Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023
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Open disclosure of Part 5 review: information and apology not to invalidate insurance,constitute admission of liability or fault or be admissible in proceedings | ||
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41. (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 a Part 5 review disclosure meeting in respect of a Part 5 review, or pursuant to the provisions specified in subsection (3), the statement referred to in section 49 (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), (b) or (c) 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, | ||
(vii) a person who enters into a contract or arrangement, referred to in— | ||
(I) paragraph (a)(v) of the definition of “health services provider”, or | ||
(II) paragraph (b)(iv), or as the case may be paragraph (c)(iv), of that definition, | ||
with a health services provider, | ||
(viii) by another health services provider where the open disclosure of the Part 5 review is, pursuant to section 37 (1), made by the health services provider in respect of a Part 5 review which did not occur when it was providing a health service to the patient, or | ||
(ix) a person referred to in subparagraph (ii) to (vii) who is an employee of, a health practitioner who provides a health service referred to in subparagraph (iii) to (vi) for, an agency health practitioner who provides a health service for, and a person who enters into a contract with, a health services provider referred to in subparagraph (viii), | ||
in relation to Part 5 review or a clinical negligence action which arises (whether in whole or in part) from the consequences of that Part 5 review, | ||
(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), | ||
(vii) a person who enters into a contract or arrangement, referred to in— | ||
(I) paragraph (a)(v) of the definition of “health services provider”, or | ||
(II) paragraph (b)(iv), or as the case may be paragraph (c)(iv), of that definition, | ||
with a health services provider, | ||
(viii) a health services provider referred to in paragraph (a)(viii), or | ||
(ix) a person referred to in paragraph (a)(ix), | ||
in a court in relation to that Part 5 review or a clinical negligence action which arises (whether in whole or in part) from the consequences of that Part 5 review, 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, | ||
or | ||
(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 Part 5 review concerned or any matter alleged which arises (whether in whole or in part) from the Part 5 review. | ||
(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 a Part 5 disclosure meeting in respect of Part 5 review or pursuant to the provisions specified in subsection (3), the statement referred to in section 49 (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 Medical Practitioners Act 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, or | ||
(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 the Part 5 review, | ||
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 53 (7), apply to— | ||
(i) additional Part 5 review information provided, and an apology where it is made, at the additional Part 5 review information meeting, and | ||
(ii) a statement referred to in section 53 (3), | ||
and | ||
(b) in accordance with section 54 (8), apply to information and statements provided in a clarification referred to in, and given under, that section. | ||
(4) Information provided by a health practitioner to a health services provider under section 38 — | ||
(a) shall not constitute an express or implied admission of fault by— | ||
(i) that health practitioner, | ||
(ii) that health services provider, | ||
(iii) a health services provider referred to in subsection (1)(a)(viii), or | ||
(iv) a person referred to in subsection (1)(a)(ix), | ||
whether the health practitioner is a practitioner referred to in subparagraph (iii) or (v) of subsection (1)(a) or an agency practitioner referred to in subsection (1)(a)(iv), | ||
(b) shall not, notwithstanding any other enactment or rule of law, be admissible as evidence of fault or liability of— | ||
(i) that health practitioner, | ||
(ii) that health services provider, or | ||
(iii) a health services provider referred to in paragraph (a)(iii), | ||
whether the health practitioner is a practitioner referred to in subparagraph (iii) or (v) of subsection (1)(a) or an agency practitioner referred to in subsection (1)(a)(iv), | ||
(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, | ||
or | ||
(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 would be, available in respect of the Part 5 review concerned or any matter alleged which arises (whether in whole or in part) from the Part 5 review, | ||
(d) shall not constitute an express or implied admission, by that 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 Medical Practitioners Act 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, or | ||
(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 the Part 5 review, | ||
and | ||
(e) is 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 (d). | ||
(5) This section is in addition to, and not in substitution for, any enactment or rule of law relating to the disclosure of information in respect of the provision of a health service. | ||
(6) 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). |