A FAIR DINKUM DUTY OF OPEN DISCLOSURE FOLLOWING MEDICAL
ERROR
Abstract
Supporting patients and families in circumstances where medical error has caused
significant harm is said to be governed by the principles of ordinary treatment: honest,
open communication, empathy and respect. By and large, harmed patients look for
acknowledgment of the events that occurred including errors, acceptance of responsibility,
a sincere apology, and assurance that lessons learned will be put to preventive use.
Australia’s National Open Disclosure Standard purports to respond to these reasonable
expectations, yet it advises health care professionals that while they may express regret for
what has occurred, they should take care not to state or agree that they, or another health
care professional, or health care organisation, are liable for the harm caused to the
patient.
The National Open Disclosure Standard is currently being reviewed, and the Consultation
Draft of the Australian Open Disclosure Framework appears to move things closer to its
stated finding that ethical practice that prioritises organisational and individual learning
from error, rather than an organisational risk management approach. However, it remains
the case that the sense of apology in the Consultation Draft is one of stating regret, not of
accepting responsibility. This dissonance in the Draft Framework wording may represent a
continuing disingenuousness on the part of health professionals and their institutions
regarding the kind of apologies that patients look for.
Following Berlinger, I argue that expressions of regret are not apologies, since an apology
presupposes the fault that health professionals are advised they avoid admitting. But
honest, open communication surely implies both materially relevant disclosure, which
would include acknowledgment of fault where that is known, and a genuine apology, as
part of the continuing doctor-patient relationship. To the extent that open disclosure
policies and practices fudge complete disclosure, admission of fault and genuine apology,
they remain deficient instruments in the respect and beneficence owed patients harmed by
health care.
Advice to health care professionals to not admit fault, and implicitly to not apologise
genuinely, are motivated by legal liability considerations. There is strong evidence that
comprehensive communication, including genuine apology and consistent with the medical
ethical principle of veracity, is associated with reduced levels of litigation. State health
department Open Disclosure policies and state and territory Civil Liability legislation
should be reviewed to remove obfuscatory and dissembling language and increase
consistency between jurisdictions and between policies and statutes. The National Open
Disclosure Standard should be revised to encourage and support full disclosure and
genuine apology. If these processes fail, statutory reform should be considered.
Introduction
This paper stands on the linguistic shoulders of Don Chalmers and Robert Schwartz, and the
ethical shoulders of Nancy Berlinger. Following the Australian High Court decision of
Rogers v Whitaker,1 Chalmers and Schwartz wrote a commentary on the decision titled
ROGERS V. WHITAKER AND INFORMED CONSENT IN AUSTRALIA: A FAIR
DINKUM DUTY OF DISCLOSURE.2 They argued that the Court had “presented Australia
with the strongest and most patient-oriented (and, consequently, most plaintiff-oriented)
doctrine of informed consent among the common law jurisdictions”.3 The ratio of this
watershed case survives virtually intact in the more recent state and territory Civil Liability
legislation that refers to the proactive and reactive duties of disclosure of doctors,4
(equivalent to the reasonable person-particular person composite requirement from Rogers),
underlining the importance of disclosing patient-specific information for decision-making.
One aspect of disclosure that has received considerable recent attention is the disclosure of
medical error, together with the making of apologies to patients who have been harmed by
errors. Berlinger’s book “After Harm” is an important contribution to the literature on
medical error, disclosure and apologies, urging a commitment in medical practice to
principles that are fair dinkum rather than defensive and protective. This paper, following
these authors, endorses a fair dinkum duty of open disclosure and apology following medical
error, and joins a growing commentary urging individual and institutional changes in the
direction of such a duty.
Despite a variety of etymological accounts, “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. Consistent with the idea of a fair dinkum duty, the
focus here is on Australia, although some comparative reference will be made to
developments in other jurisdictions. I understand open disclosure of medical error as “the
open discussion of incidents that result in harm to a patient while receiving health care.”5
Ethical and policy statements on open disclosure and apologies: what hope for change?
