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GMC says reflective practice must be protected in law

Doctors notes should not be used against them in gross negligence manslaughter cases

Mark Gould

Wednesday, 28 March 2018

The GMC says doctors reflective practice, contained in such documents as e-portfolios or for continuous professional development, should be subject to legal protection to prevent them being used in cases of gross negligence manslaughter.

Giving evidence to the Williams Review* into gross negligence manslaughter, GMC chair Professor Sir Terence Stephenson said that doctors' reflections are 'so fundamental to their professionalism' that UK and devolved governments should protect them under law.

In February the secretary of state for health and social care asked Professor Sir Norman Williams to conduct a rapid policy review into how to ensure healthcare professionals are adequately informed about where and how the line is drawn between gross negligence manslaughter (GNM) and negligence.

His review will also clarify what processes are gone through before initiating a prosecution for GNM, and provide any further relevant information gained from engagement with stakeholders about the processes used in cases of GNM.

It also wants to set out how to ensure the vital role of reflective learning, openness and transparency is protected where the healthcare professional believes that a mistake has been made to ensure that lessons are learned, and mistakes not covered up.

Sir Terrence said: "We have made it clear that the GMC will not ask for doctors’ reflective records as part of the fitness to practise processes. But we do not control the actions of the courts and recorded reflections, such as in e-portfolios or for CPD purposes, are not subject to legal protection. Therefore, disclosure of these documents might be requested by a court if it is considered that they are relevant to the matters to be determined in the case. The likelihood of records needing to be produced in court may be reduced if reflective records focus on reactions to, and learning from, an incident.

"For our part, we have concluded that because doctors’ reflections are so fundamental to their professionalism, UK and devolved governments should consider how to protect them in law, if they see fit to do so."

The review was told that further work will be needed on how this might be put into practice. The review also heard that the GMC has undertaken to consider how human factors training can be incorporated into its processes.

The GMC has commissioned a fundamental review of the application of the law concerning gross negligence manslaughter and culpable homicide to doctors which will be led by Dame Clare Marx. The learning from the review will support just decision making and the application of the law, procedures and processes where allegations of gross negligence manslaughter and culpable homicide have arisen so that accountability is appropriately apportioned between healthcare systems and individual doctors. The outputs of the Williams Review will help to inform Dame Clare’s work when she reports her conclusions at the start of 2019.

*The Professor Sir Norman Williams Review into Gross Negligence Manslaughter in healthcare, proposed by the secretary of state health and social care, March 2018.

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