- The government has announced its intention to introduce a duty of candour law and accept the recommendations of an Expert Working Group to introduce a duty of candour law and related reforms.
- A statutory duty of candour is a recommendation of a review led by Dr Stephen Duckett into quality and safety across the Victorian health system.
- An Expert Working Group appointed following the review conducted a public consultation on statutory duty of candour.
- A statutory duty of candour is a legal obligation to ensure that consumers of healthcare and their families are apologised to, and communicated with, openly and honestly when things have gone wrong in their care.
- This section provides information on the report of the Expert Working Group and the government response, including related reforms aimed at fostering an open and honest culture in health services.
Targeting Zero, the review of hospital safety and quality assurance in Victoria, recommended that -
a statutory duty of candour be introduced that requires all hospitals to ensure that any person harmed while receiving care is informed of this fact and apologised to by an appropriately trained professional in a manner consistent with the national Open Disclosure Framework. (Recommendation 5.3)
An Expert Working Group appointed to provide advice on legislative reforms arising from Targeting Zero conducted a public consultation and released a report recommending the introduction of a duty of candour law and related reforms aimed at fostering an open and honest culture in health services. The Expert Working Group report and government response are now available.
What is a statutory duty of candour?
The government intends to create a new statutory duty of candour, which would require specified health service entities, in the course of open disclosure, to provide consumers impacted by a serious adverse healthcare incident with:
- the facts about what occurred
- an apology
- a description of the health service entity's response and the improvements being put in place following the incident.
The statutory duty of candour will not replace current obligations to practice open disclosure under the existing Australian Open Disclosure Framework. Rather, the duty will be a complementary legal obligation to support improved compliance within a defined set of circumstances.
As recommended by the Expert Working Group, the Victorian candour and open disclosure guidelines will be developed as a subordinate legislative instrument that will be referenced in the legislative provisions introducing the statutory duty of candour. Guidelines will set out the minimum requirements for compliance with the statutory duty of candour and open disclosure obligations, as well as guidance and information to support best practice.
The government intends to legislate protections for apologies provided by a health service entity in connection with the provision of a health service. In the health service context, an apology – being an expression of sympathy, regret or compassion, even if it may admit or imply an admission of fault –will not constitute an admission of fault or liability and will not be relevant to any determination of fault or liability any civil or disciplinary proceedings. Factual explanations of what has occurred, which will be required to be provided under the duty, will not be protected and can be used as evidence in any legal proceedings. We note that consumers also have access to information about what occurred during the course of their treatment in a number of other ways, and changes to apology protections will not restrict the use of this information in any medico-legal claim.
Protections for clinical incident reviews
In addition to establishing the statutory duty of candour, the government intends to introduce legislative reforms to establish protections for conduct of serious incident review processes by specified health service entities. Clinical incident review processes are valuable quality and safety improvement processes conducted in relation to serious incidents.
These reforms would support and encourage an organisational and system-wide culture where errors and harm are effectively identified, discussed and reviewed and consumers are kept informed. In turn, such a culture would improve consumer experience and allow for timely risk identification and mitigation, to optimise the ongoing safe delivery of quality healthcare in Victorian hospitals.
How to have your say
While the report provides a valuable framework for the reforms, further work is required to ensure we get the balance right in their design. The government considers it prudent to rigorously test the proposed reforms with the public and relevant stakeholders in the course of finalising the detail. We will consult and engage further with sector and consumer stakeholders regarding issues and concerns related to the legislative reforms. This will help to ensure that the detailed design of the reforms reflects and achieves the government’s policy intention.
Consultation will occur in two stages:
- to inform the development of Victorian candour and open disclosure guidelines and proposed protections for clinical incident reviews (in 2020 and early 2021)
- to provide feedback on the exposure draft of legislation and the associated guidelines (anticipated to occur in 2021).
Reviewed 25 October 2017