Last week the High Court ruled that a doctor whose mistakes contributed to the death of a young boy in 2011 should be erased from the medical register for life. Dr Hadiza Bawa-Garba had been convicted of manslaughter by gross negligence in December 2015 and given a two-year suspended prison sentence in connection with the death of Jack Adcock, a six-year-old boy with Down’s syndrome who died of sepsis in February 2011 at the Leicester Royal Infirmary. The judgement has provoked outrage in the medical community with very many doctors, especially junior doctors, feeling that the situation Dr Bawa-Garba was in could have happened to any of them and that she is being made an example of rather than her managers, quite possibly for racial reasons. I have also seen some parent-disability activists dismiss them as a bunch of overprivileged crybabies who are simply worried at the possibility of now being accountable after being untouchable. Repeatedly I see some of them tweet reminders that she was found guilty in a court of law and that both a medical tribunal and a high court found against her, while her defenders have only read one side of the story.
Yesterday The Secret Barrister published an article on his blog which discusses the case in regard to “our faith in the jury system” while Matthew Syed in the Times (paywalled, but you can read two free articles a week by registering) outlines how great the pressures on Dr Bawa-Garba that day were, among them the fact that she was covering for three other doctors, including a consultant, over six wards; that she was just back from 13 months’ maternity leave and had little experience of the type of ward she was working on (a child assessment unit), received no induction for “staffing reasons” and missed the morning handover because she was tending to a child in cardiac arrest. Syed also notes that her mistakes were fatal to Jack Adcock in combination with others’; concerns she raised with the on-call consultant at the afternoon handover were not acted upon, for example. The jury decided that all this was something a doctor with her level of experience should be able to cope with.
A lot of the response from the parent community to the doctors’ protests relies heavily on the authority of the courts: a reminder that she was found guilty by a jury and that she was struck off because the law said she should be, that judges and a jury had found against her and that opposing that indicates a contempt for the law. Do I really need to remind anyone that juries have made far worse mistakes than this, and courts of appeal have upheld them, on countless occasions, and that these include judges whose reputations mean that they would be used in ‘authority’-based arguments such as Lord Denning and Oliver Wendell-Holmes? Wrongful death penalties, wrongful long-term imprisonment, forced sterilisation, families wrongly split as well as wrongfully ruined careers.
The jury system in this country is opaque and unaccountable; jurors cannot be asked about what went on in the jury room, but it is known that some juries are influenced by bullies, that jurors are sometimes prejudiced, that they have been influenced by reactionary newspapers that tend to represent black people as wrongdoers if at all, and that some will reach any verdict because they want to go home. This is, I suspect, part of the reason why the system endures: because the jurors are meant to be “people like us” and can be appealed to on shared prejudice if the facts aren’t convenient, as anyone familiar with the arguments used by defenders in rape trials will be well aware. Why do dozens of doctors think they know better than a lay jury about a complex medical matter? Because they do, and they recognise the situation as one they have been in many times. Never mind Goveian impatience with experts; sometimes the few really do know better than the many, because they are some of the brightest minds in the country and they’ve spent five years (or more) studying the issue at hand and many more years, in some cases, working on it.
It’s also well-established that some courts have different standards of proof to others: a parent can be acquitted of harming their child in the criminal courts, for example, and then judged by a family court to have probably done so because the family court’s standard of proof is the balance of probabilities, not “beyond reasonable doubt”, and their goal is the best interests of the child, not justice for an accused person. So, if anyone is saying that a medical tribunal should not, in their very educated opinion, second-guess a lay jury, they are using a classic logical fallacy, i.e. the “argument from authority”, and the judge’s verdict last month relies on the same fallacy, or at least the same dogma: that everyone has to respect the jury’s verdict:
The Tribunal did not respect the verdict of the jury as it should have. In fact, it reached its own and less severe view of the degree of Dr Bawa-Garba’s personal culpability.
This fallacy is prevalent in our judicial system: Dr Dennis Eady of the Cardiff-based Innocence Network UK has said that when it comes to righting miscarriages of justice in this country, “the greatest problem is the court of appeal’s irrational belief in the infallibility of the jury and its demand for a few neat, precise, new and compelling appeal points rather than an appreciation of the holistic picture”. A conviction cannot be appealed on the basis that the jury were just wrong; there has to be new evidence, or evidence of misdirection or other defect in the process. And worse, a juror is not allowed to research the facts for him- or herself but must rely on the claims of two opposing sides in a courtroom; this is not always the best way to get to the truth of a situation.
Many disabled people see this case as a reflection of how little the lives of disabled people, and especially people with learning disabilities, matter to many people. But this case doesn’t have much in common with other such cases: the victim was a young boy, not an adult or teenager who had shown “challenging behaviour” or whose symptoms were misinterpreted or ignored because the disabled person’s behaviour was seen as “acting up” rather than a reflection of pain or distress; sometimes, as with Richard Handley whose inquest is ongoing, they are the result of official decisions made for reasons of ideology or cost-cutting. Many of their deaths were the result of a long series of bad decisions over months or years, not a series of mistakes made in a few hours by an overworked doctor without the necessary experience.
Doctors are entitled to ask why this case of a patient dying or suffering serious injury because of medical mistakes was the subject of a criminal prosecution and ultimately a strike-off and not another. Generally speaking professionals are given the benefit of the doubt over mistakes that lead to harm; it is quite rare for them to lose their jobs where there is no evidence of outright malice, showing off or unaccountable departure from normal practice (e.g. performing unnecessary surgeries on multiple patients) and to a greater extent than people in less intellectual professions. If I fail to strap a load on a truck I am driving and it spills onto the carriageway causing a fatal accident, I go to jail and certainly lose my licence; gas fitters and chimney sweeps have been prosecuted for mistakes that caused loss of life. Hadiza Bawa-Garba got a suspended sentence and was struck off, which was less than I’d have got for an omission or minor error that had fatal consequences, but (crucially) much more than many other doctors have got for mistakes just as egregious. Why?
It’s hard to escape the conclusion that the reason has to do with race; the doctor is obviously foreign and the victim a cute little white boy. When less photogenic patients (Kane Gorny and Stephanie Bincliffe spring to mind) die as a result of medical mistakes and the doctors involved are part of the “old-boys’ club”, they escape sanction; it is a battle to make sure that an inquest even considers the possibility of negligence or wrongdoing. The establishment wanted to prove that they could sometimes hold people accountable for failings in the NHS and that they weren’t all some big cabal who would defend each other no matter what and found two foreign members of staff (the other being a nurse, Isabel Amaro) who could be held up as examples. I’m sure many doctors genuinely believe that this could have been them, but it is the Black, Asian and overseas doctors who know they are in the greatest danger and it is to the credit of their more privileged colleagues that they stand together with them.
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