Re: Admitting when mistakes are made
Contrary to what suggested by Hawkes N (1), there is no paradox in the GMC position for which ‘doctors should apologise promptly after a safety incident, whether the mistake is theirs or not, but cannot be compelled to apologise if the incident goes to a panel, and they are found at fault’.
The solution proposed by the GMC makes possible the respect of the right to silence of the doctor who made a mistake.
No one is bound to incriminate or accuse himself: if a doctor was forced to apologise, it would be like if he was forced to admit to be at fault.
The new statutory duty of candour cannot clash with the human right to avoid self-accusation (2).
An objective of this measure is certainly to spread the culture of transparency, educating to the error disclosure, which is also an opportunity to advance the knowledge.
But there was also another purpose, that the reactions of discouragement of the executives of patient organisations betray: finding the one guilty, compensation will come consequently.
The GMC position may have stopped this drift, but it may not be enough.
The apology could come from trusts, primary care, private healthcare and social care providers.
Reproducing the Australian model, Authorities should enact laws designed to prevent statements of apology or regret made after ‘medical incidents’ from subsequently being used in certain legal settings (3).
However, it is noted that the introduction, in most northern American states, of so-called “apology laws” – i.e. laws that forbid the introduction of previous communications of expressions of sorrow or regret between a doctor and his patient into legal proceedings - have produced no benefits (4): barriers remained to disclosure practice.
Does this mean that there is no solution?
It could be sufficient to reverse the order of priorities.
The first thing to do is to introduce a no-fault plan for damages caused by medical procedures and treatments, inhibiting to criminalise healthcare professionals for gross neglect.
Then, there would be some sense in enforcing the adoption of open-disclosure models.
1. Hawkes N. Admitting when mistakes are made. BMJ 2015;351:h4474;
2. Lord Mustill in R. v. Director of Serious fraud Office ex p. Smith, 1993, AC 1, at 30;
4. Boothman R et al. A better approach to medical malpractice claims? The University of Michigan experience, 2. J Health & Life Sci L, 2009; 1: 125-132.
Competing interests: No competing interests