A FAIR DINKUM DUTY OF OPEN DISCLOSURE FOLLOWING MEDICAL ERROR Malcolm Parker School of Medicine.

A FAIR DINKUM DUTY OF OPEN DISCLOSURE

FOLLOWING MEDICAL ERROR

Malcolm Parker School of Medicine

D Chalmers & R Schwartz. ROGERS V. WHITAKER AND INFORMED CONSENT IN AUSTRALIA: A FAIR DINKUM DUTY OF DISCLOSURE (1993) 1 Med Law Review 139-159.

“Dinkum” is a colloquial Australian word that has come to mean genuine or right, and is usually preceded by “fair”. A fair dinkum duty of open disclosure, then, is an authentic commitment, brooking no obfuscation or dissembling in the pursuit of perceived clinician immunity from patient wrath or litigation. What you see is what you get, and this is what patients are owed.

Parker 2012

Open disclosure of medical error is “the open discussion of incidents that result in harm to a patient

while receiving health care.”

Studdert DM, Piper D, Iedema R. Legal aspects of open disclosure II: attitudes of health professionals - findings from a national survey. Med J Aust. 2010;193(6):351-5.

Ethical & policy statements on open disclosure and apologies

Good Medical Practice: A Code of Conduct for Doctors in Australia

Once an adverse event is recognised, doctors are to, inter alia, explain “to the patient as promptly and fully as possible what has happened and the anticipated short-term and long-term consequences”.

GMP silent on apologies

Medical Board of Australia. Good Medical Practice: A Code of Conduct for Doctors in Australia. 2010. http://www.medicalboard.gov.au/Codes-Guidelines-Policies.aspx

Ethical & policy statements on open disclosure and apologies

Australian Commission on Safety and Quality in Health Care

National Open Disclosure Standard

http://www.safetyandquality.gov.au/our-work/open-disclosure/the-open-disclosure-standard/

Ethical & policy statements on open disclosure and apologies

Open disclosure

• the open discussion of incidents that result in harm to a patient while receiving health care

Elements

• expression of regret• factual explanation of what happened• explanation of potential consequences • explanation of steps being taken to manage event & prevent recurrence

Ethical & policy statements on open disclosure and apologies

Expression of regret

• as early as possible• defined as an expression of sorrow for the harm experienced by the

patient

Focus on safety and not blame

• criticism and adverse findings against individual professionals avoided• avoid punitive action • ensure professional accountability• do not state/agree about liability for the harm caused to the patient

Ethical & policy statements on open disclosure and apologies

expression of sorrow for harm experienced avoid responsibility/liability

ensure professional accountability

Ethical & policy statements on open disclosure and apologies

Review of National Open Disclosure Standard: current

Consultation Draft: Australian Open Disclosure Framework

“Overseas evidence and Australian experience suggest that disclosure is more effective as an ethical practice that prioritises organisational and individual learning from error, rather than solely as an organisational risk management strategy”.

Australian Commission on Safety and Quality in Health Care. Review of the Open Disclosure Standard. http://www.safetyandquality.gov.au/our-work/open-disclosure/the-open-disclosure-standard/

Ethical & policy statements on open disclosure and apologies

Consultation Draft: Australian Open Disclosure Framework

• OD may be appropriate, even if incident deemed unpreventable or a complication

• disclosing harm from difficult to classify incidents: potential benefits & little risk

• expression of regret now “an apology or expression of regret, which should include the words ‘I am sorry’ or ‘we are sorry’”

• apologies or expressions of regret - require clarity and sincerity

• “A sincere and unprompted apology or expression of regret”.

• apologies or expressions of regret - important for patients and clinicians in recovering from adverse events

Ethical & policy statements on open disclosure and apologies

Consultation Draft: Australian Open Disclosure Framework BUT

• OD apology or expression of regret “must not contain speculative statements, admission of liability or apportioning of blame”

• those directly involved in incident don’t have to be involved in providing the

apology or expression of regret, even though patient groups prefer this. • clinicians should not apportion blame, or state that they, other clinicians or the

health service organisations are liable for the harm caused to the patient, although these restrictions should be balanced against benefits of full and sincere disclosure to both patient and clinician.

Ethical & policy statements on open disclosure and apologies

Consultation Draft: Australian Open Disclosure Framework Problems

• Apologies: alternatives to expressions of regret; not mandated.

