Balancing rights and governance: comparative analysis of open disclosure frameworks in Australia and New Zealand

Open disclosure—transparent and honest communication with patients and their families following an adverse healthcare event—is a cornerstone of modern patient safety systems.¹ It is fundamental to fostering transparency, accountability and trust, and is essential for cultivating a restorative, just and learning culture where lessons are learned from harm.² There is a global consensus on the ethical imperative and practical benefits of open disclosure, which include improved patient satisfaction, reduced litigation and enhanced organisational learning from errors.³ However, despite this global recognition, the implementation of open disclosure varies significantly across different national contexts, reflecting diverse legal, regulatory and cultural landscapes. This variation presents a research gap in understanding how different national approaches to open disclosure balance the competing priorities of system-level governance and individual patient rights, and what lessons can be learned from these different models.

Australia and New Zealand, two countries with comparable healthcare systems and a shared commitment to patient safety, provide a compelling case for a comparative analysis of open disclosure frameworks. Both nations have formally adopted open disclosure, yet their approaches are fundamentally different. Australia, through its National Safety and Quality Health Service (NSQHS) Standards,⁴ has integrated open disclosure into a broader framework of accreditation and continuous quality improvement, emphasising a system-wide governance model. In contrast, New Zealand has adopted a legally mandated, rights-based approach, with open disclosure overseen by the Health & Disability Commissioner (HDC) under the Code of Health and Disability Services Consumers’ Rights,⁵ which prioritises individual consumer entitlements and accountability.

These divergent approaches present inherent trade-offs. Australia’s system-focussed model may promote continuous improvement and a learning culture, but it also risks creating variability in implementation and potentially de-prioritising individual patient experiences. On the other hand, New Zealand’s rights-based model ensures legal accountability and consistency, but could foster a compliance-driven culture that focusses on legal obligations rather than genuine, patient-centred communication. A deeper, multifaceted comparative analysis is therefore needed to understand these nuances, with a focus on the practical implications, underlying policy instruments, legal ramifications and the impact on health service delivery. This examination is needed for identifying transferable lessons and informing the development of more effective and equitable open disclosure policies internationally.

This study addresses this research gap by conducting a comprehensive comparative policy analysis of the open disclosure frameworks in Australia and New Zealand. Our objectives are to: systematically review and synthesise key policy documents; apply a focussed multi-theoretical framework to analyse these policies; identify distinct regulatory priorities, institutional structures, policy instruments and implementation strategies; critically assess the trade-offs between system governance and consumer rights; and propose a refined hybrid model that integrates the strengths of both approaches. By achieving these objectives, this research aims to provide valuable insights for enhancing healthcare quality, patient safety and transparency on a global scale.

Methods

Study design

This study employed a qualitative comparative policy analysis design to systematically examine and contrast the open disclosure frameworks of Australia and New Zealand. The analytical approach was structured around a focussed multi-theoretical framework to provide a robust interpretation of the policy landscape, integrating key insights relevant to clinical governance and health policy. The protocol was registered with the Open Science Foundation (https://osf.io/7pa65/).

Data sources

Primary data sources included key policy documents from both countries. For Australia, these comprised the Australian Open Disclosure Framework (2014),⁶ the Review: Implementation of the Australian Open Disclosure Framework – Final consultation report (February 2020)⁷ and relevant sections of the NSQHS Standards.⁴ For New Zealand, documents included Guidance on open disclosure policies (2019)⁸ by the HDC and relevant sections of the Code of Health and Disability Services Consumers’ Rights.⁵ Supplementary documents, such as legislative acts pertaining to open disclosure, apology laws and data privacy, were also included where identified as relevant during the review process.

