THE INVIOLABILITY OF MEDICAL CONFIDENTIALITY: AN ANALYSIS OF THE RULES AND EXCEPTIONS
Jahn Kassim, P.N.1 & Ramli, N.
Abstract:
The duty of medical confidentiality has been one of the core duties of medical practice as information created, disclosed, acquired directly or indirectly during the doctor-patient relationship is considered confidential and requires legitimate protection. Further, preserving confidentiality on the premise that the relationship between doctor and patient has been built on trust and confidence renders the duty to be seen as sacrosanct. The source for this duty can be found not only in the Hippocratic Oath, codes of ethics, religious tenets but also in the common law, principles of equity and statutory provisions. Nevertheless, technological advancements and the growth of social networks have contributed to the difficulties in preserving confidentiality as the information gathered tends to become vulnerable in unsecure environments. However, the duty of medical confidentiality is by no means absolute as it can be breached in situations in which there are stronger conflicting duties. This paper seeks to discuss the rules governing the duty of medical confidentiality and the exceptions in which infringements to this duty become justified. The scope and limitations of this duty under the Islamic law will also be discussed as infringements on confidentiality make up a significant portion of Islamic rulings that should be thoroughly explored and investigated to understand the demands of this duty on Muslim medical practitioners. The inviolability of this duty may be without doubt but circumstances warranting its disclosure are crucial to serve the interests of justice.
1 Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, Jalan Gombak, 53100, Kuala
1. Introduction
The duty of confidentiality in a doctor-patient relationship is built on trust and confidence. The trusting environment created encourages patients to share sensitive information and communicate their symptoms, experience, beliefs, concerns and expectations about their illness without fear that the information would be made known to others. The duty has also been held to be sacrosanct due to its long standing tradition in many codes of ethics for many centuries. The undertaking by the medical profession to preserve confidentiality is
to safeguard patient‘s dignity, privacy and autonomy and this obligation extend even after the
death of the patient (De Cruz, P. 2000). Nevertheless, the patient‘s interest in his privacy
must be balanced with other potentially conflicting interests. This makes the duty of confidentiality not to be an absolute concept. Pragmatism requires any countervailing moral or legal considerations to override the duty of confidentiality. In other words, the inviolability of the duty requires violation when circumstances demand for the disclosure of such information.
The duty of confidentiality refers to the legal or ethical duty to keep private the information gathered during the course of a professional relationship (BMA, 1999). Literally speaking, confidentiality means to keep secret that is not to be divulged (Puteri Nemie, J.K., 2012). All identifiable patient information, whether written, computerised, visually or audio recorded or held in the memory of medical professionals, is subject to the duty of confidentiality. These include (i) any clinical information about an individual‘s diagnosis or
treatment; (ii) a picture, photograph, video, audiotape or other; (iii) images of the patient; (iv)
the identity of the patient‘s doctor and the information about the clinics the patients had
attended; (v) anything else that may be used to identify patients directly or indirectly so that
any of the information above, combined with the patient‘s name or address or full postcode or the patient‘s date of birth, can identify be made to them (BMA, n.d).
The duty of confidentiality serves various purposes in medicine. Firstly, confidentiality gives recognition to patient autonomy. It acknowledges respect for the
patient‘s sense of individuality and privacy (Puteri Nemie, J.K., 2012). Patient‘s personal,
psychiatric health concerns (De Bord, 2013). Secondly, confidentiality protects doctor‘s integrity, which is important in improving the patient‘s health. Confidentiality permits
individuals to trust that information given to their doctors will not be dispersed further. In doing so, communication will become honest and straightforward. If patients did not believe that doctors would keep their secrets then either they would not divulge embarrassing but potentially medically important information, thus, reducing their chances in getting the best medical care (Gillon, R.1986). In many psychiatric cases, confidentiality is essential to psychiatric treatment. Without the assurance of complete secrecy, patients would be less inclined to enter treatment and those already in therapy would be unwilling to disclose important material. Therefore, violating confidentiality would seriously affect the care of the mentally ill, to the detriment of patients and society as a whole.
2. The Ethical Obligations of the Duty of Medical Confidentiality
Medical ethics has regarded the duty of medical confidentiality as one on the core and non-negotiable tenets of medical practice. The ethical duty of medical confidentiality was first articulated in the Hippocratic Oath which takes the form of a covenant comprising of a code of medical ethics and professional etiquette (White, B. et. Al., 2014). The Oath imposed
a strict duty of confidentiality for doctors by stating that ―What I see or hear in the course of
the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself holding such things shameful to be
spoken about‖ (Edelstein, 1987). Thus, doctors should not divulge information gathered
The ethical obligation of medical confidentiality laid out by the Hippocratic Oath has been accepted globally in substance and embedded in a variety of modernised versions of codes of medical ethics. For instance, the International Code of Medical Ethics mentions that
―a doctor shall preserve absolute secrecy on all he knows about his patients because of the
confidence entrusted in him‖ while the Declaration of Geneva, which is the basis of the
modern version of the International Code of Medical Ethics (Hau, 2003), requires doctors to promise to respect the secrets that have been confided in them even after the patient has died (De Cruz, P. 2000). Similarly, under the Malaysian Medical Council Code of Professional Conduct 1986, the ethical duty of can be found in Part II of Infamous Conduct which states
under Abuse of Confidence that ―a practitioner may not improperly disclose information
which he obtains in confidence from or about a patient‖ (at Provision 2.22). Further, the
Code of Professional Conduct for Nurses 1998 by the Nursing Board Malaysia specifically
provides that ―the nurse must not disclose information which she obtained in confidence from
or about a patient unless it is to other professionals concerned directly with the patient‘s care‖
(at Provision 3.5). Nevertheless, the duty of medical confidentiality, like other ethical duties, is not absolute. It has to be overridden to protect individuals or the public when the law
requires it. Before disclosing patient‘s information, the doctor should make every effort to
discuss the issues with the patient. If breaching confidentiality is necessary, it should be done in a way that minimizes harm to the patient and heeds the governing legal conditions allowing disclosure of such information.
3. The Rules of Confidentiality under Medical Law
Under the common law, the duty of confidentiality is well established and can be found in both contract law and in tort law. Every contract between a patient and a doctor gives rise to an implicit agreement that the professional will preserve the patient‘s
confidences, and breach of this obligation could give rise to an action for breach of contract. In circumstances where the patient pays for the treatment, the relationship between the doctor and the patient is contractual and the patient has a right to sue for breach of contract as long as the damage was not to remote (White, B. et. al., 2014). There is thus, an implied term in
the contract between the doctor and the patient that the patient‘s affairs are confidential and
the information about the patient will not be disclosed without just cause (Breen v Williams (1996) 186 CLR 71, at paragraph 9.210).
