The Civil Liability Amendment Act 2017 and Civil Liability (Open Disclosure) (Prescribed Statements) Regulations 2018
The Civil Liability (Amendment) Act 2017 (the “Act”) was signed into law on 22 November 2017 and commenced on 22nd September, 2018.
Part 4 of the Act sets out the provisions for health service providers to make voluntary “Open Disclosure” of “patient safety incidents”.
A patient safety incident is defined as an incident which occurs during the course of the provision of a health service which:
- has caused an unintended or unanticipated injury, or harm, to the patient,
- did not result in actual injury or harm to the patient but was one which the health service provider has reasonable grounds to believe placed the patient at risk of unintended or unanticipated injury or harm, or:
- unanticipated or unintended injury or harm to the patient was prevented, either by “timely intervention or by chance”, but the incident was one which the health services provider has reasonable grounds for believing could have resulted in injury or harm, if not prevented.
The Act outlines in detail the procedure for preparing for and making an open disclosure which includes the provision of a written statement to the patient at an open disclosure meeting containing the information in relation to the incident and any apology provided.
The Act states that the information provided in making an open disclosure, or an apology, if given:
- does not constitute an express or implied admission of fault or liability in relation to the incident or any clinical negligence action arising from the incident,
- will not be admissible as evidence of fault or liability in Court in relation to the incident or clinical negligence action arising from the incident,
- will not invalidate the indemnity or insurance cover of the health service provider, and:-
- shall not constitute an express or implied admission of fault, professional misconduct, poor professional performance or unfitness to practice in relation to any complaint made by the patient to a regulatory body subsequently.
The Regulations (Civil Liability (Open Disclosure) (Prescribed Statements) Regulations 2018) accompanying Part 4 of the Act came into effect on 23rd September 2018
These regulations provide the form of various written statement(s) to be provided and/or maintained on record by the health service provider in relation to the open disclosure process.
Full details of the act and regulations are available via the links below:
Promoting a culture of openness and transparency
The HSE remains committed to the principles of open disclosure and promotes a culture of openness and transparency across all health and social care services. The HSE operates a policy of open disclosure which was launched on 12th November, 2013. It is expected that all staff comply with the HSE policy and guidelines on open disclosure and also comply with the specific guides to professional conduct and ethics from professional and regulatory bodies e.g. Guide to Professional Conduct and Ethics for Registered Medical Practitioners 2016.
Managing Open Disclosure under the provisions of Part 4 of the Civil Liability Amendment Act 2017
When seeking the legal protection provided within the provisions of the Civil Liability (Amendment) Act 2017 staff must manage open disclosure in the manner as set out within the 2017 Act.
Note: While the provisions of the Act have been informed by the HSE open disclosure policy 2013 and accompanying guidelines there are certain additional requirements that staff must comply with under the Act when seeking the protections available within the provisions of the Act.
To assist staff in meeting the compliance of the Act, the HSE is providing staff with a guidance document and FAQ document on the Act and on how to manage open disclosure within the provisions of the Act (available below). A series of forms which are the regulations have also been produced. The HSE provides training for staff on the Civil Liability Amendment Act 2017 and Civil Liability (Open Disclosure) (Prescribed Statements) Regulations 2018 and implications for practice.
Procedure and Forms (Prescribed Statements)
For information on how to access open disclosure training in your area please contact the open disclosure lead for your area.
For further information email the HSE Open Disclosure Office