Comments on
Proposed Apologies (Scotland) Bill
Consultation by Margaret Mitchell MSP
The Royal College of Physicians of Edinburgh (the College) is pleased to respond to the Proposed Apologies (Scotland) Bill consultation by Margaret Mitchell MSP.
The College has approached this proposed legislation from the point of view of service delivery in the health service, and our response reflects this perspective rather than a wider interpretation.
The College agrees that the aims of the proposed legislation are desirable. However, more detail is needed to establish whether the proposed Bill would actually achieve its stated aims. In this context, it would be valuable to know more about the implication of equivalent legislation in other countries.
We also note that while there are necessary exclusions already cited in the document ('legal fault, culpability or liability'), it would be helpful to have further information on the impact these would have in practice, in order to ensure the Bill is fully effective.
In addition we would welcome clarification of the statement made on page 9 of the consultation document under the title of Legislative Competence and the extent to which it could impact on the scope of the Bill.
On page 20 of the consultation document, it is noted that the intention is that the Bill’s provisions will apply to all forms of apology. We would recommend that this is made clear at the beginning of the proposed legislation.
Q1: Do you agree that legislation is a necessary and appropriate means of addressing the issues identified?
Yes, particularly if it could encourage more openness and transparency and enable discussion and informal resolution, or the use of dispute resolution techniques, such as mediation, rather than resorting to litigation.
It may assist in addressing wider barriers to change (the document describes this as 'an essential first step') but would need to be supported by significant programmes of change, for example, training and support to staff, to have significant impact. Social and cultural change may be as important as legislative change, and needs to be led from the top down.
Q2: Have you ever experienced any barriers to making or receiving an apology? If so, please expand upon this. Where you have received (or made) an apology, or felt an apology should have been received (or made) but was not, please provide details of what difference the apology (or lack of it) made to how you feel.
The College understands that there are various examples of barriers to making or receiving an apology, including social, cultural, institutional, behavioural, attitudinal and legal barriers. Some of these are understandable but they can often exacerbate an already difficult and sensitive situation.
In medicine, there may be concerns over legal liability, or a reluctance to apologise if an individual believes that the fault was not theirs entirely but part of an organisational failure.
The College believes there have been examples where, if an apology had been made early on when a problem first arose, then a complaint would not have escalated. We understand there are examples of the power of a good apology in helping the complainants - especially in serious cases where a relative had died - to be able to move on.
Q3. Do you have any experience of the effect that apology legislation can make? Would you be more likely either to expect an apology, or to apologise yourself, if there was apology legislation in Scotland?
The College does not have particular experience of apology legislation. Predicting its impact depends upon its practicability and the relative importance of legal as opposed to social and cultural barriers. As mentioned above, more evidence of the impact in practice of equivalent legislation in other countries would be helpful.
Legislation would most likely contribute to changing the culture, behaviour and attitudes in relation to apologising in such circumstances: institutions may well be less resistant to giving an apology if the legal position is clarified.
There can be other effects that are not only positive for the complainant but for staff who deliver public services and have to deal with complaints.
Q4. Do you support the general aim of the proposed Bill? Please indicate “yes/no/undecided” and explain the reasons for your response.
Yes. There is clear evidence that legal uncertainties do inhibit apologies. There would be multiple benefits as a result of the legislation: to the public who use the health service; to those delivering public services; and to the public purse (through reduced litigation and the cost of other dispute resolution mechanisms).
It could be argued that apology legislation could run the risk of making apologies systematic and that they could lose their sincerity and meaning. Nevertheless, we consider that there would be power in an apology which contained an acknowledgement of responsibility/cause of loss (see Q7) and if such apologies are protected by the proposed Bill, the legislation would still be worthwhile.
Q5: Do you consider the proposed definition adequate? What elements should be included in the definition in order to achieve the aims of the Bill? Should it include an undertaking to review? Do you think an undertaking to review is necessary for an apology to be effective? Please give your reasons.
The definition of apology should be more than an expression of regret that someone has suffered or incurred a loss, it should be an expression of regret that you personally or your organisation caused that loss or suffering.
In some cases, but not all, an undertaking to review (and to take appropriate remedial action to minimise the risk of recurrence) is useful as the evidence shows that this is a strong motive for people in making complaints and ultimately in taking legal action. A commitment to review where appropriate should be in good practice guidance already. The key point is for lessons to be learned when things have gone wrong, and for assurances to be given that the same thing is unlikely to happen again. This can only be done if the circumstances that gave rise to the original problem are reviewed. A commitment to review should be part of quality improvement efforts and provides evidence that the organisation takes this issue seriously.
The issue of review is related to but different from the issue of apology, and not all cases will be appropriate for review. For example, if a patient complains that their appointment is cancelled at the last minute then they could expect to receive an apology for the inconvenience, but if the cancellation occurred because the doctor was involved in an accident on the way to the hospital then a review would probably not be helpful as the circumstances were outwith the control of all concerned.
Q6. Referring to the features listed, or others, what do you consider to be the key features of an effective or meaningful apology?
The College supports the key features identified on pp.16/17.
However, the level of spontaneity which is implicit in the definition should not be lost. Our preferred approach would be to encourage staff to give a spontaneous response when something has gone wrong. There is a need to reduce the risk of a formulaic approach to apologies written by lawyers which lack sincerity and meaning.
Q7. Should the definition of an apology in the context of the proposal include admissions or statements of fault, or should they be excluded from the Bill’s protections?
There is a need to distinguish whether the use of the word “fault” in this question refers to fault as understood in lay terms or fault as an admission of legal liability.
If the definition is in lay terms, then the College believes the definition of an apology should include an admission of fault.
Q8. How do you think the Bill should deal with statements of fact included with apologies?
If a statement of fact is included in an apology, it should be admissible if the case goes to court.
Q9. In relation to non-criminal matters, should the Bill apply generally to all types of legal proceedings, or only to some? Please give examples of particular types of proceedings that you think it should cover, and any it should not, along with your reasons for their inclusion/exclusion. Should the Bill also extend to some less formal proceedings (e.g. certain complaints procedures)?
We support the principle of giving an apology when things have gone wrong and the view that the principle should apply generally to all types of legal proceedings involving non-criminal matters.
Q10. While it is the intention that the proposal will apply to civil matters only, do you think that there are any areas of criminal law to which it should apply?
No comment.
Q11. What is your assessment of the likely financial implications (if any) of the proposed Bill to you or your organisation? What (if any) other significant financial implications are likely to arise?
The financial implications should be positive in saving organisations the costs (direct and in staff time) of formal complaints and legal proceedings; but account needs to be taken of the costs of complementary action required to effect cultural change.
The main financial implications are likely to be felt by public bodies themselves, including the NHS in Scotland. Research evidence from other countries with apology legislation indicates that the costs of litigation and other forms of dispute resolution are likely to decrease. Further, the legislation has resulted in a change of culture which has helped prevent complaints from arising and escalating in the first instance - thus providing another source of cost saving.
Q12. Is the proposed Bill likely to have any substantial positive or negative implications for equality? If it is likely to have a substantial negative implication, how might this be minimised or avoided?
It is unlikely to have any substantial positive or negative implications for equality except indirectly, for example, where those who currently do not have the resources to take their complaint to court may get resolution through the giving of an apology.