A patient may also have a remedy in the tort of negligence against a doctor, if negligent disclosure of confidential information gives rise to some foreseeable injury to the
patient. In AG v Guardian Newspapers (No 2) [1990] AC 109, Lord Goff stated that ―…a
duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that
he should be precluded from disclosing the information to others…‖ (at p. 281). His Lordship
however, added several limitations to this duty. The first limitation is that ―the principle of confidentiality only applies to information to the extent that it is confidential.‖ Thus, once
the information has entered the public domain, it can no longer be regarded as confidential.
The duty of medical confidentiality can also be found under the principles of equity relating to elements of morality governing all interpersonal relationships (Stephens v Avery [1988] 2 All ER 477, at 482). As patients invariably confide intimate personal details about themselves, the provision of such confidential information may make the relationship between the patient and the doctor fiduciary in nature (Breen v Williams (1996) 186 CLR 71, at 107-108). However, the relationship may not be fiduciary for all purposes as a person may stand in a fiduciary relationship to another for one purpose but not for others (Hospital Products Ltd v United States Surgical Corporation (1984) CLR 41, at 98). Classes of information that can be protected includes (a) information about health and medical treatment; (b) information about
sexual life; (c) information about appearance; (d) information about identity; (e) information about private acts; (f) information about knowledge of or involvement in crime; (g) financial and business information; (h) the contents of personal communications and conversations (Cooray, M., 2011). Further, equity will also intervene where confidential information has been obtained by mistake, inadvertently, surreptitiously, improperly (White, B. et. Al., 2014)
or ―where the person to whom the confidential information has been disclosed seeks to use it
in breach of the terms on which it was disclosed and to the detriment of the party who
communicated the confidential information‖ (Trevorrow v South Australia (No. 4) (2006) 94
SASR at paragraph [14]).
4. The Exceptions provided by the Law
Although the basis of the law‘s protection of confidence is that there is a public
interest that confidences should be preserved and protected by law, nevertheless, as has been stated earlier, this public interest may be outweighed by some other countervailing public interest which favours disclosure (AG v Guardian Newspapers (No 2) [1990] AC 109 at. 282, per Lord Goff). The Malaysian Medical Council Revised Guidelines 2011 on Confidentiality
stated that a practitioner may ―disclose personal information if (a) it is required by law (b) the patient consent either implicitly for the sake of their own care or expressly for other purposes;
or (c) it is justified in the public interest‖ (at Provision 3). Therefore, the duty of
(i) Disclosure with patient‟s consent
Confidential information regarding the patient may be disclosed if the patient agrees for its disclosure through an express or implied consent. Explicit or express consent is achieved when a patient actively agrees, either orally or in writing, to a particular use or disclosure of information which has been discussed with the patient (BMA, n.d). In procuring an express or explicit consent, the patient needs give a legally valid consent. This means patient must have the mental competence (reached the age of majority and of sound mind), sufficient understanding of the treatment proposed (the consent must be informed in nature) and by with their own free will (Puteri Nemie, J.K. 2007). In other words, there must not exist any duress or undue influence (Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649). Patient agreement can also be implied, signaled by the behaviour of an informed patient. (BMA, n.d). In certain situations, the release of patient information may be implied, particularly, to individuals within a health facility who have legitimate therapeutic interest for accessing the information in order to be able to provide the appropriate care and treatment (MMC Guidelines 2011, at provisions 22 -24).
However, the issue of implied consent may be contentious, particularly, when there is lack of understanding of the implications of the disclosure by the patient or it violates the patient‘s right of privacy. Even if the information has been procured within a clinical environment for the best interest of the patient, the patient still needs to be informed explicitly in all aspects of the medical procedure. This can be seen in the case of Lee Ewe Poh v Dr Lim Teik Man & Anor [2011] 1 MLJ 835, in which the patient brought an action against a colorectal surgeon, that the photographs he had taken of her private parts without her consent during a procedure constitute an invasion of her privacy rights under the common law. The photographs were taken while the patient was unconscious and under anaesthesia. The patient later learned from the nurse that photographs showing her anus were taken without her prior knowledge and consent. The surgeon claimed that ―infringement, invasion or violation of privacy‖ was not a recognised tort or a cause of action in Malaysia. It was
acceptable medical practice for photographs to be taken in the course of surgical procedure in a clinical environment and intended for the patient‘s medical record. It was further submitted that the patient‘s identity was not known in these photographs. However, the court held that
intimate parts. Invasion of privacy of a female in relation to her modesty, decency and dignity is a cause of action and thus, actionable (Maslinda bt Ishak v Mohd Tahir bin Osman & Ors [2009] 6 MLJ 826). As a doctor, the surgeon ought to be aware of the need to obtain the
patient‘s prior consent for such photographs to be taken, particularly, when it involves the
private parts of the patient. Further, there was publication of the photographs as the photographs were seen by the nurse. This case depicts that the right of privacy of the patient needs to be fully respected in modern health care setting and prior consent of the patient is essential and cannot be taken for granted. Implied consent is not a lesser form of consent but in order for it to be valid, it is important that patients are made aware that information about them will be shared, with whom it will be shared, and that they have the right to refuse. Even when the practitioner have contractual obligations with the third parties such as insurance companies or managed care organisations, the practitioner shall obtain the patient‘s consent
before undertaking any examination or writing a report for a third party and ensure that the
patient‘s consent is obtained prior to the submission of the report (MMC Guidelines 2011, at Provision 29).
(ii) Disclosure allowed by statutes
A number of statutory provisions provide for the disclosure of information by doctors. For instance, there are several legislations in Malaysia that requires medical practitioners to disclose patient information to the relevant authorities, for example, the Prevention and Control of Infection Diseases Act 1988 (Act 342), the Poisons Act 1952 (Act 366) (sections 21(2), 23(2) and 24; Regulations 19 and 20 of the Poisons (Psychotropic Substances) Regulations 1989) and the Criminal Procedure Code (FMS Chapter 6). For instance, section 10(2) of the Prevention and Control of Infection Diseases Act 1988 requires medical practitioners to provide information of infectious diseases to the nearest Medical Officer of
Health in the prescribed form. Similarly, section 27 of the Child Act 2001 states that ―if a medical officer …believes on reasonable grounds that a child he is examining or treating is
physically or emotionally injured as a result of being ill-treated, neglected , abandoned or
exposed, or is sexually abused, he shall immediately inform the Protector‖ (at subsection 1) and failing to comply with this, the medical officer ―commits an offence and shall on
(iii) Disclosure in the public interest to prevent harm to others
The influence of principles based on public interest is predominant in the action for breach of confidence (Gurry, F., 1984). Public interest includes matters which affects the life and even the liberty of members of the society (De Bate, 1987). If it can be shown that the public has serious and legitimate interest in the disclosure then it may be demonstrated that there is a just cause or excuse in breaking confidence. The importance of secrecy is weighed
against the public interest in disclosure. However, ―before considering whether a disclosure
of personal information in the public interest would be justified, the practitioner must be satisfied that identifiable data are necessary for the purpose, or that it is not practicable to
anonymise the data. In such cases the practitioner shall still try to seek patient‘s consent,
unless it is not practicable to do so, for example because (a) the patients are not competent to give consent; or (b) the records are of such age and/or number that reasonable efforts to trace patients are unlikely to be successful; or (c) the patient has been, or may be violent; or obtaining consent would undermine the purpose of the disclosure (e.g. disclosures in relation to crime); or (d) action must be taken quickly (for example in the detection or control of outbreaks of some communicable diseases) and there is insufficient time to contact patients (MMC Guidelines 2011, provision 35). Nevertheless, ―ultimately, the ‗public interest‘ can only be determined by the courts‖ (MMC Guidelines 2011, at Provision 38).
