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Open disclosure: responding when things go wrong

A patient’s decision to take legal action or complain against a health practitioner may be prompted by perceived insensitive handling, poor communication or delay after an adverse clinical incident.

Monday, 8 April 2024

Quick guide

  • When something goes wrong and causes harm to a patient, follow your facility’s open disclosure process: this can reduce the risk of a later complaint or claim. 
  • You can and should say sorry - apologies are protected at law so can’t be used against you.
  • Preparation and planning are key to an effective process.


What is open disclosure?

Open disclosure is defined in the Australian Open Disclosure Framework as “the open discussion of adverse events that result in harm to a patient while receiving health care with the patient, their family and carers”.  

The elements of open disclosure are:

  • an apology or expression of regret, which should include the words ‘I am sorry’ or ‘we are sorry’
  • a factual explanation of what happened 
  • an opportunity for the patient, their family and carers to relate their experience
  • a discussion of the potential consequences of the adverse event
  • an explanation of the steps being taken to manage the adverse event and prevent recurrence.

The Australian Open Disclosure Framework has been developed for communicating with patients, and their families or other supporters, who have experienced harm during healthcare. It may also be appropriate to follow an open disclosure process for a near miss event.

Why provide open disclosure?

The most common reason patients and families give for complaining after an incident is to better understand what occurred. They may also need to understand the likely consequences for them, and what ongoing support they may need.

Patients are often comforted if they know that the clinical team has learned from the incident and processes have been changed to reduce the chance of the same thing happening to others in the future.  

Explaining to a patient and their families what happened and the steps taken to prevent a recurrence can reduce the risk of a patient or family member making a complaint about the care they received.

The Medical Board of Australia’s code of conduct outlines what is expected of doctors when adverse events occur.  The code states that doctors have a responsibility to communicate openly and honestly with patients when adverse events occur, including explaining to the patient as promptly and fully as possible in accordance with open disclosure policies, what has happened and the anticipated short-term and long-term consequences. Saying sorry when something goes wrong in healthcare is good professional practice.

Open disclosure is required in health service organisations accredited to the National Safety and Quality Health Service Standards (including public and private hospitals, day surgery units and dental clinics) and general practices accredited under the RACGP Standards 5th edition

In Victoria, health care organisations have a statutory duty of candour to apologise to anyone seriously harmed while receiving care and to conduct a review of the incident that led to the harm.

What is the process?

An open disclosure discussion may take place in one conversation or over one or more meetings. Key elements of the process are:

  • acknowledging that an adverse event has occurred
  • apologising or expressing regret for what has occurred (including the words “I am/we are sorry”)
  • outlining what facts are known about what has happened
  • discussing the potential consequences for the patient (including possible side effects, increased hospital stay and expected cost) and how you plan to manage these
  • actively listening to the patient’s, or those that are close to them, clinical and personal experiences of the event
  • providing information on what further steps are planned to determine what went wrong and how similar events may be prevented in the future.

Response processes

The Australian Open Disclosure Framework (Framework) recommends response levels for a range of incidents. The level of response required will be determined by the effect, severity or consequence of the incident. Responses should be appropriate and proportionate to the type of incident.

Lower-level response 

For a minor incident or near miss, it may be appropriate to acknowledge the event and apologise to the patient and family. The discussion needs to be documented, and this may conclude the process. 

Higher-level response 

Major events generally require a higher-level response, which requires a more structured approach including an investigation and reporting. This is usually done by a governance unit or senior staff. If you are requested to you should participate in this process.

Patient care

As soon as an adverse event is identified, the priority is to ensure the patient receives any necessary care and support. A multidisciplinary or practice meeting may be needed to discuss the patient’s ongoing management.

How can I prepare before something goes wrong?

Learn about open disclosure 

Educate yourself about the process.  Be familiar with the Framework. Open disclosure training should be available to you through your healthcare organisation or employer.

Organisations will have their own policies and procedures implementing the Framework.  Ensure you are familiar with and follow your organisation’s policies and procedures on open disclosure.

Seek support from colleagues if you do not feel confident undertaking an open disclosure process at the time it is needed.

Establish a strong doctor-patient relationship from the start

The strength of the relationship and rapport you build with the patient before any incident will contribute to a successful open disclosure process. Taking the time to communicate with patients and their supporters, having sound consent discussions, and actively listening to concerns will place you in a stronger position to respond to adverse events if they arise.

