PATIENTS caught up in Jersey’s rheumatology scandal who have not yet begun their claims process could be prevented from using official apology letters as evidence, the JEP has learned.
Law firm Viberts, which is representing a number of patients harmed by powerful drugs wrongly prescribed to them, said it was “surprised” the government would pursue such a change in the wake of ongoing claims.
Lodged by the Environment Minister last week and due for debate in September, the Draft Regulation of Care (Jersey) Amendment Law proposes a raft of new rules for how health and care services should be regulated in future – including introducing a statutory “duty of candour” for regulated health and care providers.
If approved, the law would require services to be open and transparent with patients when something goes wrong, including offering a written apology.
But embedded in the proposals, which total some 63 pages, is also a clause that any apologies issued as a result of the duty of candour cannot be used as evidence of liability in legal proceedings.
It reads: “Apologising is not an admission of liability, and this is put beyond doubt by Regulation 6(11), which would prevent the fact of an apology being made under this requirement being admissible as evidence when determining liability in connection with an incident.”
This cannot be in the best interest of the affected patients
viberts law firm
Following queries from the JEP about the impact of the changes, Viberts said in a statement: “Viberts are surprised that the States, at this stage even now in the knowledge of the massive number of claims, would even contemplate amending the regulations as they apply to the duty of candour letters issued on behalf of the States, who have apologised to patients missed diagnosed and or mistreated.
“The amendment would mean such letters will no longer be admissible as evidence in legal proceedings. This cannot be in the best interest of the affected patients.”
The government clarified that the proposed legislation would not apply to claims already under way.
The Cabinet Office said: “New legislation is almost never retrospective; it is about creating a new open and transparent regime for the future.”
However, rheumatology patients have until 2027 to file claims following the Health Minister’s decision to extend the usual time limit.
This means those who have not yet begun the claims process could still be affected by the changes if the legislation is passed.
The amendment would also apply to other Islanders pursuing future claims related to medical negligence, preventing them from using official apology letters as evidence.
The duty of candour proposed in Jersey mirrors similar legislation introduced in England in 2014, which requires health and care providers to be open with patients when things go wrong, including offering an apology.
However, Jersey’s draft law goes a step further by making it explicit that any apology given under this duty cannot be used as evidence in legal or disciplinary proceedings.
In contrast, UK law states that an apology “shall not of itself amount to an admission of negligence or breach of statutory duty”.
This means an apology can still be referred to or produced in court, even if it does not, on its own, amount to legal liability. It does not make apologies inadmissible as evidence.
A duty of candour letter is provided to service users, their family or carers after something has gone wrong with their care.