Public interest was raised as a defence in the case of X v Y [1988] 2 All ER 648, which concerned doctors who were believed to be continuing in practice despite having developed Acquired Immune Deficiency Syndrome (AIDS). The court held that the public interest in preserving the confidentiality of hospital records identifying actual or potential AIDS sufferers outweighed the public interest in the freedom of the press to publish such information because victims of the disease ought not to b deterred by fear or discovery from going to the hospital for treatment. Furthermore, free and informed public debate about AIDS could take place without publication of the confidential information. Amongst other examples of public interests, which may outweigh the competing public interest in maintaining confidences are disclosure in the interests of national security, disclosure to prevent harm to third party and disclosure to prevent crime.
Medical professionals including psychiatrists may, at times, find it necessary to reveal confidential information disclosed by the patient in order to protect the patient or third parties from imminent danger. In these cases, the harm sustained by the third party may outweigh the duty of confidentiality owed by the doctor to the patient. The case of Tarasoff v Regents of the University of California (1976) 551 P 2d 334, illustrates that the duty of confidentiality can be overridden in the interests of the public. In this case, the patient confided to his therapist, an employee of the University of California, of his intentions to harm a fellow colleague, Tatiana Tarasoff, who had constantly rejected his advances. The therapist informed the police but did not inform Tarasaff herself. Tarasoff was later found dead, stabbed to death by the patient. Mr Justice Tobriner, holding the majority opinion in the Supreme Court of California held that there was a duty by the therapist to disclose threats made by the patient to Tarasoff. If the patient presents a serious danger of violence to another, the therapist incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case, which may include warning the intended victim or others likely to appraise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances (at p. 340).
Disclosure may be justified on the basis of the need to protect those at risk of death or serious harm. The protection of public from crime was considered in W v Egdell [1990] 1 All ER 835, which provides an interesting insight into the dilemma faced by the court in such situation. In this case, W, a paranoid schizophrenic, was detained as a patient in a secure hospital indefinitely following a conviction of manslaughter on the grounds of diminished responsibility and could only be released by the order of the Home Secretary if he was found to be no longer a danger to public safety. Ten years after his detention, W made an application to a mental health tribunal to review his condition and hope that this
will lead to an early discharge. Dr Egdell, a consultant psychiatrist, was asked by W‘s solicitors to prepare a psychiatric report on W. After examining W, Dr Egdell‘s opined that
W is still highly dangerous and showed persistent interest in explosives. Upon receiving the
report, W‘s solicitors withdrew his application to the mental health review tribunal.
warn those who are involve in caring for W at the hospital and to ensure that the public was in no way endangered by his early release. W applied to the court for an injunction preventing the disclosure of the report by Dr Egdell. The Court of Appeal refused to prevent disclosure of the report and held that public interest justified disclosure to the medical director and the Home Office. The report contained the dangerousness of W that is not known to many. To suppress it would have prevented material relevant to public safety from reaching the authorities responsible for protecting it. It was in the public interest to ensure that they took decisions on the need for such protection on the basis of the best available information. Bingham LJ. remarked that balance should be struck between the public interest in maintaining professional confidences and the public interest in protecting the
public against possible violence. He aptly said that ―the breach of such a duty [of
confidentiality] is…dependent on circumstances…the law recognizes an important public
interest in maintaining professional duties of confidence but the law treats no such duties as
absolute.…[it can] be overridden where there is held to be a stronger public interest in
(iv) Disclosure of HIV/AIDS status
As discussed above, even where public interest requires disclosure, it is necessary to confine it to the extent strictly necessary. The fact that it is in the public interest to reveal
some aspects of a patient‘s situation does not justify disclosing all the details (Montgomery,
J. 2003). However, this does not prevent revealing information that helps to explain the situation. Disclosure of patient‘s HIV status has been a concern particularly, to those caring for them and to their sexual partners. Under the common law, disclosure of a patient‘s HIV
status is allowed provided that two conditions are satisfied: first, that there is a real risk to the people to be informed; secondly, that disclosure is the only practical way to protect them. The General Medical Council in England advises doctors to explain to patients the nature and implications of their disease, how they can protect others from infection and the importance of giving professional carers information about their condition. However, if patients still refuse to allow others to be informed of their status, disclosure is accepted as ethical provided that the doctor judges that there is a serious risk of death or serious harm and that patients are told that the information will be disclosed (GMC,1997, at paragraphs 18-23). Stigma and
discrimination are usually inherent in society‘s perception towards HIV patients. A study
which was conducted in 2012 by Positive Malaysian Treatment Access & Advocacy Group revealed that 15.6% of the people living with HIV respondents had suffered discrimination in relation to job or income, with 12.4% being refused employment and 6.4% having been refused promotion or having the nature of their job changed (Gurusamy, 2014). Thus, it is of paramount importance that the medical profession is careful and discreet in releasing information about HIV patients, even to companies, insurance companies and managed care
organisations without patient‘s prior consent (MMC Guidelines, 2011). The Malaysian HIV/AIDS Charter for Doctors states that ―doctors should, without prejudice and
discrimination, when carrying out blood or other tests, ensure that adequate pre and post-test
5. Breaching the Duty of Confidentiality through Social Networks
The obligation of confidentiality is not limited to the undertaking of not divulging confidential information but also it includes a responsibility to make sure that all records containing patient information are kept securely. Confidential records should not be left where other people may have casual access to them and information about patients should be sent under private and confidential cover, with appropriate measures to ensure that it does not go astray. The use of social networks has been beneficial for the medical profession to interact with patients, market their practices, attract participants for research studies and share information with colleagues and community (Dill, K.J. 2009). Nevertheless, the discussions
on patients‘ information over social networks may trigger a myriad of legal issues
particularly, on the law relating to privacy and defamation. Thus, it has become increasingly vital for medical professionals to be aware of the related legal risks (Cooray, M. 2011) and extremely cautious in deciding what information to share on their social networking sites. The same legal rules on confidentiality apply to the information disseminated through social networks. In view of the vulnerabilities of such information, healthcare providers as employers, should enact policies with guidelines and requirements for their employees‘
they need to be conscious at all times of those having access to their personal material online and how widely will the content be shared (BMA, 2011). Malaysia does not have specific
guidelines and rules for the medical profession‘s disclosure of confidential information
through social network. However, some provisions under the Malaysian Medical Council (MMC) Guidelines 2011 on Confidentiality can be used as guidance for disclosing information through social network. Under the MMC 2011 Guidelines, the practitioner shall
take steps to ensure that the patient‘s confidentiality is maintained regardless of the
technology used to communicate health information (at Provision 7) and shall not discuss
patient‘s information in an area where the practitioner can be overheard or leave patient‘s
records, either on paper or on screen, where they can be seen by other patients, unauthorized health care staff or the public (at Provision 8). The practitioner has a responsibility, as a
custodian of patient‘s medical records, to ensure the integrity, confidentiality and availability of the medical records (Provision 11) and follow the MMC‘s guidelines on raising concerns
about patient safety, including concerns about confidentiality and information governance (at Provision 9).
