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Independents' Day

E-portfolio was not used against Dr Bawa-Garba in court, claims defence body

Dr Hadiza Bawa-Garba’s e-portfolio reflections were not used against her in court, despite ‘wide misreporting’ that they were, her medical defence organisation has claimed.

In a statement, MPS - the defence body which represented Dr Bawa-Garba - said that there was misplaced ‘anxiety’ around the use of the e-portfolio in the manslaughter trial which convicted her, and said that ’a doctor’s portfolio is an important part of their professional development’.

But Pulse has learnt that some reflections from Dr Bawa-Garba - but not from her e-portfolio - were included in evidence presented to the trial, however it is unclear quite how much of an influence this played in the final manslaughter verdict.

Last week, the GMC was successful in their application to the High Court to have the conclusions of their own tribunal overturned and Dr Bawa-Garba to be struck off the medical register.

The case has caused much concern, with the health secretary, the medical royal colleges and the BMA all saying that it could have unforseen consequences in terms of doctors’ willingness to be open about mistakes and some GP leaders saying that an immediate review of appraisal guidance was needed.

But Dr Pallavi Bradshaw, senior medicolegal adviser at Medical Protection, said: ‘The judgement from the high court to erase Dr Bawa-Garba from the medical register is disappointing and its implications will understandably be of concern to the healthcare community.

‘One particular area of anxiety was the purported use of Dr Bawa-Garba’s e-portfolio at the criminal trial. This has been widely misreported, as the e-portfolio did not form part of the evidence before the court and jury.’

‘Indeed, the court was clear that reflections were irrelevant to the facts to be determined and that no weight should be given to remarks documented after the event.’

’Our advice on the use of e-portfolios is, and remains, that a doctor’s portfolio is an important part of their professional development. They should bear in mind that not disclosing an incident or reflection during appraisal may lead to a greater risk of allegations of probity and referral to the GMC.’

Pulse understands that Dr Bawa-Garba actually requested that her e-portfolio reflections were included in the defence’s bundle of evidence, although this did not happen.

But Dr Bawa-Garba’s verbal reflections were ’widely available’ in court, in the form of evidence given by Dr Stephen O’Riordan, the consultant on-call on the day Jack Adcock died.

An MPS spokesperson said: ‘Dr Bawa-Garba did indeed meet duty consultant Dr O’Riordan after Jack’s death to discuss the incident and learnings – this is standard practice. Dr O’Riordan’s own notes following this discussion formed part of his witness evidence.’ 

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Readers' comments (13)

  • The Defence bodies are t0o defensive. They give you wrong advice as it is the easiest way out for them. One has to use common sense and respond to allegations when they come in. Indemnity providers should encourage this approach instead of advising - 'Don't respond to GMC - when matter goes to Fitness to Practice, we will represent you'. Represent us? My foot. When milk is spilt no Vax hoovering will help.
    Also, if they advise you to settle without liability, dig your heels if you think this is utterly wrong and there is no case against you. Accusers will back off once they know the matter can be lost in Court.
    Indemnity providers will push you to settle without acknowledging liability. Do not agree ! We need to understand, Defence organizations are there to sip champagne at our cost, they are parasitic to the system and not saprophytic or even commensial.
    The lesson from this case is - Be pragmatic, too much honesty may go against you. Don't lie but don't bare your backside when you are doing your Appraisal unless you are itching for the boot.

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  • So what you are saying is that under no circumstances should you discuss your learning points with a consultant, educational supervisor or appraiser? Or attend any type of debrief about the incident. And be ultra-defensive in any trust wide investigation so that you do not incriminate yourself.

    Because even if your written portfolio is not going to be seen/ used in court, it is likely that your supervisor will be on the witness stand testifying against you (no blame to the individual consultant, they are under oath so must answer honestly).

    Is that really any better?

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  • You have to be very careful what you write.These organisations dont care about you.They have their own vested interests!!

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  • Its too late.
    And unless we have the sort of legal protection that those in the airline industry have for reporting near misses then from now on it ain't ever going to happen.
    Jeremy, the apparent safety salesman, shoehorns in his mate Charlie Massey to GMC and appears on the face of it to shoot himself in the foot. Or is it convenient for the powers of privatisation to know that if there is a systems failure it is the individual that can be hung out to dry and not the corporations?

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  • Agree it is too late.
    Even if her reflections weren’t technically relied on in court, it is very clear that there is the potential for using reflective writings in this way.
    There is no legal protection to prevent this - and I bet that in future, prosecuting legal teams will try to force the disclosure of such information to use as evidence.
    I for one am not going to damn myself.

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  • This difficult case has Serious Implications for ALL Front Line Clinicians.Reflective Practice and Appraisal are At Risk by How this case has been managed.Anticipate further Retirements,Defections Abroad and Recruitment Challenges.A Bad Day for Caring Doctors!

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  • Your reflections can indeed be used against you in a court of law . We are trained to reflect and be introspective, and the culture created by medical training in the UK expects us to be self effacing and remorseful in events that did not go well . We are under pressure to always state ' what could I have done better 'even if nothing could have been done differently ! Otherwise we will not pass ARCP panels .The same is now expected in revalidation portfolios and appraisals.

    Hence these self immolatory reflections have incriminatory phrases and elements which can be used against us in court , especially if viewed by lay people /lawyers.It is rich fodder to incriminate !They could be construed as statements of culpability by ruthless lawyers/GMC

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  • 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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  • End of the line?

    Spot on...
    The ships sail on
    Individuals (In particular Doctors) have to be scapegoated..

    Following a malicious complaint and multiple jeopardy of one complaint going to several bodies
    It is regretful that the bodies can only persecute doctors and feel they have no responsibility to question any other component of the system
    managers, receptionists etc etc

    Or is it convenient for the powers of privatisation to know that if there is a systems failure it is the individual that can be hung out to dry and not the corporations?

    If you agree to work in understaffed under resourced overstretched system .. realise that it is only a matter of time ...
    The pilot analogy has been used ..
    if unsafe to fly then the plane will not go
    If unsafe to continue in position then with full (recorded) negotiation and if no solution .. then sorry end of session..
    This has been the case in OOH Settings

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  • It's already too late - my appraisal was yesterday and I was criticised for candour in reflecting on a poor patient outcome ( in fact, was criticised for being compassionate , really). The damage is done

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