Saying ‘I’m sorry’ at the bedside: when and why should apologies following medical mishaps be protected from legal liability?

Abstract

Patients harmed by medical mishaps are often driven to litigation because of a lack of apologies and candour rather than a desire for monetary compensation. Despite attempts at clinical negligence reform, patients continue to receive unsatisfactory responses. Physicians have cited fears of legal liability as a key reason for withholding apologies. Apology legislation has been proposed as a possible solution to encourage apologies by rendering them inadmissible as evidence of liability, thereby reducing the legal risks of apologies. Critics, however, contend that apology legislation may encourage strategic formulaic responses instead of compassionate patient-centred support. This article delivers a comprehensive rejoinder to these concerns, and argues that bold legislative change similar to that of Hong Kong’s enactment of full apology protection aligns with English and Welsh clinical negligence reform goals. Through a robust comparative legal analysis of various jurisdictions in which apology laws have been enacted, this article explores the legal, ethical, and practical factors that contribute to the proper functioning of such laws. It then recommends concrete ways to improve the effectiveness of such laws in the context of clinical negligence reform, thereby removing barriers to apologetic discourse and breathing ethical and professional life into the doctor’s apology.

I. INTRODUCTION

Medical mishaps cause much emotional and physical harm to patients, which is exacerbated by physicians’ lack of candour and apologies.¹ These failings lead to loss of trust, fissuring of patient–physician relationships and escalation of complaints to litigious proceedings.² While some patients seek monetary compensation, the lack of clear explanations and sincere apologies is a key motivator of negligence actions. Legal recourse often represents a failure to address harmed patients’ needs.³ In England and Wales, policymakers recognize that this failure largely stems from physicians’ hesitation with offering apologies and explanations, and have attempted to address this by encouraging transparency and amicable dispute resolution through reform measures.⁴ Physicians have been given reassurances that the Compensation Act 2006 protects apologies from attracting liability, and the implementation of the statutory duty of candour (DoC) sought to remove remaining barriers to apologetic disclosure.⁵ However, patients are still met with unsatisfactory responses partly because such measures have failed to adequately reduce the risks of apologies.⁶

In 2024, the Government revisited apology legislation as a potential solution to encourage apologies, by rendering them evidentially inadmissible in civil actions.⁷ It concluded that it was open to consider Scotland’s approach by protecting partial apologies, and is ‘not minded, however, to adopt the approach taken in Hong Kong’⁸ in protecting full apologies. Contrary to the Government’s view, this article asserts that Hong Kong’s broad protection of full apologies is not only better suited for English and Welsh clinical negligence reform, but also congruent with healthcare providers’ moral and professional obligations to their patients.

Section II, which explores: (i) the value of apologies; (ii) the components and types of apologies; (iii) the ideal type of apologies in medical mishaps; and (iv) the reasons preventing apologetic discourse in healthcare. It finds that, despite widespread consensus amongst patients, physicians, policymakers and scholars that patient-centric care requires the offer of full rather than partial apologies, the fear of legal risks accompanying full apologies prevent them.

Next, Section III analyses the statutory DoC and Compensation Act 2006, revealing that their punitive regulatory approach and lack of clarity ineffectively address the fears of offering full apologies. It ends with a discussion of the Government’s proposal to address these shortfalls by legislating partial apology protection. Section IV critically examines the shortcomings of the Government’s proposal and demonstrates why full apology protection is a more effective solution through a comparative analysis of international case law and apology legislation. It begins by illustrating how protecting full rather than partial apologies from civil liability and invalidation of malpractice insurance prevents legal confusion and offers of unsatisfactory apologies, thereby maximizing legislative effectiveness. This is followed by an in-depth analysis of the possible negative implications of full apology protection on claimants. Overall, Section IV finds that Hong Kong’s comprehensive apology protection does not devalue or corrupt apologies, but instead creates room for the authentic and timely expression of these humanizing acts. It also sheds light on how fears of unfairness to claimants and abuse of apology laws excessively steers policymakers away from much-needed robust apology protection, when such concerns can be adequately addressed by making provisions for exceptional cases.

An examination of apology legislation in the broader context of English and Welsh clinical negligence reform is then undertaken in Section V. It demonstrates that apology laws, whilst necessary, are likely not sufficient. Other reform tools such as educational efforts and administrative schemes complement the enactment of apology protection, and vice versa, in effectively promoting apologetic discourse and amicable dispute resolution. The article concludes that full apology protection, while radical, is necessary for driving meaningful change in disclosure practices by the bedside.

II. WHY THE LACK OF APOLOGIES? UNDERSTANDING THE PROBLEM

A. The value of apologies

Apologies are complex interactions that serve several functions morally, socially, and legally. They restore dignity, repair relationships, and resolve disputes through various mechanisms.⁹ For instance, when the wrongdoer apologizes, he acknowledges wrongdoing, recognizes the moral status of the victim,¹⁰ strengthens the victim’s self-image,¹¹ elevates the victim’s moral worth by giving him the power to forgive,¹² and ‘forces the apologiser into a humbling position’.¹³ An alternative view is that the wrongdoer’s reputation is deemed to be tarnished when he causes harm,¹⁴ and apologizing would restore his image by allowing him to be seen ‘as a good and moral person who is unlikely to do further wrong’.¹⁵ Thus, by equalizing the moral statuses of victims and wrongdoers, apologies heal emotional wounds of the victim, reduce anger, and promote settlement.¹⁶ In circumstances where harm did not result from wrongdoing, individuals may nonetheless harbour an innate human instinct to apologize to express empathy.¹⁷

Legally, apologies are crucial in dispute resolution.¹⁸ While apologies are known to effectively incentivize settlement, and reduce litigation and legal costs,¹⁹ their ability to dissolve emotional and psychological barriers is key in healthcare disputes.²⁰ Unlike corporate and commercial disputes, conflicts in healthcare often carry high emotional burden because of the unique relationship between disputants.²¹ Trust and compassion are cornerstones of the patient-physician relationship.²² When harm occurs, trust is lost, and patients feel betrayed. The lack of apologies acknowledging this betrayal leaves lasting emotional wounds that cannot be remedied by monetary compensation alone, if at all.²³ It is thus unsurprising that the desire for apologies and explanations, rather than monetary compensation, often spurs litigation.²⁴ In a study analysing reasons underlying malpractice claims, a past claimant shared that if the physicians had:

