January 2018 saw the General Medical Council (GMC) announce a review of the practical application of gross negligence manslaughter in medicine. The review was prompted by issues raised following the GMC’s successful appeal to strike off Dr Bawa-Garba, a hospital doctor who had received a 24-month suspended sentence for gross negligence manslaughter after the death of her six-year-old patient. 

Although the subsequent decision to remove Dr Bawa-Garba from the medical register may not have surprised legal practitioners, some of her fellow medics expressed concerns that Dr Bawa-Garba’s striking off ‘reflect[ed] the inherent bias that exists within the GMC’. Many of Dr Bawa-Garba’s colleagues argued that proper examination had not been made of medical realities of the situation, including the intense pressures to which NHS doctors were being subjected. The GMC’s own regulator seemed to agree: an unpublished review of the case by the Professional Standard’s Authority concluded that the GMC’s pursuit of Dr Bawa-Garba was ‘without merit’.

The then Health Secretary, Jeremy Hunt, was also moved to comment, warning that the implications of the decision were ‘deeply concern[ing]’. Meanwhile, fearing the growing rise of a blame culture within the NHS, thousands of doctors signed a letter giving their own warning: in their view, the case would make doctors more risk-averse and far less likely to admit mistakes. At the same time, medics raised more than £200,000 to fund an independent review of Doctor Bawa-Garba’s case. In the words of the fundraising page, Doctor Bawa-Garba had struggled ‘against all the odds to keep her young patients safe [while] undertaking the roles of three or four doctors in the absence of her supervising clinical consultant. […] even the most competent junior doctor would struggle to keep children safe under such conditions’.

The question of whether or not criminal proceedings are appropriate in cases such as Dr Bawa-Garba’s lies at the heart of the review. However, as highlighted by the letter signed by all those thousands of doctors, also at issue is the potential place that reflective notes hold in legal proceedings.

Reflective notes are intended to promote improvement and personal learning - and Dr Bawa-Garba’s notes were not used as evidence against her in court (although notes made by her consultant after the incident formed part of the consultant’s witness statement). Despite this, a recent poll of over 8000 BMA members found that only a quarter were comfortable with current reflective practices. The rest reported varying levels of concern that reflective notes might end up implicating them in GMC or legal proceedings. Clearly, this has potentially serious consequences for both patient safety and organisational learning and development.

This autumn, the GMC is due to issue advice on how doctors can safeguard themselves from reflective notes being used against them. It remains to be seen whether this advice will contain sufficient substance to quell the rising concerns. Critics will doubtless point to the fact that the government has already specifically rejected giving legal protection to reflective notes on the grounds that this would not be ‘workable or appropriate’ – or, in other words, might appear to place medics above the law.

Article supplied by Clifford Johnston and Co