26/10/2018

Background

In November 2015, a trainee paediatrician, Dr Hadiza Bawa-Garba, was found guilty of gross negligence manslaughter following the sepsis-related death of 6 year old Jack Adcock in 2011. On 14 December 2015, Dr Bawa-Garba was given a 24 month suspended sentence. On 13 June 2017, the Medical Practitioners Tribunal Service ('MPTS') confirmed that Dr Bawa-Garba would be suspended for 12 months and rejected the GMC's appeal that she should be struck off the medical register.

However, the General Medical Council ('GMC') took the case to the High Court; it argued that the MPTS was wrong to allow Dr Bawa-Garba to remain on the medical register. On 25 January 2018, the GMC was successful in its appeal against the MPTS and Dr Bawa-Garba was struck off the medical register.

Dr Bawa-Garba was granted permission to appeal the High Court's decision to the Court of Appeal. Members of the medical profession and members of the public raised over £300,000 in order to fund her appeal of the GMC's decision.

On 13 August 2018, the Court of Appeal overturned the High Court's decision and ordered that she be restored to the medical register. The GMC accepted the Court of Appeal's decision and judgment. Our article "Gross Negligence Manslaughter in Healthcare – killing our opportunity to learn lessons" covers the issue of gross negligence manslaughter, and the Rapid Review commissioned by then Health Secretary Jeremy Hunt.

Were Dr Bawa-Garba's reflections used during the criminal trial?

Much of the concern and discontent within the medical profession with regard to this case was focused on whether or not Dr Bawa-Garba's written reflections on the events which led to Jack Adock's death were used during the criminal trial. There has been fervent discussion about the use of reflections and e-portfolios in investigations against doctors. This has stirred up strong feelings amongst professionals particularly given that the purpose of reflections (identifying areas of development and improvement) may be undermined.

The GMC has issued a factsheet with regard to Dr Bawa-Garba's case. Within that document, the GMC confirms that, in its view, Dr Bawa-Garba's reflections were not used during her criminal trial. It has noted the following:

The Medical Protection Society (MPS), which represented Dr Bawa-Garba at her criminal trial, has made it clear that the doctor’s reflective notes were not part of the evidence before the court and jury... The court also highlighted that no weight should be given to any remarks documented after the event. The QC who prosecuted the case for the Crown Prosecution Service also confirmed that the doctor’s reflective notes did not form part of the case.

It sought to ensure clarity with regard to how reflective notes are used by the GMC when it is investigating a concern about a doctor. The GMC has stated that it does not request reflective notes from a doctor in order to investigate a concern in relation to them. With regard to guidance to doctors in relation to their reflective writing going forward, the GMC commented:

The focus of reflection should be on learning, rather than what has gone wrong or writing in length about what has happened. We are working with other organisations to provide clear guidance for all doctors on how to approach reflective practice. We have also begun conversations with other regulators on how we can better support team based reflection, and the scope for joint guidance.

As far as possible, patient details in any reflections and feedback should be entered anonymously, so individuals can’t be identified from what is written (page 7 of the Academy of Medical Royal College’s guidance on Improving feedback and reflection to improve learning).

Your professional duty of candour says: ‘you must be open and honest with patients when something that goes wrong with their treatment or care causes, or has the potential to cause, harm or distress.’ In these situations, there shouldn’t be anything recorded in reflective notes that the patient, or those close to the patient, is not already aware of. If a doctor faces a complaint, and they choose to share their reflections, being able to provide evidence of their openness and insight will help them demonstrate to us that they are fit to practise.

With regard to the concerns raised in relation to the impact on openness and honesty in internal reviews amongst professionals the GMC has commented:

It’s vital that doctors are supported to be open and honest about mistakes, and we are committed to supporting and promoting this culture across the UK’s health services. Doctors who are candid and show insight into their mistakes are not just benefiting the wider health system but themselves too. As the Medical Protection Society (MPS) explains, if a doctor faces a complaint, being able to provide evidence of their openness and insight will help them demonstrate to us that they are fit to practise.

Guidance on reflective practice

With that in mind, guidance for doctors and medical students on reflective practice has been published by the GMC, the Academy of Medical Royal Colleges, the Conference of Postgraduate Medical Deans and the Medical Schools Council. It seeks to support doctors and medical students 'engaging in revalidation on how to reflect as part of their practice'.

The guidance references the phrase ‘reflective practitioners’ and urges them to approach making reflective notes by focusing on the necessity of learning. It highlights ten key points on being a reflective practitioner:

  1. Reflection is personal and there is no one way to reflect. A variety of tools are available to support structured thinking that help to focus on the quality of reflections;
  2. Having time to reflect on both positive and negative experiences – and being supported to reflect – is important for individual wellbeing and development;
  3. Group reflection often leads to ideas or actions that can improve patient care;
  4. The healthcare team should have opportunities to reflect and discuss openly and honestly what has happened when things go wrong;
  5. A reflective note does not need to capture full details of an experience. It should capture learning outcomes and future plans;
  6. Reflection should not substitute or override other processes that are necessary to record, escalate or discuss significant events and serious incidents;
  7. When keeping a note, the information should be anonymised as far as possible;
  8. The GMC does not ask a doctor to provide their reflective notes in order to investigate a concern about them. They can choose to offer them as evidence of insight into their practice;
  9. Reflective notes can currently be required by a court. They should focus on the learning rather than a full discussion of the case or situation. Factual details should be recorded elsewhere;
  10. Tutors, supervisors, appraisers and employers should support time and space for individual and group reflection.

The guidance indicates, however, that 'recorded reflections, such as in learning portfolios or for revalidation or continuing professional development purposes, are not subject to legal privilege' and that 'disclosure of these documents might be requested by a court if they are considered relevant'. It is indicated, however, that the GMC 'does not ask a doctor to provide their reflective notes in order to investigate a concern about them'. With regard to its fitness to practise investigations, the guidance highlights that the focus from the GMC 'is on facts and evidence relating to a serious allegation'.

It has been reiterated within the guidance that being a reflective practitioner is important because it allows doctors to:

  1. Demonstrate insight by identifying actions to help learning, development or improvement of practice, developing greater insight and self-awareness;
  2. Identify opportunities to improve quality and patient safety in organisations.

Ultimately, it appears that it is an individual's decision as to how they reflect on their experiences and document this in discussion with their supervisor. It is hoped that the new guidance will go a long way to focus minds and assuage concerns within the medical profession on this topic.

 

For further information or to discuss any aspect of this article, please contact Toby de Mellow, Solicitor, or Debbie Rookes, Senior Associate.

Link to Guidance:

https://cached.offlinehbpl.hbpl.co.uk/NewsAttachments/PGH/GMC_Reflection_Guidance.pdf