Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Patient expectations vs reality the incident disclosure gap Consequences of failure to disclose adverse events Disciplinary consequences Civil liability Reform: a statutory duty to disclose? UK case study The US experience
Duty of candour
Honest, effective and open communication is the foundation of the relationship between clinicians and patients. Telling the truth is always the right thing to do. Concealing the truth is wrong.
Barron and Kuczewski (2003)
Australian Medical Council Good Medical Practice: A Code of Conduct for Doctors in Australia
3.10 Adverse Events When adverse events occur, you have a
responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately. When something goes wrong, good medical practice involves: 3.10.1 Recognising what has happened 3.10.2 Acting immediately to rectify the problem, if possible including seeking any necessary help and advice 3.10.3 Explaining to the patient as promptly and fully as possible what has happened and the anticipated short and long term consequences 3.10.4 Acknowledging any patient distress and providing appropriate support
Elements:
Expression of regret (cf. Apology) Factual explanation of what happened Explanation of potential consequences of incident Explanation of steps being taken to manage the event
Percentage of high and very high rating for honesty and ethical standards
100 90 80 70 60 50 40 30 20 10 0 Nurses Doctors Lawyers Used car salesman
1979
1995
2011
completely agree
LI Iezzoni, SR Rao, C M Des Roches, C Vogeli and E Campbell Survey shows that at least some physicians are not always open or honest with patients Health Affairs, 31, no.2 (2012): 383-391
To what extent are adverse events found in patient records reported by patients & healthcare professionals via complaints, claims & incident reports?
4000 3500 3000 2500 2000 1500 1000 500 0 Total patient Adverse events Reported records (3575) (498) adverse events (18: 3.6%)
I Christiaans-Dingelhoff et al, To what extent are adverse events found in patient records reported by patients and healthcare professionals via complaints, claims and incident reports? BMC Health Services Research 2011, 11:49
30
25 20 15 10 5 0 Proactive disclosure minor error Reactive disclosure minor error Proactive disclosure major error Reactive disclosure major error Disclose
Not disclose
Unsure
Ghalandarpoorattar, Kaviani and Asghari Medical error disclosure: the gap between error and practice Postgrad Med J 2012; 88: 130-122
Ethics manual, fourth edition: disclosure. Ann Int Med 1998; 7: 576-94
Failure to disclose, especially where patients are deliberately misled may be unprofessional conduct:
Skidmore v Dartford & Gravesham [2003] UKHL 27 Re Steven L Katz MD Medical Board of California 2005 Medical Board of Qld v Popov [2009] QHPT 11
large blood loss operation converted to open surgery short period of cardio-pulmonary resuscitation. 8 units of blood transfused during operation and 2 more units post operatively.
Eventually operation completed successfully, full recovery. Mrs A's husband sought explanation. Dr S blamed faulty instrument, suggested blood loss
normal (only 2 units) and that Mrs A had not arrested or required resuscitation. Held: professional misconduct - Dr S deliberately misled Mrs A & her family
for DB into SB Dr K knew of mistake 10mins after procedure but failed to tell either patient and did not record in medical records SB had son and DB had daughter Alleged deception and cover up for 1 years and attempt to terminate SBs pregnancy HELD: mistaken transfer not gross negligence but failure to advise of error and get informed consent to continued care was active concealment was gross negligence. Licence revoked and $91,000 fine
April 2007: agreed to undertake hysterectomy right ovary removed > surgical error May 2007: P incorrectly/inappropriately advised Mrs McQ that right ovary covered in cysts, diseased and required removal > not true Operation report: patient had abnormal looking ovary and erroneous removal of ovary discussed with pt. Health/future implications discussed ... Apology offered. Patient happy and grateful. Allegation: P knowingly and actively falsified medical records.
Finding: unsatisfactory professional conduct P failed to disclose a surgical error to a patient; actively misled patient in this regard and knowingly and actively falsified medical records; provided dishonest or misleading advice to superiors
Tort Negligence:
Aspect of duty to provide proper medical treatment and advice: Breen v Williams (1994) per Bryson J Aspect of reasonable aftercare and duty to follow up: Wighton v Arnot [2005] NSWSC 367
Dr Arnot may not have been held negligent if adverse event had
Therapeutic Privilege?
Dr Arnot said that he did not tell the plaintiff because of her emotional state and because it was only a possibility that he had severed this nerve, and that possibility he considered to be probably wrong because of his examination following surgery. I do not find the defendants explanation for not telling the plaintiff about the division of the nerve to be an acceptable explanation. Wighton v Arnot per Studdert J at [69]
patient confidence by introducing a duty of candour: a new contractual requirement on providers to be open and transparent in admitting mistakes. We agree. This will be enacted through contractual mechanisms... The Committee welcomes the Governments announcement that it will introduce a contractual duty of candour. The Committee does not think that placing further statutory duties on the NHS will produce the shift in culture that is required to ensure that patients get full disclosure of information when things go wrong. The emphasis on culture change ... may have more impact than further statutory change. However, the Committee believes that service agreements between NHS commissioners and their providers should include a contractual duty of candour to the commissioner. A duty of candour to patients from providers should also be part of the terms of authorisation from Monitor, and of licence by the Care Quality Commission.
amendment to the Health and Social Care Bill calling for statutory duty of candour
Peter Walsh, chief executive of AvMA: This is a bad day for anyone who values patient safety and patients rights. It cannot be right that the current situation is allowed to continue, where there is no statutory obligation on a healthcare organisation to be open with a patient or their family over incidents which have caused harm. Sir Liam Donaldson, former Chief Medical Officer for
England:
I have always personally agreed that there should be a statutory duty of candour. I have favoured it because I am of the view that professionals should be encouraged to take responsibility when they have done something wrong, rather than withhold instances of harm.
Apology protections
Disclosure laws
4
6 2 1 9 7 2
RECIPIENT OF COMMUNICATION
Recipient must be injured patient, family or representative VOLUNTARINESS Communication is mandatory Communication is discretionary
0
0 0 0 0
0
0 1
Mastrioanni et al The Flaws in State Apology and Disclosure Laws Dilute Their Intended Impact on Malpractice Suits Health Affairs , 29, no 9 (2010): 1611-1619
Form of communication
Mastrioanni et al The Flaws in State Apology and Disclosure Laws Dilute Their Intended Impact on Malpractice Suits Health Affairs , 29, no 9 (2010): 1611-1619
Conclusions
Ethics, policy and guidelines support open disclosure
of adverse events Patients expect open and honest communication following adverse events but this does not always happen Failure to disclose adverse events may give rise to disciplinary and civil liability consequences Proposals for law reform to ensure open disclosure include enacting a statutory duty to disclose Policy makers and health care providers need to have realistic expectations about what disclosure laws can accomplish