Apology laws and open disclosure

There has been a dramatic change in the approach to medical errors internationally, with a new ethic of transparency replacing the traditional customs of secrecy and denial. Australia has been at the forefront of this shift towards openness with Australian health ministers endorsing a national Open Disclosure Standard in 2003, which made it clear that there is an ethical responsibility to maintain honest communication with patients and their families even when things go wrong.1 However, while it is widely agreed that medical errors should be disclosed to patients, there is a large “disclosure gap” between expected practice and what is actually being done.2 Most research internationally suggests that a primary barrier to disclosure is health professionals’ fears regarding legal ramifications.3 Recent studies suggest that this is also the case in Australia.3,4

The Australian Commission on Safety and Quality in Health Care decided to review the Standard in 2011, to consider it in light of current research and evidence and to recommend changes to it. This resulted in the 2012 publication of the Open Disclosure Standard review report5 and a new Australian Open Disclosure Framework consultation draft6 which will replace the Standard. With recent research suggesting that saying sorry is a key element of successful disclosure practice, the Australian Open Disclosure Framework consultation draft specifies that the words “I am sorry” or “we are sorry” should be included in an apology or expression of regret. However, it makes clear that speculative statements, admission of liability or apportioning of blame must be avoided. It defines apology as “An expression of sorrow, sympathy and (where applicable) remorse” and states that “Apology may also include an acknowledgment of responsibility, which is not an admission of liability”.6

Health professionals and indemnity insurers are often concerned, however, about saying sorry because of the fear that it will be seen as an admission of liability.5 Indeed, it was in response to an alleged “insurance crisis” in Australia during the period 1999–2002 that a raft of reforms were made to tort law.7 Apology laws were part of this package. All Australian states and territories have apology laws that protect apologies given after an incident from being used in various legal processes, most of which have a broader application than just the medical context. These laws generally protect only expressions of regret but not admissions of fault, with five laws explicitly excluding admissions of fault, and a sixth doing so implicitly.8

In a review of Australian law, it was concluded that the limited legal protection that existing laws provide does little to reduce professionals’ fear that open disclosure increases their medicolegal risks — “a perception that likely inhibits the uptake of [open disclosure]”.8 The authors argued that this situation presents a strong case for law reform that would provide stronger protections directed specifically at the contents of open disclosure conversations, concluding:

In our view, the assumption that such legal protections can narrow the disclosure gap is misguided. While medicolegal risk may surely be a factor in professionals’ reluctance to disclose errors, we believe that the true reasons are more complex. A range of factors that contribute to errors not being disclosed have been identified, including a professional and organisational culture of secrecy and blame, professionals lacking confidence in their communication skills and the shame and humiliation associated with acknowledging an error — to oneself, one’s patient, and one’s peers.3,9 Making the contents of open disclosure conversations legally inadmissible in legal proceedings is therefore unlikely to significantly change practice.

Current apology laws are also quite unnecessary. While it remains to be seen what exactly is the relationship between open disclosure and professionals’ exposure to legal action,8 apology laws do not prevent patients from taking legal action following the disclosure of an error. What apology laws do is protect apologies given after an incident from being used in legal proceedings. However, the fear that apologies may be used against health professionals in legal proceedings to prove negligence is not well founded and does not provide a sound basis for implementing such legal protections. As noted in the Open Disclosure Standard review report, “Case law in Australia and overseas indicates that courts do not find expressions of regret, apologies or admissions of duty of care failures as evidence of liability”.5

Expressions of compassion and solidarity are always appropriate after a patient has experienced a tragic outcome. Professionals do not need legal protection for expressing sympathy or regret in such circumstances; this simply reflects the professional’s feelings and does not prove any of the elements of negligence.10 Indeed, making such expressions inadmissible may paradoxically make matters worse — professionals who offer a sincere apology generally receive more positive outcomes than those who do not.11

Furthermore, even when a professional has admitted making an error, this alone will be insufficient to prove negligence. As the Open Disclosure Standard review report notes:

Although laws that make compassion inadmissible in court or protect truthful expressions of responsibility are unnecessary, they operate on ethically shaky grounds and risk diminishing the value of apologies and fuelling public cynicism towards the medical profession.

Principle 5 of the Australian Open Disclosure Framework consultation draft guiding principles, entitled “Supporting clinicians”, states:

Health service organisations should create an environment in which all staff are:

• encouraged and able to recognise and report adverse events

• prepared through training and education to participate in open disclosure

• supported through the open disclosure process.6

In our view, these measures would have a far greater impact on closing the disclosure gap than law reform strengthening already unnecessary legal protections.