…said in the beginning…: yes we got that wrong, we are sorry about it, this is what we have done to change things… then I would have closed it all down, because I would have got what I wanted.²⁵

Several past claimants echoed similar sentiments, underscoring the importance of apologies in medical mishaps.²⁶

B. Components and types of apologies

Apologies consist of ‘“four Rs”: remorse, responsibility, resolution and reparation’, where ‘I’m sorry this happened’ expresses remorse; ‘this is my fault’ acknowledges responsibility; ‘I will ensure this will not happen again’ conveys a resolution to prevent similar conduct in future (ie ‘promise of forbearance’²⁷); and ‘I will make it up to you’ can be considered as an attempt at reparation.²⁸ Apologies exist on a spectrum, containing different combinations of various components. Although some contend that full apologies must contain all elements, in most literature,²⁹ apologies that contain fault admission are considered full apologies, regardless of the presence of other components, while apologies that lack fault admission are deemed as partial apologies. Legally, this distinction is important, as the evidential admissibility of fault-admitting statements is a contentious issue in debates surrounding apology laws.³⁰

In healthcare, apologies are often considered alongside open disclosure. Open disclosures are candid discussions between physicians and patients, involving: (i) early notification of adverse events; (ii) investigation of root causes and provision of factual explanations; (iii) offer of apologies; and (iv) provision of professional support.³¹ While open disclosure guidance does not recommend any specific type of apology, it encourages expressions of sympathy soon after incident discovery, followed by factual disclosure and, where appropriate, fault admission after investigations have established facts.³² As apologies and disclosures often overlap, we argue that in healthcare, factual statements should be considered as the fifth apologetic element. Factual statements such as ‘antibiotic X instead of Y was unintentionally given’ specify the mistake made, put apologies into context and may be necessary for apologies to make sense.³³ Thus, factual statements are not uncommonly entangled with, and sometimes indistinguishable from, other apologetic components.³⁴ In recognition of this complexity, this article defines apologies encompassing fault-admitting and factual statements as full apologies; apologies excluding fault-admitting and factual statements as partial apologies; and communications incorporating apologies as apologetic discourse, communication or disclosure.

Having established the importance and complexity of apologies, the following sections will discuss the ideal type of apology following medical mishaps, and the legal uncertainties that may cause physicians to fear apologizing.

C. What is the ideal type of apology following medical mishaps?

For apologies to successfully heal victims, they should be authentic (ie not harbouring tactical and instrumental intent)³⁵ and satisfying. Given that apologies are ‘performative utterance(s)’,³⁶ the way an apology is communicated and perceived by the recipient would impact the effectiveness of the apology.³⁷ An authentic apology may still fail to satisfy the recipient if important non-verbal aspects of effective apologies such as body language,³⁸ tone,³⁹ timeliness⁴⁰ and the lack of evidence of defensiveness⁴¹ are lacking.

The content of an apology (ie apologetic components communicated) would also impact its effectiveness. Full apologies may arguably be unnecessary in placating victims because different components of apologies are perceived to be interconnected. From a socio-psychological perspective, uncommunicated components may be implied by explicitly expressing another component—that is, partial apologies offered may be perceived by recipients as full apologies.⁴² Dhami⁴³ and Schmitt⁴⁴ found, in separate studies, that fault admission may implicitly be perceived through expressions of sorrow or offers of reparation, respectively. Partial apologies may be particularly effective if they include a promise of forbearance.⁴⁵ This is because such a promise is found to not only imply fault admission,⁴⁶ but also address a major driver of malpractice claims–complainants’ desire to prevent future recurrence.⁴⁷ Thus, partial apologies, especially those that include promises of forbearance, may be as satisfying as full apologies because they implicitly communicate an acceptance of responsibility and commitment to prevent future harm.⁴⁸

However, evidence suggests that partial apologies do not satisfy recipients, and full apologies are necessary. Robbennolt observed that the merits of apologies are mainly associated with full apologies.⁴⁹ Respondents were noted to experience less anger and be more open to settlement and forgiveness if they were offered full rather than partial apologies. Furthermore, where the injury was severe, respondents were more likely to refuse settlement if they were given partial apologies.⁵⁰ The underlying suggestion that fault admission is important to harmed parties is supported by Relis’ study, showing that fault admission was sought after by 94 per cent of malpractice claimants.⁵¹

Authenticity is also important for an apology to preserve its rich moral value.⁵² It stems from the apologizer’s genuine efforts to respect the apology as a morally sacred process by reflecting internally on the nature and consequences of the harm done, which then spurs an innate desire to heal the victim.⁵³ Furthermore, Taft asserts that the apology must contain fault admission that is specific to the harm done and expose the apologizer to the ‘full consequences of the wrongful act’.⁵⁴ This confers the apology sufficient moral weight to spur recipients to forgive apologizers.⁵⁵

However, in healthcare, fault admission may not always be appropriate. Given the complexity of medical mishaps, the root causes of adverse events are often not yet fully understood during early communications with patients.⁵⁶ Fault admission and factual explanations soon after incident discovery are neither appropriate nor possible, whereas an apology that expresses sympathy and includes an undertaking to investigate and prevent recurrence can provide timely emotional redress and reassurance before facts are established.⁵⁷ Also, adverse events are often multifactorial and may not result from individual physician error. If a hospitalized patient falls while walking unaccompanied, it may be because the physician prescribed him sedative medication; nursing response to call for assistance was delayed due to understaffing; and/or the call bell malfunctioned. Thus, even if a physician contributes to an adverse outcome, it seems unfair and inappropriate for the physician to take full personal responsibility by saying, ‘this was all my fault’. A partial apology would be more balanced, as it acknowledges the patient’s suffering while also recognizing that individual physicians should not shoulder the blame for systemic failings beyond their control that contribute to harm.⁵⁸

Nonetheless, the trust needed to maintain patient-physician relationships justifies the need for full rather than partial apologies. Honesty and accountability are fundamental to maintaining trust, which can only be achieved if patients’ rights to the truth are not denied.⁵⁹ Truthful disclosure is needed, not merely apologetic expressions.⁶⁰ A complete understanding of medical mishaps is necessary for respecting patient autonomy by allowing patients to make informed decisions on their health and treatment required for the harm suffered.⁶¹ If the root causes of harm are concealed, patients cannot meaningfully participate in harm prevention discussions or fully appreciate how recurrence would be prevented.⁶²

As much as patients need full apologies, physicians similarly feel compelled to offer them. Most physicians feel professionally and morally obligated to be transparent and accountable to their patients.⁶³ A physician in Gallagher’s study likened errors to ‘sins’, and admission of error was deemed to ‘relieve the soul of some burden’.⁶⁴ Restricting themselves to partial apologies when they know they bear some responsibility may limit the alleviation of such guilt.⁶⁵ Furthermore, fault admission need not mean that physicians take full personal responsibility for multifactorial incidents. Instead, physicians may specifically explain how they contributed to harm (e.g., ‘I’m sorry I prescribed medication that caused drowsiness, which may have increased your risk for falls.’).

