The Scottish Government is consulting on imposing a “duty of candour” for healthcare providers.
In its response to the consultation, the Association of Personal Injury Lawyers (APIL), a not-for-profit organisation which campaigns for the rights of injured people, has emphasised the need for medical and social care staff to be forthcoming and open about medical mistakes.
Marie Morrison and Peter Brash of Grigor & Young / Moray Claims are members of APIL and accredited as Senior Litigators by APIL. Grigor & Young’s Elgin Office has corporate accreditation from APIL.
An apology would often be enough
The experience of most solicitors who deal with claims for medical negligence is that the majority of people who are injured as a result of a medical blunder simply want a clear explanation of what went wrong and what happened.
The injured person wants to know that any lessons which could have been learned from the experience have been learned and will be put into practice for the future.
APIL emphasise that saying “sorry” or admitting that something went wrong is not the same as an admission of liability for a legal claim.
What is important is giving patients the right to know what exactly happened so they can achieve some sort of “closure” and move on with their lives.
Statutory threshold
The Scottish Government proposes that the statutory duty of candour should have a threshold. In other words, below a certain level of seriousness, it would not be necessary to disclose the happening of a particular event.
APIL accept that telling patients about the slightest incident, even if there was no injury, might cause a loss of confidence in hospital and care staff.
However, while it is important not to set the threshold too low, near misses must be taken seriously.
Put the duty on individuals rather than employers?
The Scottish Government proposes that the duty of candour should be on the Health Authority rather than on individuals.
APIL considers that an individual duty would be much simpler to enforce and less bureaucratic.
APIL’s opinion is that an individual duty is much more likely to be complied with, in practice, than one imposed on health care providers.
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