Reflection, reflective practice

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LogoWarningBox4.pngFollowing a number of cases (such as that of Hadiza Bawa-Garba and the one described by Matthews-King (see references) in which doctors' reflections have been used to incriminate them in court, UK doctors should now be advised not to reflect in an unguarded manner that could potentially be used to incriminate them until and unless all such reflections can be made privileged and unavailable to future courts or tribunals.
LogoKeyPointsBox.pngThe documentation prepared to support revalidation in an education portfolio or revalidation portfolio appears to be legally discoverable in some jurisdictions. So reflective statements on a clinical incident could be medico legally discoverable. Consider taking advice on what you put in a reflective statement in circumstances where the incident could result in a malpractice claim and obtain advice from your defence organisation before releasing any reflective statement to any third party because once released it is definitely discoverable. This issue might be jurisdiction specific as it is likely to require the exemption to be written into law, further complicating the issue for medical practitioners who might practice across jurisdictions or be trained in one and later practice in another. See the article on legal privilege

Reflective practice has probably always been part of good medical practice, but it probably came to prominence with Schön's writings.[1][2]

In the late 20th and early 20th century reflective practice came to be seen as a cornerstone of medical (and other healthcare practitioners') practice. It became formalised in training, appraisal and revalidation.

There is a huge body of literature on reflective practice. According to Wikipedia:

Reflective practice is the capacity to reflect on action so as to engage in a process of continuous learning. According to one definition it involves "paying critical attention to the practical values and theories which inform everyday actions, by examining practice reflectively and reflexively. This leads to developmental insight".[2] A key rationale for reflective practice is that experience alone does not necessarily lead to learning; deliberate reflection on experience is essential.

Exampleof reflective writing.[3]

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Doctors (and medical students, nurses, professionals allied to medicine...) are now expected - or even required - to keep reflective notes, documenting difficult decisions and incidents they've been aware of or involved with, and what they've learned from them; and to submit these as part of their professional and/or academic assessments. Health Education England (HEE) have stated that trainees (junior doctors) "should continue to make particular note of cases where ’things do not go well’".

There are a number of templates for reflection - indeed, some of these are incorporated into, for example, the online CPD portfolios provided by some of the medical Royal Colleges.

In 2016, a junior doctor's reflections - submitted as an essential part of their training portfolio - when released perhaps naively to a legal agency, was used against them in a legal case.[4] This is very concerning: instead of being a method for personal learning, honesty in reflection now puts practitioners in jeopardy, as it is clear that such reflections are medico legally "discoverable", and can be used as evidence in court.

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A reflective statement would definitely become privileged under English law if submitted to a lawyer for legal advice. For example if a reflective statement was submitted to a medical indemnity provider for advice and it was sighted by an inhouse lawyer in the process of providing advice, a reflective statement would then become privileged and retain that privilege unless released by the client. An important point here is that a doctor could by voluntarily disclosing the reflective statement to another party undo the privilege that the document had previously. The other point is that preparatory material of say the doctor which is not communicated to the lawyer may not be privileged. However in practice as a general rule, for legal advice privilege to apply under English law, it will exist if there is a communication between a lawyer and a client, or a document which reflects such a communication. While the UK remains under European Court of Justice oversight one should be careful in obtaining the lawyer advice from a corporate in house lawyer of say your employer alone. This is because under EU commercial law it has been ruled that there is not sufficient separation between say the executives of a corporation and that corporation's in house lawyers

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In Scotland it has been defined that legal privilege does not extend to documents which are already in existence merely because they are sent to a solicitor. The lawyer has to put on "legal spectacles when reading, considering and commenting on the drafts". A document which is not addressed and delivered to a lawyer specifically for advice may not constitute a privileged communication. So a statement prepared by an employee at the request of a manager to record the employee's recollection of events is unlikely to benefit from legal advice privilege – even if the employee believes that the document will be passed to lawyers for advice – since it is not a communication with a lawyer. Accordingly if legal action is possible a health care professional might be best advised to consult an independent party that will provide a lawyer supervising the advice given, which for example might apply to advice given by a medical indemnity provider


Paradoxically the GMC is likely to regard evidence of appropriate reflective practice positively in considering a complaint about a doctors practice (although, following its decision to appeal the MPTS decision in the Bawa Garba case the GMC might no no longer be trusted to act in the public interest).

Guidance on reflection

See also

References

  1. Donald Schön. The Reflective Practitioner: How professionals think in action. London: Temple Smith, 1983.
  2. Donald Schön. Educating the Reflective Practitioner. San Francisco: Jossey-Bass, 1987.
  3. Helgi Johannsson. Confessions of an anaesthetist – wrong drug, wrong route. Traumagasdoc (blog) 2014; Updated; Accessed: 2018 (31 January).
  4. Matthews-King A. Trainee's portfolio 'used as evidence against them' in legal case. Pulse Magazine 2016; Updated 15 April 2016; Accessed: 2016 (Apr 19).
  5. Academy of Medical Royal Colleges. Improving feedback and reflection to improve learning. A practical guide for trainees and trainers: Academy of Medical Royal Colleges, 2017(May); (http://www.aomrc.org.uk/publications/reports-guidance/improving-feedback-reflection-improve-learning-practical-guide-trainees-trainers/).
  6. Medical Defence Union (MDU). New guidance on e-Portfolio reflective notes. Medical Defence Union (MDU), 2018; Updated 21 Nov 2016; Accessed: 2018 (05 Mar): (https://www.themdu.com/guidance-and-advice/latest-updates-and-advice/new-guidance-on-e-portfolio-reflective-notes).
  7. Prentice M, Acheson N, Levy D, Diwakar V. Written reflective practice in appraisals: Professional Standards Team, Medical Directorate, NHS England, 2018(15 Feb); 1-2.
  8. Tomlinson J. Critical Reflection. A Better NHS: Exploring the relationships between doctors and patients and health policy (blog): https://abetternhs.net, 2015; Updated 16 Dec 2015; Accessed: 2018 (03 Mar).
  9. Tomlinson J. Don’t judge me! Reflections on reflection. A Better NHS: Exploring the relationships between doctors and patients and health policy (blog): https://abetternhs.net, 2015; Updated 01 July 2015; Accessed: 2018 (03 Mar).

This article is a work in progress. Please feel free to contribute to it.

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