6. The Rule of Confidentiality under Islamic Law
Islam holds the right of privacy of human beings in high esteem and this right is given paramount and important consideration under the Shari‟ah. There are numerous Qur‟anic verses and hadiths explaining the significance of privacy in Islam. Surah an-Nur, verse 27
stresses on physical privacy in which Allah s.w.t states to the effect: ―O you who believe!
Enter not houses other than your own, until you have asked permission and saluted those in
them, that is the best for you, in order that you may heed (what is seemly)‖ (The Holy Qur‘an, 4: 27). Further, in Surah al-Hujurat verse 12, Allah s.w.t. states to the effect that: ―O
you who believe! Avoid suspicion as much as possible, for suspicion in some cases is a sin.
And spy not on each other, nor speak ill of each other behind their backs‖ (The Holy Qur‘an, 49:12). The rule to respect one‘s privacy is not an obligation imposed on adults only but applies to children as well. In Surah an-Nur, verse 59, Allah s.w.t states to the effect: ―But when children among you come of age, let them (also) ask for permission as do those before them, does Allah s.w.t. make His signs to you, for Allah s.w.t is full of knowledge and
Prophet Muhammad p.b.u.h has also stated that ―The believer is not one who defames,
slanders, nor is obscene‖ (Sahih al-Tirmidhi, Vol. 28, Hadith No.1977). Guided by the respected principle of privacy in Islam, medical professionals are forbidden to disclose information they obtain from their patient to others. The Islamic Charter of Health Ethics
provides that: ―A doctor may not disclose a personal secret that has come to his knowledge
through the performance of his profession, whether the patient confides the secret to him, or the doctor comes to know it in the course of his work‖ (at Article 29).
Further, when the doctor receives information from his patient, it is considered part of his amanah (trust) not to disclose the information to others without the patient‘s permission. Amanah literally means trust, reliability, trustworthiness, loyalty, faithfulness, integrity, and honesty. The concept of amanah binds individuals with society as it defines man‘s rights and responsibilities in relation to all the other humans, his environment and God‘s creation. The term amanah is used in the Qur‘an and the Sunnah to indicate a very broad and deep
meaning. Everything given to us by Allah s.w.t is a kind of amanah (trust) which should be managed appropriately according to the laws and rules revealed by Allah s.w.t (Sheikh Munawar Haque, 2014). Every tasks or responsibility assigned to us is considered an amanah. Our bodies, our souls, our eyes, our ears, our intellect, our provisions, our clothing, our homes, and all other blessings and bounties of Allah s.w.t. have been given to us as amanah (trust) and has to be either returned back to Allah s.w.t. or used according to His instructions (Sheikh Munawar Haque, 2014). Thus, we have to ensure that we used these gifts from Allah s.w.t properly as we will be made accountable about them. In Surah al-Takathur, verse 2, Allah s.w.t states to the effect: ―Then on that day you shall most certainly
be questioned about the bounties‖ (The Holy Qur‘an: 102:8). Similarly, in Surah al- Isra‟, verse 36, Allah s.w.t. states to the effect: ―The hearing, sight and hearts will all be questioned (The Holy Qur‘an, 17:36).
The Holy Qur‘an also contains many verses reminding mankind not to be disloyal to
Allah s.w.t, His Prophet p.b.u.h., and also not to be dishonest to the amanah (trust) delegated unto them. In Surah al-Anfal, verse 27, Allah s.w.t states to the effect: ―O you, who believe,
do not betray God and His Messenger, and do not knowingly violate your trusts (The Holy
it is a sign of hypocrisy. Abu Hurairah r.a. narrated that the Prophet p.b.u.h said: ―The signs
of a hypocrite are three (a) whenever he/she speaks, he/she tells a lie; (b) whenever he/she promises, he/she always breaks it; (c) whenever he/she is trusted, he/she always proves to be
dishonest‖ (Sahih Bukhari, Hadith No. 33). The Prophet p.b.u.h. further stressed on the
responsibility of amanah by stating that: ―It has been narrated on the authority of Ibn Umar
that the Holy Prophet p.b.u.h. said: Beware, everyone of you is a shepherd and everyone is answerable with regard to his flock. The Caliph is a shepherd over the people and shall be questioned about his subjects (as to how he conducted their affairs). A man is a guardian over the members of his family and shall be questioned about them (as to how he looked after their physical and moral well-being). A woman is a guardian over the household of her husband and his children and shall be questioned about them (as to how she managed the household and brought up the children). A slave is a guardian over the property of his master and shall be questioned about it (as to how he safeguarded his trust). Beware, everyone of you is a guardian and everyone of you shall be questioned with regard to his trust‖ (Sahih Muslim,
Book 20: Hadith No. 4496). Consequently, true believers are, according to Surah al-Mu‟minun, verse 8, in which Allah s.w.t states to the effect: ―those who honor their trusts and their contracts‖ (The Holy Qur‘an, 23:8). Therefore, when a person received confidential information during the tenure of his profession, maintaining secrecy of that information is his responsibility. For instance, an employee is the custodian of the property of his employer which he will be answerable for and what is required to be confidential is considered in as a trust (Sheikh Munawar Haque, 2014).