Overall, while there are reasonable justifications for both types of apologies, full apologies would be more appropriate in medical mishaps considering moral implications, effectiveness, patients’ interests and the importance of trust in healthcare. Practical limitations would mean that partial apologies may be more feasible soon after incident discovery, but once facts are established, physicians are obligated to fully disclose the facts–partial apologies would no longer then be justifiable then.

D. Why do physicians fear apologizing? Analysis of relevant case law

Despite the importance of apologies in healthcare, physicians withhold them out of fear that their apologies would be used against them to prove negligence.⁶⁶ To prove negligence, the claimant must demonstrate that the defendant owed him a duty of care; there was a breach of care; and the breach caused the claimant’s harm.⁶⁷ Apologies may be construed as evidence of fault relevant to proving a breach or causation of harm.⁶⁸ Whether such fears are well-substantiated would depend on judicial treatment of apologies.

UK case law discussing the evidential value of apologies in negligence actions is sparse, and none have been found to be specific to medical negligence. Kleefeld’s search for such cases yielded minimal results in 2017.⁶⁹ Instead, most cases deliberated on the mitigating effects of apologies in defamation actions. At the time of writing this article, case law has remained largely unchanged, and the legal position remains unclear.

In Muir v Glasgow Corporation,⁷⁰ Lord Thankerton disagreed with Lord Moncrieff’s opinion that the defendant’s expression of regret implied a breach of care, and instead argued that the expression held little evidential value. Lord Macmillan concurred with Lord Thankerton as he regarded the defendant’s expression of regret as a natural response to a distressing incident rather than an admission of liability, and reiterated that whether a breach occurred should be established by the court based on facts.⁷¹ However, liability was determined differently in Young v Charles Church (Southern) Ltd⁷² Here, the defendant wrote to the claimant, stating that ‘the issue of liability for this accident will not be in dispute’. This statement was construed by the court as fault admission, and that this admission alone was sufficient to prove a breach. While the statement made in Young was not apologetic, it underscores the potential for courts to establish liability based on fault-admitting statements alone rather than facts.⁷³

Given the scarcity of UK case law analysing the evidential value of apologies and fault-admitting statements, English and Welsh courts may seek guidance from other jurisdictions regardless of their differences in legal rules. However, overseas judicial treatment of apologies is similarly unsettled and controversial, as will be illustrated in the following case law from the US and Australia. These cases were decided based on general common law principles of negligence because California and Michigan had not yet enacted apology laws,⁷⁴ and the facts of the case from Western Australia had occurred before the enactment of apology protection.⁷⁵

Two cases from California and Michigan demonstrate that apologies, even fault-admitting ones, may not be construed as proof of negligence. In Cobbs v Grant, the claimant submitted that when the surgeon allegedly ‘blamed himself’⁷⁶ for a surgical complication, it implied a breach of care. However, it was held that such a fault-admitting statement did not prove a breach, but instead merely expressed sympathy.⁷⁷ Negligence was similarly not established in Locke v Pachtman, where a needle broke off inside the patient’s muscle mid-surgery. Despite the surgeon’s admission that she ‘knew the needle was too small’,⁷⁸ the court relied on expert opinion, rather than the surgeon’s statement, to determine the standard of care. As expert opinion was equivocal, negligence was not established.⁷⁹ Similarly in Australia, the appellate court in Dovuro Pty Limited v Wilkins,⁸⁰ an agricultural dispute case, relied on legal principles rather than fault-admitting apologies in determining liability. Here, fault-admitting apologetic statements by seed distributer Dovuro were not deemed as proof of liability. Instead, it was held that the standard of care was to be determined by the court, typically with expert opinion, and whether or not a breach had occurred depended on the facts of the case.⁸¹

However, the entrenched perception that apologies, especially full apologies, are legally risky is not unfounded.⁸² When apologies are offered, some complainants may be placated. Others, however, may perceive it as a signal that they have grounds to file a negligence lawsuit.⁸³ Regarding judicial treatment of apologies, Kirby J in Dovuro said that, while apologies alone are insufficient to prove liability, they can still be used to support the court’s conclusion on liability after considering all other evidence in totality.⁸⁴ Such judicial opinion underscores the highly prejudicial effect of apologies, as the court is willing to admit apologies even if they are deemed to have low probative value.⁸⁵ Furthermore, fault-admitting statements have been construed by the judiciary as proof of a breach. In a Utah clinical negligence case, the doctor’s admission that he ‘jumped the gun’⁸⁶ was construed as an expression of his own expert opinion that his care was substandard.⁸⁷ This is consistent with dissenting, minority opinion in Locke,⁸⁸ where the surgeon’s admission that the needle she used was ‘too small’ was construed as an assessment of her own actions being substandard.⁸⁹ Factual statements embedded in apologies are even more prejudicial—they are typically admissible as they are deemed to be relevant in determining liability.⁹⁰ Additionally, physicians’ malpractice insurance risk being invalidated if apologies are found to have attracted liability.⁹¹ These reasons underlie the common practice of lawyers advising physicians to avoid apologizing to patients.⁹² Overall, given these legal ambiguities regarding judicial treatment of apologies and the insurance-related concerns in some jurisdictions, it is unsurprising that physicians in the UK and overseas fear offering apologies.