Theoretical frameworks

The analysis was guided by a two-stage theoretical approach. Initially, a comprehensive review was undertaken using nine distinct theoretical frameworks to ensure a robust and wide-ranging analysis of the policy documents (see the Appendix for a full description of all nine frameworks). Following this, the four most salient frameworks were selected for an in-depth analysis, as they provided the most direct insights into the core trade-offs and practicalities of the open disclosure policies. These four frameworks were:

• Institutional theory framework: This framework was used to examine how formal and informal rules, including statutory law, common law, regulatory instruments and professional codes, shape policy design and implementation.^9,10 It helped identify the specific types of legal structures and their interactions or potential conflicts, providing a foundational understanding of the institutional environment in which open disclosure operates.
• Regulatory governance framework: This framework focussed on the mechanisms of policy enforcement, the roles of various regulatory bodies (e.g., Australian Commission on Safety and Quality in Health Care [ACSQHC], HDC) and the specific sanctions or consequences for non-compliance.^11,12 It helped understand how accountability is ensured and how clinical leadership drives and supports policy implementation.
• Ethics of care framework: This framework examined the ethical underpinnings of consumer–provider relationships, emphasising empathy, responsiveness and the relational aspects of care.^13–15 It allowed for analysis of specific patient rights and remedies, and how patient and staff feedback, along with psychological support, is integrated into the disclosure process.
• Implementation science framework: This framework assessed the translation of policies into practice, identifying barriers and facilitators to effective implementation and fidelity.^16,17 It provided insights into workforce capacity, training needs and organisational readiness for open disclosure, including the effectiveness of training programmes and factors hindering organisational change.

Analytical approach

The author conducted all data extraction and analysis. To ensure rigour and mitigate bias, extraction and analysis was repeated after a 2-week wash-out period. Any differences were resolved after a second 2-week wash-out period, comparison of the extractions and finalised interpretation. The analytical process involved the following steps:

1. Document review and data extraction: Each identified policy document was thoroughly read by the author. Key information related to open disclosure principles, processes, governance, legal aspects and implementation strategies was extracted. This included specific attention to the types of legal frameworks, enforcement mechanisms and sanctions, patient rights and remedies, medico-legal barriers and protections, data privacy, cost–benefit considerations, efficiency, resource allocation, funding mechanisms and the economic consequences of non-disclosure.
2. Thematic analysis: The extracted data underwent thematic analysis, conducted by the author, to identify recurring themes and patterns within and across the Australian and New Zealand frameworks. This focussed on the practicalities of implementation, the role of clinical leadership and interprofessional collaboration.
3. Comparative analysis through theoretical lenses: The identified themes and policy elements were compared through the lens of the four selected frameworks. This involved describing how each framework manifests in both Australian and New Zealand policies. Similarities and differences in their application and outcomes were identified, including the impact on clinical outcomes and interprofessional collaboration. The strengths, weaknesses and inherent trade-offs of each approach were analysed, considering the political, economic, social and technological (PEST) factors influencing policy choices.
4. Synthesis and hybrid model proposal: The insights gained from the comparative analysis were synthesised to develop a refined hybrid model for open disclosure. This model aims to integrate the most effective elements from both Australian and New Zealand frameworks, addressing identified gaps and maximising benefits for patient safety, consumer rights, systemic learning, cultural competence and sustainable service delivery. This synthesis also considers actionable insights for clinical practice and effective patient/family engagement in service co-design.

Ethical considerations

As this study involved the analysis of publicly available policy documents and did not involve human subjects or data, direct ethical approval was not required. The study adhered to principles of academic integrity, transparency and responsible research conduct. All sources were cited.

Results

This section presents the key findings from the comparative analysis of open disclosure frameworks in Australia and New Zealand, structured around the insights derived from the application of the four selected theoretical frameworks. The analysis reveals significant differences in the institutional, regulatory, ethical and implementation dimensions of the two frameworks, which are summarised in Figure 1 and detailed below.

