Overview of consultation
Between April and May 2024, the Ministry of Justice opened a consultation to consider whether the existing legislation in the Compensation Act 2006 is adequate, or whether legislative provisions to clarify or amend the current law would be useful. More information can be found on the dedicated consultation page.
Consultation
Introduction
Medical Protection Society (MPS) welcomes the opportunity to make a submission to the Ministry of Justice’s consultation on Reforming the Law of Apologies in Civil Proceedings in England and Wales.
We are the world’s leading protection organisation for doctors, dentists and healthcare professionals with more than 300,000 members around the world, including over 138,000 in England and Wales.
MPS supports open communication, and we encourage members to apologise where things have gone wrong, regardless of fault. We have long advised members that an apology is not an admission of liability; rather, it is an acknowledgement that something has gone wrong and a way of expressing empathy. We would always advocate a full and objective review of the event, with the patient being informed as to any lessons that can be learnt moving forward. A commitment should be made to understand and learn from what has happened to reduce the likelihood of it recurring and happening to someone else.
Questions
Question 1) Do you consider that there would be merit in the Government introducing primary legislation to reform the law on apologies in civil proceedings?
For many, being a clinician is a vocation and this comes with building relationships with their patients. In the event something goes wrong, clinicians are often concerned and fearful about how to express their feelings in relation to this for the impact that it may have on a claim. Fear of repercussions can sometimes cause a breakdown in the relationship between clinicians and patients, resulting in patients and their families feeling isolated It can also create additional pressures for the clinicians through fear of saying the wrong thing and negative reactions from the patient or family when they don’t feel able to say anything.
Clinicians have a professional and statutory duty to apologise, however, an extent of this duty can be hindered by the fear of future claims. For this reason, primary legislation which goes beyond that of the current Compensation Act and stipulates an apology of this type would not be admissible or prejudice the claim, is likely to be well received by clinicians.
In the event such legislation was introduced, guidance and training should be provided to reinforce to clinicians that this was the case. This should also cover how far such an apology should go and how/when/if they should explain these limitations to a patient. It would also be helpful for clinicians to understand that whilst the apology could not be relied upon as admission of liability, if there was a change in the position when a claim was brought it would be helpful to be able to explain this, so again to support the family. In the event this couldn’t be explained, it may be interpreted as them being a poor witness.
Question 2) Do you agree that this legislation should broadly reflect the approach taken in the Scotland Apologies Act 2016?
MPS are of the opinion that legislation should not reflect the approach taken in the Scotland Apologies Act 2016.
Whilst the quote provided in paragraph 22 is helpful, the extension of the undertaking as provided in paragraph 23 is likely to go too far.
Many clinicians do not have sufficient control to mandate an investigation which looks into the root cause of the act, omission or outcome, nor would they have the resources, without support of the Hospital/the Practice to complete such an investigation. Furthermore, they have even less control over the implementation of actions to reduce the risk of recurrence. Whilst the causes/consequences of any actions should be carefully analysed to attempt risk mitigation, it should be clear where the responsibilities lie for such investigations and actions. It would also need to be clear as to what the potential consequences of such an undertaking would be in the event such undertakings were not met.
In addition to the above, such an undertaking may not be proportionate to the action or outcome. An example of this could be a filling to the incorrect tooth. Whilst this is an error and an apology warranted, this is unlikely to demand such an investigation. In contrast more serious errors which result in death or life changing injuries should already prompt a PSIRF in the NHS and SUI in a private setting. Therefore, it could suffice that the clinician confirm that such a submission has been made and they will be appropriately updated with any such investigation.
Reinforcing the importance of investigation mechanisms already in place should reduce costs, encourage a collaborative investigation and a consistent approach for the patient. This could also assist with all parties involved taking steps to mitigate future reoccurrence and encourage open conversations between care providers to share lessons learning.
Question 3) What do you believe the impacts and potential consequences would be on claimants or defendants should a Scottish style Apologies Act be introduced in England and Wales?
As stated in Question 2, MPS are of the opinion that the implementation of a Scottish style Apologies Act in England and Wales would have negative consequences.
We appreciate that the implementation of the quote in paragraph 22 is likely to result in more open conversations. This is certainly beneficial for the clinicians, patients and families and it is likely that it would alleviate some pressure from the clinicians by removing fear.
