According to The Dental Defence Union (DDU), this makes it clear that an apology (outside of legal proceedings) is not an admission of liability.
In the new act, an apology is defined as, “…any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets, an act, omission or outcome and includes any part of the statement which contains an undertaking to look at the circumstances giving rise to the act, omission or outcome with a view to preventing a recurrence.”
Angela Harkins, a dento-legal adviser at the DDU, said, “Saying sorry to a patient when something has gone wrong is the right thing to do and is an ethical duty for dental professionals. The Apologies (Scotland) Act provides further reassurance to dental professionals that apologising is not an admission of legal liability. In the DDU’s experience, a sincere and frank apology and explanation can help restore a patient’s confidence following an error and help to rebuild trust. This is important for a patient’s future healthcare and can help to avoid a complaint or litigation.”
Dental professionals have a professional duty of candour, set out in the General Dental Council’s standards for the dental team, which states that when dealing with complaints, “You should offer an apology and a practical solution where appropriate.”
A legal duty of candour was also introduced for health and social care providers in Scotland under The Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016, which it is due to be implemented on April 1, 2018. It will mean that doctors, dentists and other health and social care staff in Scotland will have to inform patients and their families when a patient has, in the reasonable opinion of an uninvolved registered health professional, died or been unintentionally or unexpectedly mentally or physically harmed as a result of their care or treatment.
Although the Apologies Act does not apply to the legal duty of candour, the Health Act makes it clear that, “an apology or other step taken in accordance with the Duty of Candour… does not of itself amount to admission of negligence or breach of a statutory duty”.
The GDC has published ethical guidance on the duty of candour which explains in more detail what constitutes an effective apology. However, dental professionals are advised to contact their defence organisation for specialised advice and support.