Reforming the Law of Apologies

The Law of Apologies

Section 2 of the Compensation Act 2006 states that an apology, an offer of treatment or other redress shall not, of itself, amount to an admission of negligence or breach of statutory duty. 

The Law of Apologies encourages healthcare providers to openly acknowledge and apologise for medical errors without the fear that their apology will be used against them in court

This law is designed to:

• Encourage transparency: By allowing healthcare providers to apologise without admitting legal liability.
• Improve patient-provider relationships: Apologies can help repair trust and reduce the likelihood of litigation

Duty of candour

The duty of candour is a legal obligation for healthcare providers to be open and honest with patients when things go wrong with their care.

While both concepts emphasise the importance of honesty and transparency in healthcare, in essence, while the law of apologies focuses on protecting healthcare providers when they apologise, the duty of candour mandates a broader obligation to be transparent and take responsibility for errors.

Why does the Law of Apologies need reforming?

1)    The Ministry of Justice (MoJ) in their June 2024 consultation paper, “Reforming the Law of Apologies in Civil Proceedings in England and Wales” (Reforming the Law of Apologies in Civil Proceedings in England and Wales) noted that, “While there is little empirical evidence to suggest how effective the current legislation is, the general view is that it has had very little impact as parties are understandably very averse to offering apologies for fear of liability being admitted.”

2)    The 2019 Accountability and Reparations Investigation Report arising from the Independent Inquiry on Child Sexual Abuse (IICSA - Accountability and Reparations Investigation Report | IICSA Independent Inquiry into Child Sexual Abuse) noted on the role of apologies in civil proceedings relating to child sexual abuse that:

•  the way the law has developed in abuse claims since 2006 means that many of them are now brought in vicarious liability allegations rather than in negligence or from a breach of statutory duty;
• there is no mention of vicarious liability in the Act. This has caused uncertainty as to whether an apology could therefore be considered as an admission of liability, so leading to apologies not being provided, causing upset for families; and
• the Government should introduce legislation revising the Act “to clarify that section 2 facilitates apologies or offers of treatment or other redress to victims and survivors of child sexual abuse by institutions that may be vicariously liable for the actions or omissions of other persons, including the perpetrators”.

Proponents for reform argue that protected apologies can help reduce adversarial behaviour, settle disputes early, reduce litigation costs with NHS Resolution encouraging admissions where necessary for a number of years. Opponents believe that apologies may not significantly aid in resolving disputes and could complicate legal proceedings.

MoJ Consultation

In May 2024, we discussed the MoJ Consultation (‘The law of apologies’ – consultation launched | Weightmans) (the Consultation), noting that it gathered views on whether the current Law of Apologies legislation was effective or if new legislation is needed. In particular, whether laws in other regions, such as the Apologies (Scotland) Act 2016 and similar laws in Northern Ireland, the United States and Hong Kong represent helpful models for reform in England and Wales (although it concluded the Hong Kong model was not appropriate for England and Wales).

We noted that the Government was at pains to stress that the Consultation would not lead to new legislation which would force those defending claims to offer an apology.

MoJ Consultation outcome

The Government published a response to the Consultation in February 2025 (apologies-law-consultation-response.pdf). In summary, the response indicated a mixed view on the effectiveness of the current law and highlighted the need for further consideration of potential legislative changes. Overall, however, the Government believed it would be reasonable to make some non-retrospective modest reforms to encourage greater use of apologies because they can have a positive effect on the civil dispute process, and this was a theme supported by responses to the consultation. In particular:

• All respondents believed that the use of apologies in civil litigation is intrinsically a good thing and saw it as having potential benefits.
• A majority of respondents supported some degree of amendment to the current legislation for apologies. They pointed to a number of factors, such as the lack of empirical evidence about the degree to which the existing legislation has assisted, if at all, in the resolution of disputes.The Government has decided to pursue reform by means of primary legislation when parliamentary time allows it to provide clarity that offering an apology does not represent admitting liability.
• A large number of respondents showed strong support for vicarious liability to be added on the face of the Compensation Act 2006, as a form of litigation to be covered by the legislation. The Government has decided to implement the IICSA recommendation and make it explicit that vicarious liability is covered in the amendments.
• 86% of claimant respondents indicated that there are minimal to no significant financial impacts expected for claimants or the organisations involved. The general consensus for this sector is that the proposals, particularly the introduction of a statutory apology, are unlikely to deter claimants from pursuing compensation claims. Defendant respondents suggested that the likely financial implications would be relatively minimal but stated a few key considerations. For example, for insurers to feel more comfortable with promoting apologies to insured parties, there may be a need for significant investment, in terms of time and financial resources, in amending policy wordings.
• Clinical negligence and professional body respondents felt that clear wording is needed so that claimants do not wrongly assume liability has been admitted through the apology. Professional body respondents were concerned to prevent costs being incurred due to ambiguity.
• In the context of historical institutional abuse, apologies could potentially have varied effects on different survivors so further consideration was needed here.

Conclusion

It is hoped that the reform will provide clarity although, with any legislation amendment subject to the Parliamentary timetable, timeframes for any amendment to the current law is, as yet, unclear.