Clinical Incidents and Open Disclosure: Your Obligations as an Australian Doctor   

When something goes wrong in patient care, your obligation is to tell the patient — openly, honestly, and promptly. The Australian Open Disclosure Framework sets the standard for how this is done. Research consistently shows that patients who receive timely, honest disclosure are less likely to complain or pursue legal action. The instinct to stay silent is both wrong and counterproductive. 

Few moments in clinical practice are as challenging as the realisation that something has gone wrong in a patient’s care — whether due to a clinical error, an unexpected complication, a system failure, or an adverse outcome that no one anticipated. The instinct of many practitioners, shaped by fear of complaints and legal action, is to minimise, delay, or avoid direct communication with the patient. 

That instinct is both professionally wrong and strategically counterproductive. The evidence is clear: patients who receive prompt, honest, and empathic disclosure of adverse events are significantly less likely to complain, less likely to pursue legal action, and more likely to maintain trust in their treating team. Conversely, patients who feel that information was concealed or minimised are far more likely to escalate matters through formal channels. 

This guide explains your legal and professional obligations when a clinical incident occurs, how to conduct an open disclosure conversation, and how to document the process correctly. 

What Is a Clinical Incident? 

A clinical incident is an event or circumstance which could have, or did, result in unintended or unnecessary harm to a person receiving healthcare. This includes: 

• Adverse events: incidents that result in unintended harm to a patient 

• Near misses: incidents that could have caused harm but did not, due to chance or timely intervention 

• No-harm events: incidents that reached the patient but did not cause harm 

Clinical incidents are not limited to dramatic events like wrong-site surgery or medication errors. They include delayed diagnoses, missed results, failures of follow-up, communication errors, and any other circumstance that resulted in or could have resulted in patient harm. 

Open Disclosure: What It Is and Why It Matters 

Open disclosure is the open, consistent approach to communicating with patients and their families or carers after a clinical incident. It includes an expression of regret for what has happened, a factual explanation of what is known about the incident, and a commitment to investigating and learning from the event. 

The Australian Open Disclosure Framework, developed by the Australian Commission on Safety and Quality in Health Care (ACSQHC), sets the national standard for open disclosure in Australian health services. While the Framework was developed primarily for hospital settings, its principles apply to all healthcare practitioners — including GPs and specialists in private practice. 

The Core Principles of Open Disclosure 

• Openness and timeliness: Disclosure should occur as soon as practicable after an incident is identified 

• Acknowledgement: The patient should be told what happened, without minimisation or evasion 

• Truthfulness: Information provided should be accurate to the best of your knowledge at the time 

• Apology: An expression of regret is appropriate and expected — and importantly, in most Australian jurisdictions, an apology made in the context of open disclosure cannot be used as an admission of liability in civil proceedings 

• Clarity: Information should be provided in plain language, without excessive medical jargon 

• Confidentiality: The process should respect the patient’s privacy and, where relevant, that of other practitioners 

• Continuity of care: The patient’s ongoing care needs must be addressed 

 Apology Legislation: A Critical Protection – In most Australian states and territories, legislation protects expressions of regret or apology made in the context of healthcare from being used as admissions of liability in civil proceedings. In NSW, the Civil Liability Act 2002 (s 69) provides that an apology does not constitute an admission of liability. Similar protections exist in VIC, QLD, SA, WA, ACT, and TAS. This means saying ‘I’m sorry this happened’ or ‘I regret that you experienced this outcome’ will not be used against you in a negligence claim. The protection does not cover admissions of fault — but genuine expressions of regret are protected. Do not let fear of liability prevent you from offering an appropriate apology. 

Your Legal Obligations: When Is Disclosure Mandatory? 

Beyond the professional and ethical obligation to disclose, there are specific mandatory reporting and notification obligations that may arise from a clinical incident: 

AHPRA Notifications 

Under the Health Practitioner Regulation National Law, registered practitioners have an obligation to notify AHPRA of certain matters. A clinical incident that raises questions about a practitioner’s fitness to practise — or that involves conduct that would constitute a mandatory notification — must be reported. See our dedicated guide: Mandatory Reporting for Australian Doctors. 

Hospital and Practice Incident Reporting 

Most hospital and health service contexts require formal incident reporting through an internal system (such as the NSW Incident Information Management System, or VHIMS in Victoria). In a private practice context, your own practice should have an incident reporting system. Completing an incident report is not an admission of liability — it is a quality and safety obligation. 

Coroner’s Notifications 

Some adverse outcomes — including unexpected deaths and deaths during or following medical or surgical procedures — must be reported to the coroner. The obligation to report to the coroner is separate from and additional to any open disclosure obligations. See our dedicated guide: Responding to a Coroner’s Request. 

Sentinel Events 

State and territory health authorities maintain lists of ‘sentinel events’ — serious, largely preventable adverse events that require mandatory reporting to the health authority. These include events such as surgery on the wrong patient or wrong body part, retained surgical instruments, and in-hospital suicide. If a sentinel event occurs, specific reporting obligations apply over and above standard incident reporting. 

How to Conduct an Open Disclosure Conversation 

The disclosure conversation itself is one of the most challenging communications a clinician can have. Preparation and approach both matter. The following framework reflects the ACSQHC Open Disclosure Framework and best practice guidance: 

Before the Conversation 

• Prepare: Know what happened — to the best of your current knowledge. Acknowledge what you do not yet know and be honest about it. 