However, a doctor is allowed to disclose information about his patient according to the following exceptions:
i. If disclosure of a person‘s secret is done at his own request, which should be in writing or if disclosure of a secret is in the interest of the patient or society;
ii. If the laws in operation require disclosure of the secret, or an order to disclose it is made by a judicial authority;
iv. If the disclosure of a person‘s secret is in the interest of the patient‘s spouse,
provided that it is made to the couple, and not to one without the other;
v. If the doctor makes the disclosure in defending himself before a judicial authority at its request and in as much as the defence requires and
vi. If the purpose of disclosing the secret is to prevent the spread of an infectious disease that would be harmful to society members provided that the disclosure is made only to the concerned health authority (Islamic Charter of Health Ethics, Article 29).
7. Conclusion
Striking a balance between the legitimate interests of the community and the rights of individuals is always problematic. No set of rules could completely address many complex issues facing the medical profession. The law must strike the difficult balance of protecting the rights and interests of the individual person while also maintaining the safety and interests of the public at large or any others who may be affected by the actions of individuals. The greater the potential harm to the public, the greater the pressure to curb the actions of an individual. It is a matter of fine balancing, but at the end of the day, the law must ensure that
any ―protective privilege should end where public peril begins.‖
References:
British Medical Association (BMA). (1999). Confidentiality and Disclosure of Health Information. London: BMA.
British Medical Association (BMA). (2011) Using social media: practical and ethical guidance for doctors and medical students. First edition. London: British Medical Association.
bma.org.uk/practical-support-at-work/ethics/confidentiality-and-health-records/confidentiality-tool-kit (accessed 2 March 2016).
Code of Professional Conduct adopted by the Malaysian Medical Council on 9 December 1986. Available at mmc.gov.my/v1/index.php/tester?id=320 (accessed 2nd January 2015).
Code of Professional Conduct for Nurses. (1998). First Edition. Nursing Board Malaysia. Kuala Lumpur.
Cooray, M. (2011). Information Gathered on Social Networking Sites and the Law of Confidence. International Conference on Social Science and Humanity. IPEDR. Vol. 5. IACSIT Press: Singapore.
De Bate, S. (1987). A Mole's Charter? : A Review of Recent Public Interest Defence Cases. Law Society‟s Gazette. 84 (14): 1048.
De Bord, Jessica, (2013). Confidentiality. Ethics in Medicine. Washington: University of Washington School of Medicine.
De Cruz, P. (2000). Comparative Healthcare Law. London: Cavendish Publishing.
Dill, K.J. (2009). Social Networking Sites Present Legal Risks for Health Care Providers. Healthcare Law Update. www. pepperlaw.com.
Edelstein, L. (1987). Ancient Medicine. Baltimore: Johns Hopkins University Press.
General Medical Council (GMC). (1997). Serious Communicable Diseases. London: GMC.
General Medical Council (GMC). (2009). Confidentiality. London: GMC.
Gurry, F. (1984). In Breach of Confidence. Oxford: Clarendon Press.
Gurusamy, J. (2014). Employment and Education: Are We Stigmatising and Discriminating HIV Patients? Berita MMA. Vol.44 (March): 20-21.
Hau, K. (2003). Law and Ethics in Medical Practice: An Overview. Medical Section. 8(6): 1-7.
Islamic Charter of Health Ethics. Available at
www.emro.who.int/PDF/islamiccharter_MedicalHealthEthics.pdf (accessed 2nd
January 2016).
Malaysian Medical Association, HIV/AIDS Charter for Doctors, Malaysian Medical Council, adopted in the 37th MMA Council. Available at www.mma.org.my/hiv-aids-charter-for-doctors (accessed 10th February 2015).
Malaysian Medical Council (MMC) Revised Guidelines. (2011). Confidentiality. Available at mmc.gov.my/v1/docs/-Confidentiality.pdf (accessed 1st February 2016).
Mendelson, D. (1998). The Medical Duty of Confidentiality in the Hippocratic Tradition and Jewish Medical Ethics. Journal of Law and Medicine. 5: 227-239.
Montgomery, J. (2003). Healthcare Law, Oxford University Press : Oxford.Patient confidentiality and divulging patient information to third parties (OP 1967/05). Available at www.health.wa.gov.au/CircularsNew/.../234.pdf (accessed 10th Janury 2016).
Puteri Nemie, J.K. (2007). Law and Ethics relating to the Medical Profession. Kuala Lumpur: International Law Book Services.
Sahih Bukhari, Book of Faith. Hadith No. 33. Available at
http://www.quranandhadith.com/hypocrisy-2/ (accessed 15th February 2016).
Sahih Muslim, Book 20: Hadith No. 4496. Available at
http://www.iium.edu.my/deed/hadith/muslim/020_smt.html (accessed 15th February
2016).
Sahih al-Tirmidhi, Vol. 28. Hadith No. 1977. Available at
http://www.islamweb.net/en/article/158725/ (accessed 6th January 2016).
Sheikh Munawar Haque. (2014). The Concept of Amanah. Available at www.amda.us/khutba_transcripts/Concept_of_Amanah_in_Islam_Sheikh_Munawar_ Haque.pdf (accessed 28th February 2016).
Stauch, M.,Wheat, K. & Tingle, J., (2012), Text, Cases and Materials on Medical Law and Ethics. London; Routledge.
THE ROLE OF APOLOGIES IN THE RESOLUTION OF MEDICAL DISPUTES
Jahn Kassim, P.N.1 & Saleh, M.R.2
Abstract
In the wake of medical errors and potential lawsuits, apologies made by the medical practitioner to the patient have the ability to defuse the spur of litigation and restore the relationship of trust and confidence between them. Often, when things go wrong in a medical treatment, the patient wants to know what actually happened, why it happened and be assured that it will not happen again in the future. At this juncture,
apologies which are ‗statements acknowledging error and its consequences, including
accepting responsibilities and communication of regrets‘ can reduce the intensifying
anger and desires to retaliate. Nevertheless, apologies may also have the potential to be seen as admissions of guilt by the medical practitioner and may at certain circumstances, expose him to risks of impending lawsuits. In weighing the drawbacks
of apologies against their benefits, several countries have enacted ‗apology laws‘ that
mandate open disclosure of medical errors and at the same time, shielding those who apologise from legal liability. For instance, Canada and Australia have enacted
‗apology laws‘ in which apologies that have been given after adverse events cannot be
used in future legal proceedings. This paper seeks to discuss the role of apologies in the resolution of medical disputes, particularly, in reducing the number of potential lawsuits and promoting prospects of settlement. Against this backdrop, the barriers faced by the medical practitioners in subjecting themselves to acts of open disclosure after a mishap should not be overlooked to ensure the inculcation of a sustainable culture of honesty, openness and respect that is fundamental for patient safety improvements and public trust within the healthcare system.
