Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
The recent case of General Medical Council v Bawa-Garba will have escaped the attention of very few medical professionals.
In November 2015, Dr Bawa-Garba was convicted by a jury at Nottingham Crown Court of gross negligence manslaughter following the sad death of a 6 year old patient from sepsis. At the time, she was a junior doctor specialising in paediatrics at the Leicester Royal Infirmary Hospital (the Hospital). She was working in the Children's Assessment Unit of the Hospital, which would receive patients from Accident and Emergency or from direct referrals by a GP. It should be noted that convictions of this kind against medical professionals are very rare.
The GMC investigation followed.
The evidence which was heard during the course of the hearing before a Medical Practitioners Tribunal Service (MPTS) Panel in February 2017 confirmed that there were systematic failures at the hospital. This included the doctor working an extensive shift without a break, and the lack of permanent nursing staff. The MPTS Panel also heard evidence in relation to Dr Bawa-Garba's treatment of the patient, culminating in her failure to properly reassess him and/or seek advice from a consultant.
Dr Bawa-Garba admitted the conviction and it was concluded that her fitness to practise was impaired as a result. In June 2017, the same MPTS Panel imposed a sanction of 12 months suspension, subject to review.
The GMC appealed using its (relatively new) power under section 40 of the Medical Act 1983. The High Court agreed that the sanction was too lenient and replaced it with erasure.
Many doctors have commented that whilst there were clearly errors made in this case, the sanction ultimately imposed against Dr Bawa-Garba will militate against practitioners being open and admitting mistakes during the course of their clinical practice.
This is a topic upon which we have commented previously. Whilst doctors have had a duty to act with honesty and integrity for some considerable time, following Sir Robert Francis QC’s Mid Staffordshire Inquiry, the duty of candour has been enshrined in law.
The duty of candour puts the principle of openness and honesty at the heart of safe and effective patient care. It is a professional duty upon doctors, and other registered medical professionals, to be candid, in a sensitive manner, with patients when things go wrong and where the patient suffers harm or distress as a consequence.
The duty of candour is embodied in the GMC’s Good Medical Practice guidance at paragraph 55. The guidance states that if a patient has suffered harm or distress under a doctor’s care, a doctor should:
1. Put matters right (if possible)
2. Offer an apology
3. Explain fully and promptly what has happened and the likely short term and long term effects
Part of the GMC’s practical guidance to doctors is to report errors at an early stage so that lessons can be learned quickly, and patients are protected from harm in the future. Clients I have advised in the past have done this in a variety of ways, including the use of DATIX incident reporting forms. Doctors should always ensure that they use the appropriate channel, following the guidance which exists in their place of employment.
As a lawyer who represents doctors, I always advise clients, if they have not already done so, to record personal reflections following any adverse incident. This can be done by way of a reflective journal, or within an appraisal e-portfolio. This type of evidence is often crucial for any doctor who subsequently faces fitness to practise proceedings after an adverse event – as it is a contemporaneous account of what went wrong and what they have learned from the incident.
These reflections can also be used against doctors though. MPTS Panels are tasked with assessing a doctor’s level of insight and their ability to remediate the concerns which underlie the incident at hand, evidence by way of an appraisal e-portfolio may be a good source of evidence as to what actually happened, from the doctor’s perspective. It is irrelevant that, when the e-portfolio was created, it may not have been formulated with subsequent litigation in mind, or that it is confidential to the doctor. If it contains relevant and admissible evidence, it can be relied upon, should the doctor so wish, subject to appropriate redaction of confidential patient information.
Paragraph 25 of Good Medical Practice requires doctors to, amongst other matters: “take prompt action if you think that patient safety, dignity or comfort is or may be seriously compromised…..
b. If patients are at risk because of inadequate premises, equipment or other resources, policies or systems, you should put the matter right if that is possible. You must raise your concern in line with our guidance and your workplace policy. You should also make a record of the steps you have taken”.
As such, should a doctor be concerned about their ability to practice safely in an environment, not only do they have a duty to raise this formally through the proper channels, but they should also keep very clear and contemporaneous notes of the concerns and what they did to rectify them. In this way not only are they contributing to the establishment and maintenance of safe and effective systems for patients, but they are also appropriately reflecting on their practice, and providing themselves with some safety netting.
Of course, as a lawyer, I appreciate that the everyday pressures of medical practice are sometimes insurmountable, but doctors must not feel that every single mistake they make in practice will lead to fitness to practise proceedings or other litigation, as this is simply not the reality.
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