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Can trainees’ personal reflections be used in Court? (Revisited)

Michael Gorton AM and Matthew Goessler

The average reading time for this Alert is four minutes.

Introduction

The 2019 case in the UK of Dr Bawa-Garba has raised concerns in Australia and New Zealand for young doctors and trainees.

Many medical colleges require their trainees, and even some Fellows for CPD purposes, to undertake consideration of their practice, reflect on their own performance and give a frank assessment of their actions and performance in particular areas. Self-reflective practices are widely regarded as having the capacity to improve healthcare outcomes. Conversely, a lack of insight is a major concern for health care professionals, and a common reason for lack of rectification after remediation. Obviously, the information captured in reflective practices can be quite personal and sensitive, and may admit some error, or identify areas for improvement.

There is now concern that such information might be “used against them” should medico-legal action arise or in other administrative processes.

Whilst the outcome in the case affecting Dr Bawa-Garba is concerning, with her ultimate suspension as a medical practitioner, there are also strong views that the same situation could not arise in Australia or New Zealand. In the Dr Bawa-Garba case, her reflective notes were not used as evidence against her in the proceedings by which she was convicted criminally and ultimately de-registered. However, there remains some conjecture as to how Dr Bawa-Garba’s reflective materials might have otherwise fed into the trial and or the Medical Practitioners Tribunal Service (MPTS) hearing. Dr Jonathan Cusak, who was a witness at her MPTS hearing noted that he “was cross examined for a number of hours at the MPT tribunal in this case by a QC appointed by the General Medical Council, where Dr Bawa-Garba’s portfolio and reflection were extensively discussed”. Irrespective of the veracity of these claims, the uncertainty as to how, or if Dr Bawa-Garba’s reflective materials might have been deployed against her has at least founded doubts in the minds of healthcare professionals as to the sanctity of their own reflective materials.

The Bawa-Garba cases

Dr Bawa-Garba was a Register at the Leicester Royal Infirmary in the Paediatric Unit. The relevant case involved a six year boy presenting at hospital with dehydration and other symptoms. He was initially treated for gastroenteritis and dehydration. Other tests were requested. Radiography indicated pneumonia and antibiotics were administered. Delayed blood test results were received later. There was some miscommunication between Dr Bawa-Garba, nursing staff and ultimately the consultant. A serious infection had not been identified, and the child suffered septic shock. It was suggested that the delayed response to the inherent infection was directly relevant to the child’s death. Other “system” errors within the hospital contributed to this unfortunate event.

Dr Bawa-Garba and a nurse faced criminal charges for gross negligence, equivalent to manslaughter. This required more than mere negligence, and required proof beyond reasonable doubt that the circumstances were so bad and so exceptional that it amounted to a criminal act and would be a breach of criminal law. It is significant, perhaps, that the trial involved a jury, and that they were persuaded that in all of these difficult circumstances, the conduct was of a criminal nature. As a consequence Dr Bawa-Garba (and the nurse) were convicted of gross negligence, and although sentenced to two years imprisonment, which was wholly suspended.

In relation to the subsequent professional action taken against Dr Bawa-Garba before the Medical Practitioners’ Tribunal, the Tribunal accepted that there was professional misconduct and it imposed a 12 months suspension, subject to review. It explicitly rejected de-registration as an appropriate response.

The General Medical Council, considering the decision of the Tribunal, felt it was inadequate and appealed the Tribunal’s decision arguing that in the case of a serious criminal conviction of this nature, that de-registration should automatically apply. The General Medical Council successfully appealed and Dr Bawa-Garba was struck off on 25 January 2018. However, on 13 August 2018, Dr Bawa-Garba won an appeal against being struck off, which ultimately restored her one-year suspension.

On 13 March 2019, the MPTS announced a two-day review hearing for Dr Bawa-Garba to determine whether her fitness to practice remained impaired and whether she could be deemed fit to return to work. A decision was reached on 9 April 2019, which allowed for Dr Bawa-Garba to return to work from July 2019, under certain conditions. The MPTS considered any further punishment to Dr Bawa-Garba would be “disproportionate and punitive”.

The case of Dr Bawa-Garba involved a relatively junior doctor in circumstances of an extraordinary busy time in the hospital, a lack of adequate staffing, substantial overload of her work, missing clinical information and delayed test results. In the midst of all of this it was alleged that Dr Bawa-Garba also was negligent, to the extent that a Court concluded that she was criminally negligent. As a consequence the General Medical Council in the UK sought and obtained her de-registration, before Dr Bawa-Garba’s ultimately successful appeal. There are a number of reasons why this is unlikely to be repeated in Australia and NZ:

  1. The factual circumstances affecting Dr Bawa-Garba and her performance in the hospital at that time whilst negligent, would not ordinarily meet the Australian and New Zealand requirements for criminal negligence. Well intentioned doctors can make mistakes. These can lead to negligence claims. However a conviction for criminal negligence requires that the negligent act or omission should be of such order and magnitude that it amounts to the criminal standard equivalent to manslaughter. Australia and New Zealand cases in relation to this issue have set a higher bar than would appear to have been the case in this instance in the UK, especially given that this was a jury trial.
  2. The Medical Board of Australia (MBA) and the Medical Council of New Zealand (MCNZ) are unlikely to adopt the same rigid stance of the General Medical Council, in seeking automatic de-registration. In the circumstances of misconduct in both Australia and New Zealand, both the MBA and MCNZ would look at the individual circumstances of each case, and seek to understand better the nature of the charges, the details of the misconduct and the surrounding circumstances. It is unlikely that the MBA and the MCNZ would have a position that circumstances of this nature must automatically involve de-registration.

Perhaps most reassuringly of all to trainees and Fellows in Australia and New Zealand is the fact that some colleges have obtained appropriate legislative protection under the Commonwealth QP protection scheme for the reflective notes and reflective parts of their training program and CPD program such that the information protected cannot be revealed beyond the process for which it was intended (training and CPD). To reveal any identifying information, including identifying the trainee or Fellow, beyond that process would constitute a criminal offence.

Under the Health Practitioner Regulation National Law Act (2009) (Cth), a National Board may investigate a registered health practitioner. It is worth noting that under the National Law AHPRA has the ability to refer practitioners for investigation. Notably, one of the powers of Investigators pursuant to the National Law is the ability to require a person to attend before the investigator and answer questions or produce documents. Failure to comply with such a request is an offence under the National Law. It is conceivable that a health practitioner’s reflective materials could fall within the scope of such requested documents unless the College has obtained legislative protection under the Commonwealth QP protection scheme, referred to above.

Despite the ambiguity as to whether the Dr Bawa-Garba’s reflective notes were used in the relevant Court case, trainees and Fellows in Australia and New Zealand can be assured that some colleges have had, for some time, legal protection in relation to any right of access to the reflective and personal notes of trainees and Fellows in relation to the training program and CPD program of the College.

How we can help

For further information on vicarious liability within the health sector, please contact Michael Gorton AM of our expert Health Law team. 

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