• Choose the right setting: The conversation should take place in a private, quiet space. It should not be rushed. Allow adequate time. 

• Consider who should be present: The patient should be asked whether they want a support person present. Consider whether a senior colleague, practice manager, or patient liaison officer should attend. 

• Notify your indemnity insurer: Before the disclosure conversation — especially in serious cases — notify your insurer. They may provide guidance on approach or wish to be involved. 

During the Conversation 

• Open honestly: Acknowledge that an incident has occurred. Do not minimise, use jargon, or seek to deflect. 

• Explain what happened: Provide a factual account of what you know — and be honest about what you do not yet know. 

• Express regret: Offer a genuine apology or expression of regret. This is expected, appropriate, and legally protected. 

• Listen: Allow the patient and family to ask questions and express their feelings. Open disclosure is a conversation, not a monologue. 

• Explain next steps: What will happen next? Who will follow up? What investigation is planned? What care does the patient now need? 

• Avoid blame: Do not attribute blame to specific colleagues or systems in the initial disclosure conversation. Investigations take time and premature attribution can be inaccurate and legally problematic. 

After the Conversation 

• Document the conversation: Record that a disclosure conversation took place, when, with whom, what was discussed, and what was agreed as next steps. Do not record the conversation verbatim — document the substance. 

• Follow through on commitments: If you promised to provide further information, investigate, or follow up — do it. Failure to follow through is one of the most common grounds for escalation after a disclosure. 

• Support the patient’s ongoing care: Adverse events affect the therapeutic relationship. Consider whether continuity of care, referral, or additional support is needed. 

Clinical Scenario: The Delayed Diagnosis Dr Obi reviews a patient, Ms Chan, who has been recalled after a routine cervical smear. When reviewing her records, she realises that a previous result — taken 14 months ago under a locum — was abnormal and was never followed up. The recent smear now shows CIN2. What Dr Obi should do: Arrange an urgent appointment with Ms Chan. Before the appointment, notify her indemnity insurer and complete a practice incident report. In the consultation, acknowledge openly that a previous abnormal result was not followed up, express genuine regret for the delay, explain what will happen next (urgent colposcopy referral), and allow Ms Chan to ask questions. Document the disclosure conversation. Follow up to ensure the referral has been made and that Ms Chan has attended. What Dr Obi should not do: Avoid telling Ms Chan what happened. Blame the locum in the conversation. Minimise the significance of the delay. Fail to document the disclosure.  

Documentation: What Your Records Must Show 

Documentation of a clinical incident and the open disclosure process is critical — both for quality improvement and for your protection in any subsequent complaint or legal matter. Your records should include: 

• A contemporaneous clinical note documenting the incident itself — what happened, when, and the immediate clinical response 

• A separate incident report (where your practice has one) — noting that this document may have different legal status to clinical notes in different jurisdictions 

• A record of the open disclosure conversation: date, time, who attended, what was discussed, the patient’s response, and what was agreed 

• Follow-up notes recording subsequent communications and actions 

Do not alter the original clinical records relating to the incident. If you need to add information, make a dated supplementary entry clearly identified as such. Any alteration of records after an adverse event will be identified and will severely damage your credibility in any subsequent investigation. 

The Link Between Open Disclosure and Complaints 

Research from Australia and internationally consistently shows that a significant proportion of formal complaints and legal claims arise not from the adverse event itself, but from the patient’s experience of how the event was handled. Patients who feel dismissed, deceived, or stonewalled are significantly more likely to escalate. 

Conversely, a well-conducted open disclosure process — even in serious cases — can prevent escalation, maintain the therapeutic relationship, and in some cases actually build trust. Patients understand that medicine is uncertain and that adverse events occur. What they find unacceptable is dishonesty and disrespect. 

Frequently Asked Questions 

Q: Does open disclosure mean I’m admitting I was negligent? 

No. Open disclosure is an acknowledgement that an adverse event occurred — not an admission of negligence. In most Australian jurisdictions, apologies made in the context of healthcare are expressly protected from use as admissions of liability by statute. Your insurer can advise on the specific protections in your state. 

Q: What if I’m not sure exactly what happened? Should I wait until I know more? 

You should not delay disclosure while awaiting a full investigation — but you should be honest about what you know and do not know. Acknowledge the incident, express regret, explain the facts as currently known, and commit to providing further information as the investigation proceeds. Delayed disclosure is a significant source of complaint. 

Q: The incident involved a colleague or locum — am I still responsible for disclosure? 

Where the incident occurred within your practice, you have an obligation to ensure disclosure occurs — regardless of which specific practitioner was involved. Coordinate with the relevant parties and your insurer to ensure an appropriate disclosure process is conducted. Do not use the involvement of others as a reason to avoid disclosure. 

Q: Can the patient or family record the open disclosure conversation? 

Recording laws vary by state — in some jurisdictions, a party to a conversation can legally record it without the other party’s consent. In a clinical context, you may wish to acknowledge at the start of the conversation that recording is occurring if you become aware of it, and document this in your notes. The existence of a recording is not itself a reason to change your approach — open, honest disclosure remains the appropriate response. 

Q: What if the patient becomes angry during the disclosure conversation? 

This is a normal response to an adverse event. Allow the patient to express their feelings. Do not become defensive or seek to justify the incident prematurely. If the conversation becomes unmanageable, it is appropriate to pause, acknowledge the patient’s distress, and offer to reconvene with additional support.