In brief
- Apology legislation exists in all Canadian provinces and territories except Yukon.
- One of the objectives of apology legislation is to reduce the concerns about the legal implications of making an apology.
- Physicians are encouraged to contact CMPA for advice prior to making an apology that includes acceptance of responsibility for a patient safety incident.
After a patient is harmed by a safety incident
When a harmful patient safety incident occurs, and after the patient's immediate clinical needs are met, healthcare providers must fulfill their ethical and legal obligations to disclose the facts of the incident to the patient. This disclosure to patients is an integral part of patient care.
In the context of the disclosure discussion, the physician may need to decide whether it is prudent and appropriate to apologize. Many physicians are concerned that, by offering a patient an apology for a harmful patient safety incident, it could be used against them in legal proceedings.
What does apology legislation say?
All Canadian provinces and territories, with the exception Yukon, have "apology legislation."
An apology is generally defined in law as encompassing an expression of sympathy and regret and a statement that one is sorry, or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault.
Apology legislation affords protection in that an apology:
- does not constitute an admission of fault or liability
- must not be taken into consideration in determining fault or liability
- is not admissible as evidence of fault or liability.
In most provinces and territories, the protection extends both to legal proceedings before courts and proceedings before tribunals or quasi-judicial bodies, such as regulatory authority (College) disciplinary committees or coroners' inquests. In Québec, the protection is limited to civil actions.
Owing to a lack of judicial interpretation regarding the general application of apology legislation, it remains unclear how the legislation will be applied by the courts in medical malpractice proceedings or by Colleges.
Should you apologize after a patient safety incident?
Expressions of regret ("I'm sorry this has happened") are usually appreciated by patients and can reinforce a positive doctor-patient relationship.
An apology may sometimes include an acknowledgement of responsibility if this has been determined after careful analysis of the harmful patient safety incident and where it is clear that a healthcare provider or healthcare organization is responsible for, or has contributed to, the harm.
As a physician, you are not responsible for apologizing on behalf of another healthcare provider or an organization. Where a hospital or institution is responsible for what has happened, the leadership/administration should decide on the appropriate action to take on behalf of the organization.
Why you should avoid certain words in an apology
Avoid the use of words that express or imply legal responsibility, such as “negligence”, “liable”, “fault”, or “failed to meet the standard of care”. Legal responsibility is not always clear. Courts and Colleges are mandated to make these complex legal determinations.
Can an apology be used against me?
If you are practising in a province or territory in which apology legislation exists, you have statutory protection that any apology you make to a patient cannot be used against you in subsequent court proceedings as evidence to establish fault or liability. CMPA believes similar protection would extend to the use of apologies before a College or any other tribunal.
Physicians practising in Yukon, where apology legislation is not in place, should be aware that the fact that an apology was made and any admission of fault that might have been made during an apology could be admissible in court or College proceedings related to the harmful patient safety incident.
Before you apologize…
CMPA members are encouraged to contact CMPA for advice prior to making an apology to a patient that includes an acknowledgement of responsibility.
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