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.

“The framework is set up to invite a genuine and meaningful apology human to human.”

The health service must also take steps to organise a meeting within three business days of the event being identified and hold the meeting within 10 business days with a senior member of the relevant clinical team present.

A factual explanation of what occurred should be provided to the patient in a language understandable to them, along with an opportunity for them to relate their experience and ask questions.

They should also be notified of the next steps of the process and any immediate improvements made.

The final stage of the process requires the health service to conduct a review of the event and then write up a report that should be offered to the patient within 50 business days.

Ms Taylor stressed patients who preferred not to go through the process had the option to opt out, and they could also opt back in.

What happens if health services refuse to comply?

Ms Taylor told the congress that unlike similar laws rolled out in the UK in 2015, failure to comply to the statutory duty of candour was not an offence in Victoria.

However, the Victorian Minister for Health could publish a public statement on the department’s website naming the health service, if that health service has failed to comply on two or more occasions and that failure is deemed of serious nature.

“The stick is not as big when it comes to prosecution, but reputational risk does exist,” Ms Taylor said.

Legal implications

Ms de Souza said there was a broad range of protections that covered the health service’s apology and review under the duty of candour legislation to prevent them being used as evidence in a lawsuit.

“I think that creates an interesting tension,” she said, pointing out the dilemma patients and their lawyers potentially faced in trying to access compensation through a negligence claim.

“The duty of candour is great in terms of what it will give patients in knowledge and acknowledgement, but then what happens about their compensation after that… I think that remains a live question, given how recently it has all come in.”