However, it is likely there would be ‘bedding in’ period when any such change is likely to require explaining to patients and their families in the event that they did bring claims. If the change is not explained from the outset, moving from the current system to one of this nature is likely to cause some upset in the initial stages of litigation as a claimant is likely to anticipate that liability has already been addressed.
The implementation of the quote in paragraph 23 is likely to be more controversial. From a patient’s perspective, receiving such an undertaking is likely to be welcomed. However, unless individual clinicians receive clear guidance and support from the organisations they are working within, making such a promise may be extremely difficult to fulfil. In these instances, this can have negative implications. Furthermore, promising to complete an onerous investigation when this is not proportionate to the injury could create more pressure than this consultation aims to address.
Question 4) Should the legislation provide a definition of an apology? Please provide reasons for your answer.
We do not believe that the legislation should provide a definition of an apology.
Whilst guidance should be available on what an apology should include, specific requirements have the potential to cause a delay. Clinicians may want to apologise for what they know at that time, confirm where investigations are continuing and what they intend to respond to going forward and provide a contact. Whilst this would align with open correspondence and appropriately update a patient or family on complex matters, it may not meet the definition and therefore not be considered an apology.
Question 5) Should the legislation apply to all types of civil proceeding, apart from defamation and public inquiries? If not, what other types of civil proceeding should be excluded? Please provide reasons for your answer.
We do not have strong views on this proposal therefore cannot supply further comments.
Question 6) Would there be any merit in the legislation making specific reference to vicarious liability (on the basis it would clarify the position on apologies in historic child sexual abuse claims)?
MPS anticipates that it would be helpful to refer to vicarious liability claims. We are seeing an increasing number of general clinical vicarious liability matters. Consequently, confirmation that vicarious liability is intended to be included with any such legislation would be helpful.
Question 7) Should the legislation be clear that it would not be retrospective?
Yes, MPS believes that legislation should make clear that any changes would not be retrospective.
Failing to do so is likely to cause complications for claims. It will also ensure that the apologies already in place had the intention at the time applied.
Any attempts to retract or clarify a previous apology could result in further breakdown of the relationships between Claimant, Defendant or other parties involved. This in turn could increase costs and increase the lifespan of a claim.
Question 8) Are there any non-legislative steps, e.g., Pre-Action Protocols, that the Government should take to improve awareness of the law in this area? If so, what should these be, and should they be instead of – or in addition to – primary legislation?
It would be helpful for guidance to be provided on the explanation of this to Litigants in Person. This could also help Claimant’s solicitors in managing their client’s expectations regarding any apologies they had received. It would ensure a consistent message is received.
Question 9) Do you have any evidence or data to support how widely the existing legislative provisions in the Compensation Act are used?
MPS do not have any evidence of this and are therefore unable to answer this question.
Question 10) What is your assessment of the likely financial implications (if any) of the proposals to you or your organisation?
In the event appropriate guidance isn’t available for clinicians and patients or claimants to explain this, we anticipate that the costs and lifespan of a claim could increase. We highlight this, as we believe Claimants could anticipate that liability does not need to be investigated, in turn resulting in a breakdown in trust with both the clinician (who may be providing ongoing treatment) and lawyers involved in the investigation. Attempts to rectify this are likely to take time, to allow the acceptance of any responses, evidence and offers put forward.
Alternatively, with appropriate explanations the Claimant may feel the clinician has already been open and transparent with them, therefore they may be more willing to accept explanations to any points which are defended. This has the potential to reduce the life expectancy and damages of a claim.
For these reasons, it is anticipated that the explanation surrounding any such legislation would have the greatest impact on the financial implications.
Question 11) What do you consider to be the equalities impacts on individuals with protected characteristics of each of the proposed options for reform? Please give reasons.
Using the Equalities Act definition of protected characteristics, we do not anticipate there would be any impacts.
However, we anticipate the larger benefits to be for families that do not have disposable income which allows them to obtain legal guidance in order to achieve the explanations or clarification they need to move forward. When families feel they have received open and transparent correspondence and questions have been addressed to allow them to come to terms with consequences, they will be more likely to accept the information provided and move forward. It will give them more information to consider the best way forward rather than feel excluded or that issues are unanswered.
The proposals are intended to apply equally to all. However, this would need to be considered further with any guidance provided.
Question 12) Do you agree that we have correctly identified the range and extent of the equalities impacts under each of these proposals set out in this consultation? Please give reasons and supply evidence of further equalities impacts as appropriate.
MPS does not have any further areas for consideration.