21/07/2017
Following our update in the April 2017 edition of our Medical Law Brief – the Legislative Council of the Hong Kong Special Administrative Region passed the long-awaited Apology Legislation Bill on 13 July 2017 - with 46-2 votes in favour.
We understand the legislation is welcomed by the medical profession and medical defence organisations, where members and experiences in overseas jurisdictions have shown that the psychological benefits for both the maker and receiver of a timely apology, in the aftermath of a medical mishap, can assist the parties to communicate constructively, promote understanding. And, most importantly, move on to focus on the next steps and achieve some form of resolution.
As an advocate of alternative dispute resolution and from advising both claimants and defendant medical professionals, one considers the benefits of making an apology in the appropriate case, manner and time with the protection of the legislative framework outweigh the down-sides. Understandably, it would not be easy for a medical practitioner to make an apology and one does not advocate to make apologies lightly and without sincerity in all cases. But even on the best advice, with the best intentions, one big obstacle some fear is whether the recipient accepts the apology made?
Critics fear that the perception of apathy can be an obstacle for acceptance and one would ask what happens next when one apologises? Would it be perceived that one has made an admission of liability and therefore should provide compensation and be seen to be guilty of professional misconduct before the Hong Kong Medical Council? The Apology Legislation clarifies the legal consequences of an apology, separating an apology from liability in law. Two concepts, which are often misunderstood. The effect is that an apology does not constitute an express/implied admission of a person’s fault or liability and must not be taken into account in determining fault or liability (Section 7).
There remains concern that the protection offered under the legislation is not watertight, where the decision maker of the judicial, disciplinary and regulatory proceedings, for example the judiciary in a medical negligence claim has the discretion to admit a statement of fact contained in the apology as evidence in the proceedings, but only if s/he is satisfied that it is just and equitable to do so having regard to the public interest or the interests of the administration of justice (Sections 8(2) and (3)).
The principle of just and equitable is well-established under the common law and with the region’s judicial system, we look to the Hong Kong Courts to decide what is just and equitable in a professional and judicious manner, taking into account the public interest or the interests of the administration of justice, with the legal right of appeal available.
One does not anticipate a massive surge of apologies in the near future. The need for a thorough investigation into an unfortunate incident, for communications between the parties, and the seeking of appropriate legal advice and careful consideration of the parties’ demands and needs remains. But where one might have feared and been advised to remain silent and dismissed the concept of offering some words of sympathy or regret, the legislation clarifies the legal definition and consequences of an apology and the need to establish legal liability in law.
One should bear in mind that out of the total number of claims, only a small proportion proceed to trial in the courts.
We wait with interest to see the developments and judicial interpretation of the legislation. The passing of the Apology Legislation is on balance a positive step for the medical profession, where multifactorial elements and considerations come into play following an unfortunate incident, including psychological, human and very sensitive personal issues. As the first jurisdiction in Asia to pass an apology law, after extensive consultation and looking to other common law jurisdictions, we will continue to monitor the impact of this in our increasingly litigious society.
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