her daughter. It was an exploration of grief by a bereft mother.
I often think about the mother – I cannot recall the face of the 26 year old patient – but remember perfectly well the mother, who said very little, didn’t even cry, leaving her husband to talk incoherently about justice and a referral to the GMC and the police (they did not do any of these things). And I often ponder the nature of justice they wanted. This was well before the advent of Duty of Candour and rigorously completed serious incident investigations.
Did they get justice? The coroner returned a verdict of suicide, but failed to acknowledge the systemic problems of lack of staff, merely noting that there had a “gap in clinical assessment”. It was not untrue, yet I experienced it as unfair. The consultant reminded me that I was fortunate that the family had not made more fuss. So I let it be. Until the case of Dr Bawa-Garba.
The case of Dr Bawa-Garba has been widely reported and analysed. Hadiza Bawa-Garba was a trainee paediatrician who was convicted of gross negligence manslaughter in 2015 after the death of 6 year old Jack Adcock from sepsis in Leicester Royal Infirmary. On the day in question in 2011, Dr Bawa-Garba, who had recently returned to work following maternity leave, with previous experience of community paediatrics, was sent to work on the children’s assessment unit instead of the general paediatric ward she was expecting to work on. There were medical and nursing shortages and the consultant who should have been supervising her was elsewhere. Shortly afterwards, Jack, who had Down’s syndrome, became very unwell. The computer system which would have provided lab results of blood tests was down for some time. The consultant arrived later in the day, by which time Dr Bawa-Garba believed that Jack was responding to treatment for her working diagnosis of gastroenteritis. An agency nurse failed to record observations regularly. Later still, when Jack became more unwell, Dr Bawa-Garba, who had been on duty for twelve hours by then, confused Jack with another patient who had a “Do Not Resuscitate” order due to room changes she did not know about. In the event, despite resuscitation, Jack died of sepsis.
Subsequent events saw the consultant criticised for getting Dr Bawa-Garba to share her reflective portfolio, and for stating that she had failed to stress to him how unwell Jack was.
Dr Bawa-Garba was charged and convicted of gross negligence manslaughter. She was recommended for a 12 month suspension by a medical practitioners tribunal. But the GMC appealed to High Court, and she was struck off in Jan 2018. However, a further legal challenge saw the Court of Appeal overturn that ruling, deciding that the tribunal was correct to take into account the systems failure in the hospital. This was welcomed by the medical profession in the UK, who pointed to, among other things, the hospital’s own investigation which identified numerous systemic failings, including chronic under-staffing and poor governance.
However, the family of the little boy, who are vocal on social media and have steadfast supporters among the public, have stated repeatedly that they believe that Dr Bawa-Garba and a nurse caused the death of their son, and that her erasure from the medical register was an appropriate and proportionate sanction. Can anyone fail to be moved by their grief, their disbelief at the expert opinion shared at the inquest that the death was avoidable, their desire for justice for their son and for their family?
But there have been other cases. Different patients, different families, different illnesses, different circumstances. But with some themes that start to emerge. Criticisms of the individual clinicians, organisations, Boards, commissioners, the NHS, its complaints and serious incident investigation systems, the Department of Health. Families are increasingly united in their views of the above.
The families in various cases have also condemned the British coronial system as out of date, inherently prejudiced in favour of the state institution as the NHS has access to legal advice, whilst bereaved families have no such automatic right. The commissioners of services have come in for criticism too, with the charge that they have failed to assure themselves of the quality and safety of services which they pay for with public money.
The other thing which many cases have in common is that the doctors and nurses concerned – all heavily criticised by the families of those who have died – have stated in their defence that they worked in hospitals which had systemic problems, be they due to chronic understaffing, lack of adequate supervision and support, stressful daily conditions, poor governance, senior management who were aware of these problems but either not prepared to or unable to solve them, and a culture of fear created by the rather unforgiving consequences of errors. Commentators – including doctors and journalists – have proposed a variety of explanations, saying that this was due to an imbalance between power wielded by doctors as opposed to nurses, that it was one rogue doctor, that it was the senior doctors who failed to supervise the junior doctor properly and got away scot-free, that the GMC was behaving in a populist manner instead of being balanced and fair, that the British public did not appreciate or acknowledge that doctors and nurses are working in a failing system, that the doctor was being scapegoated because of her racial origin, that this was yet another symptom of rule by an uncaring right-wing government, and so on.
