The art of the humble apology

The HDC has directed that I apologise to you. I am therefore writing to you to apologise for the findings made by the commissioner

SORRY SEEMS to be the hardest word. It’s as true today as when Sir Elton John released his 1976 hit single.

Sorry is a word the Kiwi GP may have to come out with at some stage in their career. The average GP will receive a complaint four or five times in their career, and some of those complainants will need apologies.

Receiving a complaint is daunting. It can cut deeply.

Rangiora GP Steve Brown says some doctors believe they wouldn’t be able to continue in practice if they were accused of a serious error or wrongdoing.

Younger doctors tend to fear complaints so much, it affects their practice and they second-guess themselves and order too many tests.

But, says Dr Brown, real errors happen to everyone.

He finds apologies are becoming accepted as part and parcel of medicine. In the past, they were deemed a risk best left to the “legal beavers” to sort out, he says.

Some doctors still dislike apologising and are angry attitudes towards apologies have changed.

But, for Dr Brown, apologising is about “eating humble pie”. The older he gets, the more he realises what he doesn’t know and what could go wrong – and that is a humbling experience.

The bottom line is, you don’t have to apologise for something you didn’t do, but you do have to think soberly about what has occurred to provoke this complaint

Poor apologies, given without real care, can be worse than the original offence.

Mr Hill says apologies along the lines of “I’m sorry you felt that way” are not helpful. Neither are apologies signed by an organisation rather than the doctor. Excuses can also be unhelpful, he says.

Ms Phipps points to an HDC case in which an apology had been written for the parents of a boy who committed suicide.

The parents felt they needed to battle the health services to get their son treatment and, four years

after his death, the psychiatrist involved was ordered to apologise.

“Dear Mr and Mrs X…As you know, the health and disability commissioner has concluded that when [the patient] was under my care I breached the Code of Health and Disability Services Consumers’ Rights, specifically Right 4(1)…The HDC has directed that I apologise to you. I am therefore writing to you to apologise for the findings made by the commissioner. I also take this opportunity to again extend my condolences to you in respect of the loss of your son…Yours sincerely…,” wrote the doctor.

The apology was rejected by the HDC, and the doctor was asked to write a new one, but the original found its way to the boy’s parents, and to media. Ms Phipps says lasting damage was done.

The parents felt the apology was mocking, but thought another apology would be coerced and meaningless.

Institutions can make matters worse when a patient or family seek an apology.

Managers or administration staff, particularly at DHBs, sometimes write apologies to patients before doctors have had time to review the case and address the problem themselves.

This can either get facts wrong or pit the organisation and the patient together against the doctor in an unhelpful game of “good cop, bad doctor”.

Auckland Medical School head and Health Quality & Safety Commission chair Alan Merry says the culture around apologising has improved greatly since his early days of anaesthesia practice in the late 1970s.

“I think most doctors are compassionate and empathic, and feel sorry when something happens,” Professor Merry says.

The greatest barrier for doctors trying to convey sympathy is time. It takes time to investigate what has happened, and understand the context of an adverse event, but most practitioners are extremely time-poor, he says.

ACC and the HDC, while not perfect, are excellent intermediaries, both for looking after patients and encouraging disclosure from doctors, according to Professor Merry.

He points out medical schools are putting a lot of work into training health professionals about communication, but there aren’t enough programmes teaching the same skills to older doctors.

“When something has happened, it’s important to listen to what the patient’s issue is because it might be surprisingly different to what you think.”

In some countries, apologising can mean an inference of guilt or culpability, which doctors are eager to avoid.

Professor Merry says legal advisers in New Zealand tended in the past to tell doctors not to say anything, but that is changing.

Mr Hill considers New Zealand has the most benign legal environment in the Western world, thanks to ACC’s no-fault system of compensation.

If a mistake has happened, an apology doesn’t change your legal liability, he says.

“The bottom line is, you don’t have to apologise for something you didn’t do, but you do have to think soberly about what has occurred to provoke this complaint.”

Ms Phipps says that might be an oversimplifica­tion. The legal context is different from the medical one, she says. There is no one-size-fits-all piece of advice for complaints, as they can range from a scenario where a doctor is “a bit insensitive” to conduct where there may be a criminal prosecution, for example, manslaughter.

What is said in apologies is on record for use if a case against a doctor goes further, be it to the Health Practitioners Disciplinary Tribunal or the criminal court, she says.

Some indemnity policies state, as a condition, that if a doctor admits something that causes prejudice to their cover, the indemnifier can void the claim.

For that reason, Ms Phipps says, as a matter of good practice, doctors should notify their indemnifier as soon as possible.

“But, that said, having been instructed both by discretionary and contract indemnifiers, I’ve never had a case where a timely, appropriate apology has stopped a doctor getting assistance.”

ACC may remove the threat of having to pay damages, but a serious allegation of medical error can still put the defendant doctor through numerous, exhausting legal processes.

Investigations can drag on for years before a final decision is released, and can involve a myriad of layers of inquiry into conduct.

Mr Hill’s office can require doctors to undergo further training or supervision, audit the behaviour of a practice or practitioner, refer them to the Medical Council and, of course, require doctors to apologise.

The Health Practitioners Disciplinary Tribunal can impose costs, fines and suspensions.

A recommendation from the HDC that a clinician apologise can be open to public criticism as just a slap on the wrist.

But apologies in medicine carry a heavy weight and, from Mr Hill’s perspective, are accompanied by other measures that aren’t always given media coverage.

The great majority of practitioners comply with what the HDC asks them to do. In his eight years as commissioner, he can think of only one example of a doctor refusing to apologise.

All-out refusal to apologise after being asked by the commissioner would get a doctor sent to the Medical Council, he says.

He can remember a further four times he has had to reject apologies and require they be done again. That’s out of about 10,000 cases that have come across his desk.

Increasingly, doctors know the value of an apology, he says. In-house processes for dealing with complaints in primary care are becoming more advanced.

“You can never undo what has occurred, but you can say what has happened has not been in vain, something will change as a result. In very serious errors, that is profoundly important.”

-A third of complaints to the health and disability commissioner in 2016/17 against individual practitioners were against GPs (319 complaints).

-Since July 2017, complaints to the commissioner have risen 26 per cent, with the percentage against GPs staying proportionate.

-The Medical Protection Society says the number of cases, including complaints, where it was asked for help in 2017 was 14 per cent up on the year before.

-MPS took on 900 new cases involving GPs in 2017. Cases ranged from help with coroners’ reports and police enquiries, to complaints; in 400 of the cases, MPS helped GPs respond to complaints.

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