COMMENTARY

Death by Error: Where's the Justice?

Mayura Deshpande, MBBS, MRCPsych

Disclosures

March 11, 2019

Editor's Note: This article is republished with permission from The Health Care Blog.

Mayura Deshpande, MBBS, MRCPsych

I once made a serious error. The patient had taken an overdose of paracetamol, but because I was singlehandedly covering three inpatient acute psychiatric wards 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 and 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 defending 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; 20 years later, I believe they wanted to understand how I made the decision I did. But I wasn't able to give them the answers they wanted. I just cried and said I was sorry.

The mother sent my supervisor a letter, 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 again. She described her daughter's childhood, the family's loss, and her own incomprehension that the UK National Health Service (NHS)—which she and generations of her family had venerated as a great institution—could have failed her child. She 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 patient's face—but I remember perfectly well the mother, who said very little in the aftermath, leaving her husband to talk incoherently about seeking justice and a referral to the General Medical Council (GMC) and the police (which they did not pursue). 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.

The coroner returned a verdict of suicide but failed to acknowledge the systemic inadequacy of staffing, merely noting that there had been 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.

To Err Is Homicide

Hadiza Bawa-Garba was a trainee pediatrician who was convicted of gross negligence manslaughter in the 2011 death of 6-year-old Jack Adcock. Among the circumstances: The consultant who should have been supervising her was elsewhere; the computer system which would have provided lab results was down for some time; an agency nurse failed to record observations regularly; and Bawa-Garba, who had been on duty for 12 hours, confused Jack with another patient who had a "Do Not Resuscitate" order, due to room changes she did not know about. In the end, despite resuscitation, Jack died of sepsis.

Bawa-Garba's conviction meant that she could no longer practice medicine, but that decision was appealed and overturned due to the systems failure in the hospital. This was welcomed by the UK medical profession, who pointed to the hospital's own investigation identifying numerous systemic failings, including chronic understaffing and poor governance.

Meanwhile, the little boy's family, who are vocal on social media and who have many steadfast supporters, have stated repeatedly that they believe Bawa-Garba and a nurse caused their son's death. Can anyone fail to be moved by their grief, their desire for justice?

There have been other cases—different patients, different families, different illnesses, different circumstances—but with some common themes: Criticisms of the individual clinicians, organizations, 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 criticized by the families of those who died, have stated in their defence that they worked in hospitals which had systemic problems: chronic understaffing, lack of adequate supervision and support, stressful daily conditions, poor governance, and a culture of fear created by the rather unforgiving consequences of errors.

Many of these cases will continue to cause consternation both in the public and among clinicians because they are polarizing. It is all too easy for doctors and nurses and other healthcare professionals to experience a sense of "there but for the grace of God go I," and be driven to support the clinicians involved.

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 their loved one's death and of what happens next, coupled with a very real lack of individual support, access to financial assistance and a sense of clinicians "closing ranks."

Justice Unshrouded

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 the 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—but also to institutions like the employing organisation, the system that is the NHS?

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. As a clinician, I have lived through the years of "no blame" (which 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 but difficult for a cash-strapped public service system to implement. But this alone might go some way toward persuading the public that the NHS, and the state, take the issue seriously.

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, and 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 are not easily available to members of the public.

But above all this, I would suggest that 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 deliberate harm. The Williams review of the gross negligence manslaughter, commissioned in the wake of Bawa-Garba's prosecution, was published in June 2018, and its recommendations were 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, will help restore a measure of confidence in the system which many clinicians feel is 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. 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 make errors by individuals more likely, and more important, 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, well-documented problems, 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 there faces, and the odds against which a patient gets good care.

The point of good investigations when adverse events occur is not to find reasons to excuse the individual or to silence the questioning family, but to identify those areas which can be improved; to find ways, if they exist, to reduce the likelihood of similar errors from recurring; and when 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 as things stand.

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 that I don't have it anymore. 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, have 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.

 

The author wishes to thank Dr Saurabh Jha and The Health Care Blog for their support.

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