A patient’s decision to take legal action or complain against a health practitioner may be prompted by perceived insensitive handling, poor communication or delay after
an adverse clinical incident. Often, the focus of patients' hurt and anger is not the injury itself, but the failure of a health professional do the right
thing' in the aftermath of the event.1
Avant's practical experience indicates that a patient's decision to take legal action or complain against you may be affected by the way you manage an incident that resulted harm to the patient Avant supports the view that open, honest, timely, and concerned communication is a most important factor in maintaining a therapeutic relationship, even when a clinical consequence occur that results in harm to a patient.
What is open disclosure?
Open disclosure describes the way clinicians communicate with patients who have experienced harm during health care.
Open disclosure involves a factual account of what happened, discussion of the potential consequences of the adverse event, and an exchange of information. Open disclosure may take place in one conversation or over one or more meetings, and the patient should be given an opportunity to relate their experience of the event.
A key element of the open disclosure process is an apology or expression of regret, which should include the words "I am sorry" or "we are sorry".
What is the process?2
The open disclosure process involves:
- Acknowledging that an adverse event has occurred
- Apologising or expressing regret for what has occurred (including the words 'I am/we are sorry')
- Outlining the facts that are known about what has happened and outlining what further steps are planned (including side-effects, expected costs and any concessions you may make)
- Actively listening to the patient’s clinical and personal experience of the event.
- Providing information on what steps are planned to determine what went wrong and how similar events may be prevented in the future and agree to give feedback on this when details are available.
How do I apologise?
The Australian Commission on Safety and Quality in Health Care’s (ACSQHC) open disclosure framework (the Australian Open Disclosure Framework) states that an apology should use the words "I am sorry…"
The act of apologising is intended to help both the patient and family, and will also assist clinicians who are dealing with the experience the experience.
Those directly involved in the adverse event should provide the apology in a sincere manner. What is being apologised for should be clear.
In making an apology, the wording is important. The ACSQHC publication Frequently asked questions about open disclosure: clinicians4 provides the following examples of wording:
"I am sorry this has happened"
"I am sorry that this hasn’t turned out as expected"
Does open disclosure lead to legal liability?
Avant's position, in accordance with the Australian Open Disclosure Framework, is that an apology is not intended to be, and should not be seen, as an admission of liability or a statement casting blame on some other person or organisation.
All jurisdictions in Australia have 'apology' laws - statutory provisions that protect statements of apology or regret made after "incidents" from subsequent use in various legal contexts. An aim of this protective legislation is to create an environment where doctors can feel comfortable expressing regret to patients.
If you are involved in an incident involving an adverse outcome, you should be aware of the need to notify your insurer in accordance with your insurance incident
Is open disclosure mandatory?
Health service organisations accredited to the National Safety and Quality Health Service Standards (including public and private hospitals, day surgery units and dental clinics) must implement open disclosure in accordance with the Australian Open Disclosure Framework.
These organisations will have their own open disclosure policies and procedures, and if you practise in one of these contexts, you may be required by the organisation to participate in
open disclosure activity. You should ensure you are familiar with your organisation's policies and procedures on open disclosure.
For practitioners in private practice, open disclosure is good professional practice. The Medical Board of Australia’s Good Medical Practice: A code of Conduct for Doctors in Australia states that:
When adverse events occur, you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately.
What is Avant’s position on open disclosure?
- Supports open disclosure by its members that occurs in accordance with the Australian Open Disclosure Framework.
- Supports members who are undertaking, or wish to undertake, an open disclosure process with patients and will provide advice, information, and support in what can be a stressful and difficult time.
- Encourages members to seek early advice and support during this process.
- Believes that for open disclosure to be effective appropriate education and training of health care practitioners is essential.
- Provides education and training to members who wish to participate in open disclosure.
- Supports members providing apologies to patients who have suffered an adverse outcome from treatment.
Where can I find out more?
Access the Australian Commission on Safety and Quality in Health Care (ACSQHC) range of resources to guide practitioners on engaging with open disclosure here.
If you would like more information or advice about the open disclosure process, contact Avant on 1800 128 268.
1Marie Bismark and Ron Paterson Doing the right thing’ after an adverse event (2005) 118 N Z Med J. 1219
2 This section is based substantially on the Australian Commission on Safety and Quality in Healthcare’s Frequently asked questions about open disclosure: clinicians