Disclosure Of Harm - Statement For Consultation

Disclosure of harm
Draft statement for consultation

The Medical Council is drafting a statement about disclosing harm to patients. A copy is enclosed. The purpose of the statement is to address some of the questions raised by members of the profession and the public.

The draft statement considers attributes of harm and the purpose of open disclosure. It also examines what type of information should be disclosed – what the patient expects, and what a doctor should address.

Council is seeking comment on the draft statement and would welcome your views on any changes that you consider appropriate. The closing date for comment is 16 April 2004.

If you have any questions please contact Council’s Policy Analyst, Chris Aitchison on 04 381 6793 or by email: caitchison@mcnz.org.nz. Thank you for your assistance in this matter. I look forward to receiving your comments.

Yours sincerely

Sue Ineson
CHIEF EXECUTIVE OFFICER

Medical Council of New Zealand

DRAFT - Disclosure of harm

When a patient is harmed while receiving medical treatment it is important that the health practitioner team respond in a manner that meets the patient’s needs and fulfils the professional, ethical and legal responsibilities of health practitioners. In the case of doctors, the Medical Council expects that the patient’s doctor disclose harm to the patient in the interests of an open, honest and an accountable professional relationship. Disclosure should be based on the patient’s interests and information should not be withheld to protect the interests of the doctor.

Disclosure of harm

1. When discussing ‘disclosure of harm’ the Medical Council is addressing situations where a patient has been inadvertently harmed as a direct result of receiving medical treatment. This includes situations where the harm may be an accepted risk of the treatment that will have been discussed as a possible risk of the treatment during the consent process with the patient. It does not include situations where an incident during treatment may have caused harm but did not because action was taken to amend the situation before any harm occurred.

Introduction

2. The Council acknowledges that the very nature of medical treatment means that a patient may be inadvertently harmed during treatment. This is not necessarily understood or expected by the public, media and other health practitioners because harm has often not been disclosed in the past.

3. Over the past ten years there have been moves to increase accountability from the medical profession, strengthen patient rights and improve systems by examining adverse outcomes to ensure the problem that led to the harm is identified and addressed to avoid harm to future patients. The Council believes that open disclosure of harm will contribute to all of these and benefit the health and safety of the public and strengthen the doctor-patient relationships.

Attributes of harm

4. It is rarely a result of deliberate negligence or incompetence.

5. Harm may be attributed to one doctor but it is often the result of a combination of factors that are attributable to more than one member in the health practitioner team or a breakdown in the system.

6. Research into occurrences of harm in New Zealand, Australia, Canada and the United States estimate harm occurs in approximately 3-10% of all hospital admissions.

Accepted risks of treatment

7. Some forms of medical treatment have accepted risks – a recognised possible outcome of the treatment that is not intended but acknowledged as a risk that should be discussed with the patient as part of the informed consent process.

8. It is important that accepted risks are discussed with the patient prior to any treatment proceeding as part of the informed consent process. This means identifying the risk, explaining what the possible implications are for the patient if the risk results in harm and providing the patient with information about the implications of consenting or refusing to consent to the treatment.

Purpose of open disclosure

9. Open disclosure of harm
- contributes to the foundation of a successful doctor-patient relationship by ensuring that trust between the doctor and patient is not compromised.
- is a right of a patient under the Code of Health and Disability Services Consumers’ Rights.
- is part of the move towards increased accountability from the medical profession.
- is necessary for the informed consent process, especially when the harm results in the need for further treatment or care.
- contributes to public awareness, information, and education about the reality of medical treatment.
- provides an environment that enables doctors to learn from others’ mistakes in an educational manner because harm can be discussed openly.
- is not about attributing blame.

Expectations of open disclosure

10. Research in New Zealand and overseas has indicated that patients and doctors have different concerns and expectations about open disclosure of harm. The different concerns can often lead to a break down in communication and possible misunderstandings and frustration. It is important that doctors address a patient’s concerns as part of an open and honest doctor-patient relationship.

