– WHAT NOW?
DISCLOSURE In which type of proceedings are reflections disclosable? Civil
proceedings.Reflections are disclosable if they are
“relevant” and either support or adversely affect a party’s case. Therefore, care needs to be taken when writing in a reflective journal. Anonymisation has to comply with the ICO’s definition which means that reflecting on a specific incident is likely to be disclosable. A reflective piece would only be protected from disclosure if it is suitably generic and cannot be traced back to the patient or incident in question. The focus should be on learning rather than writing at length about the incident and what has gone wrong. GMC proceedings. The GMC has confirmed that it does not request reflective notes. However, it can be helpful for doctors to submit them to show insight. The balance between being insightful yet minimising the risk of reflections being disclosed in any concurrent civil proceedings is a fine one. If advised by your medical defence organisation, apologise and accept errors early on notwithstanding any systems failings which can be used in mitigation. Write reflections early on and throughout the proceedings, e.g. after attending remedial training courses to reflect on learning points. In the wake of Dr Bawa-Garba’s case, the GMC has confirmed that it will not require disclosure of doctors’ reflective records as part of any fitness to practise proceedings, and the Hamilton review is looking at the possibility of introducing legal privilege for all reflective records so that doctors cannot be compelled to disclose them.
Criminal proceedings. Unlike civil proceedings there is no obligation for a doctor to disclose appraisals/ reflections in criminal proceedings, although the CPS could apply for disclosure of such documents. However, the CPS confirmed that reflective notes did not form part of the criminal case against Dr Bawa-Garba and, in the current climate, they may now be cautious in seeking disclosure of such documents in criminal proceedings against a doctor.
THE FUTURE The Hamilton review will be published early next year offering greater insight. The GMC also recently announced that its investigators are to be given human factors training to “ensure that context and systems issues are always fully taken into account”. This is welcome news, as is Sir Robert Francis QC’s recent evidence to the Health and Social Care Committee. It has often been felt that doctors are left to stand alone when things go wrong but the former Chair of the Mid Staffs Inquiry has called for senior NHS managers to be held to account in the same way as their doctors and nurses when systems failures lead to medical error. At the end of a long and difficult journey for Dr Bawa- Garba and the Adcock family, it seems that change is on the horizon.
Joanna Bower is a partner in the clinical law department at Capsticks Solicitors LLP
MDDUS INSIGHT / 15 Dr Hadiza Bawa-Garba
Photograph: PA
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