Open Disclosure: A Review of the Literature

Abstract

This report presents a review of the open disclosure literature. This literature is obtained through searching national and international policy, legal research, empirical studies, and other related publications. Criteria for inclusion are that work is published within the last 5 years, and it makes an important contribution to the field in so far that is evident from its citations and innovative perspective. The literature available to date shows that open disclosure is of rising concern to policy makers, legal experts and academic researchers alike, given the steep rise in open disclosure related publications over the last five years. The policy literature is rapidly expanding with jurisdictions across the English-speaking world in the process of producing their own forms of disclosure regulation and research. But because of the legal, economic and performative complexity of disclosure, our knowledge of the practice and effects of disclosure remains limited. Particularly vexing questions include what is the appropriate scope and force of privilege; what is the role of processes such as Alternative Dispute Resolution (ADR), and what is the compensatory value of error? What is further evident is that there is as yet a paucity of non-hypothetical enquiry into open disclosure, with most studies relying on case study scenarios rather than investigating subjects' actual experiences of open disclosure. Finally, given the moral importance that attaches to 'being open' about adverse events affecting patients' own bodies, debates are intensifying about the relative importance of ethical principles of openness vis-à-vis pragmatic considerations of the extent to which disclosure leads to legal liability and economic risk.