1. APOLOGISING FOR MEDICAL NEGLIGENCE The role of apology in Open Disclosure Professor Prue Vines, UNSW Law

2. Australian Commission on Safety and Quality in Healthcare, Open Disclosure Standard Review Report (2012) Major findings: 1.Open disclosure is often conducted as a process of information provision from the service to the patient but patients prefer it as an open dialogue. 2.Health professionals support disclosure but there remain barriers to its practice including: Perceived medico-legal consequences of disclosure; Concerns about preparedness for involvement in open disclosure; and Difficulty with communicating openly in the context of risk management; 3.Overseas evidence and Australian experience suggest disclosure is more effective as an ethical practice that prioritises organisational and individual learning from error than solely as an organisational risk management strategy. 4.Open disclosure has been found to create larger benefits for the health system and patients by fostering cultures of openness and trust. Professor Prue Vines, UNSW Law

3. Open Disclosure The standard defines open disclosure as the “open discussion of incidents that result in harm to a patient while receiving health care.” Its elements include “an expression of regret, a factual explanation of what happened, the potential consequences and the steps taken to manage the event and prevent recurrence” Professor Prue Vines, UNSW Law

4. ‘adverse events’ “(an) incident in which harm resulted to a person receiving health care” ie iatrogenic Approx 10% of clinical interventions lead to patient harm 2009 Labour Force Survey: 900,000 Australians 15+ experienced harm from medication, medical care, treatment or investigation Professor Prue Vines, UNSW Law

5. Aims of open disclosure After adverse events: Redress harm and repair damaged relationships; and Contribute towards health system improvement. Australia 2003, UK 2005, Canada 2008, NZ, US Professor Prue Vines, UNSW Law

6. Civil Liability Acts 2002 ff Introduced protected apologies – – Aims Reduce ‘chill factor’ of legal advice not to apologise – Because of fear that apology =admission = liability – Because of fear that apology= admission= void insurance policy Reduce litigation Professor Prue Vines, UNSW Law

7. The link with insurance Medical indemnity insurance – mostly have a voidability clause: eg2003 United Medical Protection’s AMIL policy stated: ‘4.1 You must not make any admission, offer or promise in relation to any claim covered by this policy without our prior written consent’ Professor Prue Vines, UNSW Law

8. Perception that it is the natural and moral thing to do functions: -reduce aggression (evolutionary psychology) -create or reinstate moral community -part of culture of risk and blame Why apologise? Prue Vines Professorial Lecture UNSW Law School 2011

9. An essential element for apologies to be accepted: Apology including expression of regret and acknowledgement of fault ( ‘full apology’) Apology with only expression of regret (‘partial apology’) Professor Prue Vines, UNSW Law

10. Definition includes acknowledgement of fault Apology not an admission Apology not admissible Apology does not void insurance Apology does not make time run Mass 1986 √√ Colorado (health) √ √√ NSW√ √√ Qld√since 2010 √√ SA √ Tas √√ Vic √ WA √√ ACT√ √√ NT √√ UK? √√ Br Columbia√ √√√√ The legislation: Prue Vines Professorial Lecture UNSW Law School 2011

11. Why people say they sue: for vindication to make sure the thing doesn’t happen again to make someone see that they were responsible – Lexington Veteran’s hospital experience Full disclosure after adverse events Reduced litigation costs (earlier settlement etc) The Mater Hospital Bris bane -since 2003 - reduced financial costs in general with OD Apologies and propensity to sue Prue Vines Professorial Lecture UNSW Law School 2011

12. Open disclosure process is national while apology legislation is state-based eg NSW Health dept Open disclosure Guidelines p 11: “ Offering an apology or expressing regret is a key component of the open disclosure process. The apology should include an expression of sorrow for the harm done to the patient, but it must not be an admission of liability. Staff must be careful not to make any verbal or written statement that admits liability. An admission of liability means admitting that the hospital or a staff member breached their duty of care to the patient, which led to the patient suffering harm or injury. An apology: does not blame the health facility for harm caused to the patient does not blame a clinician for harm caused to the patient does not blame the Health Service for harm caused to the patient does not indicate that the incident could have been avoided. “ Difficulties in Australia Prue Vines Professorial Lecture UNSW Law School 2011

13. The big problem Not knowing what the law is: eg medical practitioners : in a recent survey (2008)of NSW General Practitioners 71% had not heard of the Civil Liability Act 59% thought litigation had increased in last 5 years ( it had dramatically reduced) 82% said their fear of lawsuits substantially lessened their enjoyment of medicine 13Vines Apologising for personal injury

14. Recommendations Make all apology legislation in Australia include protection of full apologies Make all apologies for Open Disclosure full apologies Professor Prue Vines, UNSW Law