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'Having an e-portfolio used against you in court would be exceptional'

Dr Pallavi Bradshaw

Dr Pallavi Bradshaw

The judgement from the high court to erase Dr Bawa-Garba from the medical register is disappointing and its implications will understandably be of great concern to the healthcare community.

One particular area of concern for GPs and indeed all doctors is the idea that reflections from Dr Bawa-Garba’s e-portfolio were used against her in the criminal trial in 2015. This was suggested in a past news report, and has gained traction on social media since the high court judgement was handed down. It has naturally created much anxiety across the profession at a time when emotions are already running high - and as is generally case with social media, it gathered momentum quickly.

It is important to clarify, that at no point during Dr Bawa-Garba’s criminal trial was an e-portfolio presented to the court or jury as evidence – either in its entirety or partially. In fact, the court was clear that reflections were irrelevant to the facts of the case and that no weight should be given to any remarks documented after the event.

A GP’s e-portfolio is a vital part of their professional development. It is used for training, learning and reflection. It allows them to openly and honestly record reflections on incidents that occur and obtain guidance from their senior colleagues. It is a crucial tool in bringing about a shift to a truly open, learning culture where lessons are learnt and improvements are continually made – enhancing patient safety.

 An e-portfolio allows doctors to openly and honestly record reflections on incidents that occur and obtain guidance from their senior colleagues

It would be extremely rare for a doctor to provide the contents of their e-portfolio for anything other than educational purposes, and having the contents of an e-portfolio used against a GP in a legal case would be exceptional.

In the unlikely event that a doctor is approached to provide the contents of their e-portfolio as part of an investigation or case, before releasing any information they should seek clarification from their medical defence organisation as to whether they should comply with such a request or not, and if so, the amount of detail they are obliged to pass on.

While all doctors have a professional and legal obligation to report patient safety incidents, such matters should be recorded without identifiable patient information within the annual appraisal or e-portfolio.

The Academy of Medical Royal Colleges advises doctors to 'anonymise patients as far as possible in their self-reflective logs' and says that the portfolio 'is an educational and not a medical tool and therefore there is no reason to include patient identifiable or personal data relating to a third party'.1

If patient safety incidents or reflections are not disclosed during the appraisal and the doctor has made a declaration of truth, they would actually be at greater risk of an allegation of probity and referral to the GMC. This risk would far outweigh the extremely low risk of such information being used against you in litigation. The weight given to such information in legal cases is likely to be minimal in the face of witnesses and expert evidence, if considered as valid evidence at all – as was the case in Dr Bawa-Garba’s trial.

If the GMC was undertaking an investigation into a doctor’s fitness to practise, they would not ask for a doctor’s reflective statements, but a doctor can choose to provide them if they demonstrate that they have shown insight. The GMC will be soon be publishing more detailed guidance on reflection.

Openness and transparency is key and this is expected of all medical practitioners by the GMC. We would urge all doctors to continue using e-portfolios. Not only because not disclosing an incident or reflection during appraisal may lead to a greater risk - but because it is a practice that fosters life-long learning for doctors on their own career needs and the needs of their patients.

Dr Pallavi Bradshaw is a senior medicolegal adviser at the Medical Protection Society

References

1. Academy of Medical Royal Colleges: Guidance for entering iInformation onto E-portfolios 

 

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Readers' comments (6)

  • Of course I never write anything in my appraisal that could be used against me. I am equally cautious about what I write in patient records or in e-mails. I use no social media.
    Presume everything you ever write or text is on the front page of The Daily Mail. Are you happy with what you have written? It can and will be used against you. It may show you to be sexist,racist,homophobic,negligent etc etc.
    Resist! Don't be open and reflective. It is all a big game and you will lose.

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  • The crucial part of Dr Bradshaw's apparently reassuring article relates to reflective statements: "...but a doctor can choose to provide them if they demonstrate that they have shown insight."

    What purpose could that possibly serve? Let us suppose that a doctor has made a mistake which results in serious harm or death. In their reflection they acknowledge the mistake and show that there was not only a reason why it was made, but insight into how it was made. That does not alter liability, so it is pointless to consider allowing the reflection to be considered by a court but even if it is not', as another respondent has pointed out, if the reflection has been shared then the person with whom it was shared may, in court, be forced to reveal it under oath without the permission of the person who told it to them. In the eyes of the law there is no mitigation; someone who makes a mistake which results in death remains culpable. I was involved in a court case where this principle held; fairness is trumped by justice as, sometimes, is the truth.

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  • HMMM why is the mdo so keen to support the eportfolio? Time to stop the indemnity racket

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  • The MDOs and those that work for them are just the other arm of the medicolegal regulatory industry alongside all the people who suck a living out of us for the CQC and GMC.

    For them, it's all just an interesting world to observe from afar, having to rarely actually dirty their hands with patients.

    Even this article is laced with threat. Do it, or else.

    Simply, no. Never again.

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  • Even if there is a slim chance that a reflection could be used as evidence against you is enough to discourage any form of meaningful written reflection.

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  • “Exceptional”?? Well firstly, that means “entirely possible” to most of us, and once the medicolegal vultures realise there is a goldmine of doctor’s confessions lurking online in our appraisal folders, do you really think this practice will remain “exceptional”??
    If you really must “reflect” on your mistakes, stick to when you were slightly rude to Mrs Bloggs when you were an hour behind,nursing a virus,and she wanted to discuss her bunions 25 minutes into a 10 minute appointment. Tick the box and admit to NOTHING of substance.

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