Clinical Negligence: The power of saying sorry | Medical Negligence and Personal Injury Blog | Kingsley Napley

The Government, via the Ministry of Justice, has now opened a consultation to establish how to improve the law surrounding apologies. As it stands, Section 2 of the Compensation Act 2006 goes some way towards making it easier for organisations to apologise without admitting liability. However, questions have been raised as to whether this is good enough or whether further legislation is needed.

From my perspective as a medical negligence lawyer, there remains a reluctance to make apologies, presumably fuelled by concerns that it will be seen as an admission of liability in any legal claim. At the moment, apologies, if they come at all, sometimes come only at the conclusion of a legal case. A letter of apology, for instance, may be negotiated as part of bringing a claim to an end.

In the context of those injured in a medical setting, what impact does saying sorry really have?

Apologies are tied in with the duty of candour which involves disclosing when things have gone wrong. As set out in the Government’s duty of candour guidance, there are specific requirements that providers must follow when things go wrong with care and treatment, including providing truthful information and an apology.

James Bell, head of the Clinical Negligence Department at Kinsley Napley, and Paul Whiteing, CEO of the charity Action against Medical Accident (AvMA), recently discussed the duty of candour in an episode of our KN Talks podcast which you can listen to here. They are of the opinion that that while great progress has been made in this arena, more still needs to be done. There are concerns that clear information is still not always being given to patients when things go wrong. This may well be tied up with a reluctance to apologise because of the fear of legal action and an assumption of admitting fault.

However, the new Ministry of Justice consultation paper notes that in the clinical negligence sphere ‘sincere, unreserved and meaningful apologies, have the potential to avoid litigation altogether. In some situations, a simple sorry may be what those bringing a claim had most wanted’.

Even where a compensation claim goes ahead because the injured person has suffered significant injuries and financial losses, the very nature of how that claim proceeds, and the legal costs associated with it, may be impacted by the approach of the parties. In my opinion, if an apology has been made this might encourage a more measured approach by both parties, leading to less adversarial behaviour and a swifter resolution.

The trauma suffered by the injured person needs to be a primary consideration and a genuine apology can make the process of any legal proceedings less difficult for the claimant to cope with.   

According to an article in The Journal of the American Academy of Psychiatry and the Law, apologies can reduce anger and promote healing, but to have positive effects an apology must be well given and, above all, sincere. A bad apology is often worse than no apology at all.

The knotty question is what legally can be done to encourage more defendants to be willing to apologise.  I hope that the current consultation will lead to greater clarity and more strides towards a culture where making impactful apologies becomes the norm. 

about the author

Laura Vincent Evans is an Associate in the Medical Negligence & Personal Injury team, having qualified in September 2022. Laura assists the Partners in the department on a variety of claims, including those where negligence has resulted in clients sustaining complex injuries during birth and procedures.