Apologising for negligence

This has been a problem in Australia where medical practitioners being trained to do Open Disclosure in hospitals are often told that they can only express regret, because most Australian legislation (with the exception of the Australian Capital Territory, New South Wales and Queensland) only protects expressions of regret (partial apologies) from liability.

The sincerity of apologies is an important and complex issue. There is some concern that protecting apologies makes them unreal. In my opinion, it is preferable to protect apologies in order to reduce the chilling effect of the traditional advice on civil society. What the protection does is not to prevent or create liability, but rather, to leave the liability to be determined on the other evidence.

In my opinion this legislation is very welcome, but it must apply to what I call 'full' apologies. That is, apologies which include an admission of fault. Queensland recently changed its legislation from protection of partial apology to full apology. If all Australian jurisdictions can do the same thing we will be on the way to having a coherent set of laws concerning apologies. This will allow people to apologise for their moral fault, without that moral fault being potentially mixed up with the question of legal liability, and without the confusion created by the current situation in, for example, medical malpractice.

Although morality and law need to be connected, we do not regard morality and law as the same as each other. Thus, it really is important, for the working of civil society, that people can make a full apology when it is warranted without being stultified by fears about litigation. That is a different issue.