Open Disclosure – a new dawn for patient safety?

The Fight for Information

In many medical negligence cases, patients and their families want answers, an acknowledgement of what has gone wrong, an apology and to understand that no other patient or family will have to go through what they have.

Unfortunately a culture of failure to acknowledge fault or liability in many cases has led in many cases to patients or their families waiting for years to hear that the hospital accepted responsibility for what happened or to hear a simple apology.

In healthcare the concept of open disclosure is to disclose to a patient or family in a transparent way when something has gone wrong that caused harm to the patient and this should (in theory) include an apology.

We have had a voluntary open disclosure regime for a number of years but now a new law called the Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023 is intended to strengthen patient safety rights in this area. This is coming into force in the next few days.

What does this mean for patients & their families?

Under the Act, once a “notifiable incident” happens the healthcare provider must provide certain information to the patient and in some cases their family at an in person meeting. This includes information about:

• The incident
• When the incident occurred & when the health service provider became aware of it;
• How the incident became known to the health service provider;
• Where, in the opinion of the health service provider, physical or psychological consequences have developed as a result of the incident or are likely to develop – information about the consequences;
• Where, in the opinion of the health service provider, physical or psychological consequences are less likely to develop as a result of the incident – information about those consequences;
• If the health service provider is of the opinion that no physical or psychological consequences are likely to develop as a result of the incident they must provide a statement confirming this;
• If the patient is still being treated by the health service provider, information about treatment going forward;
• Any action or processes to be put in place arising from the incident.

The health service provider may, as part of the new regime, make an apology (but they do not have to).

The health service provider must give a written statement to the patient or his or her family setting out certain information.

What are “notifiable incidents”?

This is currently restricted to very serious incidents which lead to an unanticipated death.

Do patients have to attend the meeting?

No – a patient can decide to attend the meeting or can appoint someone to go on their behalf. If the patient and their appointed person do not want to attend, there is a specified procedure for the healthcare provider to follow.

Can patients use the information from the healthcare provider for litigation?

As the intention of the Act is to allow information to flow freely from the healthcare provider, it provides that the information provided (including an apology if given), may not be admitted as evidence of fault or liability on the part of the healthcare provider and may not be used against an individual health practitioner (i.e. a complaint against an individual practitioner).

This is does not mean that legal proceedings cannot be brought arising from the underlying incident so it is important to take legal advice on your rights if you believe that you have been harmed as a result of clinical negligence.

What about other less serious incidents?

They continue to be covered by the voluntary open disclosure regime which has already been in place for a number of years. Nothing in the new Act affects the ability of patients or their families to bring litigation where this is appropriate.

What about cancer screening reviews?

One other key change being introduced by the Act is that if a patient receives cancer screening under the national programmes to detect breast, bowel or cervical cancer, he or she can request a review of this. This review must be carried out and the results must be disclosed to the patient. This is known as a “Part 5 Review” and similar requirements for disclosure apply to the healthcare provider. Again the patient and his or her family will not be allowed to use the information given in a Part 5 Review open disclosure in litigation but it would not prevent a person from bringing litigation where appropriate.

At Morgan Solicitors we have a proven track record in clinical and medical negligence cases so if you feel that you have been harmed as a result of healthcare treatment, diagnosis, surgery or prescribing, please contact us for advice.

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