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Published 2 February 2018
It is fair to say that the much publicised case of Dr Bawa-Garba causes opinion to divide sharply and strongly. The facts of the case are tragic for all concerned, and have been well reported.
The noteworthy features of the case are innumerable, but in this alert we explore two striking themes from a medical malpractice and professional discipline perspective.
The first, relevant for the defence of medical malpractice claims, is the potential use in evidence of a clinician's e-portfolio training record and reflections. Although it has been widely reported that the written reflections in Dr Bawa-Garba's e-portfolio were used and referred to at trial, it is noteworthy that her defence organisation has since clarified that the e-portfolio did not form part of the evidence before the Court and jury (although it is said that elements of her e-portfolio were seen by expert witnesses). Whether or not they were scrutinised at Dr Bawa-Garba's trial, the issue does give rise to difficulties:
a) Can and should they be used in evidence against the clinician? b) Should a clinician actively adduce such evidence in the defence of his/her claim?
In our article last year, we reported on the use of a trainee doctor's written reflections in litigation, and considered the impact that such disclosure becoming routine might have on learning culture and the duty of candour. The Divisional Court's decision that Dr Bawa-Garba ought to be erased following the GMC's appeal has clearly reignited the debate about the benefits and risks of written reflections. The concern has even led to some doctors calling for a boycott of reflective entries. The question begged by doctors is how they can continue to feel secure in documenting honest, focused and insightful reflections – an essential component in the process of learning from adverse outcomes – if their reflective process is subsequently used in civil or criminal proceedings against them.
Following directly on from this, a second observation emerging at a high level is the potential for conflict regarding the statutory functions of the GMC. In exercising its functions, the over-arching objective of the GMC, written into the Medical Act in 2015, is "the protection of the public." Section 1B of the Act says that this over-arching objective in turn involves the pursuit of three sub-objectives, the second and third of which were the basis on which the Divisional Court allowed the GMC's appeal:
(a) to protect...the health, safety and well-being of the public,(b) to promote and maintain public confidence in the medical profession, and(c) to promote and maintain proper professional standards and conduct for members of that profession.
There has been little legal analysis of the extent to which pursuit of the second and third sub-objectives has the potential to undermine the first, requiring a careful balancing exercise to secure the overall protection of the public. This may be so in circumstances where many medical practitioners believe patient safety could in the longer term be undermined by a perception, rightly or wrongly founded, of the disintegration of the sense of security required by junior doctors to foster a candid, supportive and open learning culture.
As the dust settles on this tragic case, one silver lining may be recognition of the balance to be struck on the disclosure and use in evidence of reflections. The GMC has already announced an urgent programme of work to examine the role of reflections used particularly in criminal proceedings. It remains to be seen whether protocols could be introduced, to account for the unique circumstances and vulnerabilities of doctors in training, which would safeguard the progressive systemic and individual learning culture in the post-Francis era on the one hand, and accountability on the other.
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