When we can identify a single error – different medications with similar labelling leading to understandable confusion, one wrong decision which does not seem to have been caused by other factors but is an end in itself, and even one individual who lied or cheated – the bad egg – these are easier in some ways to resolve for the public and the profession. However, the cases mentioned above are highly likely to be multifactorial in their causation, and those factors themselves are multi-faceted and prone to dissection along the lines of various ideologies.
Many of these cases, and others where bereaved families are seeking answers and justice with little media reporting, will continue to cause consternation both in the public and clinicians because they are polarising. It is all too easy for doctors and nurses and other healthcare professionals, familiar with the daily grinding challenges of working in an underfunded, assurance-driven system to experience a sense of “there but for the grace of God go I”, and be driven to support the clinicians involved. And for the families, it is perhaps inevitable that they experience a type of epistemic injustice, deprived as they are of the knowledge that those in the system have, both regarding the circumstances of the death of their loved one, and of what happens next – unfamiliarity with the coronial system, the unwieldy NHS serious investigation framework and complaints systems – coupled with a very real lack of individual support, access to financial assistance, and a sense of clinicians “closing ranks”. Whatever the final verdict – legal or that determined by public opinion – in these cases, it is likely that a sense of unfairness will continue to be experienced by one or both sides.
When a patient dies in care of the state, is there a version of justice that is fair to all? Can there be a process and an outcome that acknowledges the human cost to all parties – the family, the doctor and other healthcare professionals involved – and be fair to the people involved, but also to institutions like the employing organisation, the system that is the NHS? If there is, what would that look like? And how can we avoid the individualism vs. collectivism trap inherent in the argument that an NHS that serves all will occasionally fail and we must accept those instances?
The answer, unsurprisingly, is not straightforward.
Families who are bereaved due to omissions or commissions in healthcare might say that they want a system of transparency and clear accountability when things go wrong, and for people who have erred to be appropriate punished. I have lived though, as a clinician, the years of “no blame” (which concept I must say I found inherently unfair to patients and families) and the zeitgeist of “just culture”. We now have the Healthcare Safety Investigation Branch which sets out to conduct exemplar investigations, albeit only in highly selected cases. The public mood, at any given time, threatens to move away from having some vestiges of trust in the NHS to demanding public enquiries and the head of the clinician on a stick.
Some things would help create a more level playing field – such as the automatic provision of legal aid for families who lose a loved one in the care of the state, in recognition of the legal and financial wherewithal available to state institutions. This is easy to recommend, difficult for a cash-strapped public service system to implement. But this alone might go some way towards persuading the public that the NHS, and the state, take the issue seriously.
Good governance – not one driven by the ever-decreasing circles of auditor-designed assurance – might help, both clinicians and patients and their families. This again is appealingly intuitive but difficult to design and maintain, which requires the type of time and resource that the NHS’s hamster-wheel does not want to contemplate.
It was said, regarding the Mid Staffordshire enquiry, that no one comes to work to do a bad job. This statement is appealing, but I have seen bereaved families react very negatively to this – and it had made me reflect that when one is the victim of poor care by the state, and answers are slow to come or so complex that obfuscation seems to be the only explanation, individual culpability, such as it may be, becomes one in the mind of the public with systemic responsibility. This is understandable, and if we were able to think about this in public debates, discussions might be less polarised, less framed along the lines of family vs. state, or family vs. doctor/nurse/clinician, or family vs. doctors, or doctors vs. the GMC. The risk of course is of appearing patronising to a family that is grief-stricken and angry, entirely legitimately looking for justice.
