Bill Madden: Would you tell your patient?

“… we could strengthen transparency of organisations and increase patient confidence by introducing a ‘duty of candour’: a new contractual requirement on providers to be open and transparent in admitting mistakes. We agree. This will be enacted through contractual mechanisms ...”

So reads part of the June 2011 UK government response to the NHS Future Forum report following a listening exercise to reflect on and improve the government's proposals for modernising the National Health Service (NHS).

In England, an ethical requirement of candour already exists. The NHS Constitution contains a pledge that when mistakes happen, steps will be taken to acknowledge them, apologise, explain what went wrong and put things right quickly and effectively. Individual medical professionals have a similar obligation.

However, the UK Commons Committee heard evidence that despite such ethical duties, the NHS does not always admit when things go wrong, or offer an explanation — either proactively or in response to questioning.

A stronger contractual duty was recommended by the committee and that proposal has met with government approval.

So, what of the position here in Australia?

The Medical Board of Australia code of conduct reminds doctors that “When adverse events occur, you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately”.

The code expands on this, making it clear that the ethical duty extends to explaining to the patient as promptly and fully as possible what has happened and the anticipated short-term and long-term consequences. Further, medical practitioners must ensure patients have access to information about the processes for making a complaint (for example, through the relevant health care complaints commission or medical board).

In practice, do doctors adhere to that ethical duty? The absence of published data leaves us reliant on ad hoc examples and anecdotal assessment.

A useful starting point for the collection of reliable data may be an audit of complaints commission matters, focusing on whether the doctor has explained to the patient as promptly and fully as possible what has happened. In NSW, for example, there were 223 complaints assessed as raising serious issues that warranted investigation in 2009–10, so even an Australia-wide analysis should not be too onerous.

Another interesting analysis could be of the 2500 or so notifications to public and private medical indemnity insurers each year, particularly to see whether a matter which a doctor felt warranted a precautionary notification of a potential claim to an insurer, was appropriately matched by the provision of information to a patient.

Such simple audits may be reassuring. If not, the reforms accepted for implementation in the UK should provide a useful precedent for Australian health ministers.

Mr Bill Madden is the national practice group leader for medical law with law firm Slater & Gordon, and is an adjunct fellow at the School of Law, University of Western Sydney.

Posted 22 August 2011

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