• Apologies ambiguous between two meanings of “sorry”

1. regret / sympathy / sorrow for something bad happening

2. apologising in terms of taking responsibility / being accountable

• Consultation Draft supports first meaning

• Inconsistent with theme of moving from organisational risk management strategy to an ethical practice that prioritises learning from error

Ethical & policy statements on open disclosure and apologies

Examples of State and Territory policies on OD SA“an oral or written expression of regret to a consumer in relation to an incident. Using the word ‘sorry’ would be appropriate as part of an expression of regret, as on its own, it does not constitute an apology, e.g. ‘I am/we are sorry that this has happened’. An expression of regret does not include any statement of liability or agreement concerning responsibility for the incident such as ‘I am sorry we did this’. SA Health. Open Disclosure. http://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/about+us/safety+and+quality/open+disclosure

VicApology defined as expression of sorrow, regret or sympathy; does not include a clear acknowledgment of fault. Department of Human Services, Victorian Government. Open disclosure for Victorian health services: A guidebook. http://docs.health.vic.gov.au/docs/doc/C947105C428F80F5CA25790200134065/$FILE/open_disclosure_guidebook.pdf , viewed 4 June 2012.

Ethical & policy statements on open disclosure and apologies

Examples of State and Territory policies on OD

WA“An apology or expression of regret must not include any admission of liability or fault” WA Open Disclosure Policy. Communication and Disclosure Requirements for Health Professionals Working in Western Australia. 2009. http://www.health.wa.gov.au/circularsnew/attachments/395.pdf

NSW Apology: “an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter”.But - “An apology does not constitute an admission of fault or liability and neither is it relevant to the determination of fault or liability in connection with a matter”. NSW Health. Policy Directive: Open Disclosure. 2007. http://www.health.nsw.gov.au/policies/pd/2007/pdf/PD2007_040.pdf

Ethical & policy statements on open disclosure and apologies

NZ policy on OD

 A disclosure should include a sincere apology. This is the provider’s opportunity to say ― We are sorry this happened to you. It is not about allocating blame for the event’s occurrence, but acknowledging the seriousness of an adverse event and the distress that it causes. Apologies can bring considerable comfort to the consumer and have the potential to assist with healing and resolution.

Health and Disability Commissioner. Guidance on Open disclosure Policies (revised 2009). http://www.hdc.org.nz/media/18328/guidance%20on%20open%20disclosure%20policies%20dec%2009.pdf

Berlinger on disclosure and apology

Sense 2 of apology:

apologising in terms of taking responsibility / being accountable

eg “acknowledgment of responsibility for an offense coupled with an expression of remorse”

A Lazare. Apology in Medical Practice. An Emerging Clinical Skill. (2006) 296 JAMA. 1401-1404.

Berlinger on Disclosure and Apology: After Harm

• Technical language / passive voice – • confusing for patients• self-deceiving for doctors - motivated to avoid facing inadequacies

• “complication”, “untoward event”, “non-compliance” and “systems-error” - shield clinicians from facing accountability for error.

• Strategies contradict medical professional norms and codes on veracity; ignore experience of patient, harmed and hence suffering

• Patient suffering, in particular as a result of error, demands immediate and authentic action to alleviate it

• Need for the serial elements of honest disclosure, apology (sense 2) compensation for harm, repentance and forgiveness.

Berlinger on Disclosure and Apology: After Harm

• Evidence that proper disclosure reduces litigation, but barriers to belief / action

• Only people can apologise, even in cases of “systems failure”

Mandatory reporting - ? further barrier

Apology Laws (Australia)

Civil Liability legislation

• Civil Liability (Wrongs ) Act 2002 Pt 10

• Civil Liability (Wrongs ) Act 2002 Pt 2.3

• Wrongs Act 1958 Pt IIC

• Civil Liability Act 2003 Ch 4 Pt 1

• Civil Liability Act 1936 Pt 9 Div 12

• Civil Liability Act 2002 Pt 1E

• Civil Liability Act 2002 Pt 4

• Personal Injuries (Liabilities and Damages) Act 2003 Pt 2 Div 2

Apology Laws (Australia)

Civil Liability legislation

Apologies • sometimes equated with expressions of regret• sometimes distinguished from expressions of regret• sometimes not mentioned

Apologies including an explicit admission of fault

• protected from admissibility in litigation in NSW, ACT, Queensland

• NOT protected in Victoria, WA, SA, Tasmania and Northern Territory

Apology Laws (Australia)

• No medical cases so far (??)

• High Court has endorsed principle that admissions of fault are of little relevance to court’s task of determining liability [Dovuro v Wilkins (2003) 210 ALR 139]

Unlikely, even in the jurisdictions that offer the weaker protection, that courts would give significant weight to a comprehensive apology, ie apology admitting fault

Conclusions

Close gap between patients reasonable needs and clinicians/administrators perception of OD

Adhere to ethical codes concerning veracity and humanity

Adopt fair dinkum duty of disclosure – genuine apology model – in Australian OD Framework

Model state and territory policy on the fair dinkum model

Couple apology with compensation (Berlinger, Dresser*)

Uniform apology laws

Insurers should join the fair dinkum model

Education * Dresser R. The Limits of Apology Laws. May-June 2008. Hastings Center Report. 6-7.