III. CURRENT LAWS

A. Statutory DoC

The lack of apologetic disclosure in healthcare spurred the establishment of professional DoC by GMC for physicians and the statutory DoC for health service bodies in England.⁹³ Similar legislation was enacted in Wales in 2020,⁹⁴ aiming to improve transparency and increase public trust in healthcare by requiring National Health Service (NHS) trusts to engage in apologetic disclosure following medical mishaps.⁹⁵

Unfortunately, despite the enactment of these legal and professional obligations, satisfying apologies and explanations are still lacking.⁹⁶ A survey showed that only 31 per cent of past NHS claimants felt that an apology was offered after an adverse event, and only a fraction of the apologies was well-received.⁹⁷ One claimant described the apology offered as ‘a very guarded apology if you can call it an apology’.⁹⁸ Data of cases of severe birth injuries similarly revealed poor levels of compliance to statutory duty.⁹⁹ The regulatory nature of the statutory DoC may have merely created box-ticking exercises¹⁰⁰ for healthcare management rather than stimulated any meaningful cultural change because the fear of risks accompanying candidness remains. Punitive and compliance-driven approaches are thought to be less effective at encouraging openness than supportive measures that provide physicians the legal and psychological safety they need to be candid.¹⁰¹ However, some argue that such supportive measures are unnecessary as apologies can already be made safely under the Compensation Act 2006.¹⁰²

B. Compensation Act 2006

Guidance from NHS’s insurer—NHS Resolution (NHSR)—and GMC reassure physicians that apologies are not fault admissions, as provided by the Compensation Act.¹⁰³ Under the Act, ‘an apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty’.¹⁰⁴ However, many argue that this provision is exceedingly brief, and merely provides a veneer of protection that fails to effectively incentivize apologies for three reasons.¹⁰⁵

Firstly, it does not define ‘apology’.¹⁰⁶ As apologies vary depending on their components (see Section II.B), the lack of apology definition creates much ambiguity in determining which components are evidentially inadmissible. Leung posits that if the Act is construed as protecting apologies as defined under the statutory DoC, whereby an apology is ‘an expression of sorrow or regret’,¹⁰⁷ then only such expressions would be protected.¹⁰⁸ However, the Act was enacted in consideration of civil disputes rather than solely clinical negligence disputes. Hence, it cannot be assumed that the Act is to be read alongside the statutory DoC and adopt its apology definition.¹⁰⁹ Alternatively, the Act may arguably refer to apologies as commonly defined in dictionaries¹¹⁰—that is, fault-admitting apologies.¹¹¹ Vines presents yet another argument—since the Act does not include the word ‘admission’, fault- and fact-admitting statements may be rendered evidentially admissible.¹¹²

Secondly, the Act may not prevent malpractice insurance invalidation as there are no provisions explicitly preventing this.¹¹³ Insurance contracts often include clauses that prohibit the insured physician from assuming liability. Thus, if physicians’ apologies attract liability, their insurance coverage may be voided.¹¹⁴

Thirdly, the protection afforded by the Act remains obscure as it merely intends to ‘reflect the existing law’,¹¹⁵ implying that it does not add anything to the current judicial stance on apologies.¹¹⁶ Such an objective is unhelpful because, as explained earlier, the judicial treatment of apologies is unclear.¹¹⁷

C. The next step: apology legislation

In recognition of the value and fears of offering apologies, MP John Howell proposed protecting apologies from civil liability to incentivize apologies in his 2020 Apologies Bill.¹¹⁸ He suggested adopting Scotland’s approach to apology protection,¹¹⁹ where it expressly protects expressions of remorse and promises of forbearance, while remaining silent on admissibility of fault- and fact-admitting statements.¹²⁰ While the Bill did not progress through parliament, interest in the utility of apology legislation was again sparked in 2024.¹²¹ Through a brief discussion of various apology laws, the Government concluded that it was inclined to consider apology legislation similar to that of Scotland, but not Hong Kong.¹²² However, the following analysis of global apology laws reveals that the Government may be too quick to dismiss Hong Kong’s approach.

IV. INTERNATIONAL COMPARATIVE PERSPECTIVES AND A PROPOSED APOLOGY LAW FOR ENGLAND AND WALES

Apology laws are thought to encourage apologies by rendering them evidentially inadmissible and thus legally ‘safe’ to offer.¹²³ They vary in apology definitions, evidentiary rules, legislative effects on insurance validity and other characteristics. Hong Kong’s Apology Ordinance currently provides the broadest apology protection worldwide.¹²⁴ We propose that, similar to Hong Kong, England and Wales should protect full apologies from attracting civil liability and malpractice insurance invalidation.¹²⁵ However, admissibility should be permitted in exceptional circumstances.¹²⁶

Justifications for this approach will be drawn from an analysis of Australian, Canadian, Hong Kong, Scottish, and American empirical studies and case law. While the legal rules of these jurisdictions differ from each other and that of England and Wales, an exploration of global perspectives would allow for better appreciation of the complexity of apology legislation. An international comparative analysis is necessary also because till date, there is no empirical evidence about the effects of Hong Kong’s Ordinance on clinical negligence disputes. The only piece of evidence available, albeit anecdotal, is an excerpt from a keynote speech by Hong Kong’s Department of Justice:

…since the enactment of the Apology Ordinance, it appears that healthcare professionals have been more forthcoming in saying sorry in medical incidents. We have seen examples of open acknowledgment of medical mishaps and apologies made to patient’s families.¹²⁷

We begin by illustrating how full apology protection is necessary to effectively promote authentic and effective apologies by providing clarity and removing excessive focus on legal technicalities. Next, we explain how concerns about such broad protection potentially harming claimants through the use of strategic apologies by defendants and obstruction of claimants’ ability to prove negligence are overinflated. Section IV ends with suggestions to mitigate potential pitfalls of our proposed approach and improve the balance of interests between claimants and defendants.

A. Maximizing effectiveness of apology legislation

1. Partial apology protection leads to legal confusion and unsatisfactory apologies

As argued above in Section II.C, full apologies are superior to partial apologies following medical mishaps, considering the various moral aspects, effectiveness, and patients’ interests. As also shown in Section II.D, however, full apologies are highly prejudicial to apologizers as facts embedded within apologies are often relevant in determining liability, and fault-admitting statements may be used to support the court’s overall conclusion on liability or interpreted as proof of a breach. While the cases cited in Section II.D were decided based on general common law principles in the absence of apology legislation, these risks still persist under partial apology protection as it permits admissibility of fault-admitting and factual statements. The unique danger apologizers face under such laws is the potential for their well-intentioned apology being dissected into admissible and inadmissible parts, due to the narrow scope of protection provided.

