Few cases have changed how doctors write as much as the case of Dr Hadiza Bawa-Garba. Years later, trainees still ask whether anything they put in a portfolio will be read back to them in a courtroom or a tribunal. There are two parts to the honest answer. The regulators have given a clear commitment about their own investigations. The courts have not, and no statute protects your reflections. Both parts should shape the way you write.
What happened in the case
The Court of Appeal's judgment in Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 sets out the facts. Dr Bawa-Garba was a paediatric registrar recently returned from 14 months of maternity leave. In February 2011 she was responsible for the care of Jack Adcock, aged six, at the Leicester Royal Infirmary. Jack died that day. On 4 November 2015 a jury convicted her of gross negligence manslaughter. She received a sentence of two years' imprisonment, suspended for two years.
On 13 June 2017 a Medical Practitioners Tribunal suspended her registration for 12 months. Then the GMC appealed under section 40A of the Medical Act 1983, and in January 2018 the Divisional Court substituted erasure. The Court of Appeal allowed her appeal and set aside that decision. It restored the tribunal's suspension and sent the case back to the MPTS for review. The court stressed the respect an appeal court owes to the evaluative judgment of a specialist tribunal.
Where reflection came into it
Much of the alarm among doctors centred on her e-portfolio. The Williams review, published in June 2018, records what her defence organisation told it. At no point during the criminal trial, it says, was her e-portfolio reflective statement presented to the court or jury as evidence. She did share personal reflection with the tribunal to show the steps she had taken to remediate her practice.
The judgment shows why that matters. The tribunal accepted evidence from a senior colleague that she had reflected deeply and shown significant insight in conversations with him. But it was unable to conclude that she had complete insight, because it did not hear from her directly. Reflection, in other words, was evidence in her favour. The tribunal wanted more of it from her own mouth, not less.
What the regulators now say
The GMC wrote its guidance, The reflective practitioner, with the Academy of Medical Royal Colleges, COPMeD and the Medical Schools Council. It states that the GMC does not ask a doctor to provide reflective notes in order to investigate a concern about them. Its focus in an investigation is on facts and evidence. Evidence of insight and remediation can reduce the need for action. Whether you provide it, and in what form, is your decision.
Nine regulators, including the GMC, the GDC, the NMC, the GPhC and the HCPC, have made the same commitment in a joint statement. They will not ask registrants for their personal written reflections to investigate a concern. Registrants may also choose to offer them as evidence of insight.
What the courts can still do
The same GMC guidance is candid about the limit of that promise. Recorded reflections, including those in learning portfolios and for revalidation, are not subject to legal privilege. So a court may request disclosure if it considers them relevant. The Williams review considered giving reflective material legal privilege and rejected the idea as neither workable nor appropriate. It also recorded the view of the Crown Prosecution Service on prosecutions for gross negligence manslaughter. In that view, reflective material is unlikely to be used in prosecuting a healthcare professional for the offence, but it is possible.
The review also made a recommendation about regulators with a power to require information from registrants, a group which then included the GMC. It recommended that their power should be modified to exclude reflective material. Check the current position before relying on it, because a recommendation is not a change in the law.
How to write reflections that help you
The GMC's ten key points give practical direction, and they match what I would advise.
- Write about what you learned and what you will do differently. A reflective note does not need the full story of the event.
- Record the facts of a serious incident in the incident report, the clinical record or the statement your organisation asks for. Do not record them in your portfolio.
- Anonymise the note as far as you can.
- If a court or anyone else asks for your reflections, take advice before you disclose anything.
- If you face a regulatory case, decide with your adviser whether to put reflective evidence forward and in what form. The GMC itself advises doctors to take legal advice before sending documentary evidence.
The joint commitment covers the NMC, the GDC, the GPhC and the HCPC as well as the GMC, so a nurse, dentist, pharmacist or paramedic can rely on it in the same way. Our pages for each profession explain how each regulator's process runs.
Eloquia acts for doctors at every stage of a GMC case, and gathering testimonials and evidence of remediation is part of that work. We act on a fixed fee for each stage, with a specialist barrister involved from the outset and included. Our fees and funding page states every fee plus VAT.
Doctors who stopped reflecting after 2018 did so for understandable reasons. The case itself points the other way. A tribunal deciding sanction looks for insight. A record of honest, forward-looking reflection, written well and kept to the learning, is one of the best sources of it.
Sources
- Bawa-Garba v General Medical Council [2018] EWCA Civ 1879
- Williams review into gross negligence manslaughter in healthcare (June 2018)
- GMC: The reflective practitioner, disclosure of reflective notes
- GMC: The reflective practitioner, ten key points
- Joint statement of nine healthcare regulators: our common expectations for reflective practitioners
