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Legal aspects of open disclosure II: attitudes of health professionals — findings from a national survey

David M Studdert, Donella Piper and Rick Iedema
Med J Aust 2010; 193 (6): 351-355.

Summary

Objective: To assess the attitudes of health care professionals engaged in open disclosure (OD) to the legal risks and protections that surround this activity.

Design and participants: National cross-sectional survey of 51 experienced OD practitioners conducted in mid 2009.

Main outcome measures: Perceived barriers to OD; awareness of and attitudes towards medicolegal protections; recommendations for reform.

Results: The vast majority of participants rated fears about the medicolegal risks (45/51) and inadequate education and training in OD skills (43/51) as major or moderate barriers to OD. A majority (30/51) of participants viewed qualified privilege laws as having limited or no effect on health professionals’ willingness to conduct OD, whereas opinion was divided about the effect of apology laws (state laws protecting expressions of regret from subsequent use in legal proceedings). In four states and territories (Western Australia, South Australia, Tasmania and the Northern Territory), a majority of participants were unaware that their own jurisdiction had apology laws that applied to OD. The most frequent recommendations for legal reform to improve OD were strengthening existing protections (23), improving education and awareness of applicable laws (11), fundamental reform of the medical negligence system (8), and better alignment of the activities of certain legal actors (eg, coroners) with OD practice (6).

Conclusions: Concerns about both the medicolegal implications of OD and the skills needed to conduct it effectively are prevalent among health professionals at the leading edge of the OD movement in Australia. The ability of current laws to protect against use of this information in legal proceedings is perceived as inadequate.

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  • David M Studdert1
  • Donella Piper2
  • Rick Iedema2

  • 1 Melbourne School of Population Health and Melbourne Law School, University of Melbourne, Melbourne, VIC.
  • 2 Centre for Health Communication, Faculty of Arts and Social Sciences, University of Technology Sydney, Sydney, NSW.

Correspondence: d.studdert@unimelb.edu.au

Acknowledgements: 

Our study was funded by the ACSQHC. Tom Gallagher provided helpful comments on an earlier draft of the manuscript.

Competing interests:

David Studdert is the chief investigator of an Australian Research Council (ARC) linkage grant in which he is partnering with the Health Services Commissioner of Victoria and Avant Mutual to study complaints and claims regarding informed consent. Most of the project costs are met by the ARC, but Avant Mutual also contributes to the project budget. Donella Piper was contracted by the ACSQHC in 2008 to advise on the development of a consumer engagement strategy, and received reimbursement from the ACSQHC for related travel costs. Rick Iedema was paid consultancy fees by the ACSQHC for three research projects relating to OD.

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