As part of their revalidation process and CPD, clinicians will often "reflect'' on their clinical practice, a vital part of their training portfolio. However, the prospect of this being disclosed in subsequent litigation is a real risk.
Last year, NHS Health Education England sent a letter to Post Graduate Medical Doctors in Training et al, with a thinly veiled warning in relation to trainees' written reflections. It reported on a case in which written reflections had been used against a trainee in court. The letter did not provide any further details on the case in question or whether the same was reported at all. Whilst the letter reminded trainees to be mindful of what they chose to "reflect" on, it stressed the importance of reflection and that the practice must continue and was an essential component of doctor training.
The overwhelming reaction from clinicians was that this was a step too far. Faced with the threat of prosecution, or comments being used against the author, they felt that there was no way in which written reflections would ever truly be genuine. Trainees would be over cautious in what they chose to report in their reflections and this could ultimately have an effect on the quality of doctors going forward. How could they be expected to learn from their mistakes when these were unlikely to be reflected on to the fullest extent?
This is an example of how record keeping and scrutiny may have a negative impact on the profession and it raises further questions on the wider issue of record keeping, recording and scrutiny of clinicians and the changes we can expect to see in the future.
The effect on learning and duty of candour
As well as the potential adverse impact on the quality of training and CPD, a further risk is that a clinician's personal written reflections might not always correlate with any duty of candour explanation or apology given to the patient from an employing healthcare provider. This further opens the clinician to the risk of criticism in the litigation process, and also creates concern around compliance with both CQC and GMC expectations regarding the duty of candour.
Many argue that the decision to allow what effectively amounts to training material to be used against them in court has undermined the ability of HEE to adequately train its doctors.
Are such written reflections potentially disclosable? In short, yes. Take, for example, the situation of a doctor reflecting on an adverse outcome from surgery, from which no claim or complaint has yet been made. Any records or reflections on the case at this stage are not covered by litigation privilege are potentially disclosable if the content is regarded as relevant to a subsequent claim. Additionally, in the event of a GMC referral, this material may also be relevant to a fitness to practice case.
The balance of learning vs defensive recording
The lines that divide the concepts of learning from mistakes whilst training, and creating disclosable material used in any legal process, are slowly becoming blurred, so as to be almost obsolete. Fear of litigation must never diminish the value of reflecting on, and learning from, experiences during training as a clinician. Improving patient safety must remain at the heart of any training programme. It is a step backwards in the post Francis era of transparency, if the learning culture is in any way slowed or eroded by trainees worrying that their reflections will be used against them.
Written reflections should remain honest, focused, and insightful, but avoid unnecessary speculation. There is also merit in securing feedback from colleagues to focus the key learning points in the reflection material.
It is vital that clinicians, healthcare providers and their med-mal Insurers keep aware of these issues and that trainees remain vigilant in their record keeping and follow on actions. Care will need to be taken to ensure that the value of these reflections is not eroded through the threat of disclosure in litigation, not least to the detriment of the patient.