The purpose of this guideline is to affirm the College’s position that patients are entitled to be informed of all aspects of their health care. This right to be informed includes the right of a patient to disclosure of an adverse outcome in the course of receiving health care.

The disclosure of an adverse outcome, in accordance with this guideline, is not about attributing or admitting any fault or blame. In the view of the College, an adverse outcome will not necessarily be the result of negligence or incompetence.

Scope

This guideline applies to all medical practitioners, and all medical students and residents whose names are entered on the Educational Register, who become aware, while treating a patient, that the patient has suffered an adverse outcome in the course of receiving health care.

Meaning of “adverse outcome”

Of course, medical practitioners have always been expected, and should continue, to disclose adverse outcomes which can be said to be one of the possible consequences of an illness.

However, for the purpose of this guideline, adverse outcome means a non-trivial adverse outcome or consequence of health care treatment, which adverse outcome or consequence is not solely related to the course of the illness or condition being treated but has resulted at least in part from the health care treatment itself or from the manner in which the health care was delivered. Adverse outcome includes a situation where the possibility of the adverse outcome may be a recognised risk of the treatment.

“Adverse outcome” should be understood to mean not only a non-trivial adverse outcome or consequence of health care treatment which manifests itself in the course of or following health care treatment, but also an incident in the course of health care treatment which results in a recognized potential risk of a non-trivial adverse outcome or consequence at some future time. Such potential future adverse outcome may require the arrangement for appropriate follow-up surveillance, and perhaps other departures from the usual care plan. An example of such a potential adverse outcome would be the disclosure to a patient that an earlier test had detected a carcinoma, but that the information had apparently not been acted upon. Another example would be where damage is accidentally caused to tissues in the course of surgery, which damage is repaired in the course of surgery, but where even with such repair there is a recognized potential risk of future complications from the damage and/or repair.

Patients’ right to disclosure

Patients have a right to know their present medical status, not only as an intrinsic right but also so that they may make informed decisions about their health care.

Patients have a right to know when an adverse outcome of health care treatment has affected their present medical status.

Leaving it to a patient, a substitute decision maker or another health care provider to discover or act upon an adverse outcome is not consistent with the rights of patients outlined above, and in some circumstances the resultant delay may do harm to the patient.

The responsibility to disclose

The medical practitioner who was the most responsible physician for the health care treatment during the course of which the adverse outcome occurred, should disclose the adverse outcome to the patient.

In some circumstances, it may be that more than one medical practitioner was responsible for the health care treatment, which resulted in the adverse outcome. In such circumstances, each responsible medical practitioner has an individual responsibility to ensure that disclosure is made to the patient of the adverse outcome. In such circumstances, the responsible medical practitioners should consult as to who among them will make the disclosure to the patient.

Where another medical practitioner believes there has been an adverse outcome from health care treatment for which that practitioner was not responsible, that practitioner should advise the most responsible physician in relation to that treatment of the practitioner’s belief that there may have been an adverse outcome and that this guideline may apply to the situation.

A medical student or resident should disclose an adverse outcome to his or her clinical teacher or supervisor. If the clinical teacher or supervisor is not the most responsible physician for the affected patient, then the clinical teacher or supervisor should ensure that the most responsible physician is informed of the adverse outcome. Upon becoming aware of the adverse outcome, the most responsible physician should disclose the adverse outcome to the patient.

In addition to this guideline, hospitals and health care facilities may have their own procedures for disclosure of adverse outcomes or similar situations to patients, which procedures should also be followed. Where it appears that this guideline may conflict with procedures established by a hospital or health care facility, medical practitioners are encouraged to contact the College to discuss how such apparent conflict may be resolved.

Persons to whom disclosure should be made

Whenever possible, disclosure of an adverse outcome should be made directly to the affected patient.

