The unwritten contract: the moral and ethical obligations of doctors

Louella Vaughan looks back at the Dr Hadiza Bawa-Garba case, and explores its possible repercussions for what underpins the medical profession's role in the health service.

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Published: 15/02/2018

To say that the case of Dr Hadiza Bawa-Garba has sent a collective shiver down the spines of doctors working in the NHS would be an understatement. Doctors report being unable to sleep or go about their daily work for worrying that they too might be prosecuted for a single error made while working exhausted and hungry in a system on the verge of breakdown.

The nub of the case is that Bawa-Garba was the on-call registrar at the Leicester Royal Infirmary when six-year-old Jack Adcock, who had Down’s syndrome, was admitted with vomiting and diarrhoea.

She had just returned from maternity leave, was doing the work of three doctors and her consultant was off-site. Her presumptive diagnosis of gastroenteritis was not correct, but critical investigations were delayed and the IT system for blood results was down. Errors were made by a nurse (also found guilty of manslaughter). The child’s heart stopped. Resuscitation was started, but then interrupted for one minute by Bawa-Garba who mistook Jack for another child, who had recently occupied the same bed. After further CPR, the child was pronounced dead. The autopsy gave a finding of streptococcal sepsis.

The High Court found her guilty of manslaughter by negligence, giving her a 24-month suspended sentence. After Bawa-Garba’s appeal in court failed, the Medical Practitioners Tribunal (MPTS) found that she should be suspended from medical practice for 12 months, but not struck off permanently.

Doctors’ concerns rest above all on what happened next. The General Medical Council (GMC), to which the MPTS reports, took its own tribunal to the High Court, arguing that the MPTS’s decision was not sufficient to maintain public confidence in the profession or uphold professional standards. The High Court found in favour of the GMC and Bawa-Garba was struck off.

The public interest

Public confidence is important, and there are legal arguments that the GMC had to bring the tribunal into line with the ruling of a higher court. But the psychological impact of the case for many doctors, and the deeper tensions it brings to light, carry their own serious threats to the interests of the public as patients and taxpayers.

Doctors have rightly pointed to the fact that mistaking gastroenteritis for sepsis is easy: an estimated 10,000 life-threatening cases are missed or undertreated every year in the NHS. Moreover, she rightly changed the diagnosis when the tests finally came back and prescribed the right treatments. The circumstances in which Bawa-Garba was working were extreme, system errors were rife and the court found that mistakes made by others contributed to the patient’s death. It is the prospect of mistakes made in circumstances beyond the doctor’s control being so severely punished that terrifies many in the profession.

But the reaction goes beyond fear for being punished for an error. Many see a blow to the moral contract that underpins the medical profession’s role in a national health service.

Doctors believe themselves to have an ethical and moral duty to do their best for patients, regardless of the circumstances. A number of countries, such as France, have specific Good Samaritan Acts that compel doctors to render assistance. The flip side of this is that they trust that the circumstances in which they are operating will be considered when their actions are judged. In the UK, this is enshrined in the Social Action and Responsibility and Heroism Act (2015).

This belief, that we have a duty to our patients beyond circumstances, sits at the heart of the ‘goodwill’ that allows the NHS to function. It motivates the widespread unpaid overtime without which the health service would struggle to carry on.

Doctors (and nurses!) endure hunger, sleeplessness, blistered feet and relentless hounding from managers in a system that is, in the words of the Royal College of Physicians, underfunded, underdoctored and overstretched. We still make scores of life-and-death decisions and take actions regardless of how we are physically or emotionally feeling. What underpins this is an understanding of our role comparable in some ways to soldiers on a battlefield, who go on for the good of others.

A dangerous divide?

The perception that the regulator in charge of the profession does not subscribe to this moral contract is a dangerous one.

Is it justified? The GMC’s Good Medical Practice guidance is guarded on the matter of working in difficult circumstances. It rightly insists on a response to risks to patient safety, but limits its recommendations to escalating concerns. It rightly insists on doctors offering help in emergencies, but says that the doctor must account for their ‘own safety, [own] competence and the availability of other options for care’. Its position is clearer in its statement that ‘goodwill and sacrifice’ are not acceptable substitutes for deficiencies within the system.

The case highlights what for many doctors has not previously been apparent, which is that the GMC has a single option for dealing with cases of gross negligence: erasure from the Register. The issues of whether the Crown Prosecution Service should have pursued the case in the first instance, rather than bring a corporate manslaughter case against the hospital, or that the Court was lenient in its sentencing, was irrelevant. Only the verdict was important to the GMC.

This signals, very clearly, to the profession that mitigating and aggravating factors do not necessarily need to be considered when the actions of doctors are judged. Mistakes will not be seen in the context of a duty to take on difficult, even out-of-control situations, but simply will be punished.

It suggests that the glue that holds the NHS together is not enough.

Jeremy Hunt, the GMC’s leadership and others responsible for holding one end of the NHS’s moral contract on behalf of the public now need to act with care. The Secretary of State has already announced a review of medical manslaughter provisions, which is welcome, and the GMC is engaging with doctors’ representatives, which is also important. But if this case is allowed to lead to a weakening of that moral contract between the NHS and its staff, it will further erode the willingness of doctors to work under the most difficult conditions; to commit to a career in the NHS after graduating; even to be honest about mistakes and errors.

I won’t be sleeping tonight.

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