The recent advent of national registration and accreditation of the health professions in
Australia6 has been accompanied by revisions of various health professional codes and
statements. “Good Medical Practice: A Code of Conduct for Doctors in Australia”7 contains
explicit ethical requirements concerning disclosure of medical error. Once an adverse event is
recognised, doctors are to, inter alia, explain “to the patient as promptly and fully as possible
1
Rogers v Whitaker (1992)175 CLR 479.
Chalmers D and Schwartz R, “ROGERS V. WHITAKER AND INFORMED CONSENT IN AUSTRALIA: A
FAIR DINKUM DUTY OF DISCLOSURE” (1993) 1 Med Law Review 139-159.
3
Chalmers and Schwartz, n 2 at 139.
4
Civil Liability Act 2002 (NSW), Wrongs Act 1958 (Vic), Civil Liability Act 2003 (Qld), Civil Liability Act
1936 (SA), Civil Liability Act 2002 (WA), Civil Liability Act 2002 (Tas), Personal Injuries (Liabilities and
Damages) Act 2003 (NT), Civil Law (Wrongs) Act 2002 (ACT).
5
Studdert DM, Piper D and Iedema R, “Legal aspects of open disclosure II: attitudes of health professionals findings from a national survey” (2010) 193 Med J Aust 351-355.
6
Australian Health Professionals Regulation Agency. Frequently Asked Questions. About the National Scheme.
http://www.ahpra.gov.au/Support/FAQ.aspx, viewed 5 June 2012.
7
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, viewed 4 June 2012.
2
what has happened and the anticipated short-term and long-term consequences”.8 The Code is
silent on the need to apologise to patients following a medical error. Doctors are referred
from the Code to the Australian Commission on Safety and Quality in Health Care’s National
Open Disclosure Standard, the most important professional guideline concerning disclosure
of medical error.9 This is a detailed document that includes principles, issues for participants,
processes for implementation, legal considerations, documentation, event investigation and
analysis, and implementation of consequent recommendations.
The National Standard defines open disclosure as “(t)he open discussion of incidents that
result in harm to a patient while receiving health care”, and its elements as “(a)n expression
of regret, a factual explanation of what happened, the potential consequences and the
steps being taken to manage the event and prevent recurrence”.10 This is said to be part of
initiatives to reduce adverse events, move away from blaming individuals while at the same
time maintaining professional accountability, support people to identify and report adverse
events, and ensure that communication is open, honest and immediate.11 One of the eight
principles for open disclosure under the Standard is the expression of regret – “As early as
possible, the patient and their support person should receive an expression of regret for any
harm that resulted from an adverse event”.12 An expression of regret is defined as “An
expression of sorrow for the harm experienced by the patient”.13 In terms of staff issues, the
Standard states that “the open disclosure process focuses on safety and not attributing blame,
leaving issues relating to individuals to disciplinary processes, if this is considered
appropriate”, and that “criticism and adverse findings against individual professionals is
avoided”.14 Organisations should “avoid unnecessary punitive action against those involved
in an adverse event, while ensuring appropriate professional accountability”.15
In relation to legal liability, health professionals are advised to acknowledge that an adverse
event has occurred and that the patient is unhappy with the outcome, and express regret for
what has occurred, but to not state or agree that they are liable for the harm caused to the
patient, that another health care professional is liable for the harm caused to the patient, or
that the health care organisation is liable for the harm caused to the patient.16 This advice is
mindful of the various insurance and indemnity requirements imposed in individual
practitioners and organisations.17
While “Good Medical Practice” is silent on apologies, the National Standard is explicit in its
advice that nothing more than an expression of regret should be made to the patient, where
regret is distinct from any statement of responsibility for the error, even though disclosure is
meant to serve accountability. This is consistent with the move away from blaming
individuals, but this arguably means that accountability is bypassed. This is supported by the
8
Medical Board of Australia , n 7, s3.10.3.
