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To whom it may concern
The Australian Dental Association SA Inc. (ADASA) welcomes the opportunity to comment on the Open Disclosure Standard and Framework, which provide a guide to practitioners and health service organisations about how to effectively communicate with patients after health care has resulted in harm.
The ADASA actively supports open disclosure and has implemented a complaints resolution process to assist patients and dentists to negotiate about conflict and adverse outcomes of treatment. As part of this process, community relations officers (former dentists with considerable experience) encourage an early discussion between the practitioner and patient and an apology or expression of regret where expectations have not been met. We encourage dentists, rather than practice managers, to get involved personally in the process and we seek advice from the insurer at an early stage where it is appropriate to do so. Since this complaints advisory service was established approximately six years ago, the ADASA has successfully averted legal action in 80 per cent of cases. Training in managing complaints is included as part of risk management seminars organised and run by ADASA. We advocate regular training in these matters for dentists and practice managers.
Establishing a compulsory, formal open disclosure framework has the potential to be onerous and costly for dental practices, particularly if a nominated complaints manager is required. Most practices have minimal administrative resources and are already struggling with an increasing burden of compliance requirements. We suggest that providing the framework as a guideline rather than a prescription would be appropriate for small and medium sized enterprises. We also note that, notwithstanding the intention to promote training for practitioners in managing open disclosure, it is likely to prove more difficult for those in small practices to negotiate the complex legal and communications issues involved.
In response to the consultation questions we offer the following.
While the Framework broadly reflects research on open disclosure, much of the evidence is qualitative and not amenable to rigorous scientific standards of evaluation. In addition, a widespread perception remains that apologies are legally fraught. In an ACSQHC-funded review of legal aspects of open disclosure, David Studdert and Mark Richardson note that whether open disclosure will increase medico-legal risks for health professionals and hospitals remains to be seen but many health professionals appear to think it will. “Current Australian law does little to counteract that perception”, they write.
Are there any aspects of open disclosure that need further exploration?
Clearly, given concerns about the medico-legal aspects of open disclosure, more consideration needs to be given to amending laws to ensure adequate protection for health practitioners engaged in open disclosure processes. The review of the Australian legal system finds that while existing laws do not prohibit sharing most types of information on adverse events with patients, the protections they provide are quite weak.1 There is limited evidence that current laws constrain what may be said as part of an open disclosure process but it is reasonable for practitioners to tread cautiously and to act only with legal advice and assistance. Apology laws in South Australia exclude statements containing acknowledgements of fault or liability such that protections are lost if the apology includes a mea culpa statement.2
Therefore, we support the finding of Studdert and Richardson that “If policy makers want OD (open disclosure) to become a routine part of medical practice, law reform may be needed in the form of stronger protections directed specifically at the contents of OD communications.” They note that law reform should:
provide strong, clear and reliable protections against the use of contents of OD conversations in subsequent legal proceedings
clarify that qualified privilege law does not obstruct health professionals’ ability to conduct OD
be broadly consistent across jurisdictions
be accompanied by an effort to educate health professionals about what the new laws say.
Is the working title Australian Open Disclosure Framework suitable? If not, what would be a more appropriate title?
While the term “framework” implies a structure, we would prefer that the document was expressed in terms of policy or guidelines; i.e. that it be advisory rather than prescriptive.
Is the terminology used throughout the Australia Open Disclosure Framework – Consultation Draft appropriate?
We have no objection to the terminology used throughout the draft framework but we are concerned at the apparent omission of a small practice perspective. While the Commission says that disclosure programs should be viewed as an ordinary part of care, meeting the framework requirements will be an additional impost on practitioners, particularly small practices. It also increases the burden of administrative compliance.
Are the essential steps for open disclosure reflected in the Australian Open Disclosure Framework – Consultation Draft?
The essential steps outlined in the draft are broadly reasonable, being those used in the ADASA complaints resolution procedures, which we implement in a less prescriptive manner.
Will the Australian Open Disclosure Framework – Consultation Draft assist health services to implement best practice open disclosure?
The processes and principles outlined in the framework have the potential to assist practitioners to manage adverse events. Ensuring practitioners are trained in appropriate communication as part of the open disclosure process is likely to be valuable for most. However, it is important that these principles are not applied over-zealously in relation to small to medium-sized practices.
As we have said, a small practice perspective is missing from the framework.
What types of resources and materials should there be to assist in implementation of the Australian Open Disclosure Framework – Consultation Draft?
Training resources, examples of policies and open disclosure information in an appropriate format for dental practices might help dentists to implement the framework. In addition, it would be appropriate to provide a standardised survey blueprint for dental patients, support persons and staff if these are to be required in all dental practices.
Are the proposed outcome and process measures appropriate? If not, what do you suggest as more relevant measures?
It is neither reasonable nor necessary to ask the average dental practice to establish:
open disclosure information in an appropriate format for patients
counselling and support service for staff involved in open disclosure.
In an ideal world they might be attainable but in this world a practical commitment to the principles of open disclosure is likely to serve the interests of patients just as well as an elaborate formal structure.
AUSTRALIAN DENTAL ASSOCIATION (SA BRANCH)
PETER GARDNER, CEO
2 D. Studdert and M Richardson, Legal aspects of open disclosure: a review of Australia law, MJA, Vol. 193, Number 5, 6 Sept 2010, p- 273-75, p 273.