June 19, 2019

Regulators reflect on reflections

Ever since the case of Bawa-Garba doctors have been concerned that their personal reflective notes will be used as evidence against them by their regulator. Now, however, the General Medical Council (GMC) has confirmed that they will not do so.

The GMC, General Dental Council, Nursing & Midwifery Council and six other regulators have committed publicly to the importance of reflective practice by healthcare practitioners. Of perhaps greater significance, the nine regulators have confirmed that professionals will never be asked to provide their personal reflective notes when investigating a fitness to practise concern about them. This commitment follows the publication of the Hamilton report, commissioned by the GMC, into the law of gross negligence manslaughter and culpable homicide following the Bawa-Garba affair.

The Hamilton report included a number of damning conclusions and recommendations. These include that the GMC must acknowledge that its relationship with the medical profession has been "severely damaged" by the Bawa-Garba case. It also supports plans to remove the GMC's right of appeal after a finding by the Medical Practioners Tribunal Service. 

A further recommendation was in relation to reflective practice. The report noted that:

"In the wake of the Dr Bawa-Garba case many doctors reported unwillingness to engage in reflection for fear that their written reflections may be used against them in court or in regulatory proceedings."

This is despite the fact that, in the Bawa-Garba case, the GMC did not request the reflective notes.

Though the GMC had previously stated that it will never ask for reflective notes, the report identifies that the relationship with the profession was so toxic, that many doctors did not believe them. This public declaration should offer some assurance.

The Hamilton review also recommends that the UK and devolved legislatures consider how reflective notes could be given legal protection. This includes a potential amendment to the Medical Act. However practitioners should note that while the regulators have confirmed they will not refer to them, these notes do not benefit from legal privilege in criminal or civil proceedings. The report acknowledges the balance between protecting reflective notes and ensuring professionals comply with their duty of candour.

The GMC accepted the Hamilton recommendations in full, and the recent announcement on reflections shows that other regulators were listening. It is clear that the concerns expressed about the GMC are not unique to them as a regulator.

The public commitment to reflections is unlikely to be sufficient on its own to rebuild doctors' trust in their regulator. But reflective practice is central to learning and patient safety and it is vital that health professionals are not discouraged from doing it