Intended for healthcare professionals

Feature Briefing

Admitting when mistakes are made

BMJ 2015; 351 doi: https://doi.org/10.1136/bmj.h4474 (Published 19 August 2015) Cite this as: BMJ 2015;351:h4474

Duty of Candour should not be tied to an 'Apology'

It is unfortunate that the statutory duty of candour includes the requirement for an apology.

Candour is being open in providing information when an adverse event has occurred. But saying "Sorry" is a separate issue and is by itself meaningless unless it is clear what you are apologising for. "I'm sorry I did this to you" is an admission of fault and probable liability. "I'm sorry this happened to you" is simply an expression of sympathy. Notwithstanding, when Open Disclosure was effectively mandated in Australia, doctors were very concerned that any use of the 'Sorry' word would be pleaded as an admission of liability in subsequent litigation. So across Australia, each state legislated, but in slightly different wording in each jurisdiction, to make clear that an apology can not be so pleaded.

For example, the Wrongs Act in Victoria was amended in 2002 by including, as S 14.J
"(1) In a civil proceeding where the death or injury of a person is in issue or is relevant to an issue of fact or law, an apology does not constitute—
(a) an admission of liability for the death or injury; or
(b) an admission of unprofessional conduct, carelessness, incompetence or unsatisfactory professional performance, however expressed...".

I can understand then why doctors in the UK are concerned that the UK Act binds disclosure and apology together, The UK Compensation Act 2006 makes clear that an apology is not equivalent to an admission of liability. I don't think it has been made clear whether that still applies afetr April this year when the reach of the Candour Act was extended to cover virtually all healthcare practitioners,

Competing interests: No competing interests

11 October 2015
PAUL NISSELLE
Risk Management Consultant, General Practitioner
Director, MDA National, Australia
116 Richardson St, Albert Park, Vic 3206 Australia