Where the patient is not competent or where meaningful disclosure of the adverse outcome directly to the patient may not be possible due to the medical condition of the patient, disclosure of the adverse outcome should be made to the patient’s authorized substitute decision maker.

The time for disclosure

Where harm or deterioration of condition may result unless there is immediate disclosure of the adverse outcome, the medical practitioner should disclose the adverse outcome with the according urgency, to either the patient or an authorized substitute decision maker.

Where the disclosure of an adverse outcome is not as urgent, the medical practitioner may consider whether it is appropriate to wait until a patient’s condition has stabilized sufficiently so that he or she can be expected to reasonably understand the information, provided any delay is in the best interests of the patient.

A medical practitioner may wish to seek the advice of colleagues, of the College or of the medical malpractice protection provider before disclosing an adverse outcome to the patient. Such advice should be sought promptly and should not result in undue delay in disclosing the adverse outcome to the patient.

The manner of disclosure

Disclosure to the patient directly should first be considered. The setting for the disclosure should afford the patient privacy. The patient should be offered the opportunity to be accompanied by a support person. The medical practitioner himself or herself may want to have a support person present.

The adverse outcome should be factually described, with care taken to explain medical terminology so that it is understandable by the patient. Speculation or conjecture should be avoided, and the practitioner may respectfully decline to respond to questions or comments from the patient which invite speculation or conjecture.

Options for treatment to address the adverse outcome should be raised. The patient should be told when such treatment or a second opinion may be able to be provided, or should be provided, by another practitioner.

If upon commencing disclosure, it becomes evident that the patient is unable or unwilling to continue the discussion, the medical practitioner should offer to continue or resume the discussion at another time. In some circumstances, the patient may want to have the disclosure made to an authorized substitute decision maker or in writing, and the practitioner should give due consideration to such requests.

Details of the adverse outcome and of its disclosure to the patient should be documented in the patient’s record. Where necessary for the observation or treatment of the patient, the patient’s family doctor or other treating physicians should also be informed of an adverse outcome.

Disclosure of an adverse outcome is not an admission of fault or liability

Findings of fault and liability are subject to legal principles of proof and causation. These issues cannot be resolved in a discussion between doctor and patient.

While a medical practitioner should be factually candid in describing the adverse outcome, the practitioner should also be prepared to be equally candid with the patient that the disclosure should not be considered an admission of fault. Should the patient raise questions of fault or liability in the course of the disclosure of an adverse outcome, the patient should be advised that such questions should be discussed with the patient’s own legal advisor.

Comments to a patient which may be taken as attributing blame to other health professionals should be avoided.

In circumstances where questions of fault or negligence may give rise to a claim for damages or litigation, a medical practitioner may wish to first seek the advice of the medical malpractice protection provider as to how disclosure of an adverse outcome may be made without it being taken to be an admission of fault or liability.

Within the foregoing context, an expression of regret for the adverse outcome may be appropriate, and should not be taken as an admission of fault or liability.

A patient to whom an adverse outcome has been promptly, candidly and sensitively disclosed, may be less likely to pursue litigation or other means of redress.

Summary

  • Consider who is the “most responsible physician” for the health care treatment during the course of which the adverse outcome resulted. Where more than one medical practitioner is a responsible physician for such care, consultation amongst those practitioners should take place;
  • Disclosure should be made promptly;
  • The advice of colleagues, of the College, and/or of the medical malpractice protection provider may be sought prior to disclosure, provided this does not result in undue delay;
  • The adverse outcome should be factually described; speculation should be avoided;
  • Options for treatment to address the adverse outcome should be raised with the patient, including the possibility of obtaining a second opinion from another medical practitioner;
  • Details of the adverse outcome and of its disclosure should be documented in the patient’s record;
  • Be prepared for a patient being unable or unwilling to continue with a discussion of adverse outcome, and offer the option of resuming the discussion at another time;
  • Be prepared to be frank that disclosure of the adverse outcome is not an admission or attribution of fault or liability.