Australian Commission on Safety and Quality in Health Care. (2003) Open Disclosure Standard. A National
Standard for Open Communication in Public and Private Hospitals, Following an Adverse Event in Health Care.
http://www.safetyandquality.gov.au/our-work/open-disclosure/the-open-disclosure-standard/, viewed 4 June
2012.
10
Australian Commission on Safety and Quality in Health Care, n 9 at 1.
11
Australian Commission on Safety and Quality in Health Care, n 9 at 1.
12
Australian Commission on Safety and Quality in Health Care, n 9 at 2.
13
Australian Commission on Safety and Quality in Health Care, n 9 at 6.
14
Australian Commission on Safety and Quality in Health Care, n 9 at 1at 9.
15
Australian Commission on Safety and Quality in Health Care, n 9 at 9.
16
Australian Commission on Safety and Quality in Health Care, n 9 at 11.
17
Australian Commission on Safety and Quality in Health Care, n 9 at 14-15.
9
advice that issues relating to individuals should be left to disciplinary processes, and that
criticism of individual professionals is to be avoided. The flavour of contradiction here is also
contained in the advice that organisations should not take any punitive action, although they
should ensure professional accountability, although of course punitive action is not the only
way to ensure accountability.
At the time of writing, a review of the National Open Disclosure Standard had commenced.18
The Consultation Draft of the Australian Open Disclosure Framework is noteworthy for the
apparent differences between some of the elements listed above and new or replacement
elements. One of the main review findings that helped formulate the Draft was that “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”.19
The consultation Draft states that open disclosure may be appropriate even if an incident is
deemed unpreventable or is classified as a complication, albeit modulated to reflect the
circumstances of the incident, and that “explaining and disclosing harm resulting from
incidents that are difficult to classify has potential benefits and little risk”.20 The expression
of regret has now become “an apology or expression of regret, which should include the
words ‘I am sorry’ or ‘we are sorry’”,21 but an apology or expression of regret “must not
contain speculative statements, admission of liability or apportioning of blame”.22 Those
directly involved in the incident are said not to necessarily have to be involved in providing
the apology or expression of regret, although the Draft also states that feedback from patient
groups suggests that this is the preferred approach.23 Apologies or expressions of regret are
also said to require clarity and sincerity, and that they are important for both patients and
clinicians in recovering from adverse events.24
Apologies or expressions of regret are distinguished from factual explanations, but
attributing blame remains a no-go area in the Draft Framework.25 While criticism of
individual professionals is still to be avoided, the Draft states that if adverse findings must be
made, the individual should be treated fairly. The Draft now recognises that clinicians
involved in adverse events should be given the option to participate in the disclosure, without
mandating this. But while the involved clinician or another clinician are advised to make an
apology or an expression of regret, they are still advised to “not apportion blame, or state or
agree that they, other clinicians or the health service organisations are liable for the harm
caused to the patient”, although it is also stated that “These restrictions should be balanced
against the benefits that a full and sincere disclosure can provide to both patient and
clinician.26
18
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/, viewed 4 June
2012.
19
Australian Commission on Safety and Quality in Health Care, n 18 at 10.
Australian Commission on Safety and Quality in Health Care, n 18 at 15.
21
Australian Commission on Safety and Quality in Health Care, n 18 at 11.
22
Australian Commission on Safety and Quality in Health Care, n 18 at 13.
23
Australian Commission on Safety and Quality in Health Care, n 18 at 26.
24
Australian Commission on Safety and Quality in Health Care, n 18 at 26.
25
Australian Commission on Safety and Quality in Health Care, n 18 at 24.
26
Australian Commission on Safety and Quality in Health Care, n 18 at appendix 2 (1)(a).
