Statutory Duty of Candour

This article was co-authored by Laura Skazlic, Paralegal.

The Victorian Government will introduce a statutory duty of candour in 2021 to aid in strengthening quality and safety in healthcare delivery.

Historical framework

In 2016 the review of Hospital Safety and Quality Assurance in Victoria published Targeting Zero: Supporting the Victorian hospital system to eliminate avoidable harm and strengthen quality of care (Targeting Zero). One of the recommendations included: "That a statutory duty of candour be introduced that requires all hospitals to ensure that any person harmed while receiving care is informed of this fact and apologised to by an appropriately trained professional in a manner consistent with the national Open Disclosure Framework".

"All hospitals" is defined as public health services; public hospitals; multi-purpose services; denominational hospitals; private hospitals; and day procedure centres. There is also a consideration that it should include individual doctors; registered Community Health Centres and healthcare organisations.

In 2017 an Expert Working Group was appointed to provide advice on legislative reforms arising from Targeting Zero, sixty-one submissions were received and the Expert Working Group provided 27 recommendations, which were accepted in principle.

Statutory duty of candour?

The proposed statutory duty of candour requires clinicians and hospitals to provide patients with:

• An apology
• An explanation of the facts about what occurred
• A description of the response and improvements employed
  
  

The statutory duty is intended to apply to incidents with an incident severity rating (ISR) of 1-2, defined as 'severe harm or death/moderate harm'. The Duty will not replace the current principles of open Disclosure under the Australian Open Disclosure Framework. Rather, it is a complimentary legal obligation to strengthen commitment to open disclosure.

The Expert Working Group has recommended Victorian candour and open disclosure guidelines (Guidelines), to outline requirements for compliance.

Protections

The Expert Working Group acknowledge that for a statutory duty to be effective, legal protections for apologies are required. An apology would not constitute an admission of fault or liability in civil or disciplinary proceedings. This is already a provision under s 14I and 14J of the Wrongs Act 1958 (Vic).

The Expert Working Group emphasised that clinical incident review processes are valuable quality and safety improvement processes. Thus, it is not subject to Freedom of Information requests and cannot be used in court. However, under the proposed reforms, reports will be offered to patients, family members and carers, consistent with candour and open disclosure.

Potential concerns

A potential concern for clinicians is being reported to the Australian Health Practitioner Regulation Agency (AHPRA) on the basis that the Duty is viewed as a breach of professional standards. The expert working groups recommendations aim to eliminate these concerns.

The state government sought comments from the public and stakeholders by 9 April 2021 and will consider the feedback for drafting the bill and developing the Guidelines. The Guidelines will be released for public comment. Upon implementation, we encourage clinicians to seek guidance from their MDOs regarding coverage under their policy when working in private and public sectors.

This article was originally published in VicDoc June 2021, VicDoc is a magazine of the Australian Medical Association Victoria.

Read other items in the Australian Healthcare Brief - July 2021