Civil Liability (Amendment) Act 2017
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Open disclosure: information and apology not to invalidate insurance; constitute admission of liability or fault; or not to be admissible in proceedings | ||
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10. (1) Information provided, and an apology where it is made, to a patient or a relevant person (or both of them) by a health services provider at an open disclosure meeting in respect of a patient safety incident, or pursuant to the provisions specified in subsection (3), the statement referred to in section 16 (5) and the statements referred to in the provisions specified in subsection (3)— | ||
(a) shall not constitute an express or implied admission of fault or liability by— | ||
(i) that health services provider, | ||
(ii) an employee of that provider (whether the employee is a health practitioner or otherwise), | ||
(iii) a health practitioner who provides, or provided, a health service— | ||
(I) for, or on behalf of, that provider pursuant to a contract referred to in subparagraph (ii) of paragraph (a) or (b) of the definition of “health services provider”, or | ||
(II) for, or on behalf of, or through or in connection with, that provider pursuant to an arrangement referred to in subparagraph (iv) of paragraph (a) of that definition, | ||
(iv) an agency health practitioner who provides, or provided, a health service for, or on behalf of, that provider, | ||
(v) a health practitioner including, in the case of a health services provider which is a partnership, a partner of a health practitioner, providing a health service for that provider, | ||
(vi) an agency worker assigned to that provider pursuant to an agency contract, or | ||
(vii) a person who enters into a contract or arrangement, referred to in— | ||
(I) subparagraph (v) of paragraph (a) of the definition of “health services provider”, or | ||
(II) subparagraph (iv) of paragraph (b) of that definition, | ||
with a health services provider, | ||
in relation to that patient safety incident or a clinical negligence action which arises (whether in whole or in part) from the consequences of that patient safety incident, | ||
(b) shall not, notwithstanding any other enactment or rule of law, be admissible as evidence of fault or liability of— | ||
(i) that health services provider, | ||
(ii) an employee of that provider (whether the employee is a health practitioner or otherwise), | ||
(iii) a health practitioner referred to in paragraph (a)(iii), | ||
(iv) an agency health practitioner referred to in paragraph (a)(iv), | ||
(v) a health practitioner referred to in paragraph (a)(v), | ||
(vi) an agency worker referred to in paragraph (a)(vi), or | ||
(vii) a person who enters into a contract or arrangement, referred to in— | ||
(I) subparagraph (v) of paragraph (a) of the definition of “health services provider”, or | ||
(II) subparagraph (iv) of paragraph (b) of that definition, | ||
with a health services provider, | ||
in a court in relation to that patient safety incident or a clinical negligence action which arises (whether in whole or in part) from the consequences of that patient safety incident, and | ||
(c) shall not, notwithstanding— | ||
(i) any provision to the contrary in— | ||
(I) a policy of professional indemnity insurance, | ||
(II) any documentation that comprises an offer, or evidence, of an arrangement for indemnity between a medical defence organisation and a member of that organisation, or | ||
(III) a contract of insurance providing insurance cover for claims in respect of civil liability or clinical negligence actions, | ||
and | ||
(ii) any other enactment or rule of law, | ||
invalidate or otherwise affect the cover provided by such policy or contract of insurance that is, or but for such information and such apology would be, available in respect of the patient safety incident concerned or any matter alleged which arises (whether in whole or in part) from that patient safety incident. | ||
(2) Information provided, and an apology where it is made, to a patient or a relevant person (or both of them) by a health services provider at an open disclosure meeting in respect of a patient safety incident or pursuant to the provisions specified in subsection (3), the statement referred to in section 16 (5) and the statements referred to in the provisions specified in subsection (3)— | ||
(a) shall not constitute an express or implied admission, by a health practitioner, of fault, professional misconduct, poor professional performance, unfitness to practise a health service, or other failure or omission, in the determination of— | ||
(i) a complaint under section 57 of the Act of 2007, | ||
(ii) an application under section 38 of the Act of 1985, | ||
(iii) a complaint within the meaning of section 33 of the Pharmacy Act 2007 , | ||
(iv) a complaint under section 55 of the Act of 2011, | ||
(v) a complaint under section 52 of the Act of 2005, and | ||
(vi) an allegation referred to in Article 37 of the Order of 2000, | ||
that is made in respect of the health practitioner and which arises (whether in whole or in part) from the consequences of that patient safety incident, and | ||
(b) are not, notwithstanding any other enactment, admissible as evidence of fault, professional misconduct, poor professional performance, unfitness to practise a health service, or other failure or omission, in proceedings to determine a complaint, application or allegation referred to in paragraph (a). | ||
(3) This section shall— | ||
(a) in accordance with section 18 (10), apply to— | ||
(i) additional information provided, and an apology where it is made, at the additional information meeting, and | ||
(ii) a statement referred to in section 18 (6), | ||
and | ||
(b) in accordance with section 19 (8), apply to information and statements provided in a clarification referred to in, and given under, that section. | ||
(4) In this section— | ||
“clinical negligence” means anything done or omitted to be done in the provision of a health service by a health services provider in circumstances which could give rise to liability for damages for negligence in respect of personal injury or death; | ||
“clinical negligence action” means an action for the recovery of damages brought— | ||
(a) by or on behalf of a person alleging that he or she, or a deceased person of whom he or she is a personal representative, has suffered personal injury or death as a result of clinical negligence, and | ||
(b) against the health services provider alleged to have committed the act or omission giving rise to liability or any other person alleged to be liable in respect of that act or omission; | ||
“medical defence organisation” means a body corporate, or an unincorporated body, which provides professional indemnity insurance, on a discretionary or other basis, to a member of that body in relation to an incident of clinical negligence which gives rise to a claim against a member of that body; | ||
“professional indemnity insurance” means a policy of indemnity insurance to cover claims by or on behalf of a patient (or a relevant person) in respect of any description of civil liability for injury, harm or death that is incurred in the provision of a health service (including the carrying on of the business of the provision of a health service). |