20
The relevant inclusions in the Draft Framework may appear to move things closer to its stated
finding that ethical practice that prioritises organisational and individual learning from error,
rather than an organisational risk management approach, by including apologies with
expressions of regret, by indicating that these require clarity and sincerity and are important
for recovery from adverse events, by distinguishing them from factual explanations,
emphasising the benefits that a full and sincere disclosure can provide to both patient and
clinician, and so on. But there are important qualifications that should be applied to these
appearances.
Firstly, apologies are included as alternatives to expressions of regret; they are not mandated.
The use of apologies in the Draft Framework appears to be ambiguous between two familiar
meanings of saying sorry. One meaning of saying “I am sorry” is indeed that one regrets that
something has happened to another person. We use the expressions “I am sorry” and “I
regret” interchangeably to express our negative feelings at another’s misfortune. We quite
sensibly say, for example, “I’m sorry/ I regret (to hear) that you father died” or “I’m so sorry
/ I regret (to hear) that the cancer has recurred”. We can clearly say “sorry” when we do not
mean to apologise for what has befallen the other person, where this implies taking
responsibility, although the word “apology” is sometimes used in the Draft in a way that at
least suggests taking responsibility, eg “A sincere and unprompted apology or expression of
regret”.27
Second, the ideas that the Draft Framework is moving away from a risk management model,
that apologies/expressions of regret require sincerity and are important for recovery from
adverse events, and that full and sincere disclosure benefits patients and clinicians, all suggest
that it is the accountability/responsibility version of apologising that is being supported. Yet
apologies or expression of regret should not admit liability or apportion blame, criticism of
individuals should still be avoided, and apologies should not mean that the clinician
apologising or the health service organisation are liable for the harm caused. Now liability
here refers to legal liability, but it remains the case that the sense of apology in use here is not
that of accepting responsibility. This dissonance in the Draft Framework wording may be
inadvertent, but it may also (albeit to some degree unwittingly) be in service to a continuing
disingenuousness regarding the kind of apologies that patients clearly look for.28
All states and territories have developed and/or are continuing to develop Open Disclosure
policies in public and private hospital practice and primary care.29 These are based on the
current National Open Disclosure Standard, and no doubt there will be modifications made to
some or all of these local versions in the wake of publication of the final National
Framework. Local policies reflect the National Standard and are pertinent to the thrust of the
present analysis. For example, in a very transparent statement, the South Australian policy
defines an expression of regret as
“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
27
Australian Commission on Safety and Quality in Health Care, n 18 at 40.
Piper D & Iedema R , “Literature Review: Incident disclosure policy, legal reform and research since 2008”.
(2011) Sydney: Centre for Health Communication (University of Technology Sydney), and Australian
Commission on Safety and Quality in Health Care 46-48.
29
Australian Commission on Safety and Quality in Health Care. Open disclosure programs, policies and
information. http://www.safetyandquality.gov.au/our-work/open-disclosure/local-open-disclosure-programs/,
viewed 4 June 2012.
28
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’ 30
In Victoria’s Open Disclosure Guidebook, an apology is defined as an expression of sorrow,
regret or sympathy but does not include a clear acknowledgment of fault.31 Western
Australia’s Open Disclosure Policy states that “An apology or expression of regret must not
include any admission of liability or fault” 32 (emphasis in original). The NSW Open
Disclosure Policy Directive defines an apology as “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 adds
“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”.33 Like the statements in
the National Standard, these are somewhat difficult to interpret as to their exact meaning, but
the sense of apology in these policy statements again is one of expressing sorrow or negative
feelings at the patient’s misfortune, not one of accepting responsibility.
Piper and Iedema’s recent authoritative literature review on incident disclosure 34 has
summarised recent developments in jurisdictions other than in Australia that will not be
detailed here, except to mention that in New Zealand, the Health and Disability
Commissioner’s Guidance on Open Disclosure Policies (2009) has this to say:
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. In some situations, an apology may be critical to the
consumer’s decision about whether to lay a formal complaint and pursue the matter
further.35
Like the Australian examples cited, a “sincere apology” in New Zealand amounts to
acknowledging that an event was serious and caused distress. The question is whether an
apology of this kind can bring the comfort and play the part in resolution that is frequently
claimed. Lee and Farmer claim that as long as apologies expressing sorrow or negative
feelings at the patient’s misfortune, as distinct from the sense of apology in which fault is
30
SA Health. Open Disclosure.
http://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/about+us/safety+and+qualit
y/open+disclosure, viewed 4 June 2012.
