Legal duty of candour to be introduced in Victoria
Georgie Haysom BSc, LLB (Hons) LLM (Bioethics), GAICD, Head of Research, Education and Advocacy, Avant
Monday, 7 November 2022
The introduction of duty of candour laws in Victoria on 30 November 2022, means public and private hospitals and other health entities will be required to apologise to anyone seriously harmed while receiving care and to conduct a review of the incident that led to the harm. Georgie Haysom explains what this will mean for doctors, in Victoria and elsewhere, and how it fits with existing open disclosure obligations.
Why is the statutory duty of candour being introduced?
A statutory duty of candour was first raised in 2016 as part of the Targeting zero review of hospital safety and quality assurance in Victoria.
The review suggested that open disclosure was not always occurring when it should in Victorian healthcare organisations, and patients and families were not always getting the information they needed.
Several reasons were put forward for this. Some health service organisations (or their management and boards) seemed to be unclear about open disclosure requirements. Organisational cultures did not encourage sharing or reporting of adverse events. Fear of litigation continued to be a barrier to disclosure.
The review and subsequent consultation process recognised that doctors and other healthcare professionals already had professional obligations to disclose errors and adverse events under the Australian Open Disclosure Framework, and for doctors, under the Medical Board’s Good Medical Practice: a code of conduct for doctors in Australia. Any legal changes needed to complement these obligations and encourage open disclosure.
Who does the statutory duty apply to?
The legal duty of candour, to be introduced from November 2022, will apply to Victorian ‘health service entities’. These include public and private hospitals, as well as public health services, day procedure centres, ambulance services and patient transport services.
The organisation is responsible for complying with the duty of candour. It is a board-level responsibility, aimed at driving cultural change in organisations that are not doing open disclosure well.
The statutory obligation does not apply to individual health practitioners. This aligns with Avant’s recommendation to the Victorian Health Department in 2017, where we argued that applying the duty to individual practitioners would reinforce a blame culture and not lead to the required cultural change.
How will the statutory duty work?
Health service entities will be responsible for ensuring disclosure occurs in cases of serious harm. The duty of candour requires:
- apology to anyone seriously harmed while receiving care, or to their family where the patient lacks capacity or has died
- an explanation, in writing, about what happened
- a description of what action will be taken, and improvements put in place.
In practice, this means that health service staff will be required to have conversations with patients. The statutory duty will be supported by Duty of Candour Guidelines that will set out the steps a health service entity must take to discharge the duty.
The Minister for Health may publish a statement setting out the name of a health service if it has failed to comply with the duty of candour on two or more occasions and the failure is of a serious nature.
Avant was represented on Safer Care Victoria’s Advisory Group that assisted with the development of materials concerning the implementation of the legislation.
What are the implications for doctors in Victoria?
Stronger apology laws
Many practitioners are concerned about their legal liability if they apologise to a patient. Many are unaware of the existence of apology laws and that apology laws around Australia are inconsistent.
The new duty of candour laws will strengthen existing Victorian apology laws. The legislation confirms that an apology is not an admission of liability and an apology cannot be used in civil or disciplinary proceedings to determine fault. Doctors should feel comfortable making an apology in these circumstances.
Protection for serious incident reviews
Another key change in this legislation is that reviews of serious adverse patient safety events (“SAPSE”) will be protected so that they cannot be used in legal or regulatory proceedings or provided to any other body (although they can be provided to the coroner).
The aim of a SAPSE review is to establish the facts of a SAPSE, identify the systems factors that contributed to it and identify remedial measures that may be taken to prevent similar events from occurring again. This brings Victoria in line with Queensland, South Australia and New South Wales where reviews and investigations into serious adverse incidents, such as root causes analysis, are protected from use in legal proceedings.
Under the Victorian legislation anyone who provides information to a SAPSE review for the purposes of the review is also protected from personal liability. A report of a review must not contain the name or address of the patient or a person involved in providing the health service to the patient. A person cannot be compelled to give evidence about any information they provided for a SAPSE review, or whether they gave any such information.
This should reassure doctors that they are not exposing themselves to liability when participating in a SAPSE review.
Requirements for doctors
There are no changes to the existing open disclosure framework or responsibilities for doctors working outside the hospital system. The new requirements will only affect GPs, for example, who are working in clinics or community health centres that operate as part of a Victorian hospital.
The statutory duty applies to serious adverse patient safety events, with the definition to be prescribed in regulations. Other adverse events will still need to be managed by the existing Australian Open Disclosure Framework, administered by the Australian Commission on Safety and Quality in Health Care.
What does this mean for other states and territories?
At this stage the statutory duty of candour only applies in Victoria. In other states and territories, hospitals and other healthcare entities are required to comply with the Australian Open Disclosure Framework under the National Safety and Quality Health Service standards.
Whether other states and territories will also adopt duty of candour laws is unknown at this stage.
A key consideration for Avant will be how the legal duty works in Victoria to complement the open disclosure framework and prevent adverse consequences for practitioners while supporting patients.
The importance of saying sorry
Avant continues to support open disclosure of adverse events in accordance with the Australian Open Disclosure Framework.
Saying sorry if something goes wrong in healthcare is good professional practice. In our experience, apologising can help doctors as well as patients after an adverse event. This is true even if the harm was not preventable or was a known complication.
It is always important to seek support if you have been involved in an adverse event and open disclosure process. Support might come from colleagues, or family or one of the many support organisations for health practitioners.
References and further reading
For detailed guidance on the open disclosure process, see The Australian Commission on Safety and Quality in Health Care – Open disclosure resources for clinicians and healthcare providers.
A version of this article was first printed in Australian Doctor magazine and has been republished with permission.
This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.