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Can doctors continue to be reflective without fear of prosecution?

18 September 2018 | Avant Media

Avant’s event ‘Medical manslaughter – could it happen here?’ was attended by a cross-section of doctors from all specialties and career stages, and prompted a stimulating discussion on the use of doctors’ reflective statements.

Chaired by Dr Penny Browne, Chief Medical Officer, Avant, the event held in Sydney, started with an eloquent summary by Sydney barrister, Ragni Mathur, of the landmark UK criminal conviction of Dr Hadiza Bawa-Garba.

An expert panel discussed the implications of the case for doctors in Australia and answered audience questions. The panel included Dr Greg Kesby, President, Medical Council of NSW, Dr Susan Hertzberg, emergency physician and Senior Medical Advisor, Helen Turnbull, Special Counsel, Professional Conduct, Avant.

UK paediatric registrar, Dr Bawa-Garba was convicted of manslaughter on the grounds of gross negligence after a six-year-old boy died while in her care. Subsequently, she was struck off the medical register for life, sending shockwaves throughout the medical profession. A further appeal saw the decision to strike her off overturned, reinstating the original penalty imposed by the Medical Practitioner’s Tribunal of a one-year suspension.

In this tragic case, a litany of errors and system failures contributed to the death of Jack Adock. It was Dr Bawa-Garba’s first full shift in an acute setting after returning from maternity leave, she had worked 12-13 hours straight without breaks covering multiple wards and the ED, the hospital’s electronic computer system had failed leading to a delay in receiving blood test results, the hospital was also relying heavily on agency nurses and her consultant was out of town teaching for part of the shift.

The English Crown Court ruled there were many failures that attributed to Jack’s death. The most significant of these were that Dr Bawa-Garba misread or misunderstood the blood gas results, waited five hours to review the chest x-ray results and failed to follow up on full blood test results that indicated Jack was in renal failure and septic shock.

Expert panel weighs in

One of the key concerns for doctors has been the use of Dr Bawa-Garba’s reflective statements. These were not admitted as evidence during her trial, however the prosecution were privy to them and the admission of her failures.

This has left the medical profession feeling apprehensive, with many doctors concerned that if reflective statements are going to be used against them, they will stop making them.

The panel considered the use of reflective statements in professional development, training and criminal proceedings and whether these are protected in Australia?

A balancing act

Reflective diaries provide doctors with the opportunity to reflect on their performance and learn from their errors. Being open, transparent and honest after an adverse event, both with your patients and yourself, is an important aspect of professionalism and improving patient safety.

Reflection is also crucial in developing a just culture that encourages full disclosure, acknowledges doctors make mistakes, supports learning from unsafe processes and systems, but also maintains professional accountability.

“Regulators or the complainant are looking for doctors to show insight and understanding after an adverse event has taken place, but how are they meant to do this without being reflective? So it is a real balancing act,” Ms Turnbull said. “From my experience of working in this area for 20 plus years, the use of reflection is a real advantage. It is very persuasive and can achieve more good than not.”

Currently no Australian college mandates the use of reflective diaries as part of their training programs or CPD, although it is compulsory in the UK.

The Medical Board of Australia Professional Performance Framework however, does encourage doctors to “commit to reflective practice and lifelong learning”.

So where to for reflection?

Under Australian law there is no privilege or protection for doctors on the use of their reflective diaries.

However, as Ms Mathur said, “If you are charged with a criminal offence, you do have the right to silence and should exercise it.” So the main tension comes from the fact that a single adverse event can lead down a number of different investigative paths, including hospital investigations, coronial inquests, disciplinary, civil or (rarely) criminal proceedings. She agreed that in contrast to a criminal charge, “if your conduct is being investigated in a disciplinary context, the onus is on you to be candid and frank as this indicates insight. This will go a long way to affect the decision of the regulatory authority.”

In practice, the regulator is reluctant to prosecute a disciplinary matter if there is a criminal matter on foot because the regulatory investigation could completely compromise the criminal case.

Ms Mathur also said, “To safeguard doctors against self-incrimination during their evidence in coronial proceedings, a certificate can be applied for – this protects the evidence from being used against them in criminal proceedings.”

It is also important to note that there are apology laws in Australia that can protect apologies from being used in legal proceedings. Further, certain quality assurance committees and programs, such as root cause analysis of system errors attract qualified privilege, and cannot be admitted in evidence in legal proceedings.

Rather than avoiding self-reflection, the strong message from the panel was that it is essential to seek legal advice early so that your interests can be protected, whichever path an investigation takes.

Due to the overwhelming success of the Sydney event, we recently held similar sessions on Dr Bawa-Garba’s case for members in WA and QLD.

Justine Beirne, Avant’s Head of Medical Defence and Service, QLD, chaired the first event in Brisbane on 22 August. Ms Beirne was joined by an expert panel including Andrew Brown, Queensland’s Health Ombudsman, Dr Susan O’Dwyer, Chair, The Queensland Board of the Medical Board of Australia, Jane FitzGerald, Barrister, Trudy Naylor, Barrister, Dr Mark Woodrow, Emergency Medicine Specialist and Medical Advisor, Avant, QLD and Claire Bassingthwaighte, Practice Manager Disciplinary, Avant Law, QLD.

In Perth, Dr Penny Browne and Ragni Marthur were joined by an expert panel on 10 September to discuss the implications of the case in Australia. The panel included Morag Smith, Senior Solicitor, Avant Law, WA, Desiree Silva, Professor of Paediatrics at Joondalup Health Campus and University of Western Australia, and Professor Con Michael AO, Chair of the Medical Board of Western Australia.

Member feedback on the sessions has been very positive. Members have described the events as being informative and engaging, and said they found Avant’s support reassuring.

More information

Read our article: The case of Dr Bawa-Garba: How can we safeguard reflection and perspectives on the case in the latest issue of Connect magazine.

You can also complete our eLearning course on open disclosure and obtain CPD points.

If you are subject to a complaint, visit our website or call our Medico-legal Advisory Service (MLAS) on 1800 128 268 for expert advice, 24/7 in emergencies.

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