31
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_guide
book.pdf, viewed 4 June 2012.
32
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, viewed 4 June
2012.
33
NSW Health. Policy Directive: Open Disclosure. 2007.
http://www.health.nsw.gov.au/policies/pd/2007/pdf/PD2007_040.pdf, viewed 4 June 2012.
34
Piper D and Iedema R, n 28.
35
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,
viewed 4 June 2012.
admitted, are “said genuinely, they can be very powerfully healing for many patients”.36
Again, this does not sit comfortably with the sense of apology that is suggested by the idea of
moving things closer to an ethical practice model and away from an organisational risk
management strategy model. Just what would a sincere apology that does not admit fault look
like? Even to sincerely or genuinely express regret or sorrow for patient harm arguably
continues to serve a defensive position that is inconsistent with honest, open communication
which demands that disclosure is a materially relevant and fair dinkum aspect of the
continuing doctor-patient relationship.
Berlinger on error, harm and apology
As stated previously, I understand open disclosure of medical error as “the open discussion of
incidents that result in harm to a patient while receiving health care.” Perhaps more
importantly, I understand an apology as “an acknowledgment of responsibility for an offense
coupled with an expression of remorse”,37 and as nothing less comprehensive. To portray
apology differently, in the context of medical error and resulting patient harm, as in the
various existing and proposed Australian and New Zealand clauses cited, misleads by
distorting the language.
Such linguistic distortions and manipulations figure prominently in Nancy Berlinger’s
powerful arguments in “After Harm”.38 She points out, for example, how the use of technical
language and the passive voice can not only confuse patients, but also lead to self-deception
on the part of doctors who are motivated to avoid facing inadequacies, and how terms like
“complication”, “untoward event”, “non-compliance” and “systems-error” can serve to shield
clinicians from facing their own accountability for error. Such strategies contradict medical
professional norms and codes that champion veracity,39 and turn attention away from the
experience of the patient who has been harmed and is hence suffering. Patient suffering, in
particular as a result of error, demands immediate and authentic action to alleviate it;
Berlinger identifies the need for the serial elements of honest disclosure, apology in the
comprehensive and not the distorted sense, compensation for harm, repentance and
forgiveness.
Not only have clinicians been slow to embrace open disclosure in the current weak-kneed
version that defines apology as regret,40 they would presumably be even more reluctant to
participate in genuine disclosure/apology as a result of the continuing fear of litigation.
Berlinger suggests that despite the mounting evidence that full disclosure and proper
apologies diminish the incidence of litigation,41 the long-entrenched mindset that sees
potential ruin of reputation and financial health is likely to act as a powerful psychological
barrier to believing such evidence, or allowing it to motivate appropriate action.42 The advent
of mandatory reporting may also operate to discourage doctors from openly disclosing error
Lee P and Farmer J, “When things Go Wrong” in Groves M and and Fitzgerald J (eds), Communication Skills
in Medicine. Promoting Patient-Centred Care (IP communications, Melbourne, 2010) 187-202, at 191.
37
Lazare A, “Apology in Medical Practice. An Emerging Clinical Skill” (2006) 296 JAMA 1401-1404.
38
Berlinger N, After Harm (Johns Hopkins University Press, Baltimore, 2007).
39
The Medical Board of Australia, n 7. The Board’s Code of Conduct for Doctors in Australia states that
“Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take
advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion.
40
Studdert, Piper and Iedema, n 5.
41
Berlinger, n 38 at 69-78. See also Piper and Iedema, n 28 at 22-26.
