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New law makes it easier to say sorry

01 May 2018


Apology legislation was recently passed into law. Kirsty Sharp looks at what this means for you

Read this article to:
  • Discover what the new apology legislation is about and how this affects you 
  • Understand what an appropriate apology is 
  • Learn when an appropriate apology should be offered

Unfortunately things do go wrong in healthcare and sometimes patients are dissatisfied, disappointed or upset with the care that they have received. 

Medical Protection has long advised members that an apology is not an admission of liability; rather, it is an acknowledgement that something has gone wrong and a way of expressing empathy. Contrary to popular belief, apologies tend to prevent formal complaints rather than actually cause them. 

Hong Kong was the first region in Asia to enact apology legislation when, in July this year, the Apology Bill was passed into law by the Legislative Council. 

How has the law changed? 
This new legislation seeks to encourage the making of apologies, with a view to preventing the escalation of disputes and facilitating their amicable resolution. 

It marks a departure from previous legislation, where officials and individuals were often reluctant to deliver a prompt apology for fear of possible legal liabilities. 

Under the law, an apology or expression of regret or sympathy (oral, written or by conduct) will not be admissible as evidence to determine fault or liability in civil and other non-criminal proceedings, subject to certain exemptions. 

When does the legislation apply? 
The apology legislation will apply to an apology made on or after the start date of the legislation, regardless of whether the matter or the applicable proceeding began before, on or after that date. The applicable proceedings include: judicial, arbitral, administrative, disciplinary and regulatory proceedings. 

The apology legislation does not apply to:

  • an apology made in a document filed or submitted in applicable proceedings 
  • an apology made in a testimony, submission or similar oral statement given at a hearing of applicable proceedings
  • an apology adduced as evidence in applicable proceedings by, or with the consent of, the person who made it. 

To see a copy of the legislation, visit goo.gl/CDcx6P 

When should an apology typically be offered? 
An apology should be offered as soon as it becomes apparent that an adverse incident has occurred (regardless of fault), or the patient is unhappy with their care. 

It is important that patients, or their families, receive a meaningful and timely apology. It may be some time before all the facts, and perhaps the reasons why and how the events occurred, are understood. However, this consideration should not delay a prompt apology. 

Depending on the circumstances, the process may require a number of meetings with the patient and/or their family over a period of time, as the full picture of what has happened is established. At the initial contact, the doctor may not have answers to all the patient’s questions or adequate explanations. If so, the doctor should say so, but commit to establishing them and reporting back to the patient. 

The culture within a clinical setting should allow doctors the freedom to apologise. It is ethically and professionally the right thing to do – irrespective of the cause. 

What is an 'appropriate' apology? 
An apology is appropriate when a patient has suffered harm from their healthcare or experienced disappointment. 

For instance I am sorry this happened to you 
Rather than I am sorry I caused this to happen to you and it’s my fault...

An appropriate apology should be tailored to the situation – reflecting the patient’s perception of the issue. It should also be put into context, so all parties understand the purpose of the apology. Ownership should also be taken by a senior clinician. Fundamentally, an apology should be offered willingly, and not perceived to have been given reluctantly. 

Medical Protection would always advocate a full and objective review of the event, with the patient being informed about any resulting learning points. A commitment should be made to understand and learn from what has happened, to reduce the likelihood of it reoccurring and happening to someone else.
 
Further information

Workshop
Our workshops are FREE as a benefit of membership. The Mastering Adverse Outcomes workshop provides training in the skills associated with appropriate discussions in these situations. 

To book your place, visit medicalprotection.org and click on ‘Education and events’.

More advice
Our expert medicolegal advisers can provide advice if needed. 

For support, email querydoc@medicalprotection.org