Where full apologies are made against a backdrop of apology laws that only offer partial protection, the empathy expressed may be excluded while fault-admitting and factual statements are admitted, thus distorting the context of apologies.¹²⁸ For example, in a case of misdiagnosis in Maine,¹²⁹ the defendant’s attempt at commiseration via a written full apology backfired when the court deemed the entire letter inadmissible under Maine’s partial apology law, except for one incriminating statement admitting that the doctor was wrong to diagnose the patient before biopsy results were finalized.¹³⁰ Such parsing exercises have been exploited by claimants to not only support claims of negligence by arguing for admission of fault-admitting and factual statements, but to also paint the physician as remorseless and lacking compassion by excluding expressions of remorse from evidence.¹³¹

It is thought that such parsing exercises, which potentially limit legislative effectiveness, arise from explicit exclusion of apologetic components (e.g., Maine’s apology law¹³² explicitly permitting admission of fault-admitting statements).¹³³ In an effort to avert this, Scotland decided to remain silent on such matters.¹³⁴ However, the lack of explicit exclusions do not prevent judicial dissection, and may in fact, create more room for confusion and inconsistency in determining the admissibility of apologetic components. The interpretation of Alberta’s apology law (which explicitly protects fault admission but remains silent on admissibility of factual statements)¹³⁵ in an investment dispute case illustrates this pitfall. In Robinson v Cragg, the judge redacted parts of an apology written by the defendant to the claimant, save for certain statements such as ‘…it was only through the inadvertence of my office that the situation has now changed’.¹³⁶ He had construed that statement to be one of fact, and hence admissible.¹³⁷ However, Khouri argues that it should have been interpreted in a broader context as an expression of remorse and admission of fault, and hence falling within the scope of legislative protection.¹³⁸ Khouri¹³⁹ and Kleefeld¹⁴⁰ further assert that Alberta’s legislation did not intend for apology protection to be construed so narrowly to require courts to parse factual statements out of apologies and that the judge was inconsistent in his determination of admissibility of apologetic components. Therefore, failure to explicitly protect all components of full apologies, including fault-admitting and factual statements, may lead to: (i) apologies being taken out of context, which unfairly penalizes well-intentioned apologizers; (ii) the judiciary being compelled to excessively focus on differing interpretations of legislative definitions, technicalities and objectives, rather than ensuring a fair balance of interests of disputing parties; and (iii) much uncertainty on what constitutes a legally ‘safe’ apology.

In turn, physicians may become highly cautious about semantics. In attempting to navigate potential legal landmines, physicians may inadvertently offer half-hearted and guarded apologies that appear insincere despite feeling remorseful. More crucially, defendants may be advised to apologize strategically through instrumental expressions of sympathy with the primary intention of averting litigation, while intentionally concealing the truths that patients seek.¹⁴¹ Such disingenuous expressions may incite more anger and desire for litigation than if no apology was offered.¹⁴² Scotland’s Consultation Paper gave an example of an apology that is ‘safe’ and yet comprehensive in settings where fault-admitting statements are not protected: ‘Yes, I made a mistake, but it was the sort of mistake that everyone can be expected to make from time to time’.¹⁴³ It is thought to be more effective than a partial apology, because it includes an acceptance of responsibility; and safe, because even if the fault-admitting statement is evidentially admissible, it is unlikely to have probative value as it does not imply a breach of care.¹⁴⁴ However, it is ironic that while this example was given to address concerns that partial apology laws would lead to ineffective apologies lacking fault admission, such an apology arguably seems to be a poor attempt at normalizing the error, making it appear defensive and questionable if the apologizer would make sincere efforts to learn from the incident.

Thus, the limited legal safety afforded by partial apology protection is problematic. Such legislation is unlikely to promote the type of apology we described in Section II.C that is required for healing patients and damaged therapeutic relationships in medical mishaps–authentic and satisfying apologies that promote transparency. We agree with Hong Kong’s view that, for maximal legislative effectiveness, fault-admitting and factual statements should explicitly be protected to render full apologies inadmissible in their entirety.¹⁴⁵

2. Preventing invalidation of malpractice insurance

Another important consideration is the effect of apology legislation on physicians’ malpractice insurance, which in turn affects patients’ compensation. Malpractice insurance policies often include a ‘cooperation clause’ that prohibits policyholders from admitting fault, failing which, indemnity may be declined. If a physician’s apology attracts liability, his insurer may decline indemnity cover on grounds of breaching this contractual clause.¹⁴⁶ The physician then has to bear full compensation and other legal costs, potentially depriving the patient full compensation if the physician is unable to afford it.¹⁴⁷ In Queensland and New South Wales, such risks underlie the reasons why physicians are advised to offer partial rather than fault-admitting apologies. Despite both jurisdictions having fault-admitting apology protection, their laws only protect against civil liability, not insurance invalidation.¹⁴⁸ In contrast, Hong Kong¹⁴⁹ and most Canadian states¹⁵⁰ have provisions to bar insurance invalidation to alleviate fears of apologies potentially compromising insurance validity.

In England and Wales, insurance for NHS employees is provided by NHSR and Welsh Risk Pool Services respectively.¹⁵¹ Superficially, it may seem that physicians need not worry about insurance invalidation because NHSR guidance has expressly advised that apologetic disclosure is aligned with statutory duty; reassured that apologizing is not admitting liability as provided by the Compensation Act; and promised that they ‘have never, and will never, refuse cover on a claim because an apology has been given’.¹⁵² Despite these reassurances, risks of losing indemnity persist.

As explained earlier in Section III.B, the brief provisions in the Compensation Act do not define apologies, much less explicitly state that fault-admitting and factual statements do not attract liability or compromise insurance validity. Furthermore, NHSR’s claims are not legally binding and potentially misleading given that physicians must obtain permission from NHSR to make fault-admitting statements or risk being denied indemnity.¹⁵³ Even if NHSR delivers on their abovementioned promise, the many physicians who perform private, non-NHS work (and hence are not indemnified by NHSR) are still exposed to risks of insurance invalidation.¹⁵⁴ Therefore, provisions to bar insurance invalidation should be included in apology legislation to maximize legislative effectiveness. Furthermore, if liability is established, it has the additional benefit of ensuring patients’ access to full compensation even if full apologies were offered during open disclosure.