Clinicians, even in the age of Dr Google, wield enormous power and influence – the nature of illness is such that one is rendered vulnerable. Doctors and nurses would do well to remember that even when patients and their families are very well informed and articulate, there is an inherent and inescapable power-differential, especially when adverse events occur, and patients and families see the institution as seeking to protect its reputation. Clinicians see this too – institutions are living beasts and in the NHS, itself a large sentient organism – clinicians too can feel abandoned by the institution that employs them. However, in most cases, I would suggest that clinicians still have access to resources and information that is not easily available to members of the public.
But above all this, I suggest, it is time to have debates with the public about the nature of errors, especially medical or clinical errors, in imperfect systems – and to explore the idea that all systems are imperfect the moment a human designs them or is part of them. This is not to say that individual responsibility, and culpability within the law, do not exist, or are not important.
There is a vast body of literature on the nature of medical errors, distinguishing errors from violations and from deliberate harm. The Williams review of the gross negligence manslaughter, commissioned in the wake of the outcry from the medical fraternity in the UK on the prosecution of Dr Bawa-Garba, was published in June 2018 and its recommendations cautiously welcomed by various Royal Colleges, and accepted by the government; these changes, seeking to limit the power of the GMC, and developing an agreed understanding of gross negligence manslaughter, among others, will help restore a measure of confidence in the system which is experienced by many clinicians as stacked against them. These changes should prompt a wider debate on the nature of errors and the contribution of systemic, as opposed to individual, factors when an adverse event occurs in healthcare. This debate will need to acknowledge that errors by an individual can occur in the absence of systemic problems, but also that endemic systemic problems like chronic lack of qualified staff, lack of time, lack of adequate training and supervision, lack of good governance, a culture of blaming the individual will all make errors by individuals more likely, but more importantly, will make these errors by individuals more likely to result in catastrophic outcomes.
Should the public be made aware of the extent of problems faced by the NHS? Yes, indubitably so. Would this reduce confidence in the NHS? Yes, it may, in the short term. But the NHS, with its chronic, very well-documented problems, arising from increasing demand, limited and shrinking capacity, and very high expectations of the public, as well its status as a political sacred cow, needs to have its reality laid bare to the public, because that is the only way that the public can understand what a doctor or nurse going to work in a mental health team or an emergency department or primary care faces, the odds against which a patient gets good care, and in understanding this, will start to see what is meant by systemic problems on the backdrop of which errors occur. This acknowledgement is necessary for the NHS to be truly owned by the public.
The other thing which appears to rarely find its way into public discourse is the acknowledgment that everyone, even those with access to private healthcare, uses the NHS, if only for major illnesses and emergency care. This means that at one time or another, we are all patients, or family members of those who use the NHS. The above issues affect us all.
The point of good investigations when adverse events occur in healthcare is not to find reasons to excuse the individual, or to silence the questioning family, but to genuinely identify those areas which can be improved, to find ways, if they exist, to reduce the likelihood of similar errors from recurring, and where it is the case that there is individual culpability, to ensure that appropriate sanctions are deployed, which may take the form of criminal charges in some cases. We cannot achieve this ideal, peddled to us in many forms by the Department of Health, as things stand. Would good investigations, enabling families to access support, advocacy and financial assistance, and public debate on the issues outlined above guarantee justice which is acceptable to victims and those held to be responsible for adverse events? No. But it may help to create an environment which is less polarised and seeking to blame.
I had decided to keep the letter from my patient’s mother. I read it only twice, because it was so heart-rending. But some years later I moved house, and the letter was lost. I am not sorry to not have it any more. I had two episodes of severe depression requiring treatment and therapy, and many hours of other interventions to rebuild my confidence in my ability. But my sense of failure, and my sense of unfairness at the circumstances in which my patient died, has stayed with me. The mother’s words, and her sense of betrayal and injustice, have also stayed with me. She did not get justice, her daughter did not get justice, but neither did I.
Dr Mayura Deshpande is a forensic psychiatrist and associate medical director working with adolescents in Southampton, England. Her interests include ethics, law and investigation of adverse events in healthcare. She is chair of the Ethics and Professional Practice Committee of the Royal College of Psychiatrists.
from THCB http://thehealthcareblog.com/blog/2019/02/26/our-dead-on-every-shore/