Section 18.3 of the Guide to Professional Conduct and Ethics for Registered Medical Practitioners in Ireland places an obligation on medical practitioners to be open and honest with patients.
It states that patients and their families are entitled to honest, open and prompt communication about adverse events that may have caused them harm and in the event of an adverse event practitioners should:
- Acknowledge that the event happened;
- Explain how it happened;
- Apologise if appropriate; and
- Give an assurance as to how lessons have been learned to minimise the chance of this event happening again in the future.
The 2013 HSE National Open Disclosure Guidelines describe open disclosure as “an open consistent approach to communicating with service users when things go wrong in healthcare”.
Historically, the lack of protective legislation has created uncertainty and reluctance in the minds of some practitioners in relation to apologising or indeed providing information when things go wrong, for fear that it would be used against them in civil proceedings or impact on their standing with their regulatory body.
The recently published Civil Liability (Amendment) Bill 2017 (the “Bill”) will hopefully go some way to allay this fear. The Bill contains extensive provisions in relation to open disclosure and defines an apology as an “expression of sympathy and regret”. Crucially it states that an apology is not an admission of liability.
The Bill outlines that open disclosure should be made at a face-to-face meeting between the health practitioner and the patient and it should take place as soon as practicable. Further, the patient should be provided with a signed statement containing information in relation to the incident and an apology if appropriate.
The protective provisions in respect of the information disclosed and the apology are dealt with in Section 10 of the Bill. The Section provides that where information and apology is given it will not constitute an admission of liability, fault or professional misconduct and as such, will not be admissible in evidence nor will it invalidate a contract of indemnity or insurance.
The first draft of the Bill did not go as far as to introduce a legal duty of open disclosure as the provisions were limited to voluntary disclosure. However, when the Justice Committee completed the report stage, the Committee proposed an amendment which, if approved by the Dail, will in effect make open disclosure in Ireland mandatory rather than voluntary.
While the Guide to Professional Conduct and Ethics for Registered Medical Practitioners places an ethical duty on doctors to provide open and honest responses to patients following an incident, the Bill places open disclosure on a statutory footing. Further, it provides a clear framework to assist practitioners with the process.
The protective provisions in the Bill are long awaited. Once implemented the provisions should serve to encourage practitioners to communicate openly with patients when things go wrong, thereby helping to foster a relationship of trust between clinicians and patients.
For further information please contact Katy Meade firstname.lastname@example.org at Hayes solicitors.
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About the Author
Katy is an associate solicitor in the Healthcare team at Hayes solicitors. Katy is dual qualified as a nurse and healthcare solicitor. She has over six years' healthcare litigation experience working in leading firms in both Ireland and the UK. Katy advises clinical practitioners and their indemnity bodies on the defence of medical negligence claims.