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Mistakes buried by legal worries

New laws are needed to prevent information shared in open disclosure from being used in legal proceedings.

Fears over legal consequences will stop health professionals from admitting to mistakes, a new survey has found.

Researchers asked a group of 51 doctors and nurses from across Australia about their experience in conducting open disclosure – candid conversations with patients following adverse medical events.

Ninety per cent identified legal fears as a major barrier to open disclosure (OD).

Leading the survey, Professor David Studdert from The University of Melbourne’s schools of law and population health, said the findings showed current laws to protect against use of this information in legal proceedings was perceived as inadequate.

“When the Australian health ministers introduced a national Open Disclosure Standard in 2003 Australia established itself as a world leader in this area. But our study indicates two key things – there are some holes in the regulatory structure supporting these activities, and clinicians charged with leading this work are concerned about that,” said Studdert.

“Health professionals appear worried that if they share information with a patient about problems in care it might be turned back on them in a negligence or disciplinary case.”

The study, published in the ***Medical Journal of Australia***, also found inadequate training for health professionals about how to conduct open disclosure with patients was a major barrier to open disclosure with 84 per cent of those surveyed pointing to this.

A majority, 58 per cent, of participants viewed qualified privilege laws as having limited or no effect on health professionals’ willingness to conduct OD, whereas opinion was divided about the effect of apology laws – state laws protecting expressions of regret from subsequent use in legal proceedings.

In four states and territories (Western Australia, South Australia, Tasmania and the Northern Territory), a majority of participants were unaware that their own jurisdiction had apology laws that applied to OD.

New laws were needed to prevent information shared in OD from being used in legal proceedings, said Studdert.

“We already do this for quality assurance work in hospitals, and this is a natural extension,” he said.

“It should ease concerns about liability risks and help encourage clinicians and hospitals to embrace this very important activity.”

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