1 Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, 53100, Kuala Lumpur. Email:
nemie@iium.edu.my
2 Postgraduate Student , Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, 53100,
1. Introduction
Apology has always been viewed as an important social conduct that is able to heal and preserve relationships. By apologizing, a person shows respect and empathy towards the wronged person and if it is done sincerely and effectively, the negative consequences of the wrong actions can be avoided. A person who has been harmed is usually overwhelmed by anger, frustration and a desire to retaliate. An apology made by the wrongdoer has the ability
to disarm a person‘s anger and vengeance and subsequently, opens the door to forgiveness towards the wrongdoer. Particularly, medical treatment that results in injuries and death of a person tends to build up the anger from within the injured person and the affected families. Consequently, the injured victims or their families will try to resort to court litigation as a means of showing their anger and dissatisfaction and at the same time, demanding monetary compensation to ensure that the medical practitioner is responsible to pay for all the losses they have suffered. Apologies made by the medical practitioner at this point may be able to defuse the spur of litigation and reduce the intensifying anger felt by the affected parties. However, medical practitioners are in constant dilemmas as to whether to apologise fearing that apologies made would be interpreted as admissions of guilt (Mongiello, M.C., 2012) and used against them in legal proceedings. This paper seeks to explore the benefits and the drawbacks of apologies in resolving medical disputes and the legal implications if apologies are being placed in a proper regulatory framework to ensure the validity of its consequences.
2. Medical Errors and the Desire to Litigate
Medical negligence claims in Malaysia is on the rise every year. It can be seen from the year 2006 to 2010, the Malaysian government has paid out an amount ranging from RM 2,184,406.21 to RM 12,919,083.12 as ex gratia payment (a form of out-of-court
compensation afforded those suffering from medical injuries) to victims of ‗potential‘
medical negligence (MOH, 2010). Frequency of medical negligence claims and the size of
2013). On top of the list is Obstetrics & Gynaecology (O&G) where insurance premiums for specialists in this area had increased sharply from RM15,300 in 2004 to RM43,610 in 2009, rising averagely between RM5,000 to RM6,000 annually. To date, Malaysian Obstetricians have to pay RM62,000 to protect themselves from the threat of litigation and the numbers are expected to rise in the future. Insurance premiums for specialists in neurosurgery, spinal surgery and plastic surgery are also on the rise averagely from RM3,000 to RM4,000 annually, from RM10,000 in 2004 to RM27,150 in 2009, and RM39,500 in 2013. Premiums for orthopaedics had risen from RM10,000 in 2004 to RM21,120 in 2009, and RM39,500 in 2013, averaging from RM2,000 to RM3,000 annually (MDM, 2013). From this figures, it can be seen that patients nowadays are no longer passive recipients of medical care. There is
clearly an increasing awareness of patients‘ rights and public‘s expectations on the outcome
of the medical treatment. Discrepancy between the expectation of the patient and the service received or outcome of treatment tend to trigger claims in the court of law.
For some patients, having their time in court achieves retributive justice and able to appease their vengeance. Nevertheless, claims in the court of law often starts because the patient cannot get the information he is seeking, explanation or apology from the appropriate persons. Not all patients want to obtain financial compensation, some merely want to ensure that there is no repetition of the mishap that had occurred and to receive an apology for what
had happened. According to Action for Victims of Medical Accidents (AVMA), ―what they want is ‗satisfaction‘…what that means is a full explanation of what went wrong and if
litigation process, thus, an apology offered at this time may be able to defuse the desire to
litigate as it is able to reduce the patient‘s anger, creates an open communication between the doctor and the patient to voice their concerns and eventually, curb the patient‘s motivation to litigate (Slocum, D.J. et al., 2011). At this juncture, possibilities of settling matters out of court may be forthcoming. Settlements out court may be beneficial to both parties as it not only able to reduce the confrontational attitudes amongst the parties in the court room but would also be able to reduce the backlog of cases in the court of law (Saitta, N. & Hodge, S.D. 2011).
3. The Concept Apology in Medical Disputes
Apologies are statements acknowledging errors and its consequences, including accepting responsibilities and communication of regrets. Apologies can be defined as a
―written or spoken expression of one‘s regret, remorse or sorrow for having insulted, failed or injured, or wronged another‖ (Raper, S.E, 2011, at 292). Besides expressing one‘s regret,
4. The Benefits of Apologizing in Medical Disputes
Apology is recognized for having psychological effect as it is a remedial behavior in nature where it has the potential to make wrongful behavior becomes acceptable either verbally or by acts that attempt to explain the real situation and the showing of compassion and regret (Slocum, D.J., et al., 2011). Although apology cannot undo the outcome of the negligent act, the words of empathy may have the ability to defuse anger and can undo the negative effect or consequence from that negligent act (Saitta, N & Hodge, S.D. 2011). Other than offering psychological benefits, apology law also provides legal benefits which can be seen as follows:
(a) Discourage Litigation
Apology encourages or influences the reconciliation or forgiving process. As anger is the main motivation for medical negligence litigation, apologies has been found to be
effective in reducing patient‘s anger, increase communication between the medical practitioner and patient and ultimately reduce patient‘s motivation to litigate (Slocum, D.J., et.al., 2011). Although the patient realized that the outcome of the negligence act cannot be reversed, but in certain circumstances, they only wanted to learn as to how and why the incident happened and they also want to be assured that the medical practitioner will take preventive measures to so that the same incident will not happen again to others (Szostak, D.C., 2011). Besides that, apology promotes emotional healing as it will remove the hatred between the patient and medical practitioners and the patient will no longer perceive the medical practitioner as a personal threat (Engel, B., 2002). On the part of medical practitioner, apology helps to comfort them emotionally as it eradicate the feeling of guilt or self-reproach while reducing arrogance and promoting self-respect (Saitta, N & Hodge, S.D. 2011). If apology has successfully defused the anger on the part of the patient, there will be
no issue on prospective litigation fostering the ‗name, blame and shame‘ culture.
(b) Promote Fast Settlement of Claims
In some cases, the court take years to come up with a decision after the claim have been
being initiated by the patient. This will not only delay the patient‘s right to get compensation for the loss he had suffered but it will also increase the tension and anger between the patient and the medical practitioner. Prior to a settlement discussion, an apology is very much needed as this will start the healing process on the part of the patient and ultimately, encourage the discussion on the monetary compensation required (Ebert, R.E., 2008). In many instances, when the medical practitioners did not apologize, the relationship between the patient and the medical practitioner tend to worsen. This does not only discourage negotiation but will prevent any chance of settlement. At this juncture, encouraging the use of apologies can promote settlement discussions and protect the emotional well-being of both parties (Barcena, M., 2013). In the United States, it was found that States which enacted apology laws has experienced an increase in number of resolved cases due to fast settlement time (Saitta, N & Hodge, S.D. 2011). This is because since there is no more anger, the patient is demotivated to pursue the claim and this will encourage them to settle the matter out of court. Therefore, by defusing anger at initial stage, it will promote lesser litigation and faster settlement in medical negligence dispute (Ho, B. & Liu, E., 2010). Consequently, the cordial relationship between the patient and the medical practitioner will be preserved.
