Intended for healthcare professionals

Analysis

Safety of candour: how protected are apologies in open disclosure?

BMJ 2019; 365 doi: https://doi.org/10.1136/bmj.l4047 (Published 13 June 2019) Cite this as: BMJ 2019;365:l4047
  1. Gilberto K K Leung, clinical professor1,
  2. Gerard Porter, lecturer2
  1. 1Department of Surgery, LKS Faculty of Medicine, University of Hong Kong, Queen Mary Hospital, 102 Pokfulam Road, Hong Kong
  2. 2School of Law, University of Edinburgh, Old College, South Bridge, Edinburgh EH8 9YL, UK
  1. Correspondence to: GKK Leung gilberto{at}hku.hk

Doctors need more certainty about whether and how they can safely apologise to patients, warn Gilberto Leung and Gerard Porter

Key messages

  • Apology statements in open disclosure could amount to an admission of fault and liability, be used in court as evidence, and affect professional indemnity coverage

  • Apology statutes aim to encourage apologies by protecting those who make them in this regard, but the degree of protection varies between countries

  • In Great Britain, protection does not seem sufficiently clear or comprehensive, offering doctors little assurance as to the legal consequences of the apologies which are now mandated by statutory duties of candour

  • The law should be clarified to facilitate open disclosure for the benefit of patients, their carers, and healthcare professionals

Doctors are often unsure about whether apologising to patients will leave them open to legal consequences.1 Among the many implications of the Bawa-Garba case, the idea that even a doctor’s written reflections in their portfolio could later be used against the doctor in court has raised concerns in the medical community.2 This uncertainty could affect doctors’ willingness to disclose mistakes and to give patients the apologies they deserve.

The situation is complicated by the fact that the statutory duties of candour in England and Wales3 and in Scotland,4 now require health service organisations and practitioners to give a factual explanation and to apologise to the affected parties after a notifiable incident. Although it is widely thought that existing apology laws in Great Britain would confer sufficient protection,56 a closer look at the complex matter of apology protection indicates that the situation is far from straightforward. This paper examines some of the legal issues of apologies and their implications for healthcare professionals.

Protecting apologies to benefit patients

Saying sorry for a medical error, whether legally required or not, is an ethical …

View Full Text

Log in

Log in through your institution

Subscribe

* For online subscription