Laws protecting open disclosure conversations are unnecessary and a misguided strategy to encourage error 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
- 1. Australian Council for Safety and Quality in Health Care. Open Disclosure Standard: a national standard for open communication in public and private hospitals, following an adverse event in health care. Sydney: ACSQHC, 2003. http://www.health.qld.gov.au/psq/od/docs/odst.pdf (accessed Mar 2012).
- 2. Gallagher TH, Bell SK, Smith KM, et al. Disclosing harmful medical errors to patients: tackling three tough cases. Chest 2009; 136: 897-903.
- 3. Iedema R, Allen S, Sorensen R, Gallagher TH. What prevents incident disclosure, and what can be done to promote it? Jt Comm J Qual Patient Saf 2011; 37: 409-417.
- 4. 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: 351-355. <MJA full text>
- 5. Australian Commission on Safety and Quality in Health Care. Open Disclosure Standard review report. Sydney: ACSQHC, 2012. http://www.safetyandquality.gov.au/wp-content/uploads/2012/05/63652-Open-Disclosure-Standard-Review-Report-Final-Jun-2012.pdf (accessed Mar 2012).
- 6. Australian Commission on Safety and Quality in Health Care. Australian Open Disclosure Framework consultation draft. Sydney: ACSQHC, 2012. http://www.safetyandquality.gov.au/wp-content/uploads/2012/05/62838-Australian-Open-Disclosure-Framework-Consultation-Draft-June-20121.pdf (accessed Mar 2012).
- 7. Law Council of Australia. Tort law reform. http://www.lawcouncil.asn.au/programs/national-policy/tort-law-reform/tort-law-reform_home.cfm (accessed Dec 2012).
- 8. Studdert DM, Richardson MW. Legal aspects of open disclosure: a review of Australian law. Med J Aust 2010; 193: 273-276. <MJA full text>
- 9. Wei M. Doctors, apologies, and the law: an analysis and critique of apology laws. J Health Law 2007; 40: 107-159.
- 10. Bailey TM, Robertson EC, Hegedus G. Erecting legal barriers: new apology laws in Canada and the patient safety movement: useful legislation or a misguided approach? Health Law Can 2007; 28: 33-38.
- 11. Robbennolt JK. Apologies and medical error. Clin Orthop Relat Res 2009; 467: 376-382.
Publication of your online response is subject to the Medical Journal of Australia's editorial discretion. You will be notified by email within five working days should your response be accepted.