Society questions effect of apologies under new bill

Questions on what the Apologies Bill before the Scottish Parliament could achieve in cases involving medical practitioners, have been raised by the Law Society of Scotland.

The bill, a member's bill introduced by Conservative MSP Margaret Mitchell, seeks to reduce litigation, and avoid unnecessary complaints and grievance procedures, by encouraging people who may be blamed when something has gone wrong to offer an apology at an early stage, without it being founded on later in civil proceedings. There is a particular focus in its effect in complaints arising from medical procedures. Holyrood's Justice Committee is currently considering the bill at stage 1.

Evidence from the Society is being given before the committee today by Laura Ceresa, a member of the Society’s Health & Medical Law Committee, which considered the bill with regard to medical and healthcare professionals. The Society is concerned that an apology given under the bill may actually encourage a patient to believe wrongly they have a legal basis for a claim.

Ms Ceresa, a solicitor at law firm Peacock Johnston, said: “We appreciate the intentions behind this bill and understand the desire to bring about some cultural change, where making a sincere apology does not mean there are grounds to raise a negligence case against a healthcare professional. For example, in trying to diagnose a patient, doctors or surgeons may not initially be correct in their assessment and with hindsight, there may appear to be failings of fault. In many cases the ‘bad outcome’ can be due to non-negligent errors and recognised risk of difficult treatment or surgical procedures.

“From a legal perspective we know there are concerns about the consequences of an apology and if it would amount to implied negligence. In practical terms an apology could be misinterpreted by the patient as an admission of liability and they could embark on a potentially lengthy, complex and costly claim. However, an acceptance that the treatment might not have progressed as hoped would not necessarily meet the legal test of clinical or medical negligence, leading to the claim failing and further distress for the patient.

“Having legislation, however well intentioned, cannot ensure sincerity and we have questions around what status the apology would have and if there would be any right to review or appeal if someone was not satisfied. We also have questions on how any changes to current practice would be implemented and monitored.”

She added: “I also know from my experience as a solicitor that by the time someone is consulting a solicitor for legal advice, things have usually passed the point where an apology would be sufficient and they are seeking damages for something that has gone wrong. A solicitor’s client who was seeking an apology could be referred to the existing NHS complaints process.

“We believe further consideration should be given to how the bill might meet its aims, so that if enacted, the legislation would make a beneficial contribution to existing legislation and practice."

The Faculty of Advocates has also dooubted whether the bill would achieve its intended purpose, or how it might actually reduce resort to litigation. In its written evidence it suggested that there was "no convincing empirical evidence that an apologies law per se has the dramatic effects contended for".