(c) Promotes Disclosure and Transparent Communication
Good communication incorporating an apology may be important in maintaining a cordial relationship between a medical practitioner and the patient after an adverse event (Ebert, R. E., 2008). If there is a breakdown in the communication, serious consequences will occur to the relationship between the parties. Further, the use of good communication behaviors tend to decrease the likelihood of a lawsuit and increase positive perceptions portrayed by the medical practitioner. Good communication will undeniably lead to better outcome and automatically discourage litigation (Lester, G. & Smith, S. G., 1993). In some circumstances, medical practitioners tries to hide or prevent themselves from making any contact with the patient after an adverse event had occurred. However, if the medical
5. The Drawbacks of Apologizing in Medical Disputes
Although apologizing has its benefits, the drawbacks of apologizing need to be weighed against its benefits. Medical practitioners are often hesitant to apologize fearing the negative consequences of such actions. The drawbacks of apologizing can be seen as follows:
(a) Admission of Fault
An admission is a statement against a person‘s own interest, and generally, admission
is considered in the court of law to determine the liability of the parties. (Rehm, P. H. & Beatty, D.R., 1996) The rationale for such acceptance is that, a person will not make a statement against his own self or interest unless the statement is true. In the course of a litigation, an apology may constitute an admission because in the normal course of human behavior, a person will not make a testament against themselves unless they were true (Taft, L., 2005). This is the most important factor which prevent medical practitioners from apologizing.
The consequences of an apology can be illustrated in the case of Norizan bt Abd Rahman v Dr Arthur Samuel [2013] 9 MLJ 385. In this case, Four months after the birth of her fifth child, the plaintiff, discovered she was pregnant again and requested the defendant, an obstetrician and gynaecologist, to terminate the pregnancy and at the same time insert an
intrauterine contraceptive device (‗IUCD‘). However, while the procedures were being performed, the plaintiff‘s right uterine wall and right artery of the uterus were perforated
(b) Fear of Litigation
Although apology is always needed by the patient, the fear of litigation has always become a major impediment for apologizing. This fear leads to defensive and strategic disclosure practiced by the medical practitioners (Taft, L., 2005). Lawyers usually encourage
medical practitioners not to apologize and labeled such action as a ―legal suicide‖ as it can be
used by the patients against them in court and may jeopardize their insurance coverage event (Ebert, R. E., 2008). In much insurance coverage, the medical practitioner is required not to make any form of admission, due to this provision, medical practitioners are not encouraged to apologize due to the fear that their insurance will not cover such action (Cohen, J., 1999). Medical practitioners feel intimidated to be dragged into the intricacies of courts‘ trials which
are usually lengthy and cumbersome. The threat of litigation compels the doctor to view his patient as a future adversary in a courtroom proceeding. Even if the negligence claim is settled out of court, there is still an effect on the doctors as settlements out of court leave them with no chance of vindicating themselves. At the end of the day, they still feel that there is a cloud hanging over their head. A retired Canadian doctor stated that ―…I‘d rather not talk
about it, even though in the end no fault was found. For 7 years it went on, months of sitting in court listening to what a terrible person you are, no one recovers from that. It is on your mind every day, every minute. It changed the whole way I practiced. The empathy I had, that
I was known for, just wasn‘t there anymore. Every patient was a potential law suit‖ (Silversides, A., 2008). Thus, the threat of litigation destroys proper relationship between doctor and patient by introducing confrontational element between them. Although apology alone is not sufficient to establish negligence but it is one of the factors that the court will consider as it can reflect the admission of guilt on the part of the medical practitioner (Ebert, R. E., 2008).
(c) Personal Character and Ego of the medical practitioner
The society always have high regard towards medical practitioners due to the nature of the profession that requires intelligence and doctors are considered to be among the honorable professions. This perception has created the ‗nonapologetic‘ culture amongst the medical
occur, medical practitioner do not want to apologize as they believe that they are in higher position than the patient. This ego on the part of the medical practitioners, unfortunately, shield them from being apologetic whenever there is a dispute with their patients.
6. The Role of „Apology Law‟ in Medical Disputes
Although apologies offer much benefits in defusing the desire for patients to litigate,
it also has the effect of being a ‗double-edge‘ sword and be seen as self-incriminating on the party who apologises. In other words, apology made by the medical practitioner can be seen as an admission of guilt and be tendered as evidence in court proceedings. This problem have
led to several countries enacting ‗apology laws‘ that mandate open disclosure of medical errors but at the same time, shielding those who apologise from legal liability (Raper, S.E., 2011).
There are two types of apology law (Wheeler, C., 2013). The first type is the ‗full apology law‘ that protects the medical practitioner against any expression of regret and remorse for what has happened, statements of sympathy and also any acknowledgement of
that person‘s wrongdoings including statements that contain admission, fault, mistake, errors
and liability (Carroll, R., 2014). The second type is the ‗partial apology law‘, which only
protects the medical practitioner against statements of sympathy, commiseration, condolences and compassion alone without any expression of admission (Ho, B. & Liu, E., 2010). In some jurisdictions, the law give protection over apology made by a medical practitioner and will not allow it to be used in determining his liability in court. However, such apology may be used by the medical board in a licensure actions brought by the State (Mongiello, M.C., 2012). In such cases, the medical practitioners will still be subjected to internal or domestic inquiry by the relevant authority. However, there also exist apology law that expressly protect apology in such circumstances such as in the state of Victoria, Australia (Studdert, D.M. & Richardson, M. W., 2010).