42
Berlinger, n 38 at 94.
36
for fear of becoming involved in disciplinary action.43 But doctors are supposed to operate
according to the evidence, and while there is a strong moral argument for them, together with
their organisations and the drafters of the National Framework, to recognise and implement
the package deal of full open disclosure of error, proper apology that acknowledges
responsibility for error, and communication of genuinely felt remorse, there is the added
incentive that such action will not place them at any higher legal risk, and probably lower.
It is morally and professionally important for these changes to be implemented, because, as
Berlinger and others point out, patients who are harmed look for proper apologies, and only
people can apologise.44 Hence, even where it is clear that the particular error was a result of a
systems failure, and no identifiable individual was at significant fault, an individual should
apologise and be accountable.45
Australian apology laws
Brown recognises 2002 as the “year of the apology”, since from around that time there was a
flurry of legislation on medical apologies in Australian and United States jurisdictions.46
These were attempts to allay fears of litigation on the part of doctors in order to encourage
greater openness in response to medical error. It is difficult to determine whether the statutes
have been successful in this aim. While there are some US instances of measured savings in
litigation costs,47 the facts that malpractice litigation is in most cases the only means of
obtaining compensation in the US and that many patients are not aware that they have been
harmed by medical errors, it is thought that open disclosure could even increase the amount
of litigation.48
In both the US and Australian jurisdictions, there are differences between the protection that
the statutes afford apologies, in terms of whether it is merely a statement of regret that is
protected from being admitted as evidence in a subsequent litigation, or whether a
comprehensive apology admitting fault is protected. It can be seen from Table 1 that
apologies are sometimes equated with expressions of regret, sometimes distinguished, and
sometimes not mentioned. Apologies that include an explicit admission of fault are protected
from admissibility in litigation in NSW, ACT, Queensland, but not in Victoria, Western
Australia, South Australia, Tasmania and the Northern Territory. Nevertheless, it is unlikely,
even in the jurisdictions that offer the weaker protection, that courts would give significant
weight to a comprehensive apology, given that there have been no such medical cases so far,
and that the High Court, in Dovuro v Wilkins,49 (albeit a non-medical case), endorsed the
principle that admissions of fault were of little relevance to the court’s task of determining
liability.50
Doctors should consequently not be fearful of shifting their cognitive and cultural
commitments from their currently faux apologies to the fair dinkum article. Nor should
insurers, health departments, healthcare organisations and hospitals, for the same reasons.
Medical Board of Australia. Codes, Guidelines and Policies: Medical – Guidelines for Mandatory
Notifications. http://www.medicalboard.gov.au/Codes-Guidelines-Policies.aspx, viewed 7 June 2012.
44
Piper and Iedema, n 28 at 40-43 and 46-47.
45
Berlinger, n38 at 96.
46
D Brown, “Open Disclosure: morally right but is it legally safe?” Medico-Legal Society of NSW Inc.
Scientific Meeting. March 2008.
47
Berlinger, n 41.
48
Dresser R, “The Limits of Apology Laws” ( May-June 2008) Hastings Center Report 6-7.
49
(2003) 210 ALR 139.
50
Brown, n 46.
43
Moreover, as Berlinger emphasises, apology and compensation should not be decoupled.51
Three good US examples of institutional compensation schemes are the Lexington,
Kentucky, Veterans Affairs Medical Center, Catholic Healthcare West and COPIC, a
Colorado insurer;52 while medical litigation in Australia has been restricted somewhat via the
reforms to civil liability legislation from the early 2000s, Australian health departments and
other providers and insurers should take heed. Apart from the slow uptake by individual
physicians, anecdotal evidence suggests that the general position in Australia on the part of
health departments, and this despite the widespread adoption of the National Standard in
policy statements and processes, remains a very defensive and closed approach to Open
Disclosure.