3. Effect of extensive apology protection on the perceived value of apologies

Despite the abovementioned justifications for extensive apology protection, it is thought that such broad protection may devalue apologies by eroding their moral weight, thereby reducing the effectiveness of apologies in placating victims. Protecting apologies would mean reducing tangible risks faced by apologizers. When apologizers are no longer vulnerable, apologies may appear less impressive.¹⁵⁵ As explored briefly in Section II.C, Taft asserts that apologizers must face the ‘full consequences of the wrongful act… [and] must confront not only shame, fear, and humiliation, but financial risk as well’¹⁵⁶ for apologies to be meaningful to victims. Hence, even full apologies may be unsatisfying when they are rendered less morally freighted by extensive apology protection, despite expressly accepting responsibility.¹⁵⁷ Limited apology protection may arguably be more balanced as it reduces some risks for apologizers but not to the extent that apologies become morally meaningless to recipients.

However, we argue that apology protection only minimizes civil liability risks–apologizers are still vulnerable in other ways. Socially, apologizing would still put apologizers at risk of reputational damage,¹⁵⁸ embarrassment and rejection by recipients.¹⁵⁹ Physicians’ apologies may still be admissible in criminal proceedings and civil actions for purposes other than proving negligence.¹⁶⁰ Thus, the existence of residual risks to apologizers may explain why recipients would find them satisfying despite comprehensive legal protection. Robbennolt found that evidentiary rules did not devalue apologies—recipients perceived full apologies as sincere and adequate despite knowing that they were evidentially inadmissible.¹⁶¹ Furthermore, the effectiveness of apologetic disclosure in placating victims of medical mishaps can be boosted via other measures, such as improving communication skills and providing holistic redress packages. This will be elaborated on in Section V.

B. Balancing legislative effectiveness against potential harm to claimants

One of the main concerns regarding the protection of factual statements is its potential to handicap claimants in their ability to prove liability. Factual statements may have high probative value–rendering them inadmissible may unjustly add to claimants’ evidential burden and deny them justice.¹⁶² For instance, in a Ohio case Stewart v Vivian, where a patient died by suicide while under inpatient psychiatric care, the deceased’s family submitted that the psychiatrist, Dr Vivian, acknowledged that the patient had expressed that she ‘wanted to kill herself’.¹⁶³ Although that statement had high probative value, the court deemed it inadmissible as it construed Dr Vivian’s statement as apologetic and interpreted Ohio’s apology law as intending to ‘protect all statements of apology’.¹⁶⁴ Such evidentiary exclusion may be highly detrimental to claimants especially if factual statements within apologies are the most compelling or only proof of liability.¹⁶⁵ An even more concerning possible unintended effect of such legislative protection is the court’s failure to apply it only to statements that have clear apologetic intent,¹⁶⁶ or for defendants to deliberately bury incriminating facts within apologies to render them evidentially inadmissible.¹⁶⁷ Highly probative non-apologetic statements may be mistakenly excluded from evidence if defendants successfully convince the judiciary that such statements had apologetic intent, even if there was none.¹⁶⁸

However, concerns that full apology protection compromises claimants’ ability to prove liability may be unfounded because liability can often be proven without relying on apologies as evidence.¹⁶⁹ In a Saskatchewan motor accident case,¹⁷⁰ the fault-admitting and factual statements made by the defendant to the claimant post-collision were deemed as apologetic and hence inadmissible.¹⁷¹ However, the court nonetheless established that the defendant was wholly liable based on photographs, diagrams, and other evidence.¹⁷² Similarly, in a British Columbia motor accident case,¹⁷³ the court deemed the driver’s spontaneous fault-admitting apology to the claimant as inadmissible under apology law.¹⁷⁴ However, the driver’s fault-admitting and factual statements made to a witness were deemed to lack apologetic intent and hence admitted into evidence.¹⁷⁵ Liability was established based on this admission and other evidence from other witnesses.¹⁷⁶ When contextualized to clinical negligence, if a surgeon ligates the wrong artery, liability can be established based on witness accounts from surgical nurses, patient’s medical records, radiological scans and expert opinion—fault-admitting and factual statements from the surgeon’s apology would not be necessary to prove liability.¹⁷⁷

Furthermore, even if apology legislation bars claimants from admitting facts contained within apologies as evidence, claimants are not prohibited from adducing independent evidence to prove these facts.¹⁷⁸ While having to adduce other evidence to prove admitted facts may increase work for claimants,¹⁷⁹ it does not limit claimants’ rights to litigate.¹⁸⁰ This is a feature that is also seen in mediation.¹⁸¹ It is arguably a fair balance between effectively promoting apologetic disclosure and early resolution for more claimants, while ensuring fairness to the minority of claimants who still wish to pursue litigation. Lastly, apology laws only affect admissibility for proving liability—they do not render apologies inadmissible for other purposes such as assessment of damages and impeachment of witnesses.¹⁸²

Despite the above arguments demonstrating how comprehensive apology protection does not prejudice claimants, such concerns prompted England and Wales to consider Scotland’s relatively limited apology protection instead of Hong Kong’s robust apology legislation.¹⁸³ However, we argue that these concerns may be addressed adequately by providing a clause to exclude ‘exceptional cases’ from protection.¹⁸⁴ For instance, Hong Kong permits admission of apologies in exceptional cases where it is ‘just and equitable’ to do so—an example of which is ‘where there is no other evidence available for determining an issue’.¹⁸⁵ While it is unlikely that apologies would be the sole or key evidence of negligence, Stewart shows that such exceptional circumstances may arise. Admittedly, permitting admissibility in exceptional circumstances may compromise the perceived effectiveness of apology protection as it exposes apologizers to residual risks. However, such a clause is necessary to allow room for judicial discretion in ensuring a fair balance of interests between claimants and defendants in exceptional cases. It would also address concerns about the tactical use of full apology protection in shielding key facts from admissibility.

Overall, apology legislation that explicitly protects all components of full apologies is more likely to effectively promote satisfying apologies than partial apology protection by alleviating concerns about semantics and legal risks. Although strategic apologies may still occur and concerns about unfairness to claimants may persist, measures can be implemented to mitigate them and achieve a better balance of interests between disputants.

V. BROADER CONSIDERATIONS: A PIECE IN THE BIG REFORM PUZZLE

Despite its strengths, apology legislation alone cannot be the panacea for failings of the current clinical negligence system. In fact, critics of apology legislation argue that apology laws are unnecessary as other ‘softer’ reform measures may suffice. However, a comparative analysis of these tools and apology legislation reveals how they complement each other.

