Today’s correspondent

… was wondering if you could do a post on how the Victorian duty of candour (that has recently commenced) will work in the ambulance context.  I know that the often these processes can be very hospital based.

Safer Care Victoria says:

The Health Legislation Amendment (Quality and Safety) Act 2022 introduces new reforms and amends the Health Services Act 1988, the Ambulance Services Act 1986, the Mental Health Act 2014, the Public Health and Wellbeing Act 2008, and the Health Complaints Act 2016. The following provisions will come into effect on 30 November 2022.

In the context of this blog, and the question, I’ll refer to the Ambulance Services Act 1986 (Vic).  Section 22I of that Act says:

(1) If a patient suffers a serious adverse patient safety event in the course of receiving services from an ambulance service, the ambulance service responsible for providing those services owes a duty of candour to the patient and must do the following unless the patient has opted out in accordance with subsection (2)—

(a) provide the patient with—

(i) a written account of the facts regarding the serious adverse patient safety event; and

(ii) an apology for the harm suffered by the patient; and

(iii) a description of the ambulance service’s response to the event; and

(iv) the steps that the ambulance service has taken to prevent re-occurrence of the event; and

(v) any prescribed information; and

(b)   comply with any steps set out in the Victorian Duty of Candour Guidelines.

(2)        A patient referred to in subsection (1) may choose not to receive information in accordance with subsection (1) by providing the ambulance service with a signed statement.

(3)        A patient who has signed a statement in accordance with subsection (2) may later elect to receive information under subsection (1).

A ‘serious adverse patient safety event’ means (Ambulance Services Act 1986 (Vic) s 3; Health Services Act 1988 (Vic) s 3 and Health Services (Quality and Safety) Regulations 2020 (Vic) r 3B) an event that:

(a) occurred while the patient was receiving health services from a health service entity; and

(b) in the reasonable opinion of a registered health practitioner, has resulted in, or is likely to result in, unintended or unexpected harm being suffered by the patient.

More details of the duty of candour and the provisions relating to serious adverse patient safety event reviews can be found here:

Discussion

It’s hard to be specific given the scheme is new but one can infer that the duty of candour will work in the ambulance context as it will in all other health care contexts. Where the ambulance service identifies that an event ‘has resulted in, or is likely to result in, unintended or unexpected harm being suffered by the patient’ they must disclose that to the patient along with the other information listed in s 22I(1).  Any adverse outcome is not necessarily an ‘event’, medical care does not always lead to the best outcome. A ‘serious adverse patient safety event’ is where something goes wrong in the patient’s care eg a paramedic makes a clinical error or a piece of equipment malfunctions.  These events may never be known by a patient or their family, but this new duty compels the relevant service to explain what happened and what they will do about that. It builds on the concept of ‘open disclosure’ (see for example see NSW Health, Open Disclosure Policy (3 September 2014)).

Such a disclosure is not an admission of liability, but it may reveal information that leads to that conclusion. To that end the Ambulance Services Act provides that an apology is not an admission of liability (s 22J), and the outcome of a serious adverse patient safety event review cannot be used in court (Health Services Act 1988 (Vic) s 128U).  A severe adverse patient event may not be caused by negligence that is the actions may have been reasonable in the circumstances, but still have led to an adverse outcome. But that does not deny that telling a patient that there was an adverse event may reveal that indeed there was negligence, but so what?  A government agency like Ambulance Victoria is to act as a model litigant and if there has been a negligent failure that causes harm to the patient, they would not seek to hide that truth nor oppose a finding of liability.  And the idea behind a duty of candour and open disclosure is that by being honest and upfront there may be less damage, less liability (if patients feel that health services have been honest and treated them with respect and there are steps to avoid future outcomes they may be less likely to sue) and therefore better outcomes for everyone.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.