what can we learn from the Bawa Garba and David Sellu cases

The criminalisation of unintentional error- what can we learn from the Bawa Garba and

David Sellu cases

Dr David Nicholl

Consultant Neurologist

Sandwell & West Birmingham NHS Trust; University Hospital Birmingham

[email protected]

@djnicholl

#newconsultants2019

4 manslaughter cases- 3 HCPs + 1 pilot

• Honey Rose

• Bawa Garba

• David Sellu

• Andy Hill

Gowers: ‘It is always pleasant to be right, but it is generally a much more useful thing to be wrong.’ (Gowers, 1894b).

“failure as the very best way to learn” Matthew Syed

New Zealand- series of GNM cases…

• Crimes Amendment Act (1997)

• No convictions since

1329 Justice

NOT GUILTY

“He had a man under his care who died.[and it was found that]..he did not do the thing with criminal intent but involuntarily , so [the judge] commended him to God.”

ALL of us make mistakes…. But medical error is more serious….

ACTION PURPOSE/OUTCOME

SERIOUS INCIDENT Identify any weaknesses in system & make recommendations

CIVIL CLAIM FOR DAMAGES Establish if negligence & settle compensation

CRIMINAL PROSECUTIONEstablish if a crime committed

FITNESS TO PRACTICE Establish if a professional fit to practice

CORONERS INQUEST Determine the circumstances of patient’s death

DISCIPLINARY PROCEEDINGS Establish if any breach of employment

IOM report- Diagnostic reports are a ‘blind spot’ in medicine10% of patient deaths; 6-17% of all hospital adverse events

Top 5 errors that lead to the most expensive GP claims

Cauda equina

Meningitis/encephalitis

Cancers

Peripheral ischaemia

Chronic disease management

The TOS study

• Are the skills of neurological assessment in need of resuscitation?

• Nicholl DJ.

• Acute Med. 2014;13(4):183-5.

The TOS study

T O S

Pre 264 119 321

% 64.86 29.24 78.87

Post 298 149 330

% 76.21 38.11 84.40

p Value p<0.001 p=0.009 p=0.045

Pre

Post

% indicate proportion of patients who recall being examined

Appleton et al, 2015

Pre-407

Post-391

The costs of getting it wrong….

• 2004- missed papilloedema…£275,000 (Nicholl et al 2012)

• In 2016- Honey Rose- optometrist convicted

• -suspended 2y for gross negligence manslaughter

• 2017- conviction overturned at Court of Appeal

“We feel that medical professionals practising competently at the standard at which they are required would not endure an injustice”

Ian & Jo Barker- Parents of Vinnie

…it leads to self-censorship

Dr Hannah Gordon, SpR in Medicine-whose own father had a delayed diagnosis of brain tumour due to a missed diagnosis of papilloedema

Referrals to the Screenshot 2019-06-05 at 21.44.33 Screenshot 2019-06-05 at 21.44.33 ETC

• 167 referrals (0.5%) for ‘optic disc swelling’ or similar terms

• Overall rate of referrals to the ETC remained (relatively) stable

• Rate of referrals for optic disc swelling has increased significantly post-August 2016 (p < 0.001)

• Mean number of referrals increased from 1.9 per month prior to Aug 2016 to 5.1 per month post-Aug 2016

Pre

-Aug 2

016

Post

-Aug 2

016

0

200

400

600

800

1000

Total referrals

Me

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Pre

-Aug 2

016

Post

-Aug 2

016

0

2

4

6

8

10

Referrals for opticdisc swelling

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Vijay et al, 2019

. How similar is this to the Honey Rose case?

• ‘ 41y died October 2014

• Admitted to A&E 4am with headaches & vomiting. Working diagnosis- gastroenteritis & dehydration. Consultant review-scan not required.

• Surgical ward- reviewed by Cons Physician next day. (noon) Scan not required, psych review.

• Reviewed by Cons Physician (14:30), extensor plantar noted, urgent CT

• Worsened++ 17:00. CT head under anaesthetic.- acute hydrocephalus from colloid cyst

•

A Just culture? Coroner becomes aware of TOS study

A Just culture? Coroner becomes aware of TOS study

Jack Adcock- 6y old with Down’s admitted LRI Feb 2011

• D&V

• Errors-• Preliminary diagnosis

• Jack’s need for 02, suboptimal reassessment for reversal of shock

• Urea& creatinine

• The raised lactate (10.44am)• (pH7.08,PCO2 6.76 & Lactate 11.4)

• BUT-• Consultant away• An SpR down• IT failure (SHO delegated to phone for results- noon-4pm)• Just returned from 13/12 mat leave• No induction• Covering 6 hospital wards across 4 floors (1 l.p ?meningitis; a child in status)• Missed morning handover (cardiac arrest)• Over 10h (took no breaks)• 4.30pm Consultant handover- ?lab error• Enalapril given 7.15pm• Cardiac arrest 8.20pm

SI

• Was no single root cause for the death

• Identified 23 recommendations for systemic reform

•

BBCPanorama

BBCPanorama

BACKGROUND- we are not alone!

Denmark

RussiaKenya

Mexico

David Sellu

- “the high bar for conviction”……….NOT

Prof Alan Merry, Auckland, New Zealand

Ian Paterson

• Hired 1998, despite concerns of previous employer

• 2003, colleagues raising concerns

• 2010- 100s of patients raising concerns

• 2017- guilty of wounding by intent (prison- 20y)

• £37million in compensation set aside

• Bawa Garba

• failing to spot “barn door” signs of sepsis, according to expert witnesses,

What is happening

• Doctors are scared

• Affect on high risk specialities

• The profession is united

• Breach of Trust• Patient-Doctor• Trainee-trainer• Employee-employer• Profession-regulator

A way forward?

Lets think about airline industry vs healthcare

Black box thinking approach Healthcare v flying

• The death of Jack Adcock- Feb 2011

• Shoreham Airshow incident- Aug 2015

Just culture

• Just Culture" is a culture in which front-line operators and others are not punished for actions, omissions or decisions taken by them which are commensurate with their experience and training, but where gross negligence, wilful violations and destructive acts are not tolerated.

• A restorative culture

• Who are hurt?

• What do they need?

• Whose obligation is it to meet that need?

Dekker- A restorative culture

• Who are hurt?

• What do they need?• Compensation

• Improved systems, safe environment

• Whose obligation is it to meet that need?• All of us, safe reporting, staffing

Compare this approach with the BawaGarbacase• Adversarial approach- someone has to be blamed rather than

understand the cause FIRST

• Variation in expert witnesses, coroners, CPS, Police

• No independent evaluation of cause- SI? (cf AAIB)

• Human factors key in investigation in AAIB investigations- neutral language…all about establishing the cause NOT blame!

Black box thinking in the NHS- can we safely learn from our mistakes? No….but• Need reform of the GMC

• ‘someone in the room that understands the word ’Enalapril’

• consistency

• Reform of the Law- protection of reflection, wider than just Drs

• Reform of Coroners- too much variation

• Reform of CPS

• At trial- SI/RCA must be presented!

QUESTIONS?BBC Newsnight

Learning from error#LearnNotBlame

• Error-

• failure as the very best way to learn• The importance of system errors and cognitive bias

• Introduced concept of Just Culture-• Applicable to airline industry but also many industries where safety NB (eg

health & the Law)

Thank you…. #TeamHadiza

Questions!