Open Disclosure of Adverse Medical Events and a Statutory Duty of Candour

Associate Professor Tina Cockburn¹

¹Australian Centre For Health Law Research

The Australian Open Disclosure Framework (2013) was developed to facilitate the open communication between health service organisations, clinicians and patients when things go wrong in health care. Open disclosure can redress harm and repair damaged relationships, and can also contribute to health system improvement. However, unfortunately open disclosure does not always occur, for example, there was no open disclosure at Djerriwarrh Health Services at the time of the tragically preventable perinatal deaths. The discovery of this cluster of perinatal deaths led to the Victorian Government establishing Targeting Zero, the review of hospital safety and quality assurance in Victoria, which was led by Dr Stephen Duckett. A key recommendation of the Targeting Zero Report was the implementation of a statutory duty of candour in Victoria.

An Expert Working Group was established to consider this recommendation and deliver a Report to the Victorian Minister for Health. After considering the Expert Working Group Report and following a public consultation process, the Victorian Government introduced a statutory duty of candour (2022) to foster an open and honest culture and strengthen quality and safety in health services delivery.

This paper provides an overview of the Australian Open Disclosure Framework, the barriers to open disclosure, incident disclosure gap and apology laws. After discussing the UK statutory duty of candour, the Victorian reforms will be critiqued.

Keywords: open disclosure of adverse events; medical negligence; duty of candour

Biography:

Associate Professor Tina Cockburn is Co-Director Australian Centre for Health Law Research, co-program leader Planning for Healthy Ageing program, sessional member Queensland Civil and Administrative Tribunal (QCAT) and member, Queensland Law Society Health and Disability Law Committee.

Tina’s research focuses on access to justice by vulnerable people in three contexts: patient safety; elder law; and institutional abuse of children.