Legal aspects of open disclosure II: attitudes of health professionals — findings from a national survey

Interest in the practice of open disclosure (OD) — candid communication between health professionals and patients following adverse events in health care — has exploded internationally in the past decade.1-5 Australia has emerged as an international leader in this area. A national Open Disclosure Standard (“the Standard”), designed to facilitate open communication about adverse events, was endorsed by the health ministers in 2003.6

A recent evaluation of the Standard’s implementation in 21 pilot sites demonstrated a reasonable degree of enthusiasm for OD among both patients and clinicians.7 However, legal concerns were apparent. A number of health professionals voiced uncertainty about the implications of OD for medicolegal risk and liability insurance coverage.7 In addition, the Standard’s rollout was initially stalled by concerns from state government insurers about the fiscal and litigation consequences of offering expressions of regret to patients who had been harmed. Survey research in the United States has identified fear of increased liability as one of the main reasons doctors are reluctant to embrace OD,4,8,9 but no previous research has addressed this question in Australia.

We surveyed a sample of health professionals at the forefront of OD practice in Australia. Our main objective was to gauge the perceived importance of medicolegal fears as a barrier to OD. Because some existing state laws — chiefly, apology and qualified privilege laws — may protect information conveyed in OD from subsequent use in legal proceedings, the survey also elicited views on the extent to which such laws supported OD practice.

Our findings resonate with those from previous US studies that have highlighted concerns about OD’s medicolegal repercussions as a major obstacle to its uptake.1,4,8 For example, in Lamb and colleagues’ 2002 survey of hospital-based risk managers, fear of malpractice exposure was the most frequently cited barrier to OD, with 77% of participants identifying it.8 Our study found similarly high levels of concern. The other prominent barrier we identified was a lack of education and training in how to conduct OD (an option not presented to respondents in the survey by Lamb and colleagues). Policymakers have recognised the need to provide clinicians with appropriate training in OD,12,13 and educational programs are now being developed and rolled out in several states.12,14,15

In theory, health professionals’ fears about the legal consequences of OD could be mitigated by laws that prohibit use of the information for inculpatory purposes. To the extent that such protections exist in Australia, apology laws and qualified privilege laws are the main sources.11 In practice, however, several factors may undercut the ability of such laws to promote OD. First, the laws may have limited applicability in the OD context. Second, whatever protections they provide may be too weak to assuage medicolegal concerns. Third, health professionals may not understand or be aware of legal protections. Responses to our survey suggest that all three factors are at work.

Ignorance about protective laws was evident in responses to questions about apology laws. Among the third of participants who said that apology laws were not an effective way of encouraging OD, the leading reason given was “lack of awareness” of these protections. Even more compelling was the finding that participants themselves, despite being leaders of OD in Australia, displayed uncertainty and confusion about the existence of apology laws in their own jurisdictions. Every state and territory has an apology law that should cover expressions of regret made in OD communications.11 Knowledge of this was excellent among participants from NSW and the ACT, fair among participants from Victoria and Queenslands, and poor among participants from the other states and territories.

Many participants were sceptical about the relevance and applicability of qualified privilege laws to OD. A majority (30/51) said that such laws do not encourage OD, and the leading reason given for this lack of effect was that the laws had little or no applicability to OD conversations. The analysis of OD-related laws in the previous issue of the Journal11 suggests this view is correct; the broad conclusion of that analysis was that existing legal protections of information conveyed in OD are quite weak. That conclusion matches the perspective of many survey participants, nearly half of whom recommended law reforms designed to strengthen existing protections, particularly qualified privilege.

Another popular suggestion for law reform was education of health professionals about prevailing protections (although, strictly speaking, this is probably not a law reform measure). The benefits of that strategy in the absence of changes to the underlying laws are highly questionable: according to the legal analysis,11 an accurate picture of protections under existing laws will be cold comfort. Eight participants said that radical reform of the current negligence system was needed; their concern was that an environment conducive to OD is unattainable against the backdrop of the current adversarial system. This argument joins others for “no blame” systems of compensation for medical injury.16,17 Finally, six participants lamented the influence of other legal actors, particularly coroners, whose approach to death investigations was perceived as working at cross-purposes to the culture of OD.

Our study has several limitations. First, the sample size was small, a constraint that stemmed from our focus on experts in an area in which there are relatively few. Second, we did not probe the veracity of participants’ concerns, nor did we study the reasonableness of their medicolegal fears. New evidence from a US university health system suggests that an aggressive program of OD does not necessarily worsen a health care institution’s liability experience, and may even reduce the incidence and cost of negligence claims.18 Third, our non-random recruitment method may have led to a degree of “clustering” in responses, particularly among participants who knew each other. Fourth, clinicians may be quick to cite medicolegal issues as a barrier to OD when what actually chills their interest is a complicated mix of factors, including reputational concerns and fundamental human instincts to avoid conflict.19,20 Fifth, the poor understanding some participants had about prevailing laws in their own jurisdiction casts doubt on how informed their responses were to more general questions about the effect of these types of laws on OD practice. Sixth, the survey focused on measuring attitudes to medicolegal factors, not the degree to which those attitudes actually inhibit conduct of OD. Despite their concerns, many health professionals may still forge ahead with OD out of a firm belief that it should be done.

There is broad consensus today that OD following adverse events in care is the right thing to do.1,21 Clinicians who have not yet embraced the practice are likely to face mounting external pressures to do so. Certain relatively intractable difficulties with expanding OD loom large — for example, clinicians’ concerns about their reputation, natural human instincts to avoid “hard” conversations and admissions of failure, and deeply entrenched aspects of medical culture.1,9,13,21 Ironically, the main findings of our study — that medicolegal fears and lack of appropriate OD training are at the top of the list of perceived barriers to OD in Australia — should give OD proponents cause for optimism, as both obstacles should be at least partly fixable. Legal regimes can be reformed to reassure health professionals who are open with patients about adverse events that their forthrightness will not be turned against them. With such reforms in place, educational efforts could then emphasise both the skills needed to conduct OD effectively and the strength of prevailing legal protections.

4 Participants’ responses regarding whether their jurisdiction has a law that protects apologies made in open disclosure