Some contend that non-legal measures like education and implementation of disclosure programmes, rather than legislative change, are more appropriate for driving reform. As mentioned previously (see Section II.C), the effectiveness of apologies highly depends on non-verbal cues. Training physicians on effective communication, rather than implementing legislative change, is better suited to address physicians’ lack of adequate communication skills.¹⁸⁶ Contrary to legalization, education in professionalism, ethics and patient-centric care would promote prioritization of patients’ interests,¹⁸⁷ by encouraging physicians to attend to the needs of their harmed patients expeditiously as care providers instead of compelling physicians to first consider the legal implications and semantics of apologies as a respondent to potential litigation.¹⁸⁸ Legalization may stifle the trusting therapeutic relationships between patients and physicians by excessively focusing on rules and formulaic expressions.¹⁸⁹

However, training and professional guidance are discretionary. Their ‘soft power’ may be insufficient in addressing physicians’ immense fear of legal risks.¹⁹⁰ Their limitations are aptly summed up by a physician’s views on open disclosure in Gallagher’s study:

Everything you read and everything that you’re told says that you are supposed to tell what errors you make as soon as you can… your chances of having an adverse litigation are less if you take that approach. Now, the question is, how many of us believe that?¹⁹¹

The authoritative effect of legislation may provide much needed support to humanistic approaches in effecting significant change in healthcare culture by directly addressing legal risks.¹⁹² Also, if there is comprehensive apology protection, concerns about possibly communicating in a manner that falls outside of legal protection would be minimized.

Nonetheless, apology legislation would require educational efforts to bolster its effectiveness by improving visibility of the legislation, communication skills and cultivating compassionate patient-centric care necessary for the delivery of authentic and satisfying apologies. Promoting awareness is crucial—anecdotal evidence from Australia¹⁹³ and Canada¹⁹⁴ shows that the intended effects of apology protection have yet to materialize as apology legislation is ‘almost incognito’.¹⁹⁵ Training in ethical and responsible open disclosure practices would be helpful in discouraging the use of strategic apologies. For instance, education on the importance of prioritizing patients’ interests and incorporating accountability measures into apologetic disclosure, such as documenting patients’ concerns and the medical team’s commitment to follow-up actions, ensures apologies address patients’ needs meaningfully, and not merely serve the interests of defendants.¹⁹⁶

Hospital-based disclosure programmes may also effectively encourage apologetic discourse. Under these programmes, patients are expeditiously notified of adverse events and offered explanations, apologies and fair compensation if they suffered from medical harm.¹⁹⁷ Institutions in Kentucky,¹⁹⁸ Michigan¹⁹⁹ and Colorado²⁰⁰ have experienced fewer malpractice claims and overall lower legal costs after implementing such programmes. They are an oft-cited example of how disclosure programmes may reduce patients’ desire for litigation, attributed to early apologetic disclosure, improved patient-physician communication, and greater focus on patient safety rather than litigation.²⁰¹ Despite their benefits, disclosure programmes are still not widely implemented due to several factors.²⁰² One of the key barriers to implementation is the persistent fear of attracting liability or even possibly increasing litigation costs by inadvertently tapping into a ‘great unlitigated reservoir’,²⁰³ as these programmes do not confer legal protection.²⁰⁴ Thus, key stakeholders such as malpractice insurers and physicians are unlikely to support these programmes unless liability risks are minimized.

Cohen highlights that Kentucky’s Lexington Veterans Affairs Medical Center could garner support for their programme because their physician employees face less litigation risks due to federal laws and their malpractice insurance premiums do not escalate even after large settlements, among other particular characteristics.²⁰⁵ Given that these features do not apply to English and Welsh stakeholders, it would instead be more appropriate to consider reducing liability risks via full apology protection, as proposed by Kass and Bell.²⁰⁶ Weiss cites Colorado’s comprehensive apology protection as a crucial reason why malpractice insurer COPIC confidently encourages its physicians to apologize and offer compensation soon after medical mishaps.²⁰⁷ By protecting full apologies from attracting liability, insurers would have greater confidence that the key benefit observed in such disclosure programmes (ie minimizing overall payouts and expenditure on litigation) would materialize. In England and Wales, this is particularly relevant for insurers insuring non-NHS work in the private sector.

Apology legislation may also support mediation and confidential settlement negotiations. Superficially, apology laws may appear unnecessary as fears of legal risks can be minimized by offering apologies during these proceedings, which would render them evidentially inadmissible.²⁰⁸ Policymakers recognize this potential for mediation to facilitate confidential apologetic discourse and dispute resolution, and have thus proposed to make mediation compulsory before the issuance of any clinical negligence court proceedings.²⁰⁹ However, mediation and negotiations can only occur if disputing parties are agreeable to enter them, and even if they eventually do agree, such procedures take time for arrangements to be made.²¹⁰ Waiting to apologize in these settings would mean delaying apologies and depriving patients of timely emotional redress. This may further inflame tensions and reduce the effectiveness of apologies, thereby compromising the potential for dispute resolution.²¹¹ Apology protection may incentivize disputing parties to consider non-litigious dispute resolution by encouraging early apologies, thus preventing further escalation of disputes.²¹² This merit of apology protection supports NHSR’s objective of resolving more disputes via non-litigious means.²¹³

Administrative compensation schemes have also been considered as a potential reform solution in England.²¹⁴ They allow patients access to compensation based on care needs without resorting to litigation.²¹⁵ Apology legislation may arguably be redundant if such schemes are implemented, as patients who accept compensation waive their litigation rights,²¹⁶ thus full apologies offered would not attract liability. An example is Wales’s redress scheme,²¹⁷ whereby patients who believe that they have been harmed by medical mishaps can apply for compensation through their healthcare provider. The healthcare provider will investigate the case, and if it is determined that there is a qualifying liability, the patient may be offered redress in the form of monetary compensation, an apology and explanation.²¹⁸ A variant of such a scheme is the ‘no-fault’ scheme as seen in New Zealand.²¹⁹ Unlike the Welsh scheme, there is no need to prove liability—only that the harm and medical mishap are related.²²⁰ These schemes have been praised for giving harmed patients prompt and equitable access to redress while avoiding adversarial processes.²²¹

However, there are concerns that such schemes may be economically unviable due to its potential to open ‘the floodgates to claims’²²² that would otherwise not be compensated, if thresholds for qualifying claims and caps for compensation are not set appropriately. This has been posited as the underlying reason why England did not implement this scheme, and is unlikely to do so in future,²²³ as well as why the Welsh scheme is limited to small claims.²²⁴ There are also concerns that administrative schemes undercompensate patients, and if patients subsequently deem their compensation as inadequate, they cannot obtain further redress via litigation.²²⁵ Apologies and explanations may still be delayed and lacking under administrative schemes as these are only offered as part of the redress package after investigations have concluded, and only in cases that qualify for redress.

