Open disclosure review

17 September 2012

By Dimitra Dubrow

Open disclosure in the Australian health care system is a work in progress - and one very worthwhile progressing. It involves discussing with patients and their families adverse events or incidents that result in harm to a patient while receiving health care. 

Open Disclosure Standard

It is welcome news that the Australian Commission on Safety & Quality in Health Care is undertaking a review of the Open Disclosure Standard, which has been in place for nearly a decade.  In August the commission finished its consultation in relation to the Australian Open Disclosure Framework which is set to replace the Standard.

Australia has had an advanced and enlightened approach to open disclosure.  In 2003, the Australian Health Ministers' Conference endorsed the Open Disclosure Standard developed by the then Australian Council for Safety and Quality in Health Care.  The proposed framework builds on the standard and incorporates current thinking and evidence in relation to open disclosure.  The framework provides a welcome strengthening of the guidelines for open disclosure. 

State and Territory open disclosure policies have also been developed.  The Victorian Health Incident Management Policy addresses the process to be followed for the reporting of sentinel events and open disclosure.  Indeed, the policy refers to open disclosure as being a legal obligation for public health services based on the right to freedom of expression in section 15 of the Victorian Charter of Human Rights and Responsibilities 2006, which includes the right to receive information.

Gap in disclosed events

The commission's June 2012 Review Report on the standard referred to a gap between disclosable and disclosed events, and that current evidence indicated that 70 per cent of incidents remained undisclosed (page 35).

These findings accord with our experience on the ground as lawyers fielding calls daily and acting on behalf of patients injured as a result of medical treatment.  Our experience is that open disclosure is practised in an ad hoc fashion: it sometimes happens, it sometimes doesn't. When it does happen, there are times when it can be done well, while other times it is fragmented and unsatisfactory.

Badly handled or defensive discussions around adverse events or harmful incidents can only make matters worse for the patient and their family.

Benefits of open disclosure

Well practised open disclosure can deliver tangible benefits.  It is essential that open disclosure be openly embraced and practised within Australian health services.  A big driver for people contacting lawyers is poor communication, the lack of explanation and the need to know.  Whether it will decrease litigation is difficult to say, but it can only have a positive effect on the therapeutic relationship and protect against the breakdown of trust.  It should diffuse complaints from escalating unnecessarily.  Patients and their families should not be left guessing about what has happened or be deprived of essential information even if that leads to litigation.  At least it will be on an informed basis. 

 Sentinel events

At present, because not all incidents are disclosed as part of an open disclosure policy, it is only sentinel events that are uniformly followed up in the sense of mandatory formal reporting. Sentinel events are defined in the Victorian Health Incident Management Policy as events that occur independently of the patient's condition, reflect hospital and process deficiencies and result in unnecessary outcomes for patients.  Obviously, they are confined to very serious cases of adverse patient outcome.  Sentinel events must be reported to the Sentinel Events Program and a Root Cause Analysis Report prepared.  These reports usually remain confidential and are covered by the qualified privilege provided for by Section 139 of the Health Services Act 1988 (Vic) and therefore not disclosed to patients and their families. 

The corresponding qualified privilege legislation in other states are Health Act 1993 (ACT), Health Administration Act 1982 (NSW)(Sections 20D-20K), Health Services Act 1991 (QLD) (FF.30 - 38), Health Commission Act 1976 (SA) (S.64D), Health Act 1997 (TAS), Health Services (Quality Improvement) Act 1994 (WA) and Health Insurance Act 1973 (CWLTH) (Part VC).

While sentinel event reporting may result in improvements in health care overall, they do not provide transparency and accountability for patients and their families.  And they do not extend to all incidents that cause harm to patients.  Open disclosure may help fill this gap.

Barriers to open disclosure

The considerable benefits of open disclosure are discussed and set out on page 10 of the Review Report.  A number of barriers to open disclosure are also discussed on page 100. They include lack of training and capability, and levels of comfort by health practitioners around open disclosure.  And of course, an important barrier is the possibility of medico/legal ramifications and a fear that what is said might be used as a basis for litigation. 

Apology laws

Although most Australian states have enacted 'apology laws' concerns remain.  The apology laws vary and there is a lack of clarity as to the extent to which these laws provide protection.  For example, in Victoria, Section 14J(1)(a) of the Wrongs Act 1958, provides that in a civil proceeding an apology does not constitute an admission of liability for a death or injury.  Apology is defined at Section 14I as an expression of sorrow, regret or sympathy but expressly excludes a clear acknowledgment of fault.  Therefore, should an open disclosure discussion include a clear acknowledgement of fault, the apology laws will not protect this from being used in a civil proceeding. 

The corresponding apology laws in the other States and Territories are Section 69 of the Civil Liability Act 2002 (NSW), Sections 71 and 72 of the Civil Liability Act 2003 (QLD), Section 75 of the Civil Liability Act 1936 (SA), Sections 5AF and 5AH of the Civil Liability Act 2002 (WA), Section 7 of the Civil Liability Act 2002 (TAS), Sections 12b and 13 of the Personal Injuries (Liabilities and Damages) Act 2003 (NT) and Section 14 of the Civil Law (Wrongs) Act 2002 (ACT).

The proposed framework expressly includes "saying sorry" as part of open disclosure.  This is a welcome shift from the standard which referred to an expression of regret only.

In any event, concerns about litigation should not prevent doctors and hospitals from embracing open disclosure because the benefits outweigh any medico/legal fears.  In addition, the proposed framework sets out in considerable detail an open disclosure approach which should not unduly impact on any medico/legal considerations or other reporting requirements such as the requirement to report sentinel events.

Practical guidance

The proposed framework is comprehensive and gives practical guidance which should provide health services with the tools to develop and implement appropriate open disclosure processes.  The framework emphasises the need for education and training and support for such measures by the leadership of health services (pages 28 and 29).The framework is also to provide flexibility and to be used by health services to develop local policies for open disclosure (page 13).

Importantly, the incorporation of open disclosure policies is to be an accreditation activity as of January 2013 for health services under the Australian Health Service Safety & Quality Accreditation Scheme (page 14). The framework also provides for measurement of outcomes suggesting open disclosure processes and outcome measures for adoption by health services.

Policy vs culture

These are all positive developments.  But the question remains, even if a health service has open disclosure policies and education in place, where is the assurance that it will extend beyond the pages of policies and manuals to become part of the cultural values and daily practice of Australian health services?  Is there scope for external checks to ensure that open disclosure is uniformly and authentically practised?   

There is no question that many opportunities for open disclosure have been missed in the past.  It is hoped that the Australian Open Disclosure Framework will provide the foundation for consistent and well practised open disclosure which strikes the right balance so that the full benefits of open disclosure can be experienced by both patients and health care providers.  For patients, having an understanding and information about their health care course can only positively influence the patient and health care professional relationship.  And for the medical profession, taking the lead and addressing harmful incidents through honest discussion will put trust and respect front and centre.