Dresser suggests that “Apology laws will achieve a positive ethical outcome only if they are
accompanied by full disclosure and fair compensation programs”.53 For this, these laws
should be uniform across jurisdictions and should protect genuine apologies. Indemnifiers
and public and private health providers should join the movement towards genuine apology
and accountability, and decrease the level of procedural formality currently in vogue in
dealing with disclosure, since formal structures tend to prevent individuals apologising.54 The
gap between physicians’ and administrators’ perceptions of reasonable disclosure and
patients’ reasonable needs in response to being harmed by iatrogenic error, should be
narrowed, hopefully closed.55
Conclusion
The project of providing a fair dinkum duty of disclosure to patients in Australia is
incomplete. In the face of common law precedents,56 and despite the existence of new
approaches by healthcare institutions and insurers demonstrating that full disclosure does not
detrimentally affect individual practitioners or those institutions, existing Australian health
policy guidance but also the Consultation Draft of the Australian Open Disclosure
Framework all fail to support fully open disclosure. Medical error causes additional, and in
many cases preventable, patient suffering. Patients are owed the veracity to which medical
professional codes profess adherence. Genuine apologies after medical harm, as advocated by
Berlinger, are in everyone’s interest. It is time for a fair dinkum commitment to proper
disclosure and apology via clear rewording of the Open Disclosure Standard, and consistent
rationalisation of the apology laws and policy documents. Failing this, statutory reform is
required.
51
Berlinger, n 38 at 63-65.
Berlinger, n 41.
53
Dresser, n 48 at 7.
54
Berlinger, n 38 at 25-26.
55
Fein SP, Hilborne LH, Spiritus EM, Seymann GB, Keenan CR, Shojania KG, Kagaa-Singer M and Wenger
NS, “The Many Faces of Error Disclosure: A Common Set of Elements and a Definition (2007) 22 Journal of
General Internal Medicine 755-761
56
Naylor v Preston Area Health Authority [1987] 1 WLR 958; Wighton v Arnot [2005] NSWSC 637.
52
Jurisdiction
NSW
ACT
Victoria
Statute
Protection
Civil Liability (Wrongs ) Act Apologies are expressions of sympathy or regret,
whether or not the apology admits or implies an
2002 Pt 10
admission of fault (s68)
as for NSW (s13)
Civil Liability (Wrongs ) Act
2002 Pt 2.3
Apologies are expressions of sorrow, regret or
Wrongs Act 1958 Pt IIC
Queensland
Civil Liability Act 2003 Ch
4 Pt 1
South Australia
Civil Liability Act 1936 Pt 9
Div 12
Civil Liability Act 2002 Pt
1E
Western
Australia
Tasmania
Northern
Territory
Civil Liability Act 2002 Pt 4
Personal Injuries
(Liabilities and Damages)
Act 2003 Pt 2 Div 2
sympathy; they do not include clear
acknowledgment of fault (s14I)
Apologies do not constitute admission of liability
or admission of unprofessional conduct,
carelessness, incompetence or
unsatisfactory professional performance (s14J)
expressions of regret not admissible (s72)
apologies do not constitute express or implied
admission of fault or liability and are not relevant
to the determination of fault or liability;
evidence of apology not admissible in civil
proceeding as evidence of fault or liability (s72D)
apologies have same meaning as for NSW (s72C)
no admission of liability or fault to be inferred
from expressions of regret (s75).
apology is an expression of sorrow, regret or
sympathy that does not contain an
acknowledgment of fault by that person (s5AF)
apologies do not constitute an express or implied
admission of fault or liability and are not relevant
to determination of fault or liability, and
evidence of apology not admissible in civil
proceeding as evidence of fault or liability (s5AH)
As for WA (s7)
Expressions of regret that do not contain
acknowledgment of fault (s12) are not admissible
as evidence (s13)
Table 1 Australian “apology laws”
An earlier version of this paper was presented at the annual conference of the Australasian
Association of Bioethics and Health Law, Auckland, 12-14 July 2012.