Cerebral Palsy Association of BC Roundtable: Duty of Health Professionals to Disclose Harm
This should all be very simple. The health professional is in a power position vis-a vis the patient. As such the relationship between patient and health professional is one based on trust. The patient must trust that health professionals will act in the best interests of the patient—to put the patient’s interest above their own and explain medical outcomes thoroughly and truthfully.
The power position of the health professional is grounded on vastly superior knowledge. When things go badly, anything less than full disclosure of both the mechanism of injury and the various reasons why the injury may have occurred, would ignore the ethical basis underlying the trust relationship. This is simple and obvious to the patient. It needs to be codified for health professionals. Various ethical codes, such as the Canadian Medical Association’s Code of Ethics, state that harm must be disclosed to the patient.
From a legal point of view, there is also an obligation to disclose medical mistake. If a lawsuit ensues and there is a finding by the court of a failure to disclose, harm caused by the non-disclosure may result in an award of damages to the injured person.
Although the patient has both a moral/ethical entitlement and a legal right to know the circumstances of an unexpected medical catastrophe, the dodge comes in a variety of ways.
First, the dodge is based on disclosure that is watered down, vague, and non-committal. Common jargon includes language such as unfortunate, complications, difficulties, the baby didn’t do very well, the baby wasn’t able to get the oxygen from the mom, etc. It is artfully crafted language which misses the goal of frank disclosure, but is close enough to the line to prevent those responsible for disclosure from being held accountable either for the harm or the non-disclosure. It is all well and good to have codes of ethics and laws regarding a duty to disclose, but when there’s no way of holding healthcare professionals accountable, we have the unsatisfactory reality in which medical consumers find themselves.
Second, the dodge is based on poor definitions of the extent to which information must be disclosed. Nowhere is it spelled out that health professionals need disclose there may have been carelessness that caused the harm. The duty extends to disclosure of information that there was harm, not what might have caused it and certainly not that anything they did might have caused the harm.
Third, the dodge is based on the timing of the disclosures.
During initial disclosure meetings, health professionals get away with saying it’s too early to say what happened. This is a problem because the real internal investigation, which provides real answers, is shielded from public view by provincial law.
Section 51 of the Evidence Act in B.C. is entitled Health Care Evidence. This section provides for committees to be approved or established by hospital management to investigate care or practice within the hospital. It is illegal for anyone to even ask any question or seek production of any document relating to the investigation conducted by such a committee. Disclosure of any information, record, or finding by a committee is prohibited except under strict circumstances and certainly not to the public or even the patient involved. So for the final dodge—the law prohibits Post Analysis Disclosure. That is to say, in the end, they can’t say what happened because of provincial non-disclosure laws.
If this doesn’t make sense to you, consider what author Tom Clancy said: “The difference between fiction and reality is that fiction has to make sense.”
(Posted January 20, 2015)
Video Case Study: Birth Injury Causing Cerebral Palsy