Healthcare staff have been told to disclose all incidents involving harm and suspected harm to patients under a new HSE policy, and to provide "sincere and meaningful" apologies where errors occur.
All 133,000 HSE staff have been told to “demonstrate empathy, kindness and compassion” when disclosing incidents under the revision of its open disclosure policy. However, open disclosure is not yet mandatory under law, according to the policy. It may also be deferred in certain circumstances.
The changes have been made in response to intense criticism of existing policy during the CervicalCheck controversy when hundreds of women were not told by their doctors or HSE staff of an audit of their smear tests.
A report by Dr Gabriel Scally last year found the HSE's policy was deeply contradictory and unsatisfactory as clinicians were not compelled to disclose failings in the care process.
Open disclosure in the new policy remains voluntary, and staff can claim legal protection for their disclosure as provided for under the Civil Liability (Amendment) Act 2017. This means their apology cannot be used in litigation against them.
This is the first revision of the policy in six years, but further changes are expected when mandatory open disclosure is enacted as part of the forthcoming Patient Safety Bill. They may also be revised to take account of new guidelines for the auditing of interval cancers.
Under the policy staff must disclose all incidents involving harm or suspected harms to patients. Incidents where no harm results must be “generally” disclosed, while near-miss incidents will be assessed on a case-by-case basis and “generally do not require open disclosure”.
Patients must be informed of a near miss or no-harm event if there is potential for it to become a harm event in the future.
Communication
The process of communication and open disclosure to the patient must begin within 24-48 hours of the incident or “as soon as is practical”.
The response can vary from low level to high level depending on the harm that has occurred and the expectations of the patients.
At a meeting staff will be required to inform the patient of all the facts available at the time, and to provide a “sincere and meaningful apology in a timely manner which is personal to the patient and to the given situation”.
Meetings must be documented and minutes provided to patients, the guidelines advise.
Open disclosure may be deferred only in “rare or exceptional cases”. Circumstances could include where the patient is extremely ill, where a doctor is concerned open disclosure would put the patient at risk of causing harm to themselves or others, or where the patient cannot be contacted.
As well as explaining what happened, staff are enjoined to listen and hear the patient’s story, and to “demonstrate empathy, kindness and compassion towards all those involved”.
An apology or expression of regret, as appropriate to the situation, must be “sincere and personal to the patient” and the given situation.
“When things go wrong during a patient’s healthcare journey, for whatever reason, a genuine expression of regret delivered in a manner which is empathic is always appropriate.”
Open disclosure also involves shared decision-making about ongoing care and treatment, giving the patient the opportunity to ask questions, and the provision of supports for both patient and staff affected by the safety incident.
Medical jargon
In disclosing information staff are advised in the policy to “stick to the facts”, “do not speculate” and to “avoid medical jargon”.
An apology “should not be rushed”, language used must be “supportive and empathic” and staff should “consider the tone of voice and body language” when delivering it.
They are also advised to “put yourself in their shoes”, and to “consider what would you expect if this was you or your loved one”.
Staff should also consider waiving fees if a patient has been harmed as a result of failures or errors in their care. And if the patient indicates they are submitting a complaint or planning a legal case, “they must not be treated any differently”.
Open disclosure is defined in the policy as “an open, consistent, compassionate and timely approach to communicating with patients and, where appropriate, their relevant person following patient safety incidents”.
“It includes expressing regret for what has happened, keeping the patients informed and providing reassurance in relation to ongoing care and treatment, and learning the steps being taken by the health services provider to try to prevent a recurrence of the incident.”
The policy includes a presumption of capacity, with anyone whose decision-making capacity is in question still entitled to open disclosure on an equal basis with others. Supports should be provided to allow this to happen, says the policy.
