Two registrars talk.
A. A chill goes down my spine whenever I hear about a doctor going to jail. What about you?
B. For medical negligence you mean? Not for other stuff.
A. Yes. For messing up badly. The missed septic arthritis, the overlooked peritonitis, mistaken identity leading to a wrong decision…
B. You feel the chill because you know it could be you? There but for the grace of god…
A. Exactly. When I was training I made mistakes, but as long as I wasn’t wilfully stupid I always thought I was protected, by NHS indemnity.
B. Indemnity, I think, covers costs, but does not protect you from personal culpability*. You sound worried. What have you done?
A. I was just thinking. All this Duty of Candour talk has focussed my mind on medical error. I wonder when error turns to negligence, and where negligence turns to prosecution.
B. Very rarely. I can think of only three or four cases in the last ten years. That’s vanishingly rare.
A. But I mean, under Duty of Candour every avoidable, significant harm that occurs in hospital is notifiable as an incident, and in theory each of those should lead to a formal communication to the patient, or their family, that such and such has occurred, it is being investigated, and they will be informed of the outcome. With that comes an apology too, it’s integral to the process. It’s law now, the Francis report led to a new regulation. Surely then, awareness of error will rise and the most serious instances – resulting in death – will lead to medical negligence claims and, in some cases, prosecutions. It’s a natural progression isn’t it? So we need to think about it. I just don’t know what determines if we end up in the dock or not.
B. I doubt you’ll find a clean definition – but I’m not a lawyer**. It depends, probably, on how far the family want to take it. And if the act or omission was such a breach of duty that a jury would be likely to convict. Presumably the ones who have gone to jail did more than make ‘routine’ or ‘understandable’ mistakes that many of us have made or could make – the type of error that makes up the bulk of avoidable harm incidents. The juries must have concluded that their actions were so below expectation, so bad, that they crossed a line. They had to be punished.
A. But we’ve all seen bad doctors. Lazy ones, intellectually slow ones, tired ones, uncaring ones… some are found out, re-assessed, thrown out of the profession, but since when did these faults become criminal?
B. When they result in a person’s death, obviously.
A. That’s what gets me. Imagine a lawyer, or a banker, a teacher, a scientist, or a builder… what happens if they are extremely bad at their jobs?
B. They lose their jobs.
A. Right! They do not go to jail. Only if they do something clearly, wilfully criminal do they get prosecuted. By which I mean – fraud, embezzlement, assault, abuse… criminal acts that we all recognise. More than being bad at their jobs. Something else – malevolent intent.
B. Traders go to jail for losing millions, and they may not have been driven by thoughts of personal gain either. They made incompetent decisions…
A. No. More than that. They tried to cover it up. They knew they were doing something dishonest. The doctors I have read about who went to jail did not act with malign intent. They didn’t want anyone to be harmed.
B. That is reflected in their charge. Manslaughter by gross negligence. The lesser charge accounts for situations where a person’s actions are not deliberate, but are criminally ill-judged.
A. The point I’m making is only we, those working in healthcare, exist in such jeopardy. When we make a mistake people may die; when the others I mentioned make a mistake, people lose money, or get a bad year of education, or a wonky wall. They lose their jobs… we lose our freedom.
B. Not often. And that jeopardy is accounted for… in our pay, in our status.
A. Nurses too? Nurses have gone to jail.
B. Perhaps not in pay, but in respect, yes. And with that status comes responsibility, to be good at what we do. To make sure we stay good. Becoming a poor doctor cannot be tolerated, you have to recognise it is happening and self-regulate. If you don’t, but you continue to expose yourself to medical situations that are by definition full of jeopardy – for the patient – and if you mess up and someone dies, then I suppose you should be prosecuted.
A. The picture you paint is of a consistently poor doctor who fails to sort themselves out, and whose career then culminates in some sort of accident. But the cases I’ve read about are different. They involve doctors who were said to be good, or at least acceptable, but who one day made a big error. The error led to a death, the death led to a prosecution, and the prosecution led to a court case. The story was told in front of a jury, the magnitude of the single event outweighed all the good reports and testimonials, and bang – guilty! Prison. One act, one omission, on one day, leads to a verdict that tarnishes all that has gone before.
B. You’re reading it from the doctors’ point of view. That’s your big error. It’s not primarily about them. There is a victim. We are not a priesthood, immune to criticism. We’re employees with special privileges, but special duties too. You’ve got to think about it in terms of justice. What does justice require when a child dies due to the poor decisions of a doctor? More than a sacking, I would maintain.
A. Justice. Don’t confuse justice with satisfaction. And you are saying that this larger thing, justice, must have a focus, a name.
B. Yes. But that is not unique to medicine. It happens in all organisations. If a wrong has been done, someone must be seen to be accountable. The railways, construction, nuclear accidents…
A. The blame goes up in those organisations, not down to the factory floor. Because it’s the system that is often to blame. Blame rises to the people who allowed the set of circumstances to develop.
