Frequently Asked Questions - For health professionals

MDOs are committed to supporting their members, on the understanding that they will be informed at an early stage of any open disclosure process and have the opportunity to advise and assist.

This position will be confirmed to a doctor who reports an open disclosure event to his/her MDO. The first point of contact should be the medico-legal advisory telephone service of the MDO.

Issues that will be addressed by an adviser include:

• confirmation of member details
• nature of incident
• nature/extent of member involvement
• the need, if any, to provide written notification under the relevant medical indemnity insurance policy
• advice in relation to the terms of the policy, which will probably require the doctor not to make any admission of liability, offer or promise without insurer consent
• advice in relation to the Civil Liability Act provisions concerning apologies
• suggestions, if appropriate, about language and communication, to assist the member in making a frank disclosure and/or expressing regret, without offending the insurance policy conditions
• in some cases, a meeting between member and a legal adviser may be arranged and further support may be provided in negotiating the open disclosure process and in reviewing reports and other documents.

An apology is defined by s68 of the Civil Liability Act 2002 as 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. An apology does not constitute an express or implied admission of fault or liability and is not admissible in any civil proceedings as evidence of fault or liability.

Section 68. Definition
In this part: "apology" means 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.

Section 69. Effect of apology on liability

(1)An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person:
(a)does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and
(b) is not relevant to the determination of fault or liability in connection with that matter.

(2)Evidence of an a apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter

The Open Disclosure Guidelines provide advice on how to offer an apology or expression of regret. 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.

For example, the following statement does not admit liability. It provides facts but no conclusions:

"Your husband, John, was given an injection of penicillin shortly before his death. There were notes in his medical records that he was allergic to penicillin, but the person who gave the injection did not see the notes. We are sorry about this incident."

The following statement admits liability by admitting breach and causation. Duty should not be an issue in an apology.

"The nurse knew your husband, John, was allergic to penicillin, because it is written all over the notes; but she gave him the injection by mistake that caused him to have an anaphylactic reaction, from which he could not be resuscitated. We are very sorry about this incident".

In discussions with the patient and their support person, health care professionals may:

• acknowledge that an adverse event has occurred
• acknowledge that the patient is unhappy with the outcome
• express regret for what has occurred
• provide known clinical facts and discuss ongoing care
• indicate that an investigation is being or will be undertaken, and agree to provide feedback on the investigation when available.

• state that they are liable for the harm caused to the patient
• state that another health care professional or the PHO is liable for the harm caused to the patient
• say the event should not have happened or could have been avoided

Documents relating to open disclosure may be provided to patients on request, produced under Freedom of Information legislation, or in answer to a subpoena. Patients can also request access to records relating to them, and request amendments to their records, if the records contain incomplete or misleading information, pursuant to the Health Records and Information Privacy Act.

Just like clinical records, health care professionals should take care when creating documents to ensure that they do not contain inappropriate language, and are accurate. As far as is possible, only verified facts should be contained in documents. Documents should not:

• attribute blame to any health care professional or PHO
• record opinions, unless the opinions are expert opinions and based on supporting evidence
• contain statements which are likely to be defamatory.

In order to avoid making defamatory statements during the open disclosure process, those involved in the open disclosure process should ensure that:

• statements made or recorded are accurate and verified
• conclusions are based on the facts and follow logically, fairly and reasonably from the information obtained
• rumours, or material known to be false or irrelevant material is excluded
• the manner and extent of the disclosure does not exceed what was reasonably required for the purposes of open disclosure.

If the parents of a minor (under 18 years of age) are divorced or separated, PHOs should assume that both parents have retained full responsibility for the minor, unless the Family Court has made an order stipulating that one or both parents have particular responsibilities. Unless Court orders have been made, parental responsibility is not affected by changes to relationships (ie if the parents separate).

This means that in order for a PHO to discharge its legal obligations, discussion with, or the consent of, either parent is usually sufficient. There is generally no reason why the consent or participation of both parents would be required, however, in practice, there is no reason why both parents should not be involved in making treatment decisions, and in the open disclosure process. See section 26 of the Consent to Medical Treatment - Patient Information for further information.