29th June 2015 sees new guidance issued by the GMC about doctors apologising in person to patients where a mistake has been made. This follows on from the "duty of candour" which followed the recommendations of the Francis Report into the Mid Staffs scandal.. Paragraph 55 of Good Medical Practice provides

"55. You must be open and honest with patients if things go wrong. If a patient under your care has suffered harm or distress, you should:

a. put matters right (if that is possible) b. offer an apology c. explain fully and promptly what has happened and the likely short-term and long-term effects."

GMC Guidance in their case notes now sets out "If things go wrong with a patient's care doctors must be open and honest and prepared to apologise themselves to the patient (or their relatives) whether or not they were personally responsible for the incident. Guidance from the NHS Litigation Authority confirms that an apology is not an admission of liability - which is a concern that some doctors have about apologising. GMC guidance (in Good Medical Practice) states that an apology should be offered, but it is more important that the doctor explains fully and promptly what's happened, and what are likely to be the effects in both the short and long term. "

Whilst the NHS Litigation Authority may suggest that an apology is not an admission of liability there is nevertheless a risk in our view that if a doctor says I am sorry I have made a mistake and it has had a particular consequence that it may be seen as the first step to establishing liability in negligence in the eyes of a litigious patient or their lawyer. This concern would be increased if the doctor were to say that he/she was sorry but in his/her view a mistake was made by another health professional or because of a systemic failure i.e. because of inadequate resources arising out of healthcare policy by management or politicians.

Professor Terence Stephenson, GMC chairman said: "Saying ‘I am sorry’ is intuitive. You want to avoid saying, for example, ‘my trust regrets’ or ‘the organisation that I work for regrets’ These could be seen by patients as slightly weasel words. They want a personal apology and for the doctor or team to show genuine contrition."

Apart from the laudable aims of securing a more open and transparent health system and avoiding Mid Staffs scenarios in the future the GMC's approach appears to seek to reduce exposure to the rising tide of medical negligence against the NHS (now apparently £1.3bn per year). It would appear that the GMC hope that more apologies will mean less to be paid out in damages and legal fees. Whether this is realistic or misguided remains to be seen. In the meantime the GMC as the doctors' regulator is placing a potentially heavy burden on the shoulder of hard pressed and very strictly regulated doctors by issuing guidance which says that if they fail to apologise in a timely fashion they are likely to be judged more harshly if fitness to practice proceedings ensue and there is a finding against them. When an incorrect apology could at least blight if not bring to an end a health professional's career these are not easy decisions to make, especially without access to expert advice.

In order to cover themselves from potential civil or disciplinary consequences, in our view, doctors and indeed all health professionals should, at the very least, consult with their professional defence organisations or associations and possibly also specialist lawyers before issuing a personal apology to a patient, particularly where they feel that there is doubt about whether a mistake has been made or that any mistake is not their fault. If you are a health professional and are unsure on what to do, for  a free initial phone call covered by legal professional privilege contact John Williams or Bill Wilson on 020 7407 2356.