Advice to health care professionals about saying sorry when things go wrong.

Dan Beale-Cocks
Jan 28, 2018 · 7 min read

Recently I’ve heard many doctors tell me “We can’t say sorry when things go wrong. We’re not allowed to by our professional body / regulator / medical-legal body / trust / etc”. There’s a mistaken assumption that apologising is accepting liability. It isn’t. Here’s a short, incomplete, list of sources that all say pretty much the same thing.

Here’s what the Compensation Act 2006 (England and Wales only) says

Apologies, offers of treatment or other redress

An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.

Here’s what the GMC says

When things go wrong — The professional duty of candour

The guidance says that doctors, nurses and midwives should:

speak to a patient, or those close to them, as soon as possible after they realise something has gone wrong with their care

apologise to the patient, explaining what happened, what can be done if they have suffered harm and what will be done to prevent someone else being harmed in the future

Saying sorry

13. Patients expect to be told three things as part of an apology:

a. what happened

b. what can be done to deal with any harm caused

c. what will be done to prevent someone else being harmed.12

14. Apologising to a patient does not mean that you are admitting legal liability13 for what has happened. This is set out in legislation in parts of the UK14 and the NHS Litigation Authority also advises that saying sorry is the right thing to do.12 In addition, a fitness to practise panel may view an apology as evidence of insight.15, 16, 17

Here’s what the GMC/MPTS says in the sanctions guidance

36

A doctor’s apology of itself does not necessarily mean that they are accepting legal liability for what has happened or a breach of statutory duty, which may be admissible as evidence of liability in other legal proceedings. Whether or not it will be treated in this way will be determined by the relevant UK law applying to any other proceedings. In England and Wales, section 2 of the Compensation Act 2006* provides that an apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.

There is not currently any equivalent legislation in Scotland or Northern Ireland

– tribunals should be mindful of this where the concerns raised have occurred in these countries. For the purposes of fitness to practise proceedings, an apology of itself will not be treated as an admission of guilt (whether as to facts or impairment).

Here’s what NHSLA / NHS Resolution say

Saying Sorry

Saying sorry is:

always the right thing to do

not an admission of liability

acknowledges that something could have gone better

the first step to learning from what happened and preventing it recurring

Perhaps most importantly for doctors going through this, here’s what MPS says

Survey shows the value of saying “sorry” in healthcare

Medical Protection says it has long advised its members that an appropriate apology is not an admission of liability, and that empathising with a patient when something has gone wrong can help avoid a complaint occurring or escalating. However, a challenging claims environment means doctors are in fear of litigation or being reported to the GMC and the misconception that apologising puts a doctor at greater risk of a complaint or claim has been difficult to quash

By offering an apology will I be admitting liability?

MPS has always advised and encouraged adopting a transparent approach in circumstances when there has been an adverse incident, and to provide an appropriate apology. This should not be seen as an admission of guilt. An apology cannot be used as an admission of liability should a claim then be pursued, as set out in s2 of the Compensation Act 2006, which states:

“An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.”

Further, the GMC’s guidance also encourages apologising to patients after things have gone wrong.

Medical Protection reminds members of its position on apologies

Dr Rob Hendry, Medical Director at Medical Protection, advises members of the importance of open communication and apologising if something has gone wrong, regardless of fault.

“Unfortunately things do go wrong in healthcare and sometimes patients are dissatisfied, disappointed or upset with the care that they have received. Medical Protection has long advised members that an apology is not an admission of liability; rather, it is an acknowledgment that something has gone wrong and a way of expressing empathy. Our latest advice sheet on apologies reaffirms this.”

Dr Hendry added that contrary to popular belief, apologies tend to prevent formal complaints rather than the reverse.

“It is important that a meaningful apology should be offered as soon as it becomes apparent that an adverse incident has occurred or the patient is unhappy with their care. It may be some time before all the facts, and perhaps the reasons why and how the events occurred, are understood. Until these are established, speculation should be avoided as this is unhelpful to all involved. However, this consideration should not hinder a prompt apology being forthcoming.

“In addition, Medical Protection always advocates a full and objective review of the event, with the patient being informed as to any lessons that can be learnt moving forward. A commitment should be made to understand and learn from what has happened to reduce the likelihood of it happening to someone else.”

Here’s what NHS Confederation has to say

There is a ‘golden thread’ to handling complaints well — apologising, explaining what happened, and describing why it won’t happen again. Healthcare is personal, and hearing “sorry” from someone who means it can be a major part of finding a successful resolution for patients and their families.

Of course, this applies to all health care professionals, not just doctors. Here’s what the HCPC says in SCPE

8 Be open when things go wrong

Openness with service users and carers
8.1 You must be open and honest when something has gone wrong with the care, treatment or other services that you provide by:
– informing service users or, where appropriate, their carers, that some thing has gone wrong;
– apologising;
– taking action to put matters right if possible; and
– making sure that service users or, where appropriate, their carers, receive a full and prompt explanation of what has happened and any likely effects.

and also

Apologising

M aking it clear that you are sorry about what has happened. The HCPC does not regard an apology, of itself, as an admission of liability or wrongdoing.

Here’s what the NMC says.

Every healthcare professional must be open and honest with patients when something that goes wrong with their treatment or care causes, or has the potential to cause, harm or distress. This means that healthcare professionals must:

tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong

apologise to the patient (or, where appropriate, the patient’s advocate, carer or family)

and

Saying sorry

13 Patients expect to be told three things as part of an apology:

a what happened

b what can be done to deal with any harm
caused

c what will be done to prevent someone else
being harmed.

14 Apologising to a patient does not mean that you are admitting legal liability†for what has
happened. This is set out in legislation in parts of the UK and the NHS Litigation Authority also advises that saying sorry is the right thing to do. In addition, a fitness to practise panel may view an apology as evidence of insight.

† ‘Legal liability’ here refers to a clinical negligence claim. The NHS Litigation Authority ‘will never withhold cover for a claim because an apology or explanation has been given’

Here’s what CQC say.

•Tell the relevant person, in person, as soon as reasonably practicable after becoming aware that a notifiable safety incident has occurred, and provide support to them in relation to the incident, including when giving the notification.

•Provide an account of the incident which, to the best of the provider’s knowledge, is true of all the facts the body knows about the incident as at the date of the notification.

•Advise the relevant person what further enquiries the provider believes are appropriate.

•Offer an apology.

•Follow up the apology by giving the same information in writing, and providing an update on the enquiries.

•Keep a written record of all communication with the relevant person

Finally, here’s the Mid Staffordshire NHS Foundation Trust Public Inquiry

2 .16 4

The Inquiry looked in considerable detail at the case of the late John Moore-Robinson, which had already received attention at the first inquiry. It is worthy of reconsideration because more detailed evidence became available, and concerns were raised by Ms Kate Levy and Mr Stuart Knowles, who were involved as in-house solicitors for the Trust, that the first inquiry had dealt unfairly with the matter to their detriment. Having looked again at the case in the light of all the evidence now available, it is concluded that the way in which the Trust handled the matter can be viewed as an object lesson in how the tragedy of an avoidable death can be exacerbated by inappropriate handling of the case. It demonstrates the sad fact that, for all the fine words printed and spoken about candour, and willingness to remedy wrongs, there lurks within the system an institutional instinct which, under pressure, will prefer concealment, formulaic responses and avoidance of public criticism. Both Ms Levy and Mr Knowles regarded themselves as doing no more than their professional duty to act in the Trust’s best interests. This claim has been examined below.

(I’m not going to quote all of it, but you should go read it. It’s in the first pdf.)

Dan Beale-Cocks

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