B. You can’t expect a senior manager, or the consultant in charge, or the chief exec, or the head of the NHS, or the secretary of state, to take the rap whenever a patient dies due to gross negligence. The blame has to settle on the person who did it. And usually you can identify a specific action or omission that led to a death, or to harm.
A. What if they were fatigued?
B. You would be hard pressed to show that their rota was non-compliant in this day and age.
A. So you’re saying, in effect, that it’s up to individual doctors to ensure that they do not get too tired and sloppy.
B. I guess I am.
A. And what would you advise them to do if they think they are getting too tired?
B. I… er… don’t know; do something. Get help. Escalate.
A. Remove themselves from the clinical environment?
B. If necessary, perhaps.
A. That is so naïve. Surely it would be more dangerous to walk out than to stay and do a sub-par job.
B. Agree. But I don’t buy the picture you paint of overtired doctors. None of the cases I’ve heard about have featured doctors worked unreasonable hours. It doesn’t really happen nowadays. Yes, when you and I were registrars we came in on Saturday morning and left Monday evening with no protected rest, the corridors used to sway before our eyes, the words refused to come into focus on the page… but not anymore.
A. But doing a sub-par job exposes you, and the patient, to risk. Don’t you see. Classic Catch 22.
B. If you’re tired, if there is too much going on to cope with, you should escalate. Make the call. Get your head together. Clinging on by your fingernails is not sufficient, because it’s not you that matters, it’s the lives of the patients that are going to spill out of your hands.
A. So what defence can a distracted, over-pressurised doctor make?
B. Well, perhaps this is the new world. Forget that umbrella of ‘NHS indemnity’ that we were once told about. Hearing about these doctors who have gone to jail serves to make the point. You asked me how I felt about these cases. Well I’ll tell you. They have made me afraid. You know when you’ve got something to check, some result, something to handover, some task that you still haven’t done even though it’s 6.45 and it is way past the hour when you’re due to leave in order to keep to those sacrosanct hours that should not be exceeded. When I am tempted to walk away I think about those doctors in jail. It makes me go back, and finish the job. Because any one of those jobs could, if omitted, lead to a deterioration, and a death.
A. You feel the chill like me then.
A. Fear. Fear pure and simple. The cases act like a whip on your back. That’s a negative motivation.
B. So what? Sometimes we need a reminder of how important the job we do is. But you know what? It isn’t going to happen to you.
A. Why? How can you be so sure?
B. Because you asked the question. You’re conscious.
Comment: This piece is not about the right or wrongs of prosecuting negligent doctors, but the effect such cases have on other healthcare workers. However, implicit in the words of Dr A is the suggestion that doctors should not be sent to jail for negligence. Dr A always thought doctors were protected. I do not know why some cases come to court and some do not – probably it depends on the position taken by the family. To argue against prosecution is to argue against the law of the land, and not something I would like to attempt. I have sat on a jury in a criminal court (not a medical case, but a very serious crime) and I know that the detailed examination and subsequent deliberation are careful and thorough. If juries have found doctors guilty who are we to second guess their verdicts? The questions that this article poses are more limited – how does it make us feel, how does it change our behaviour?
Dr A responds with a sense of fear but analyses it critically. He feels that blame should not land solely on the doctors involved. There is usually a systemic failure, in his mind. Cases that have been described in the media have touched on such failures – delayed CT scans, poorly designed syringes… He feels that medicine is an exposed profession, wherein errors lead to death rather than inconvenience. Is it fair that those on the front line work with such jeopardy?
Dr B is more accepting on the inevitability of the law, she does not try to challenge the very idea of jailing doctors. And she too feels fear. In her case fear acts as a motivator when she is trying to decide whether to tie up loose ends on the ward. I think that is probably quite a common reaction. More common still, in my view, is a sense of horrified fascination that gradually, over a day or two, fades into nothing. It is too much to contemplate, too scary… so our subconscious ensures that we move on, bury it, and proceed with our fingers crossed. Hopefully, as Dr B says, the very fact that we have paused a moment to think about the ultimate sanction, that we are conscious of that risk, will guarantee that we do not fail.
* This document from the NHS litigation authority describes the extent and limits of NHS indemnity. I don’t know the ins and outs of it, nor what protections it offers in Gross Negligence cases.
** The definition, on the Crown Prosecution Service website, of ‘Gross Negligence Manslaughter’ is as follows:
“This is where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. The law in respect of this has been clarified in the case of R v Adomako (1994) 3 All ER 79 where a four stage test for gross negligence manslaughter known as the Adomako Test was outlined by the House of Lords:
The test involves the following stages:
a) the existence of a duty of care to the deceased; b) a breach of that duty of care which; c) causes (or significantly contributes) to the death of the victim; and d) the breach should be characterised as gross negligence, and therefore a crime.”