New laws requiring all public and private hospitals to apologise to patients who are seriously harmed in their care have brought Victoria into line with the rest of the country, medicolegal experts say.
The implications for the medical and legal professions of the legislation called ‘statutory duty of candour’ were outlined by Victorian lawyers Jessie Taylor and Andrea de Souza speaking at Informa’s Medico Legal Congress in Sydney on 14 March.
They said other jurisdictions, like NSW and Queensland, already had “fairly vigorous protections” for health services when it came to apologising to patients and explaining adverse safety events.
“There’s no reason why what happens with Victoria can’t go elsewhere, but it may not really mean very much if you already have a pretty rigorous system in place and are already doing good open disclosure,” Ms de Souza told delegates.
The Victorian legislation came into effect on 30 November last year, fulfilling one of the key recommendations of the ‘Targeting Zero’ report [link here].
This report was the result of a state government-commissioned hospital safety review, conducted in 2016, following a cluster of potentially avoidable perinatal deaths at a regional Victorian hospital operated by Djerriwarrh Health Service.
Ms Taylor said that while Section 14J of the Wrongs Act in Victoria already provided certain protections for apologies – namely, that an apology did not constitute an admission of liability – it did not impose any obligation on doctors to give an apology to patients in the event of serious harm.
She said the intention behind the new laws was to “create a culture of candour in which staff feel comfortable and encouraged to disclose errors in care to patients”.
How does it work?
The legislation is applicable to Victorian patients who experience a serious adverse safety event that is likely to result in unintended or unexpected moderate to severe harm or prolonged psychological harm.
“We’re not talking about anticipated side effects or bumps in the road that might be anticipated or consented to,” Ms Taylor told the congress.
She said moderate harm could be defined as harm that requires an unplanned return to surgery, while severe harm could be defined as causing a permanent lessening in functioning unrelated to the natural course of illness or underlying condition.
In the case of psychological harm, she said the harm might not just be a result of a procedure gone wrong, but could also result from other events, such as racial profiling or a sexual safety incident.
The first step of the process requires the health service to provide a genuine apology for the harm suffered by the patient and any initial information within 24 hours of the event being identified.
“Give consideration to using the words ‘I’m sorry’ or ‘we’re sorry’, and expressing compassion, regret or sympathy in the apology,” Ms Taylor said.