Following the Bawa-Garba case, doctors were left confused as to the status of reflective notes and whether they are required to disclose these in legal proceedings.
This month the GMC, together with the Academy of Medical Royal Colleges, the UK Conference of Postgraduate Medical Deans and the Medical Schools Council, published guidance on being a reflective practitioner.
The key points can be summarised as follows:
* Anonymise (see below)
* Focus on learning and future plans
* Record factual details elsewhere (e.g. SUI reports)
* The value of team reflection; employers should allow time for reflection
* Confirmation that reflective notes can be required by a court
The GMC has, since the Williams review following the Bawa-Garba case, expressly said that it does not require doctors to produce reflective documents in GMC proceedings (notwithstanding that it has the power to obtain any relevant documents under the Medical Act). It is, however, often beneficial to a doctor involved in regulatory proceedings to rely on reflections to show insight and remediation. However, there is an obligation to disclose reflective documents in civil proceedings if they are relevant to the claim, unless the reflections are completely anonymised.
But what does "anonymised" mean? This is one of the questions I am frequently asked by doctors. The Reflective Practitioner Guidance, at last, offers some clarity; it states: "The Information Commissioner's Office considers data to be anonymised if it does not itself identify any individual, and if it is unlikely to allow an individual to be identified through its combination with other data. Simply removing the patient's name, age, address or other personal identifiers in unlikely to be enough to anonymise information to this standard".
It can be difficult for doctors to write reflections but it is absolutely necessary for doctors to engage in reflective practice. Keeping reflections generic so that they cannot be related back to the patient or the incidents forming the subject matter of the litigation is not easy. If unsure about disclosure obligations, doctors are encouraged to seek advice from their medical defence organisation and/or lawyers.