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LAWS protecting open disclosure by doctors are not only necessary, they should be made nationally consistent, says a medicolegal expert after an article in the MJA labelled the laws as unnecessary and a “misguided strategy”.
Dr John Arranga, head of claims (Victoria and Tasmania) for Avant Mutual Group, said that without the laws, concern among the medical profession about the medicolegal consequences of reporting adverse events could inhibit reporting.
In a Perspectives article in the MJA, the authors said open disclosure laws did little to close the large “disclosure gap” between expected and actual practice. They said the laws operated on “ethically shaky grounds” and risked “diminishing the value of apologies and fuelling public criticism towards the medical profession”. (1)
The authors explained that all Australian states and territories had apology laws to protect apologies given after an incident from being used in various legal processes. “These laws generally protect only expressions of regret but not admissions of fault, with five laws explicitly excluding admissions of fault, and a sixth doing so implicitly”, they wrote.
“Professionals do not need legal protection for expressing sympathy or regret [after a patient has experienced a tragic outcome]; this simply reflects the professional’s feelings and does not prove any of the elements of negligence.
“Indeed, making such expressions inadmissible may paradoxically make matters worse — professionals who offer a sincere apology generally receive more positive [medicolegal] outcomes than those who do not”, the authors wrote.
They said even when a professional had admitted making an error, this alone would not be insufficient to prove negligence.
Dr Arranga said state-based variations in the laws might hinder their effectiveness and called for national harmonisation.
“We have a national approach to open disclosure and therefore it’s appropriate to have the same rules across the country so that clinicians working in more than one place don’t have to have a different set of guidelines in their head about how they approach open disclosure”, he said.
“Our view is that anything which removes [clinicians’ anxieties] about participating in open disclosure is a good thing because it at least removes a reason for them not to participate [in open disclosure discussions] and may encourage them to participate”, he said.
Dr Arranga agreed that a disclosure gap remained and that fears of medicolegal consequences — whether or not they were valid — were a barrier to clinicians participating in open disclosure discussions. However, he said these were separate issues.
“… the issue of the protection given to admissions in open disclosure discussions is more specifically related to the anxiety of clinicians about participating in those discussions”, he said.
AMA president Dr Steve Hambleton said the laws might be unnecessary now, but they were necessary when they were introduced in the aftermath of the 1999–2002 indemnity crisis.
“At the time, everybody was afraid we were all going to get sued. Obstetricians were going to quit, neurosurgeons were going to quit”, he said. “We did need protection for having open disclosure conversations then.”
While Dr Hambleton said the profession had moved on since the laws were introduced and there was increasing focus on transparency across the board — from relationships with industry to disclosure of errors — he added that it was not time to unwind the laws. “It is time to add to them with other strategies to continue the move down the disclosure pathway.
“If [the laws] are redundant, so be it. They continue to encourage and make people feel safer that expressions of regret are appropriate in that circumstance”, he said.
However, Dr David Smith, a GP and conjoint senior lecturer at the University of Newcastle, said it was not possible to legislate for good behaviour.
“Making an expression of sorrow a legal requirement … would certainly run the risk of undermining its sincerity”, said Dr Smith, who is a consultant in clinical and corporate ethics.
He said it was also important not to confuse apologies with expressions of sorrow. “An apology is, I think by definition, an admission of guilt.”
Dr Hambleton said encouraging open disclosure also played a role in improving practice.
“One of the powerful drivers of behavioural change is measure and feedback.” If doctors recognised and reported near misses or unwarranted clinical variations, it assisted in minimising unwanted outcomes, he said.
Saying ‘Sorry’ is not enough – you always need to complete the sentence.
Are you saying:
a) “I’m sorry this happened to you” – an Apology of Sympathy.
This is not now and never has been an admission of liability
b) “I’m sorry I did this to you” – an Apology of Responsibility.
This was, and remains in most states, an admission of liability. However, again, it depends on the wording. In the real world, ‘responsibility’ is not the same as ‘liability’. The latter is a legal term, relating to a claim in negligence, as in ‘We accept we are liable to pay compensation.’. That’s not the same as saying, ‘We accept responsibility to make good, even though there is no ‘liability’.
For example, this is what Tony Hayward, CEO of BP, saids on 27 July 21010, when he resigned after the Gulf oil spill disaster:
“The Gulf of Mexico explosion was a terrible tragedy for which – as the man in charge of BP when it happened – I will always feel a deep responsibility, regardless of where blame is ultimately found to lie.”
Perhaps weasel words, but he clearly separated ‘responsibility’ from ‘blame/liability’.
The problem is that in English, the word ‘Sorry’, on its own is very ambiguous. So, always finish the sentence! Make clear what you mean by ‘Sorry’ – sympathy or responsibility.
. What is needed is the proper protection of the apology most people regard as real which is the apology which includes an acknowledgement of fault. but the evidence is that this sort of apology is the one that is seen as real and effective, particularly where harm is severe. We need is to stop the chilling effect on doctors of being advised by their lawyers not to apologise. Articles on this are at my staffwebsite at UNSW Law School
Dr Smith is muddying the waters with: “An apology is, I think by definition, an admission of guilt.”
The recent MJA article quotes from the Open Disclosure Standard review report, “Case law in Australia and overseas indicates that courts do not find expressions of regret, apologies or admissions of duty of care failures as evidence of liability”.
Dr Smith should show some evidence to support his case or refute the review.