Court Unawares

One key lesson from the wrongful erasure of Dr Hadiza Bawa-Garba is that lawyers are even more prone than  doctors to draw wildly contradictory conclusions based on the same evidence. In a rare show on unanimity, the Appeal Court judges Ian Burnett, Terence Etherton and Anne Rafferty, agreed that Lord Justice Ouseley and the GMC legal team lead by Ivan Hare QC had reached entirely the wrong conclusions and hence verdict in the High Court on January 28. The GMC should never have challenged the decision to suspend and retrain Dr Bawa-Garba made by its own Medical Practitioners Tribunal Service, as she was a conscientious doctor who was no more a risk to patients than any other conscientious doctor. Why Lord Justic Ouseley wasn’t able to deduce this is something of a mystery.

Since January, the GMC has been busily doing the rounds trying to blame its draconian pursuit of Bawa-Garba on its legal advice. As retiring chair Sir Terence Stephenson put it; ‘If you take external advice from the QC, and they say the tribunal has erred in law, and if you then don’t appeal, you’re setting a precedent. In that sense you have no choice, because the regulator can’t be above the law. You seek the legal advice – and you can take it or not take it – but I think most people take the advice of QCs, especially if you’re a regulator.’ However, Stephenson and GMC CEO Charlie Massey were warned repeatedly by dozens of senior doctors from February 2017 onwards that its original MTPS decision not to strike her off was correct, not least because her working conditions were so unsafe and she had been fed to the wolves by her consultant. Yet they failed to secure better legal advice.

Stephenson is a Professor of Child Health and should have spotted early on there was something very fishy about the scapegoating of Dr Bawa-Garba and the behaviour of her consultant Stephen O’Riordan, particularly when he quietly removed himself from the GMC register to sign back on in Ireland. And Stephenson should have laughed out loud, as most doctors did, when the GMC QC Ivan Hare tried to argue that a consultant isn’t duty bound to pick up the severity of a child’s illness from being told the grossly abnormal blood results. According to Hare, and presumably the GMC, his duty to review only starts after a specific request from his juniors. A formal, written invitation perhaps?

MD is a lowly associate specialist in paediatrics, but the most telling part of the BBC’s excellent Panorama was Dr Bawa-Garba’s tear-soaked incredulity that Jack should have died so soon after she had seen him sitting up in bed, drinking from a beaker and watching Toy Story. As a GP, MD was taught to treat the whole patient and not the test results. But paediatrics is different because children can get very sick, very quickly. In my first paediatric job, I remember a girl going from happily listening to Snow White to death from streptococcal meningitis in half an hour. She was admitted with  diarrhoea and vomiting and was being treated for that. She had been reviewed by doctors and nurses at all levels of seniority. And she died in front of our eyes.

A paediatrician contacted me about a child who died recently from sepsis, within half an hour of watching her favourite Peppa Pig video and eating a yoghurt, in full view of the ward staff and having been seen and reviewed by all the consultants. She had some signs of lactic acidosis (not as severe as Jack Adcock’s) but the staff were given false reassurance by how well she appeared. Children who are critically ill can shut down their vital organs but may selectively perfuse their brain for survival. And they will use that brain perfusion to do what they enjoy. Which is why it is vital to pay attention to the blood results even if a child appears well, and particularly if sepsis is suspected.  Jack Adcock too died from undiagnosed sepsis but had the extra error of being given his heart drug, enalapril, on the advice of another junior doctor who asked how he was over the phone – ‘He’s much better, sitting up, drinking from a beaker and watching Toy Story’ – and presumed he was well enough to have it. But his blood results suggested it could lead to a catastrophic lowering of his blood pressure.

Stephenson and Massey have no excuse for not getting better legal advice. Any one of Ian Burnett, Terence Etherton and Anne Rafferty would have got the law right first time and prevented a huge amount of expense, harm and broken trust. Stephenson has left the GMC with a knighthood. Massey is clearly out of his depth, as MD pointed out on his appointment (Eye … ). Massey was Jeremy Hunt’s little helper at the Department of Health who came across as disastrously ill-prepared when trying to explain the funding and staffing requirements of the government’s magical ‘seven day NHS’ to the  Public Accounts Committee (PAC). He was shunted sideways to the GMC and must now leave.