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What exactly is Open Disclosure and what does it mean for a patient?


Posted in [Blog Medical Negligence ] on Friday, May 17th, 2019

Open disclosure has been mentioned frequently in the media in recent times and especially following the Cervical Check Scandal last year.

In reality, open disclosure should be nothing new.  It is simply the concept that if someone makes a mistake or something unplanned happens then that person will tell those affected.  It is being honest and “opening up”.  If a child breaks a toy, we teach them to open up, say sorry and let us try to repair it, rather than hiding it in the corner where another child could find it and hurt themselves.  If a shopkeeper charges you the wrong amount, they should say sorry and rectify it.  If a hairdresser makes a mistake with your hair, they should say sorry.  Similarly, for a plumber, a solicitor, a teacher etc and every other profession you can think of.  Indeed, that is what should happen for any person outside a work scenario.  If something can’t be fixed, an apology goes a long way to allowing people accept that it wasn’t intentional and we all make mistakes.
What happens with doctors and the medical profession?  Well seemingly, there is a different rule for them.  For years, the medical profession acted on the basis that they knew best and if something went wrong, the person affected didn’t have a right to know.  Bizarre, I agree.

We are told that doctors didn’t routinely tell patients when something went wrong as they thought it would do more harm than good to the patient.  Yet patients say time and again that being kept in the dark does even more harm.  It’s their body and their health.  Sometimes the patient can take steps to rectify or improve the situation if they know.  Or it can allow them to stop wondering and perhaps blaming themselves (especially in the case of birth injury).  Knowledge is power as they say.

If you were told that your smear test had been misread and that your doctors knew that if it had been correctly read, you may have had treatment and not developed cancer, you would want to know. If you were told by your doctors that they knew your radiology scan had been misread and in fact you had an early stage of cancer years ago, you would most likely want to know.  It’s your body and your health.

The medical profession tells us that they were afraid of opening up as people might use it against them to sue or complain to the Medical Council.  That is of course a possibility.  But why should the fear of being rightly held accountable be a charter to withhold information that the patient is entitled to know?  Why should the desire of the doctor to cover his error trump the patient right to know?  Further, research tells us that if doctors are open about an error that happened and apologise to the patient and their families, that they are less likely to sue.   Secondly if for example someone is left unable to work because of an error by the hospital then is it not appropriate that they receive an award from that hospital or doctor’s insurer to cover the cost of what they have lost.  That person would still have to prove their case and succeeding in a case of medical negligence is a difficult task.  Finally, if the same mistakes are happening routinely but not reported, how can we learn from them and stop them happening again if we sweep them under the carpet.

The Medical Council Guidelines clearly state that patients and their families are entitled to an honest, open and prompt communication about adverse events which may have caused harm.  All Irish doctors must adhere to these guidelines.   However, the Cervical Check Scandal is a recent example of how these guidelines are not adhered to.
Evidently the culture in the Medical Professional wasn’t going to change by itself. Unfortunately, without legislation and penalties for non-compliance, open disclosure doesn’t seem to happen.

Following the cervical check scandal, the politicians were forced to act.  Legislation came in to force in September 2018 which sets out the law as it stands in Ireland.  It provides for voluntary, protected open disclosure. This means that a doctor can “open up” and tell the patient what happened, if they want, i.e. on a voluntary basis.  Furthermore, if they do choose to disclose an error to a patient, it is protected i.e. it cannot be used in any subsequent civil litigation.  Patients and their solicitors find that strange.  A person would still need to prove their case, but if somebody admits to an error why cannot they be asked about that admission at a later stage?

New legislation is promised.  If and when it is enacted, the Patient Safety Bill 2018 will provide for mandatory disclosure of serious patient safety incidents.  This will finally obligate health providers by law to disclose to a victim or family the details of an error and why it occurred.  Penalties for non-compliance are included in the Bill.  However, this disclosure would still be protected and it would apply to serious incidents only.

The reality is that, in Ireland, today, health practitioners are not obliged by law to tell their patients the truth when mistakes are made.   Regardless of what the medical profession does, I hope we still continue to teach our children to tell the truth.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.

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Ernest J. Cantillon

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