Why saying sorry doesn’t have to be the hardest thing

The Scally Report into the CervicalCheck scandal has again highlighted the need for genuine apologies in cases of medical error, argues Mary-Elizabeth Tumelty.

Why saying sorry doesn’t have to be the hardest thing

The Scally Report into the CervicalCheck scandal has again highlighted the need for genuine apologies in cases of medical error, argues Mary-Elizabeth Tumelty.

An apology, in the context of errors in the provision of healthcare, is not a novel concept, and the benefits should not be underestimated.

Research has found that where a sincere and meaningful apology is provided, anger and emotional upset is likely to subside.

In contrast, where an apology is not given, the injured party is likely to feel further aggrieved.

Guidelines designed to enable and encourage apologies can be found in both the HSE National Guidelines on Open Disclosure (2013) and the Irish Medical Council Guidelines on Professional Conduct (2016).

Legislation has also been drafted, and when commenced will allow for an apology to be given without it constituting an admission of liability.

Despite this, the experience of many of those harmed by medical errors and/or omissions, including those involved in the CervicalCheck scandal, illustrates a significant gap between policy and practice.

The Scally Report highlights that many women only pursued legal action due to “frustration with the system”, and to seek “more than just a financial settlement”.

One of the main outcomes sought by those involved is for someone who was involved to say they are sorry, and mean it.

Similar to the findings of the Scally Report, my research with patient support groups and barristers found that patients desire apologies which are sincere, and delivered by the physician, in a timely manner.

That desire is unsurprising, given the focus on harm in these cases, and to many of us, this is nothing out of the ordinary.

We are taught from an early age to apologise when we have done something wrong.

It is an intrinsic characteristic of human behaviour, and an apology, offered by the injurer, is and should be, a natural response to someone who has suffered harm.

Stephen Teap, Dr Gabriel Scally and Lorraine Walsh

Stephen Teap, Dr Gabriel Scally and Lorraine Walsh

However, as recent experiences have illustrated, this human attribute does not always translate in the wake of a medical error.

The discourse surrounding the CervicalCheck cases and the findings of the Scally Report highlights issues with the provision of apologies.

Despite the guidance provided by both the HSE and the Irish Medical Council in relation to apologies, the experience of patients indicates that such policies are having minimal impact on practice.

As Dr Scally surmised, at present, the HSE’s policy and its practice is “deeply contradictory and unsatisfactory”.

Similarly, my research found that the provision of an apology following a medical error or omission was scarce, and in the context of medical negligence litigation, apologies are unlikely to occur or be provided to a patient-plaintiff, unless specifically requested and agreed upon as part of a settlement.

My research also revealed issues with the format and delivery of apologies, when given.

The findings indicated that in cases where apologies are offered, they are typically delivered by the organisation, indemnifier, or their legal representatives, rather than the medical professional(s) who was involved with the treatment of the patient.

Additionally, the apology is generally drafted by a legal practitioner, usually a junior barrister, and offered only when the case has been resolved — which frequently is a number of years after the error or omission causing the harm has taken place.

Such formulaic apologies can make for awkward communications, and given the delay in offering an apology, can often appear insincere.

The need for a genuine apology, offered by individual physicians, has been recently acknowledged by both Dr Scally and Taoiseach Leo Varadkar.

It is well accepted that an apology should come from the person with the moral authority to make it, rather than through a representative.

When given by the wrongdoer, the apology is more likely to be accepted and perceived as genuine.

While it is understandable that doctors may not wish to apologise and therefore admit liability when it remains unclear if there was an error, it is to be regretted that there are also significant delays in providing an apology (if given at all), even in cases where issues surrounding liability do not exist.

However, such concerns should be eradicated when the legislation protecting apologies in this context is commenced.

Although the provisions for apologies in the professional guidelines, and the introduction of protective legislation is a positive step in the direction of reforming the current landscape, gaps between policy and implementation remain.

Given the power of an apology to diffuse anger and allow healing to commence, it is unfortunate, that in 2018, we still appear incapable of providing more humanising solutions to real and tangible harm.

It is hoped that the experiences of those harmed, including those affected by the CervicalCheck scandal, will serve as an impetus for change in the defensive culture that appears to exist in the current medical negligence dynamic.

Dr Mary-Elizabeth Tumelty is a lecturer in law, University College Cork

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