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Disclosure of Harm

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Approved by Council: February 2003
Reviewed and Updated: December 2019

Companion Resource: Advice to the Profession

 

Policies of the College of Physicians and Surgeons of Ontario (the “College”) set out expectations for the professional conduct of physicians practising in Ontario. Together with the Practice Guide and relevant legislation and case law, they will be used by the College and its Committees when considering physician practice or conduct.

Within policies, the terms ‘must’ and ‘advised’ are used to articulate the College’s expectations. When ‘advised’ is used, it indicates that physicians can use reasonable discretion when applying this expectation to practice.

 

Definitions

Apology: an expression of sympathy or regret; a statement that one is sorry for what has happened.1

Disclosure: the acknowledgement and discussion of a harmful incident, no-harm incident, or near miss incident with the patient, substitute decision-maker, and/or estate trustee, as the case may be.

Harm: an outcome that negatively affects a patient’s health or quality of life. Harm may or may not relate to material risks discussed during the informed consent process.

Harmful incident: an incident that has resulted in harm to the patient (also known as an “adverse event”). For specific examples, please see the Advice to the Profession document.

No-harm incident: an incident with the potential for harm that reached the patient, but no discernible or clinically apparent harm has resulted. For specific examples, please see the Advice to the Profession document.

Near miss incident: an incident with the potential for harm that did not reach the patient due to timely intervention or good fortune (also known as a “close call”). For specific examples, please see the Advice to the Profession document.

 

Policy

Obligation to disclose2

  1. Physicians must ensure that harmful incidents are disclosed.3
  2. Physicians must ensure that no-harm incidents are disclosed.4
  3. Physicians must consider whether to disclose near miss incidents, taking into account whether:
    1. the patient is aware of the incident and an explanation will reduce concern and promote trust;
    2. the patient should be educated to monitor for future similar incidents; and
    3. a reasonable person in the patient’s position would want to know about the incident.

To whom to disclose

  1. Physicians must disclose directly to the patient or, where the patient is incapable with respect to the treatment, to the patient’s substitute decision-maker.
  2. If the patient has died, the physician must disclose to the patient’s estate trustee (or, if there is no estate trustee, the person who has assumed responsibility for the administration of the patient’s estate).

When to disclose

  1. Physicians must disclose as soon as possible after the incident occurs.
  2. Disclosure is an ongoing obligation, and physicians must disclose additional relevant information as soon as possible once it becomes available.

What to disclose

  1. As part of disclosure, physicians must communicate the following information:
    1. the facts of what occurred and a description of the cause(s) of the incident;
    2. any consequences for the patient, as they become known;
    3. actions that have already been taken and those that are recommended to address any actual or potential consequences to the patient, including any steps the patient can take to monitor for potential consequences or similar incidents, as well as options for follow-up care;
    4. actions being taken, if any, to avoid or reduce the risk of the incident recurring; and
    5. who the patient may contact for further information.
  2. Physicians must consider whether an apology is appropriate, taking into consideration the nature of the incident and the consequences of the incident for the patient.5

Who must disclose

  1. Where a sole physician is directly involved in the patient’s care at the time of the incident, that physician must
  2. Where multiple physicians are directly involved in the patient’s care at the time of the incident, the physicians must:
    1. assess who is the most appropriate physician to disclose; and
    2. ensure that disclosure occurs, regardless of who conducts the disclosure.
  3. Physicians must use their professional judgment in determining whether to include in the disclosure, as appropriate, other health care providers involved in the patient’s care, someone trained in the disclosure process, and/or someone with particular expertise in the patient’s condition.

Postgraduate trainees

  1. Postgraduate trainees must inform the Most Responsible Physician (MRP)6 and their clinical preceptor in a timely manner of any harmful, no-harm, or near miss incidents.
  2. In the interest of professionalism and ongoing education, MRPs must encourage the postgraduate trainees’ active involvement in the disclosure process to the extent the MRP determines is appropriate in the circumstances.7

Documentation

  1. Physicians who disclose an incident must capture the following in the patient’s medical record:
    1. the facts of what occurred;
    2. a description of the cause(s) of the incident; and
    3. the relevant details of all discussions and communications with the patient relating to disclosure of the incident.

Subsequent physicians

  1. Where a subsequent physician has reason to believe that an incident warranting disclosure has not in fact been disclosed, they must:
    1. discuss the matter with the previous physician, where it is possible to do so; and
    2. where appropriate, ensure that disclosure takes place at the first reasonable opportunity, which may require the subsequent physician to disclose the incident to the extent that they have the appropriate knowledge about the incident to do so.
 

Endnotes

1. In Ontario, the law states that an apology does not constitute an admission of fault or liability by the person making the apology. Further, apologies made for harm that occurs during treatment cannot be used as evidence of liability against a physician in a civil proceeding, administrative proceeding, or arbitration. Please see the Advice to the Profession document for more information.

2. For further information regarding the conduct of effective disclosure discussions, physicians may wish to consult the CMPA’s Disclosing harm from healthcare delivery: Open and honest communication with patients.

3. Physicians who work in hospitals or other health care facilities may be subject to additional disclosure requirements as established by their particular institution, as well as the requirements of Regulation 965, made under the Public Hospitals Act, relating to the disclosure of “critical incidents.”

4. No-harm incidents require disclosure because harm may manifest in the future and may therefore require monitoring. Please see the Advice to the Profession document for more information.

5. See Advice to the Profession: Disclosure of Harm for further information regarding apologies.

6. The MRP is the physician who has primary responsibility for managing the medical care of a patient at a specific point in time.

7. What will be appropriate in the circumstances will vary according to the situation. In some cases, it may be appropriate for the trainee to conduct the disclosure discussion independently; in others, it may not be appropriate for the trainee to be present.