by Louise O'Rourke , Katy Meade July-10-2019 in Healthcare Law
This article first appeared in the Medical Protection Society's biannual publication, Practice Matters (June 2019). The magazine provides practical tips on risk management and medicolegal issues. The article also appeared on the website of Dental Protection (July 2019).
There was no legal protection for apologies given to patients in Ireland until last year. Louise O’Rourke and Katy Meade look at legal protection for apologies in light of new emphasis on open disclosure and legislative change.
Background
Until recently, an apology given to a patient had no legal protection in Irish Law. It could be used as evidence in legal proceedings or referred to in a complaint to the Medical Council. However since September 2018 there has been legal protection for the making of an apology provided that it is made in the context of an open disclosure process and in accordance with detailed guidance which has been set out in legislation1. Although there has been long standing commitment to the provision of apologies and the process of open disclosure by MPS, the professional bodies, the HSE and Medical Council, it is only in the aftermath of recent issues with Cervical Check and the publication of the Scally Report2 that wider public scrutiny has been focused on how open disclosure is carried out in Ireland.
Under existing legislation and Medical Council guidelines3, the decision whether to engage in open disclosure has been left to the judgment of the individual clinician or healthcare provider. However, the new Patient Safety Bill4 expected to be enacted later this year contains provisions which direct mandatory open disclosure of certain adverse events, and will impose sanctions on healthcare providers for any failure to comply.
With that in mind, clinicians are keen to understand whether an apology made within the context of open disclosure might later be taken as evidence of admission of fault, and as to how far an apology should go.
Before outlining the legal protections now in place for apologies, it is helpful to briefly outline the role of an apology in the open disclosure process.
The role of an apology in the open disclosure process
An apology in the context of open disclosure is an expression of sympathy or regret5 and is an integral part of the open disclosure process. While it is at the clinician’s discretion as to whether an apology is made, a genuine statement of regret can assist in the overall success of the process, and should always be considered. The aim of open disclosure is to foster trust between patients and their treating clinicians, and there can be no doubt that all parties benefit from a sincere expression of regret when things go wrong. Simply saying sorry that an event occurred can avoid a Medical Council or other complaint or legal proceedings being issued down the line.
What is a statement of regret and how far should an apology go?
Open disclosure should be made as soon as practicable after an adverse event and may need to occur before a full investigation has been carried out. If a clinician decides that an apology is appropriate it is advisable to consider in advance what the apology will cover. For example, is the apology to be simply a statement of regret regarding what happened, or an apology based on the findings of a full internal /external investigation?
When the cause of an event has not yet been determined, it is always advisable to avoid going so far as to accept responsibility, or to stray beyond ones area of expertise. It is also preferable not to speculate or blame others for the outcome. Best practice, if further investigation is required, is to acknowledge the occurrence of the adverse event and to genuinely apologise for what happened.
Can an apology be used as an admission of liability or evidence of fault?
Historically, the lack of legal protection for apologies may have created reluctance for some practitioners to apologise, fearing such apology could prejudice them in subsequent civil or regulatory proceedings. The legal protections now contained in the 2017 legislation should serve to allay any such fears6.
The 2017 legislation provides that an apology made at an open disclosure meeting shall not constitute an express or implied admission of fault or liability, and shall not be admissible as evidence of fault or liability in proceedings which determine the issue of negligence or fitness to practise. The law also directs that to provide an apology shall not invalidate a contract of indemnity or insurance.
Notwithstanding these provisions, it is likely that some patients will try to use the fact that an apology was given as evidence in subsequent legal proceedings. It is important to be aware that the protective provisions expressly apply to apologies made in an open disclosure meeting. It is also important that where an apology is given it is appropriately phrased and clinicians should always keep to the forefront of their minds what it is they are apologising for.
Practical advice for making and delivering apologies
The timing of open disclosure and giving an apology are important, and clinicians should take time out to prepare for the meeting. It is advisable, particularly when the cause of the event has yet to be determined, for clinicians to seek support from a senior colleague where possible. Ideally, a clinician from the practice should be present at the open disclosure meeting. In order to avail of the legal protection for an apology it is essential that clinicians correctly follow the procedures set out in the legislation7. If the procedures are not followed, legal protection for an apology given is not guaranteed.
Saying sorry is never easy and finding the right words can be difficult. When preparing for a meeting where an apology is to be made, it can be helpful to discuss your approach with your professional advisers. The 9th edition of the Medical Council’s Ethical Guide and Code of Conduct – due later this year – is expected to provide further clarity on the provision of apologies and on open disclosure
Tips for clinicians
- Further guidance on how to make an open disclosure and on the legal protections for apologies can be found in the Section 10 of the Civil Liability (Amendment) Act 2017.
- Open disclosure is currently voluntary but the Patient Safety Bill, expected to be enacted later in 2019, will introduce mandatory open disclosure for serious adverse events.
- Clinicians should be reassured that an apology given within the context of an open disclosure meeting is legally protected and is not admissible as evidence of fault in civil or regulatory proceedings.
- However, there will be situations where reference may nonetheless be made in subsequent proceedings to the provision of an apology, and care should therefore be taken to ensure the apology is made in the manner prescribed by the legislation.
- Where the cause of an injury has yet to be determined, best practice is to acknowledge that the adverse event occurred and apologise for what happened. It is helpful to provide reassurance to a patient and their family that they will be kept informed as investigations progress.
For further information, please contact Louise O'Rourke lorourke@hayes-solicitors.ie or Katy Meade kmeade@hayes-solicitors.ie at Hayes solicitors.
1 S.I. 10 No. 237/2018 – Civil Liability (Open Disclosure) (Prescribed Statements) Regulations 2018
2 Scoping Inquiry into the Cervical Check Screening Programme
3 Section 67.2 of the Guide to Professional Conduct and Ethics for Registered Practitioners 8th Edition 2006
4 Patient Safety Bill 2018
5 Part 4 Chapter 1 Civil Liability (Amendment) Act 2017
6 Sect 10. Civil Liability (Amendment) Act 2017
7 S.I. No, 237/2018 – Civil Liability (Open Disclosure) (Prescribed Statements) Regulations 2018
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About the Authors
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Louise O'Rourke
Louise is a partner with our Healthcare team. She specialises in high value complex clinical and dental cases and particularly catastrophic brain and spinal injury cases. Louise works closely with healthcare professionals involved in internal investigations and on regulatory issues coming before the Medical Council and the Dental Council. She is an experienced advocate before the Coroners courts.
Katy Meade
Katy is a partner 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.