GMC backs legal protection for reflection by doctors

UK governments should consider legislation to prevent doctors' reflections being used against them in court, the GMC has told a review led by Jeremy Hunt's top clinical adviser.

Evidence from the regulator to a rapid review of gross negligence manslaughter being led by former Royal College of Surgeons chair Sir Norman Williams says that doctors' reflective notes 'should be privileged' because they are fundamental to professionalism.

The GMC evidence offers a fresh defence of its handling of the case of Dr Hadiza Bawa-Garba, struck off this year after a High Court appeal by the regulator, rejecting claims of discrimination and setting out why it sought to overturn an earlier medical tribunal ruling that she should be suspended.

Its submission comes just weeks after GP leaders backed a vote of no confidence in the regulator at the LMCs conference in Liverpool. The GMC has also issued a warning over calls from LMCs for GPs to stop written reflection.

The introduction to the GMC evidence adds: 'The case that has given rise to this review has been a tragedy for all concerned; a little boy lost his life, a family lost a loving son, a doctor lost her career, and the wider medical profession now feels less supported and more vulnerable in its efforts to care for patients and the public in a system under intense pressure.

'The outcome of the case has served to highlight issues that have been present for a long time, but that are either insufficiently understood or inadequately addressed.'

Bawa-Garba case

In its submission to the government review, the GMC reiterates that it will not ask for doctors' reflective notes as part of the fitness to practise process. However, it warns that recorded reflections in e-portfolios or other CPD records can be requested by courts.

This information is not currently protected by legal privilege and courts could seek to obtain it 'if it is considered that they are relevant to the matters to be determined in litigation', the regulator says.

The GMC suggests that doctors may be able to limit the chance of reflective information being used in court if 'reflective records focus on reactions to, and learning from, an incident'.

Its evidence says its own manslaughter review, led by Dame Clare Marx, will consider how regulation assures public confidence and look at how fitness to practise case examiners can be trained to recognise the impact of 'human factors' in negligence cases.

GMC chair Professor Sir Terence Stephenson said: 'We have concluded that because doctors’ reflections are so fundamental to their professionalism, UK and devolved governments should consider how to protect them in law, if they see fit to do so.'

The regulator's evidence warns that more work will be required to define how legal privilege for reflective information could work.

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