Why the Williams review rejected calls to legally protect doctors' reflective notes

The GMC's decision to strike off Dr Hadiza Bawa-Garba has left many doctors fearful that written reflective notes could be used against them in court - so why did the Williams review reject calls to give them legal protection?

Written reflection: legal privilege denied (Photo: iStock)
Written reflection: legal privilege denied (Photo: iStock)

Dr Bawa-Garba was struck off on 25 January after the GMC won a High Court challenge against a medical tribunal ruling that she should be suspended for 12 months. The GMC maintains it had no choice but to appeal against a tribunal sanction that took a 'less severe view of the degree of Dr Bawa-Garba’s personal culpability' than had been established at an earlier criminal trial that found her guilty of gross negligence manslaughter (GNM).

But within hours of the decision, health and social care secretary Jeremy Hunt joined a wave of criticism of the GMC's handling of the case - writing on Twitter: 'Wouldn’t be appropriate for me as govt minister to criticise a court ruling, but deeply concerned about possibly unintended implications here for learning & reflective practice in e-journals. Am also totally perplexed that GMC acted as they did: patient safety must be paramount.'

Soon afterwards, Mr Hunt ordered his chief clinical adviser Professor Sir Norman Williams, to lead a 'rapid review' into GNM in healthcare.

Recognition of the need to do more to make doctors feel they can take part openly and honestly in written reflection clearly goes right to the top - but the Williams review has rejected calls to give doctors' reflective notes legal protection to prevent them from being used in court.

Why was legal privilege for reflection rejected?

The Williams review heard from the Crown Prosecution Service that reflective material was unlikely to be used in prosecuting a health professional for GNM - although it is possible.

Affording doctors' reflective notes legal privilege was 'not considered workable or appropriate', the review found. It says: 'Where any evidence is material to a case, it is right that it should be considered.'

Comparisions between healthcare and the aviation industry, in which an open culture around admitting and learning from mistakes has been credited with improving safety, have been made regularly before and after the Bawa-Garba case. However, the Williams review pointed out that 'no other sectors or professions' - including the aviation industry - have this type of legal privilege.

'To provide an exemption for reflective practice material would rightly cause concern that healthcare professionals are above the law,' it warned.

What does the review say about Bawa-Garba?

Although the Williams review does not mention Dr Bawa-Garba by name even a single time, it points out that there has been 'much speculation about the role of reflective material in a recent case against a doctor, and this has led to heightened concerns among healthcare professionals about carrying out reflective practice'.

It says there were 'misconceptions about the use of reflective material in this case' - citing evidence from the Medical Protection Society, which represented Dr Bawa-Garba, that 'at no point during the criminal trial was their e-portfolio reflective statement presented to the court or jury as evidence'.

The report clarifies, however, that 'the doctor shared some personal reflection with the panel in the fitness to practise hearing to demonstrate the steps she had taken to remediate her practice'.

What steps is the review suggesting on reflection?

The review recognises that 'the fear felt by healthcare professionals about the use of reflective practice is present and real'. It expresses concern at doctors choosing not to engage with reflective learning - such as GPs who announced a boycott earlier this year and an LMC vote that called on the BMA to advise doctors to refuse to engage with written reflection.

Despite the GMC already promising that it will never use reflective material against a doctor, the review will trigger legislation to strip the GMC of the power to do so.

The GMC has also already pledged to issue revamped advice to doctors on how to stop written reflection being used against them. The Williams review supports this approach, saying it had heard 'from a number of sources that it is possible to carry out reflection in a way that minimises the likelihood of it being used by either prosecuting authorities or professional regulators'.

It calls for guidance to be reviewed to ensure that health professionals are 'carrying out reflective practice in a way that supports continued professional development'.

The review calls on royal colleges to support this revamp of guidance: 'The royal colleges, through the academy, and professional regulators working with appropriate professional bodies should review and, if necessary, amend guidance on how healthcare professionals carry out reflection, stressing the value of reflective practice in supporting continuous professional development.'

Do the changes go far enough to protect reflection?

Both the BMA and the GMC have hit out at the failure to back legal protection for doctors' reflective notes.

GMC chair Professor Sir Terence Stephenson said: 'We are disappointed by the review’s recommendations. We wholeheartedly support the secretary of state’s desire to create a learning culture. The best way to achieve that is to legally protect doctors’ reflective notes.

We are concerned that, in accepting these recommendations, the government is missing an opportunity to protect all doctors by not going ahead with a recommendation to enact this legal protection.'

GPC chair Dr Chaand Nagpaul said: 'Doctors must feel able to report errors and reflect on their own mistakes openly, without the fear of these reflections being used against them at a later stage. Only then can true improvements to patient safety be made.

'While the assurance that regulators will no longer be able to request reflective material during their investigations is a welcome step, we still believe they should be given full legal protection, which would foster an open environment to apply systemic analysis to adverse events to improve patient safety.'

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