Why Duty of Candour is falling short in the public hospital system

When Victoria introduced its Duty of Candour legislation in 2022, it was intended to bring clarity to the families of the 97,580 people affected annually by adverse medical events in its public hospital system, providing transparency and, ideally, closure following unexpected harm or loss.

But according to Bree Knoester of Brave Legal, the law has not lived up to expectations and, in some cases, is compounding grief, with many families ultimately seeking legal recourse.

“The legislation was designed to encourage open disclosure and introduce clear timelines for connecting with a patient’s family and carrying out a review following an adverse event,” Ms Knoester said ahead of the Medico Legal Congress.

“However, the feedback I’m receiving from clients is that it is performing poorly and is, more often than not, driven by the family rather than the hospital or medical entity.

“That was not the intention. It was meant to promote honesty and transparency when something goes wrong.”

Ms Knoester, who has 24 years’ experience representing patients in medical negligence disputes, says hesitancy and inconsistency around open disclosure have left some families feeling that engaging a lawyer is their only path to answers.

“My clients often say to me, ‘Bree, if I had just known what had happened, I wouldn’t be here seeking legal advice. I just want to understand why my mum died.’”

Addressing a Major Problem

Across Australia, adverse medical events remain a significant issue. Between 2021 and 2022, more than 36,000 people suffered illness or death following a medication error or adverse drug event, and approximately 45,000 died or became unwell during procedures involving abnormal risk. In total, 438,012 public hospital patients nationally experienced an adverse medical event.

In Victoria, Duty of Candour legislation requires healthcare providers to:

• Formally apologise to the patient or their family as soon as practicable (and within prescribed timeframes),
• Notify the family within 24 hours of a serious adverse event,
• Arrange a meeting within three days, and
• Hold that meeting within ten days.

“The patient or family should be informed about how the matter will be investigated and given a clear timeline,” Ms Knoester said.

“Experiencing an adverse medical event involving a close family member is likely the worst day of their lives. They want to understand why it happened — and they want that information as soon as possible.

“They need an apology or expression of regret, a factual explanation of what occurred, and an outline of the steps being taken to manage the event and prevent it from happening again.”

Falling Short

Despite these statutory requirements, Ms Knoester says the reality often falls short.

“Investigations can drag on with very limited feedback to the patient or their family,” she said. “That lack of communication adds to distress and increases the desire for answers.

“It then pushes people into the legal system, where they come to me looking for answers that could have been provided if the process had been followed properly.”

As a result, demand for medical negligence services at Brave Legal has not diminished since the introduction of Duty of Candour.

“The legislation came with great hope and perhaps even the possibility that fewer clients would need to seek legal advice because they could gain an understanding much sooner after the event,” she said. “But we continue to see that this simply isn’t happening.”

Ms Knoester and her team continue to support families at hospital meetings, where they often find key questions remain unanswered.

“Meetings must meet specific criteria,” she said. “Patients and families are entitled to a factual explanation of what occurred, an apology for the harm suffered, and an opportunity to share their experience and ask questions.

“They should also receive an explanation of the review process, any immediate improvements made, and an overview of follow-up steps or implications.

“However, we rarely see these obligations fully met. Sometimes a report will emerge from the process that still does not answer the family’s fundamental questions. At that point, the only option may be to engage a medical negligence lawyer to assess the matter from a negligence perspective.”

Choosing the Appropriate Review

Beyond open disclosure obligations, health services must determine the appropriate level of review following an adverse event.

That decision is guided by the Incident Severity Rating and whether the matter falls within mandatory reporting categories, such as a sentinel event.
“Hospitals are required to assess the Incident Severity Rating and determine whether the event meets criteria for mandatory reporting,” Ms Knoester said.

“That classification informs the type and scope of review that follows.”

Depending on the severity and category, the response may range from a local review to a comprehensive formal investigation.

“The difficulty is not necessarily in the framework itself, but in how it is applied,” she said. “If an incident is under-classified, or the review is framed too narrowly, families can feel that the process has not genuinely examined what occurred.”

While the review pathway is distinct from the statutory Duty of Candour obligations, Ms Knoester says shortcomings in the review process can undermine the transparency the legislation was intended to promote.

“There are multiple decision points within the system, and each one directly affects the quality and completeness of the answers families ultimately receive.”

Overseas Comparisons

In the United Kingdom, where comparable Duty of Candour legislation has been in place for a decade, similar compliance concerns have emerged.

A recent review of the law’s effectiveness identified multiple breaches, with fines imposed on several healthcare providers, including Bassetlaw Teaching Hospital.

“The UK experience should serve as both a learning opportunity and a warning for Australian regulators and healthcare providers,” Ms Knoester said.

“We need active regulatory oversight to ensure hospitals are genuinely complying with their Duty of Candour obligations.

“Unfortunately, the UK has shown that without enforcement, compliance cannot be assumed.”

Further Insight

Ms Knoester will explore these issues in greater depth during a workshop at the upcoming Medico Legal Congress, hosted by Informa.

The workshop will examine the different types of reviews hospitals may conduct following an adverse event, the criteria used to select them, and the legal obligations surrounding open disclosure — particularly in sentinel events. She will also share practical examples drawn from experience.

Learn more and register your tickets here.