Presentation on theme: "A FAIR DINKUM DUTY OF OPEN DISCLOSURE FOLLOWING MEDICAL ERROR Malcolm Parker School of Medicine."— Presentation transcript:
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
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
Ethical & policy statements on open disclosure and apologies Australian Commission on Safety and Quality in Health Care National 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.
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 dont 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. Vic Apology 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. viewed 4 June
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 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
Ethical & policy statements on open disclosure and apologies NZ policy on OD A disclosure should include a sincere apology. This is the providers opportunity to say We are sorry this happened to you. It is not about allocating blame for the events 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).
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
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 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 courts 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 Hastings Center Report. 6-7.