The Framework sets out the open disclosure process in detail.  You should consult the open disclosure process at the relevant facility. Below is a summary of some of the key steps taken from the Framework.

How can I plan for an open disclosure discussion?

Establish and prepare the team

  • Plan who will be present from the clinical team and where the discussion will take place.  
  • Identify one person to take the lead in the discussion. 
  • Have an extra support person in the room to provide backup and to document the discussion.
  • Ensure the team are all aware of the known facts and the agreed approach to the discussion. 

Gather the necessary information

As best you can, establish the facts of what happened and ensure you have a good understanding of the issues that led to the adverse event.  Sometimes not all the facts will be known until some time after the incident. 

Sometimes when reviewing the medical records you may find that relevant information is missing. Depending on the circumstances, it may be appropriate to make an addendum in the clinical records, ensuring any additional entry has the date and time the information was added, making it clear it is not a contemporaneous entry.  It may otherwise be appropriate to include other information in an incident report or other relevant document.  You should not alter the medical record.

Forewarn the patient

Have an initial discussion with the patient as soon as possible after the adverse event, even if all the facts are not yet known.  It may be appropriate to give the patient some information and let them know there will be further discussion at a meeting. This also allows the patient to prepare and arrange to have supporters attend the meeting if they wish.

During the discussion

Introduce attendees, outline facts and listen 

Begin the discussion by introducing everyone in the room by name and by reference to their roles.  Don’t assume the patient or their supporters will know everyone.  

Clearly outline the facts of the incident. This may need to be in small pieces giving the patient time to absorb the information and ask questions.  Listen to the patient and their supporters and give them the opportunity to respond.

Apologise

An apology is an essential part of the process. This is the case irrespective of whether the incident was preventable, a known possibility, or completely unexpected. The apology is not about blame or liability: it is  about expressing empathy with the patient for the events that occurred. You are apologising for what happened, not for any personal error or failing.

The apology should use the words “I am sorry…”. A phrase such as “I am sorry xxx happened to you, it is not the outcome we wanted” is often appropriate.

Provide the apology sincerely and be clear what you are apologising for. Be careful not to speculate or apportion blame to yourself or others in the clinical team.

For more guidance on apologising after an adverse event please see Avant’s video: Open disclosure how to say sorry 

All jurisdictions in Australia have ‘apology’ laws, which protect statements of apology or regret made after healthcare incidents from being used later in court. One aim of this legislation is to encourage doctors to feel able to express regret to patients.

After the discussion

Document the discussion

Make clear notes of the discussion.  Ensure documentation is maintained for the open disclosure process from beginning to end.  Documentation includes patient records, incident reports and records of any review of the adverse incident.  

Follow up with the patient

A patient’s decision to take legal action or complain may result from them feeling abandoned after an adverse event, or feeling that communication with them has been poor, insensitive, or delayed. This can often be the patient’s focus driving how they act after an event, rather than any injury itself.

It is therefore important to stay in touch with the patient, and give them details of someone they can contact if they have any further questions. Be clear about timelines of any future contact, and check in with them at regular intervals if they have a prolonged recovery.

Also consider limiting any administrative costs or out of pocket expenses the patient may incur where possible. In particular ensure that demands are not sent for outstanding fees while the process is being resolved.

Notify your insurer

If you are involved in an adverse event, you should notify your hospital or indemnity insurer in accordance with their incident notification requirements. 

Where can I get more support?

Being involved in an adverse event or near miss can be a stressful experience, including the open disclosure process and apologising to the patient.

Seeking support from your colleagues and your family is important. You can also contact Avant 1800 128 268 for further support or check here Key support services - Avant by doctors for doctors

Additional resources

This factsheet is a summary of some of the key components of open disclosure.  For detailed guidance on the open disclosure process, see The Australian Commission on Safety and Quality in Healthcare – Open disclosure resources for clinicians and healthcare providers 

Avant article: Legal duty of candour to be introduced in Victoria - Avant by doctors for doctors

For detailed guidance regarding the statutory duty of candour in Victoria see Statutory Duty of Candour and protections for SAPSE reviews | Safer Care Victoria

RACGP standards 5th edition  criterion Q13.2 RACGP - Criterion QI3.2 – Open disclosure

More information

For medico-legal advice, please contact us on nca@avant.org.au or call 1800 128 268, 24/7 in emergencies.

Disclaimers


IMPORTANT:
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.

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