Sentinel Events Legal Issues and Open Disclosure

1

• Sentinel Events Legal Issues and Open
  Disclosure
• Dr Heather Wellington
• 28 June, 2004

2
Introduction

• Inevitable tensions between open disclosure and
  the tort of negligence
• Myriad potential sequelae of adverse events
• Coroner
• Medical Practitioners Board
• Health Services Commissioner
• Governmental inquiries
• Allegations of criminality
• Allegations of negligence

3
Overview

• Legal concept of negligence
• ACSQHCs objectives in establishing an open
  disclosure standard
• The role of qualified privilege
• Where to from here?

4
Tort of negligence

• Most adverse events do not reflect negligence
• Essential elements
• Duty of care
• Breach of duty of care
• Damages caused by the breach
• Reasonable foreseeability
• The standard of care is that of the ordinary
  skilled person exercising and professing to have
  that special skill

5
Tort of negligence

• There are no degrees of negligence
• The court will not inquire whether a health care
  professional did or did not do their best
• The law is replete with cases where health care
  professionals have been found to be negligent
  despite acknowledged general care, skill and bona
  fides

6
Open disclosure standard

• Initiated because of consumer complaints about
  the system closing ranks
• Aims to promote a clear and consistent approach
  to open communication
• Encourages acknowledgement and expression of
  regret
• Expression of regret does not constitute
  admission of liability

7
Open disclosure standard

• Sound ethical basis
• Complex legal environment
• Fear of litigation
• Fear of damage to reputation etc.
• Health care professional rights to natural
  justice, confidential legal advice, not to be
  defamed
• Facts may not be clear, or may be interpreted
  differently
• Overseas experience suggests positive effect on
  negligence actions, but no experience in our
  legal system

8
Qualified privilege

• All states, the ACT and the Commonwealth have
  relevant legislation designed to encourage
  participation in health care safety and quality
  by providing for
• The confidentiality of some documents and
  proceedings
• The protection of those documents and proceedings
  from use in legal actions
• The protection from liability of committee
  members who act in good faith
• Some are considering its role in RCA of sentinel/
  adverse events

9
Qualified privilege

• Does not protect source documents
• Only protects individaully-identifying
  information
• Seeks to achieve a balance of public interests
• Facilitates withholding of relevant information
  and requires cogent justification
• Seriously hinders open disclosure

10
Qualified privilege

• Public interest may not be served by protecting
  information
• Known adverse events can be, and frequently are,
  investigated without the protection of qualified
  privilege
• Terms of reference of declared committees could
  require them to consider the balance of public
  interests before undertaking such an
  investigation
• Must carefully consider any countervailing public
  interest

11
Qualified Privilege

• The degree to which the information may
  contribute to improved health care or reduced
  risk
• The degree of importance to communities or
  individuals
• The likelihood of an unreasonable adverse effect
  on professional interests of the health care
  professionals
• Whether access to the information could be
  important for public health reasons

12
Qualified privilege

• Whether there is a risk of harm to persons who
  are unable to access the information
• Whether failure to disclose may reduce public
  confidence
• Whether information can be accessed through other
  means
• Whether the information can be presented in a way
  in which it is easier to interpret
• Whether the information would be forthcoming in
  the future unless the contributors had a
  reasonable expectation of confidentiality

13
Qualified privilege

• Hospitals should review the terms of reference of
  their declared committees, to determine whether
  there is an automatic process of investigation
  of adverse events under qualified privilege,
  which may jeopardise any sharing of relevant
  information
• Extensive use of qualified privilege would be
  contrary to the intent of open disclosure

14
Conclusion

• The legal environment in which open disclosure is
  being implemented is very complex
• Overseas experience is positive, but there is
  little relevant experience in Australia
• The legal consequences of open disclosure are far
  from clear
• Specific legal protection may be required to
  enable the standard to be fully implemented, but
  much can be achieved without specific protection
• Qualified privilege is not consistent with open
  disclosure and may result in important
  information being trapped within declared
  committees