(a) Australia
There was a call for law reform in Australia that was initiated by the belief that litigation rates concerning medical practice has been significantly increasing (Barr, G.A.B., 2009) and coupled with a crisis in medical insurance which needed the attention of the
Australian government (Vines, P., 2005). This medical insurance crisis refers to the ―sudden large increase in premiums‖ (Cane, P. 2003 at 658). With these concerns, a panel was
established by the Australian Government in 2001 to look into the reforms that can be made to the law of negligence. Amongst the concern that the panel need to report and address was regarding the perception that the way the law of negligence has been applied in the court is unpredictable and unclear. Further, it has also become too easy for plaintiffs in personal injury cases to establish liability and quantum of damages awarded by the court has also been frequently too high (Ipp Panel, 2002). The issue of legislating apologies was initiated by a Legal Process Reform Group with the support from Australian Health Ministers‘ Advisory
Council after they were asked to report on issues concerning medical negligence. They
recommended for a legislation that provides an apology ―made as part of an open disclosure
process to be inadmissible in an action for medical negligence‖ (Vines, P., 2005 at 2). This
recommendation was made in reference to the development of the Open Disclosure Project and the National Open Disclosure Standard for Public and Private Hospitals developed by the Australian Council for Safety and Quality in Health Care, which include that the giving of an expression of regret as part of important element in an effective disclosure (Australian Commission on Safety and Quality in Health Care, 2008). This reform was aimed to ensure that an effective disclosure will be made to help the patients in the healing process, better learning for the medical practitioners and ultimately, reduce the rate of medical negligence litigation (Vines, P., 2005). Although apology is included as a part of disclosure promoted in the National Open Disclosure Standard, medical practitioners are still slow in embracing this
policy due to ―uncertainty about doctor‘s legal and professional obligations in relation to
open disclosure and concern about medico-legal risk‖ (Finlay, A.J.F. et al., 2013 at 445).
The application of apology law in Australia is rather unique because the types of apology vary in different states throughout Australia (Barr, G.A.B., 2009). States such as New South Wales, Australian Capital Territory and Queensland enact the ‗full apology law‘
whereas the rest of the states such as Victoria, Northern Territory, South Australia, Tasmania
and Western Australia offer the ‗partial apology law‘ (Wheeler, C. 2013), which only ‗protects expression of regret and sympathy alone (Carroll, R., 2014) and will no longer protects the apology if it contains any mea culpa (‗through my fault‘) statements (Studdert, D.M., & Richardson, M. W., 2010). For states that offer ‗full apology law‘, the definition of apology does not only covers expression of sympathy or regret but it also includes expression that implies admission or fault related to the matter (section 68 Civil Liability Act 2002) (section 72C Civil Liability Act 2003 Queensland) (section 13 of Civil Law (Wrongs) (Australian Capital Territory) 2002). The law in these states specifically provides that an apology is admissible in any civil proceedings as evidence of the fault or liability. From these provisions, it shows that these states give full legal protection for all types of apologies made by any member of the community including admission of fault by a medical practitioner (Wheeler, C. 2013). The workings of ‗full apology law‘ require three main elements that concern the position and consequence of such apology, i.e. declaratory element, relevance element and procedural element (Wheeler, C. 2013). For instance, in the Civil Liability Act 2002 (NSW), section 69(1)(a) declares that apology is not an admission of fault or liability. This refers to the first element which is the ‗declaratory element‘. Secondly, in determining a
fault or liability on the part of the defendant, section 69(1)(b) exclude apology from being taken into account as a relevant fact in determining fault. This provision is concerned with the
‗relevance element‘. Thirdly, with regards to the ‗procedural element‘, from the law of
evidence perspective, apology made is inadmissible as evidence of fault and therefore, cannot be used in court against the person who gave it (section 69(2)).
Another factor that prevents medical practitioners from apologizing is that it will void any protection under the professional indemnity insurance if such admission of liability is made. This is a frequent clause in any insurance contract and are known as ―‖admission and compromise clause‖ (Vines, P., 2005 at 3). If an apology was given by the medical
according to the amount affected by the ‗admission or compromise‘ (Commonwealth
Contracts Act 1984). Although the application of apology in Australia is not uniformed (Finlay, A.J.F. et al., 2013), its workings in the tort law reform has significantly reduce number of new claims for compensation, increasing number of closed claims and eventually, reduce the proportions of large damage awards (Corbett, A., 2011).
(b) Canada
In Canada, it was found that ―litigation was generally commenced for the purposes of obtaining information, receiving an acknowledgment that harm was caused by error, and
addressing treatment of an affected party following an adverse event‖ (Curial, B. et al., 2010 at 2). It was discovered that the ―patients considered the financial compensation is unhelpful
and not a primary motivator of litigation‖ (Curial, B. et al., 2010 at 2). Although apology is in need for such situation to defuse anger, ―healthcare providers and organizations were often
reluctant to provide an apology out of fear that such statements would be used against them
as an admissions of liability in subsequent litigation‖ (Curial, B. et al., 2010 at 2). By offering
apology, medical practitioners are afraid that the apology made will void the provisions of their insurance policies (Carman, C., 2006). The proponents of apology law suggest that the existence of such law will enhance the dispute resolution process, promote accountability in the medical profession, increase the affordability and speed of justice by shortening or avoiding litigation (Diedrick, Y., 2009). In this regard, a discussion paper was made by the Ministry of the Attorney General of the province of British Colombia, which is the pioneer State for developing apology law in Canada (Barr, G.A.B., 2009). The purpose of the discussion paper is to resolve the conflicting needs between the medical practitioners and the patients. Thus, the enactment of apology law is to encourage the offering of full apologies which in turn would act as a positive dispute resolution mechanism between them. The
apology legislation would ‗promote early, effective and affordable resolution of disputes and
The bill on apology law was drafted by referring to the New South Wales Civil Liability Act (2002) as the basic foundation (Barr, G.A.B., 2009). However, the British Colombia Apology Act incorporated not only the essential elements based on the Australian legislation but also included specific provisions for insurance contracts. This is an extension of the protection where the law does not only renders such apology inadmissible in court but also prevents the insurance contract from becoming void if apology was made (Carman, C., 2006). Legislators in other states in Canada such as Saskatchewan, Manitoba, Alberta, and Ontario have also passed similar law reform as British Colombia. Further, the protection given by the Canadian apology law is not only available for medical negligence claims but it is applicable to all civil claims (Worton, B.C. & Pavlovic, M., 2015) except in the province of Prince of Edward Island where the protection for apology is exclusive for healthcare related cases only (Barr, G.A.B., 2009). The Apology Act in British Colombia was given royal ascent in 18th May 2006, The Act defines apology as ―an expression of sympathy or regret, a
statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate‖ (Apology Act (SBC) 2006).
The Act also provides that an apology does not constitute an express or implied admission of fault or liability and does not void, impair or otherwise affect any insurance coverage that is available, or that would be available by the person who is connected to the apology. It further provides that apology must not be taken into account in any determination of fault or liability in connection with that matter (Apology Act (SBC) 2006). Currently, most states in Canada adopted the Uniform Law Conference of Canada Uniform Apology Act (Worton, B.C. & Pavlovic, M., 2015). The purpose of this uniform legislation is to promote uniformity on the substance of the law as well as the application of apology law thorough Canada (Uniform Law Conference of Canada, 2007).
protects apology from being admissible in court, it does not protect all types of apology. The law only give statutory protections over apologies that fall under the definition of ―apology‖
