Doctors in Scotland get legal protection when apologising, explains MDU

Posted On: 
12th June 2017

Doctors in Scotland are being given legal protection when apologising to patients, the Medical Defence Union (MDU), explained today. 

The Apologies (Scotland) Act 2016, the relevant part of which comes into force on 19 June 2017, makes it clear that an apology (outside of legal proceedings) is not an admission of liability. In the new Act, an apology is defined as:

“…any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets, an act, omission or outcome and includes any part of the statement which contains an undertaking to look at the circumstances giving rise to the act, omission or outcome with a view to preventing a recurrence.”

Mr Jerard Ross, MDU medico-legal adviser, said:

“Saying sorry to a patient when something has gone wrong is the right thing to do and is an ethical duty for doctors. The Apologies (Scotland) Act provides further reassurance to doctors that apologising is not an admission of legal liability. In the MDU’s experience, a sincere and frank apology and explanation can help restore a patient’s confidence in their doctor following an error and help to rebuild trust. This is important for a patient’s future healthcare and can help to avoid a complaint or litigation.”

Doctors have a professional duty of candour, set out in the General Medical Council’s Good medical practice which states:

“You must be open and honest with patients if things go wrong. If a patient under your care has suffered harm or distress you should put matters right (if that is possible), offer an apology, explaining fully and promptly what has happened and the likely short-term and long-term effects.”

A legal duty of candour was also introduced for health and social care providers in Scotland under The Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 although it has yet to be brought into force by enabling legislation. It will mean that doctors and other health and social care staff in Scotland will have to inform patients and their families when a patient has, in the reasonable opinion of an uninvolved registered health professional, died or been unintentionally or unexpectedly mentally or physically harmed as a result of their care or treatment.

Although the Apologies Act does not apply to the legal duty of candour, the Health Act itself makes it clear that “an apology or other step taken in accordance with the Duty of Candour…does not of itself amount to admission of negligence or breach of a statutory duty”.

The GMC has published ethical guidance on the professional duty of candour which explains in more detail what constitutes an effective apology for healthcare professionals. This includes advice that apologies should not be formulaic and that the most appropriate team member, usually the lead clinician, should consider offering a personalised apology, rather than a general expression of regret.