Holyrood passes Apologies Bill

The Apologies (Scotland) Bill – a member’s bill introduced by Margaret Mitchell MSP – is aimed at promoting a social and cultural change in attitudes to the giving of apologies.

An apology is defined in the bill as: “any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets, an act, omission or outcome and includes any part of the statement which contains an undertaking to look at the circumstances giving rise to the act, omission or outcome with a view to preventing a recurrence.”

Legal affairs minister, Paul Wheelhouse, said it would not disadvantage victims of historical child abuse for whom apologies would give “redress” and “significant comfort”.

He said: “We all know mistakes happen, that is a fact of life and indeed some actions taken can have serious, even tragic consequences. It is how we deal with such situations that makes the difference, and a sincere apology can show empathy and restore damaged relationships.

“While it cannot undo what has already been done, a sincere and effective apology can provide some redress for anyone who has been wronged and this can provide significant comfort to those affected or their loved ones.

“The bill also creates a climate where survivors of historic child abuse can receive acknowledgement and recognition through an apology, without being disadvantaged when pursuing claims for civil damages.”

Ms Mitchell said: “I am gratified that the Scottish government has taken on this common sense approach and worked collaboratively to pass this bill.

“The bill seeks to ensure that when people want an apology for an act or an omission, this can be given without them having to take legal action or even issuing a complaint in the first place.

“In addition to benefiting both the person seeking the apology and the apologiser, it has the potential to result in preventative spend savings in both the public and private sector.

“Apologies legislation has been passed in other countries including the USA, Australia, Canada and New Zealand but the Apologies (Scotland) Bill now ensures that Scotland is leading the way in the UK on this issue.”

However the bill was criticised last year by both the Law Society of Scotland and the Faculty of Advocates.

In June the Law Society suggested apologies might simply muddy the legal waters by blurring the line between expressing regret and implying negligence.

Laura Ceresa, a member of the Law Society’s health and medical law committee warned MSPs of the application of the rules to medical cases, saying: “From a legal perspective we know there are concerns about the consequences of an apology and if it would amount to implied negligence. In practical terms an apology could be misinterpreted by the patient as an admission of liability and they could embark on a potentially lengthy, complex and costly claim.

“However, an acceptance that the treatment might not have progressed as hoped would not necessarily meet the legal test of clinical or medical negligence, leading to the claim failing and further distress for the patient.”

David Stephenson QC, for the Faculty, suggested at the time the starting point was to acknowledge that the provisions, if enacted, would take away rights which people currently enjoyed.

Those who wanted to rely on admissions would no longer be able to put them before courts, he said.

“If the effect of the bill would be to disadvantage certain people, where is the balancing advantage, and how confident can we be that there would be a benefit from depriving people of rights they currently have?” asked Mr Stephenson.

He also pointed to similar laws around the world, saying: “no-one anywhere seems to have good evidence that it works.”

Mr Stephenson cited a major review in 2014 which had considered the impact of such laws in countries like America, Canada, New Zealand and Australia.

The paper, by Professor Robyn Carroll, had stated: “The limited research available does not show that apology legislation has worked as a ‘magic wand’. To the contrary, the little data that exists as to the shift in behaviour of potential apologisers, from the field of medical practice, tells us that the legislation has been relatively ineffective.”

Mr Stephenson added: “On what basis are we to be convinced that sufficient benefit would accrue to take away existing rights and limit what courts may look at when they try to determine the truth of what happened?”

Mr Stephenson imagined a letter written by a husband to his wife, apologising for assaulting her and their children.

“Does anyone seriously believe that that letter, because it starts with the word ‘sorry’, should be inadmissible in legal proceedings…relating to the care of the children or protection of that woman from her husband?”