Personal Injury and Medical Negligence Limitation Period
The eight healthcare regulators have issued a joint statement to encourage practitioners to engage and adopt reflective practice in a useful and meaningful way. The statement, which can be found here, has also been produced to try to allay any remaining fears that, following the Bawa-Garba case, reflective pieces will be held against practitioners in fitness to practise proceedings.
Put very simply, it is the process by which a practitioner critically considers their own actions and decisions in order to gain insight into the way they practice. It is designed to be a tool to improve decision making and performance by encouraging honesty and openness to ensure that, if mistakes are made, they are not repeated in the future. The joint statement emphasises the importance not just of individual reflection, but also the need for collective reflection to take place within multi-disciplinary teams. The statement encourages practitioners to maximise the effectiveness of this process by setting out the components which are required for good reflection.
For the process to be effective, professionals should be willingly to engage and be proactive, rather than viewing the process as a ensuring that the process is more than just a ‘tick box exercise’. The importance of a structured approach is also highlighted in the statement, as well as the need to involve service users in the process where appropriate and/or possible.
The joint statement refers to the general benefits of reflective practice in that it supports practitioners and it assures the public that healthcare professionals are continuously trying to learn and improve. In regulatory proceedings, Panels of fitness to practise committees will often utilise reflective pieces in order to make a determination on a practitioner’s level of insight into their failings, and how likely it is that any mistakes will be repeated in the future. Effective reflection is therefore often critical to those wishing to persuade Panels that their fitness to practise is not impaired. With regulators having increasing powers to dispose of cases before final hearings, reflective pieces are likely to become even more important in relation to early disposal of cases.
There has been much debate about how reflective statements can and should be used in regulatory proceedings following the case of Dr Bawa-Garba. Dr Bawa-Garba faced a criminal trial and fitness to practise proceedings before a Medical Practitioners Tribunal Service Panel in respect of matters arising from gross negligence manslaughter. The case has been widely reported on, and my colleague Shannett Thompson sets out the procedural history and background to the case here.
There has been concern that Dr Bawa-Garba’s e-portfolio reflection statement was used in the criminal case against her, following which she was convicted of gross negligence manslaughter. This was not actually the case, which has been confirmed by counsel for the prosecution, Andrew Thomas QC. In relation to the fitness to practise proceedings, Dr Bawa-Garba voluntarily shared some of her personal reflections on the incident in order to evidence that she had remediated her failings.
Concerns about reflective pieces being used against practitioners caused some to call for a boycott on producing such work. In issuing this joint statement, the health and care regulators have united to remind practitioners of the benefits of reflective practice, and to reassure practitioners that regulators will not compel registrants to produce such work in the course of any investigation into their conduct or practice.
In theory yes, as documents such as learning portfolios and reflective pieces are not subject to legal professional privilege. GMC guidance confirms that such information must be disclosed if it is required by statute or if ordered to by a judge. However, the joint statement sets out some useful guidance which practitioners should bear in mind. It reminds practitioners that the focus of reflective documents should be on the learning and development points which have been identified by the process, rather than any particular failure or wrongdoing. It also contains a reminder that reflections should be anonymised, removing identifiable details of people and of the event.
If practitioners follow this guidance, there is no reason why practitioners cannot continue to use reflection in a positive and useful way, without being unduly concerned that such documents will be used against them in the future.
Claire Parry was called to the Bar in 2013. She has extensive experience of investigating and presenting fitness to practise cases of all levels of complexity. Her current practice involves investigating cases relating to professional misconduct, lack of competence and ill-health on behalf of the Health and Care Professions Council (HCPC).
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