Can reflective practice be “incriminating”?

ALL healthcare professionals today are actively encouraged to engage in reflective practice but some MDDUS members have expressed worries that taking part in formal procedures might "incriminate" them should a complaint or claim arise.

ALL healthcare professionals today are actively encouraged to engage in reflective practice – be it through submissions to an ePortfolio or through the analysis, reporting and sharing of lessons learned as part of a significant event review (SER). But recently MDDUS has noticed a rise in calls from members worried that taking part in these formal procedures might “incriminate” them should a complaint or claim arise.

The purpose of an SER or reflective statement is to reflect on performance where things may have gone wrong and also to focus on areas of good practice. For reflections to be effective it is important that they are completed openly and honestly. But what happens when a patient or a court asks for a copy?

A legal case reported in the media in April 2016 sparked particular concern. It involved a GP trainee who had consented to the release of reflective notes, only later to have them used as evidence against the trainee in court.

Such cases have the potential of stifling open and uninhibited reflection. For example, a doctor or dentist might be disinclined to participate properly in an SER out of fear it may be deemed disclosable – though to refuse might be unwise as it could result in regulatory scrutiny both in relation to supporting patient safety and quality improvement. Indeed, regulators considering fitness to practise decisions will usually ask for meaningful evidence of reflective practice.

Both the GMC and GDC set out expectations of openness and honesty and a requirement to engage in reflective practice in relation to revalidation and maintenance of registration. The GMC states that a doctor “must take part in systems of quality assurance and quality improvement to promote patient safety” (GMC Good Medical Practice). Doctors also “must cooperate with confidential and formal inquiries into the treatment of patients and complaints procedures”.

In England, the CQC expect to see meaningful SERs as evidence of learning from patient safety incidents under their key lines of enquiry (KLOE) S2: Are lessons learned and improvements made when things go wrong?

Recent guidance was published by the Academy of Royal Colleges (ARC) in relation to the April 2016 trainee case and as a result of concerns from colleges themselves about requests for access to this type of submitted information. The ARC guidance stresses that these reports should be held/used/shared only as “educational tools and not a medical record”.

The Data Protection Act 1998 allows for access to records including personal identifiable information along with a description of the event. In order to reduce the risk of your analysis leading to unwarranted disclosure it is our advice that once the reflective or SER process has been completed the report itself should be stored anonymously.

In addition, to ensure that the patient cannot be identified you should consider removing their name, address, age, DOB and, if possible, any unusual features of the patient or the case. The names and titles of other healthcare professionals should also be removed.

Practices undertaking an SER as part of the investigation and sharing in response to a patient complaint should ensure that when storing completed SERs the individual is identified only by a random value (with an age bracket if necessary) which does not correspond to any other system that would identify the patient. This advice also applies to any reflective reports that you personally hold or submit for demonstration of CPD.

ACTION POINTS

  • Anonymise reflective reports or SERs once completed so that the risk of breaching patient confidentiality can be minimised, if these are shared.
  • Be aware that even when an SER has been anonymised there may still be the risk of a patient being identifiable when clinical/personal circumstances are rare or unusual.
  • Be aware that even an anonymised SER produced as part of a learning/ reflective process may be disclosable to a patient if they become aware of it and request access.
  • Reflective statements requested as part of a confidential inquiry should avoid emotive language or judgemental statements about the patient – or yourself/other healthcare professionals.
  • Seek advice from senior colleagues or MDDUS advisers in potentially serious cases.

Liz Price is a senior risk adviser at MDDUS