In our October 2014 publication, “Sorry seems to be the hardest word”, we outlined the proposed Apology legislation in Hong Kong. After two rounds of public consultations, ending in April 2016, the Department of Justice (DOJ) has indicated they hope that the draft Apology Bill will be passed by the Legislative Council this year.
In our October 2014 publication, “Sorry seems to be the hardest word”, we outlined the proposed Apology legislation in Hong Kong. After two rounds of public consultations, ending in April 2016, the Department of Justice (DOJ) has indicated they hope that the draft Apology Bill will be passed by the Legislative Council this year.
Our submissions to the Hong Kong Federation of Insurers (HKFI)
As well as closely following the developments of the Bill, we have made submissions to the HKFI to address a range of concerns for doctors and their insurers, including as to; i) the scope of coverage (i.e. partial or full apologies); ii) admissibility of apologies as evidence in legal proceedings; and iii) implications of apologies in contracts of insurance and indemnity provisions. These issues were submitted in its entirety by HKFI to the DOJ and the concerns we raised have been addressed in the draft Apology Bill.
Summary of the proposed legislation
The clear set objective of the legislation is, “to promote and encourage the making of apologies with a view to preventing the escalation of disputes and facilitating their amicable resolution.” (s.2)
The 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 (s.7).
To fall within the ambit of the legislation an apology would be made by or behalf of a person in connection with a matter and means an expression of the person’s regret, sympathy or benevolence in connection with the matter, and includes, for example that the person is sorry about that matter (s.4).
Full apologies are also covered where there is an expression or implied admission of the person’s fault or liability in connection with the matter (s.4(3)).
An apology may be oral, written or by conduct made by a person after the commencement date of the legislation in applicable proceedings, which include judicial, arbitral, administrative, disciplinary and regulatory proceedings (s.6(1)). Applicable proceedings do not include criminal proceedings and those set out in the Schedule which include proceedings under the Coroner’s Ordinance (s.6(2)).
The legislation does not apply to apologies made by a person in a document filed or submitted in applicable proceedings, made by a person in a testimony, submission, or oral statement given at a hearing of an applicable proceedings or an apology adduced as evidence in applicable proceedings with the consent of the person who made it s.5(2).
An apology made by a person in connection with a matter, which falls within the scope of the legislation, does not void or otherwise affect any insurance cover, compensation or other form of benefit under the contract of insurance/indemnity, regardless of whether the contract was entered into before or after commencement date of the legislation. This section cannot be contracted out by agreement (s.10).
Observations
We will continue to monitor developments and eagerly await the enactment of the legislation.
We welcome the introduction of the legislation so doctors involved in medico-legal disputes have the option to make apologies, which may facilitate the swift resolution of disputes and encourage dialogue, with the protection that it cannot be used against them in civil claims made in the Courts for compensation for negligent treatment, and in disciplinary proceedings before the Medical Council. The psychological benefits to the patient/family as well as to the doctor, may assist in addressing the immediate emotional responses and enable parties to move on towards reaching an amicable resolution and, possibly preventing escalation to Court proceedings, and perhaps even to the Medical Council.
Read other items in Hong Kong Medical Law Brief - April 2017
