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How should doctors use e-portfolios in the wake of the Bawa-Garba case?

BMJ 2018; 360 doi: https://doi.org/10.1136/bmj.k572 (Published 08 February 2018) Cite this as: BMJ 2018;360:k572
  1. Clare Dyer, freelance journalist, London, UK,
  2. Deborah Cohen, associate editor, The BMJ, London, UK
  1. Correspondence to: C Dyer claredyer4{at}gmail.com

Clare Dyer and Deborah Cohen look at the professional advice on personal reflections

The case of trainee paediatrician Hadiza Bawa-Garba has rocked the medical profession from top to bottom. Doctors fear that their written reflections about mistakes made, intended as an important tool for personal learning, could be used against them in court. There are widespread worries that doctors will be less than frank in their reflections, threatening the learning culture that patient safety demands.

Did Bawa-Garba’s reflections feature in the crown court trial that led to her conviction for gross negligence manslaughter?

The Medical Protection Society (MPS), which defended Bawa-Garba against the prosecution, said the documents from her e-portfolio “did not actually go on to form part of the evidence before the court and jury. Indeed, the court was clear that reflections were irrelevant to the facts to be determined and that no weight should be given to remarks documented after the event.” The MPS acknowledged, however, that it “may well have been the case” that the reflections, as The BMJ has stated, “fed into the trial.”1

How so?

Stephen O’Riordan, a consultant paediatric endocrinologist, met with Bawa-Garba a few days after the death of 6 year old Jack Adcock. She reflected on the failings in Jack’s care. O’Riordan recorded her reflections on a training encounter form. He gave evidence for the prosecution, and the form was appended to his witness statement. But the MPS told The BMJ that “the crown did not adduce these reflections during the trial. Indeed, there is no statement from Dr Bawa-Garba in these hand-written reflections of admission of liability, civil or criminal, let alone being close to any suggestion of gross negligence manslaughter guilt.”

Could a doctor’s reflections play a part in the decision to lay charges?

Doctor’s reflections are potentially disclosable to courts, tribunals, and coroners, as legal advice obtained by the Royal College of Paediatrics and Child Health points out. The Crown Prosecution Service initially decided not to charge Bawa-Garba in 2012, but the decision was reviewed after the coroner’s inquest into Jack’s death and she was charged in 2014. A spokesperson for the RCPCH said it was the Bawa-Garba case that had prompted the college to seek clarity on the legal aspects of disclosure.

Can the GMC obtain the reflections if it is considering fitness to practise proceedings against a doctor?

Yes. But it has assured doctors that “the GMC does not ask a doctor to provide their reflective statements if it’s investigating a concern about them.” However, if a deanery reports a trainee to the GMC, it may send along the reflective statements, as happened in a recent case.

Doctors who are facing a GMC hearing may provide their reflective statements voluntarily as evidence of insight, as Bawa-Garba did—an important element of remediation.

Could reflections play a part in civil cases?

In April 2016, Health Education England circulated a letter from postgraduate deans in London and the South East which read, “Recently, a trainee released a written reflection to a legal agency, when requested, which was subsequently used as evidence against the trainee in court. This has resulted in questions about whether trainees should still provide reflections about incidents in their portfolios.”2The BMJ understands that the case was a clinical negligence claim, and the MPS has pointed out that the trainee made the disclosure voluntarily.

Should doctors refuse to record their written reflections in future?

As the deans’ letter explained, “Doctors in training must continue to write reflections, especially when there are things that do not go well. This is an essential part of training and is needed to progress through a postgraduate training programme.” And a failure to record reflections honestly could give rise to a referral to the GMC.

So how should they record their reflections?

The Academy of Medical Royal Colleges advises that in a reflective log a doctor should avoid using patients’ names or initials, dates of birth, or “any unique condition or circumstance of that patient.” It tells doctors to “try not to be judgmental, both to yourself and others, particularly when your reactions and feelings are still raw,” providing instead evaluation and analysis: what was good and what could have been done better, what has been learnt and what steps will you take as a result. “Take advice from a senior, experienced colleague when writing reflections about cases that may be contentious or result in an investigation,” the academy suggests.3

Mary O’Rourke QC, who has represented many doctors in fitness to practise cases, agrees that what trainees should not do is produce a “mea culpa or beat their breasts” when something has gone wrong. “It’s very important to say I made a mistake, I made an error, I got things wrong, but it’s also very important not to say in any way ‘I was negligent.’ Doctors should reflect on what they believe they could have done better and how they would handle such a case in the future,” she says. She also advises trainees to include any external factors that played a part in the outcome. “If there’s anything that contributed to it, make sure you put it in your e-portfolio,” she advises.

Footnotes

  • Competing interests: We have read and understood BMJ policy on declaration of interests and have no relevant interests to declare.

  • Provenance and peer review: Commissioned; not externally peer reviewed.

References

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