• Malcolm Parker.
• University of Queensland. m.parker@uq.edu.au
• J Law Med. 2012 Sep 1; 20 (1): 35-43.

AbstractSupporting patients and families in circumstances where medical error has caused significant harm is said to be governed by the principles of ordinary treatment: honest, open communication, empathy and respect. By and large, harmed patients look for acknowledgment of the events that occurred including errors, acceptance of responsibility, a sincere apology, and assurance that lessons learned will be put to preventive use. Australia's National Open Disclosure Standard purports to respond to these reasonable expectations, yet it advises health care professionals that while they may express regret for what has occurred, they should take care not to state or agree that they, or other health care professionals, or health care organisations, are liable for the harm caused to the patient. The National Open Disclosure Standard is currently being reviewed, and the Consultation Draft of the Australian Open Disclosure Framework appears to move things closer to its stated finding that ethical practice prioritises organisational and individual learning from error, rather than an organisational risk-management approach. However, it remains the case that the sense of apology in the Consultation Draft is one of stating regret, not of accepting responsibility This dissonance in the Draft Framework wording may represent a continuing disingenuousness on the part of health professionals and their institutions regarding the kind of apologies that patients look for. Following Berlinger, the current author argues that expressions of regret are not apologies, since an apology presupposes the fault that health professionals are advised they avoid admitting. But honest, open communication surely implies both materially relevant disclosure, which would include acknowledgment of fault where that is known, and a genuine apology, as part of the continuing doctor-patient relationship. To the extent that open disclosure policies and practices fudge complete disclosure, admission of fault and genuine apology, they remain deficient instruments in the respect and beneficence owed patients harmed by health care. Advice to health care professionals to not admit fault, and implicitly to not apologise genuinely, are motivated by legal liability considerations. There is strong evidence that comprehensive communication, including genuine apology and consistent with the medical ethical principle of veracity, is associated with reduced levels of litigation. State health department Open Disclosure policies and State and Territory civil liability legislation should be reviewed to remove obfuscatory and dissembling language and increase consistency between jurisdictions and between policies and statutes. The National Open Disclosure Standard should be revised to encourage and support full disclosure and genuine apology. If these processes fail, statutory reform should be considered.

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