Mandatory medical ‘apology’ law for adverse events starts in Victoria

Australian-first laws requiring health services to apologise to anyone seriously harmed while receiving care are set to come into force in Victoria.

The legal changes starting 30 November make clear the apology is not an admission of liability and cannot be used in civil or disciplinary proceedings to determine fault.

However, the laws do say providers must provide a patient with a statutory duty of candour and conduct a formal review after any serious adverse patient safety event (SAPSE).

This needs to comprise a written account of the facts, with an apology for the harm caused and a description of the service’s response to the event, which has to be given to either the patient or their carer.

The documentation must also include an outline of the steps taken to prevent a re-occurrence of the incident, under the legislation which passed in February.

The legal duty of candour will apply to Victorian ‘health service entities’ rather than individual doctors. These include public and private hospitals, day procedure centres, ambulances and public health services.

Introduced in response to a 2016 review into the spike in neonatal deaths at Bacchus Marsh Hospital, the laws should help doctors feel “feel comfortable” apologising for adverse events, says Avant general manager of advocacy, education and research Georgie Haysom.

In a blog post for the MDO (link here), she said a key change in the legislation was that SAPSE reviews will be protected so they cannot be used in legal or regulatory proceedings, or provided to any other body other than the coroner.

“The aim of a SAPSE review is to establish the facts of a SAPSE, identify the systems factors that contributed to it and identify remedial measures that may be taken to prevent similar events from occurring again,” Ms Haysom wrote.

There were also legal protections for anyone who provided information to a review, according to the lawyer.

“This brings Victoria in line with Queensland, South Australia and New South Wales where reviews and investigations into serious adverse incidents, such as root causes analysis, are protected from use in legal proceedings,” she wrote.

“This should reassure doctors that they are not exposing themselves to liability when participating in a SAPSE review.”

In guidance released this week, Safer Care Victoria stressed not all adverse events would be affected, with only those rated category one or two in the state’s four-tiered Incident Severity Rating system attracting a mandatory formal apology.

Harm must also be moderate at a minimum and be unintended or unexpected to meet the definition of a SAPSE, per the guidance (link here).

Outside of Victoria, hospitals were still required to comply with the Australian Open Disclosure Framework under the National Safety and Quality Health Service standards. And apologising went things went wrong continued to be a “good professional practice”, Ms Haysom said.

“In our experience, apologising can help doctors as well as patients after an adverse event,” she wrote.

“This is true even if the harm was not preventable or was a known complication.”

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