Safety of candour: How protected are apologies in open disclosure?

Doctors are often unsure about whether apologising to patients will leave them open to legal consequences. Among the many implications of the Bawa-Garba case, the idea that even a doctor’s written reflections in their portfolio could later be used against the doctor in court has raised concerns in the medical community. This uncertainty could affect doctors’ willingness to disclose mistakes and to give patients the apologies they deserve.

The situation is complicated by the fact that the statutory duties of candour in England and Wales and in Scotland, now require health service organisations and practitioners to give a factual explanation and to apologise to the affected parties after a notifiable incident. Although it is widely thought that existing apology laws in Great Britain would confer sufficient protection, a closer look at the complex matter of apology protection indicates that the situation is far from straightforward. This paper examines some of the legal issues of apologies and their implications for healthcare professionals.