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Significant concerns about ‘duty of candour’ laws guidelines

Significant concerns about ‘duty of candour’ laws guidelines

ANMF (Vic Branch) has significant concerns about the guidelines put forward for proposed ‘duty of candour’ laws.

While clinicians are already expected to be transparent about harms to patients, under the proposed legislation, hospitals and health services would be legally obliged to apologise to a person seriously harmed while receiving care, to explain what wrong and what action would be taken.

In a submission to Health Minister Martin Foley, ANMF responded to an expert working group‘s proposed guidelines for implementing the duty of candour laws.

In our submission, ANMF says we support the law reform’s intent to oblige hospitals and health services ‘to provide a proper, fulsome and active disclosure and response where an adverse event/sentinel event results in harm to an individual’.

However, we believe the report and its recommendations lack clarity on practical implementation, ANMF’s submission says: ‘Without clear measures to regulate obligations, the initiative risks legislation that is unenforceable and in a practical sense results in more of the same.’

‘The practice of health services failing to recognise systemic errors in favour of clinician failure continues to be an issue and will arise in the present proposal.’

The legislation should establish an ‘unambiguous and enforceable’ duty of candour, in which compliance should be genuine, rather than a ‘tick box’ approach. ANMF has recommended that candour and open disclosure guidance be redirected to legislation, regulation or policy, which health services are obliged to implement.

ANMF is also concerned about the failure to ensure clinicians are central to the proposed scheme.

The expert working group does not include enough nurses or midwives and ANMF has recommended that more nurses and midwives, as well as the ANMF, be invited to participate in the group.

The scheme should ensure hospitals and health services provide greater opportunities to involve clinicians in articulating their views in the investigation of adverse events, as well as in developing the response and apology. All clinicians should have access to incident review reports as part of the process ensuring natural justice and transparency. ANMF will be involved in developing an education package to support nurses and midwives in understanding processes and obligations under the legislation.

Read our full submission on the ‘duty of candour’ guidelines.