11. When disclosure of harm is made to a patient research indicates that patients are usually concerned about what and how the harm occurred, why it happened, and what are the long-term consequences for his or her care. Doctors are concerned that disclosing harm to a patient should not be a process that overwhelms the patient with technical details, nor should it cause distress when the patient is already unwell. In some situations it may be more appropriate to disclose the harm in stages that enables the doctor to address the issues in a way that allows the patient to understand and process the information without being overwhelmed.

12. A major contributing factor to doctors’ reluctance to openly disclose harm to patients and their families is the fear of liability, damage to the doctor-patient relationship and the possibility of a complaint. Research indicates the opposite is true. Research in Australia and the United States both indicate that a patient is more likely to complain if the doctor fails to disclose harm to the patient, or if the disclosure is not done in an open and honest manner. It is possible to apologise without accepting liability and this is a common recommendation in most literature about open disclosure of harm.

13. Patients and doctors have a common concern about avoiding similar mistakes in the future however these concerns are often expressed to other parties and not within in the doctor-patient relationship. Acknowledging this in the patient-doctor relationship contributes to the ongoing confidence of the patient in his or her doctor and the medical facility.

What should happen before disclosure of harm?

14. Harm to a patient is often the result of a combination of factors that are attributable to more than one member in the health practitioner team or a breakdown in the system. If working in a team environment when the harm to the patient occurred, it is preferable that the team meets to discuss the incident of harm before speaking with the patient. A team discussion provides an opportunity for an initial assessment so the following can be identified:
- What and how the harm happened?
- What are the consequences for the patient, including continuity of care?
- What can be done to avoid similar occurrences in the future?
- Who should be present when the harm is disclosed to the patient?

15. This will enable the disclosure to be informative and the patient’s questions can be answered. However, it is important that disclosures are done in a timely manner. Therefore it may be more appropriate for the initial disclosure as soon as practical, with a more detailed discussion with the patient to follow once the team has had an opportunity to meet and assess the circumstances that led to the patient being harmed.

Disclosing harm to the patient

16. The senior doctor responsible for the patient’s care should disclose the harm to the patient. Research indicates that patient’s prefer to hear from the doctor with whom the patient has established a rapport or had previous contact. In situations where this is not the senior doctor, both practitioners should be in attendance. Research has indicated the disclosure by hospital administrative staff or management is not received as well by patients.

17. When appropriate, the patient must be provided with information about where, and from whom the patient or the patient’s family can get support.

18. The harm and any subsequent action including the disclosure should be documented in the patient’s record. The Council recommends the notes mention who was present, what was disclosed and any issues regarding continuity of care.
Support for doctors

19. Harm to patients is rarely the result of deliberate negligence or incompetence and the doctor may find the experience stressful and difficult. It is important that the doctor, as well as the patient, has access to support. The Council recommends peer support and a supportive work environment from employers, including opportunities for doctors to discuss such incidents and mechanisms to prevent a reoccurrence of the problem.

20. The Doctors Health Advisory Service provides a support network for doctors. They can be contacted at dhas.edwin@clear.net.nz or by freephone 0800 471 2654.

NOTES

21. The Accident Compensation Corporation (ACC) provides a no-fault accident insurance for all New Zealand citizens and in the case of medical treatment, determines whether a patient is entitled to compensation due to medical misadventure.

ACC welcomes this statement for medical practitioners, as disclosure of harm is a key part in the process of ensuring New Zealanders are able to access compensation when they have suffered an adverse outcome from medical treatment. It is our hope that this statement will assist claimants to receive timely compensation. Removing a person's right to sue for damages is a unique element of the New Zealand Accident Compensation Scheme. Early and accurate disclosure of harm will assist in the effective implementation of the compensation process.

David Rankin

ACC General Manager

22. Medical indemnity insurers provide advice to doctors on matters including law and ethics. In situations where a patient has been harmed New Zealand indemnity insurers advise doctors to contact them in the first instance for advice on disclosure.

March 2004

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