The recent debate around the use of reflections and e-portfolios in investigations against doctors has understandably created a climate of fear and anger, and has sadly threatened to undermine the purpose of reflections.
Confusion around the Dr Bawa-Garba case has generated this fear; particularly around whether her e-portfolio reflection statements were submitted and used against her at the 2015 criminal trial, and whether her duty consultant included any of her reflections in his witness evidence.
These are two different issues and we have been trying our best to clarify this. To tackle the first point - at no time during Dr Bawa-Garba’s criminal trial was her e-portfolio reflection statement presented to the court or jury as evidence. A defence expert was provided with a range of confidential documents to help provide context for his report. These documents were not relevant to the facts upon which his opinion is based, and the e-portfolio reflection statement was not included within these documents. No reference was made to any reflections in his expert report.
On the second point involving the duty consultant - Dr Bawa-Garba met her duty consultant, Dr O’Riordan, after Jack’s death to discuss the incident and learnings. Dr O’Riordan’s own thoughts following this discussion formed part of his witness evidence. Attached to his evidence was a trainee encounter form not signed by Dr Bawa-Garba.
This form is not part of Dr Bawa-Garba’s e-portfolio and did not include any admission of liability, or guilt pertaining to gross negligence manslaughter. Furthermore, this trainee encounter form was not referred to by either the CPS or the defence in the hearing, and it was therefore not considered by the jury at the trial.
The fact that e-portfolio reflection document did not feature at all in the 2015 trial has been confirmed by the prosecution QC, Andrew Thomas. The judgement from the trial also does not make any reference to post event reflections or reflective documents from Dr Bawa-Garba. The court was clear from the start that reflections were irrelevant to the facts of the case and that no weight should be given to any remarks documented after the event.
Fitness to practise hearings
A further area of confusion is around the use of e-portfolio reflection statements in the Fitness to Practise hearing. The GMC does not demand to see these in fitness to practise cases, but the doctor can choose to share them if they feel they demonstrate insight. In Dr Bawa-Garba’s case, some personal reflections – though not the e-portfolio statement – was shared with the panel to show her remediation efforts.
Only in exceptional circumstances could an e-portfolio be used for purposes other than training, particularly if the entries are anonymised and the doctor’s consent is not provided. Of course, there are laws which allow any type of confidential information to be requested by the police or the GMC, but in practice this rarely happens as it is accepted that the purpose of this document is for training, that it is not written to serve the purposes of a criminal investigation and would be of very little, if any evidential weight. Reflections can however be used to mitigate a sentence at the latter sentencing stages of a trial.
After reading the above, the fact that e-portfolio documents could in exceptional cases be obtained via court order, will understandably still create some concern, though in MPS’s experience this has never been done as the police would have to convince a judge of its direct relevance to the investigation and facts.
The fact that the duty consultant referred to his post incident discussion with Dr Bawa-Garba in his witness statement – even though these were his own thoughts and her e-portfolio was not submitted – for some will also put a question mark over ‘reflecting’ in its wider sense and its confidentiality.
I am a doctor myself and I understand these concerns. But it is important to also put things into perspective, consider the wider benefits of reflection, and the risks involved with not doing it.
Risk vs benefits
Reflective practice has become synonymous with continuing professional development and is seen as an important part of training. Indeed we are all expected to undertake this exercise as part of our appraisal and the revalidation process. Although the latter may be the driver for many, it has to be right that we all question assumptions, challenge the way we practice and the systems in which we work, and seek to improve patient safety. The concept for doctors is not new, with morbidity and mortality meetings and audits being long established.
Any doctor involved in an unexpected or unusual death would be asked to provide a statement for a local or coroner’s investigation. As part of those processes they would be expected to reflect and consider any lessons learnt. In those circumstances a doctor should seek advice from their medical defence organisation who can advise them on how to present that information.
Failing to reflect in these situations could cause real difficulties for a doctor when attempting to revalidate or when before the coroner. In the latter situation the coroner can in fact recommend that organisations or doctors need to demonstrate such reflections, and concern about any failure to do so could lead to a referral to the GMC or an obligation to self-refer.
The question which is fundamental, is for whose benefit we do reflections? From the discussions I have heard and been part of, some see them as a stick which can be used to beat them with, rather than a purely educational tool. It is this perception that we need to change; it is not simply a tick box exercise. As a doctor the advantages of such learning leads to improvements in one’s own practice and can, despite the recent anxiety, assist a doctor who may be the subject of scrutiny.
Having advised and supported doctors for over a decade, I can confidently say that a doctor’s reflections have only ever created problems where they have been deemed to be lacking. On the other hand the use of a doctors reflections have often led to the discontinuance of disciplinary and GMC action. They can form a fundamental part of the defence in fitness to practise hearings and can demonstrate remediation and current safe practice.
We need to also realise that reflections do not necessarily mean that our actions in response to a situation were wrong; rather that in hindsight, things could have been done differently or better. Critiquing should also involve analysing when things have gone well, as this too can provide sources of learning and is something that we often forget to do.
A balanced approach
Ultimately, it is up to the individual as to whether and how they reflect and document this in discussions with their responsible officer. That being said, one must be mindful not only of the GMC requirements but also that of statute under the duty of candour, which prescribes it an offence if this obligation is not discharged. Additionally, there are contractual obligations as an employee, or as a GP under CQC regulations and the GMS/PMS contracts.
It is absolutely right that as a profession we have these debates. They should be balanced and reflect the realities in order not to undermine the genuine good that reflective practice can do for patients and from a personal perspective.
- Dr Pallavi Bradshaw is senior medicolegal adviser at the Medical Protection Society