Conversely, apology legislation may encourage early apologies in all cases of medical mishaps even before investigations have concluded, regardless of claim value or presence of qualifying liability. Patients can receive apologies and explanations without waiving their rights to litigation or full compensation.²²⁶ Thus, they may work well alongside administrative schemes in providing patients with a holistic care package. Apology protection would encourage timely apologetic discourse soon after incident discovery while awaiting claims to be processed under the redress scheme. Redress schemes would address patients’ need for prompt monetary compensation, which apology protection alone cannot provide.

Overall, full apology protection holds much potential in supporting clinical negligence reform. Its authoritative value may be key to encouraging apologies by providing legal safety to physicians and malpractice insurers. Nonetheless, its effectiveness in encouraging apologies may be limited without other equally important pieces of the complex reform puzzle. Adequate reform of professional disciplinary procedures and organizational culture are also necessary, as apology legislation may not protect physicians from professional regulatory prosecution and organizational blame.²²⁷ In a recent disciplinary tribunal case, GMC submitted a doctor’s apology as proof of fault.²²⁸ While the tribunal rejected the apology as evidence, the act of GMC weaponizing the apology against the doctor was enough to upset the medical community, with physicians subsequently questioning the safety of apologizing.²²⁹

Taking the above approaches into consideration, we disagree with the proposal for England and Wales to adopt Scotland’s approach. It may be argued that applying Scotland’s approach is appropriate given more similar legal rules and systems than the other jurisdictions cited, making lessons drawn from them less relevant to England and Wales. Nonetheless, the judicial approaches in determining negligence and admissibility based on legal principles, provisions, and definitions as seen in other jurisdictions are relevant.

Furthermore, it is ironic that while statutory duty exists in Scotland,²³⁰ England,²³¹ and Wales,²³² they lack full apology protection to support it. By remaining silent on admissibility of fault-admitting and factual statements, Scotland’s legislation may inadvertently encourage insincere partial apologies, and add much room for uncertainty in judicial application of these laws. Also, Scotland’s legislation does not formally and unambiguously protect apologizers from insurance invalidation.²³³ Thus, substantial risks persist, and physicians are likely to remain silent. Conversely, Hong Kong’s legislation is robust, by expressly protecting full apologies and prohibiting insurance invalidation. This is despite the absence of a statutory DoC in Hong Kong.²³⁴ Such legislation resulted from the Hong Kong government’s desire to encourage amicable settlements through apologetic discourse—mirroring the English and Welsh governments’ overarching clinical negligence reform goals.²³⁵ Thus, we argue that England and Wales should adopt an approach similar to Hong Kong’s, to provide adequate legal safety needed for the promotion of apologies and candour.

VI. CONCLUSION

Apologies play a key role in restoring trust, healing harmed patients and resolving disputes. As apologies following medical mishaps are enmeshed with open disclosure, full apologies are often necessary, and should encompass fault-admitting and factual statements. However, current professional guidance and English and Welsh laws governing apologetic discourse have failed to promote them. Compelling apologies through punitive regulatory measures without addressing underlying fears of legal risks encourages bureaucracy instead of authenticity and meaningful change in healthcare behaviour.

The Government’s recent reconsideration of apology legislation as a potential reform solution is timely. Its cautious approach in exploring its utility is understandable, given examples of how apology laws have been unfairly used by defendants to deny admission of critical factual evidence of liability, and also led to the moral act of apologizing being dissected under the judicial microscope to the detriment of well-intentioned apologizers. However, the problems plaguing apology laws are not inherent to these legal tools, but have largely arisen from inadequate breadth of protection, clarity and comprehension of its role in influencing healthcare behaviour.

What this article adds to the current literature is an in-depth analysis of how lessons drawn from jurisdictions with dissimilar legal systems can be valuable and relevant in determining the right form of apology protection needed to promote authentic and effective apologies in healthcare. It also provides specific recommendations to improve fairness and effectiveness of apology legislation, contextualized to the English and Welsh medico-legal landscape. Our analysis shows that robust apology legislation similar to that of Hong Kong’s has several strengths. By protecting full apologies from civil liability—save for exceptional cases—and insurance invalidation, it aligns with statutory and professional DoC and reform goals. It accommodates offers of authentic apologies in a way that partial apology protection fails to do so, by negating the need to ensure that apologetic components fall within the confines of strict legal rules. Thus, it cultivates sincerity and transparency, and in turn promotes greater respect for patients and strengthens patient–physician relations. Lastly, it preserves patients’ access to full compensation should liability be established. Concerns that claimants are prejudiced by such broad apology protection are adequately addressed by permitting admissibility in exceptional circumstances, such as in situations where apologies are the key or sole evidence of negligence.

This article has also demonstrated that the efficacy of alternative clinical negligence reform tools is stifled by their inability to overcome physicians’ and insurers’ fears of legal risks. Apology laws can be seen as one important part of a broader system. Robust apology protection provides the legal safety necessary for the realization of the potential benefits of training and education in communication, ethics, and professionalism; disclosure programmes; mediation; and administrative schemes. In turn, these measures support apology legislation by improving legislative awareness; promoting a patient-centric approach in managing medical mishaps and ensuring fair compensation of harmed patients. Further studies, however, are necessary to establish if Hong Kong’s legislation has effectively met its objectives and avoided abuse as hoped, and findings must be appropriately contextualized to the jurisdiction of interest. Its interactions with other legislature and proceedings (e.g., professional disciplinary proceedings, criminal proceedings, coroner’s inquiries, limitation legislation) and their impact on the effectiveness of apology legislation will require further study as well. Ultimately, such radical legislative change holds much promise in promoting positive disclosure practices and allowing space for the important human dimension of healing frayed patient–physician relationships by the bedside.

Footnotes

Acknowledgements

The authors thank Professor Graeme Laurie, Ms Aisha Farhana, Dr Shaik Mohamed Bin Mohamed Noor, and the two anonymous referees for their invaluable comments on drafts of this article.

Conflict of interest. None of the authors have competing interests.

Funding

No funding was received for this article.

Ethical approval

No ethical approvals were needed.