The Australian open disclosure framework is institutionalised as a core component of clinical governance and risk management, embedded within the NSQHS Standards.⁴ This approach positions open disclosure as a system-level intervention, with enforcement tied to the accreditation process. As the ACSQHC states, the framework is intended to “assist health service organisations to communicate with patients when care does not go to plan.” This system-level focus is further supported by the presence of apology laws in various Australian jurisdictions,¹⁸ which are designed to protect expressions of regret from being used as admissions of liability in legal proceedings.⁶

From a regulatory governance perspective, the ACSQHC plays a central oversight role, providing guidance and monitoring the implementation of the framework. Clinical leadership is identified as a key driver of open disclosure, with a focus on fostering a “just culture” that encourages reporting and learning from errors. However, the framework has been criticised for its lack of specific sanctions for non-compliance, which are primarily limited to accreditation outcomes and potential professional disciplinary actions.

The ethical dimension of the Australian framework is centred on the principles of empathy, respect and honesty in communication with patients and their families. The framework emphasises the importance of providing support to both patients and staff involved in adverse events. However, the systematic integration of patient and staff feedback into continuous improvement loops is not explicitly detailed, and psychological support mechanisms are generally implicit within broader support services.

The implementation of the Australian framework has faced a number of challenges, including medico-legal concerns, reputational damage, limited resources and a lack of consistent training and awareness.⁷ However, the framework has also been praised for its flexibility and its focus on organisational learning.

The New Zealand open disclosure framework: a rights-based approach

In contrast to the Australian model, the New Zealand open disclosure framework is legally mandated under the Code of Health and Disability Services Consumers’ Rights.⁵ This approach establishes open disclosure as a fundamental consumer right, with a strong emphasis on individual accountability. The HDC is the primary regulatory body responsible for enforcing the framework, and non-compliance can lead to formal complaints and investigations.⁸ As the HDC has stated, “The Code of Rights gives every consumer the right to be fully informed.”

The legalistic nature of the New Zealand framework provides a clear and unambiguous basis for enforcement, with specific sanctions for non-compliance, including recommendations for apologies, changes in practice or referral to professional bodies for disciplinary action. This rights-based approach is further strengthened by the absence of separate apology laws, as the legal mandate for disclosure is the primary driver of the process.¹⁹

The ethical dimension of the New Zealand framework is centred on the principles of sincere, compassionate and thoughtful communication.²⁰ The framework focusses on consumer rights, ensuring that patients are fully informed and supported. It also acknowledges the emotional impact of adverse events on both patients and staff, and it advocates for the provision of support mechanisms.²¹

The implementation of the New Zealand framework has been facilitated by its legal mandate, which has ensured a high level of consistency across the country. However, the framework has also been criticised for its potential to foster a “tick-box” mentality, which could detract from the relational aspects of open disclosure.

Comparative analysis: key trade-offs and implications

The comparison of the Australian and New Zealand open disclosure frameworks reveals a key trade-off between system-level governance and individual patient rights. Australia’s system-focussed approach promotes continuous improvement and a learning culture, but it also risks creating variability in implementation and potentially de-prioritising individual patient experiences. In contrast, New Zealand’s rights-based model ensures legal accountability and consistency, but it could foster a compliance-driven culture that focusses on legal obligations rather than genuine, patient-centred communication.

These differences have implications for clinical practice. In Australia, the focus on system-level governance may encourage a more proactive approach to risk management and quality improvement, but it may also lead to a more bureaucratic and less personal approach to open disclosure. In New Zealand, the focus on individual rights may encourage a more patient-centred approach, but it may also create a more adversarial environment.

The two frameworks also differ in their approach to legal specificity and enforcement. New Zealand’s framework is more legally explicit, with clear sanctions for non-compliance. This provides a strong incentive for healthcare professionals to comply with the framework, but it may also create a fear of complaints. Australia’s framework is less legally prescriptive, with a greater emphasis on professional self-regulation. This may create a more supportive environment for healthcare professionals, but it may also lead to a lack of accountability.

Finally, the two frameworks differ in their approach to ethical and relational issues. New Zealand’s framework places a stronger emphasis on consumer rights and cultural competence, particularly for Māori health. Australia’s framework also emphasises ethical principles, but it provides less specific guidance on how to integrate patient and staff feedback and psychological support into the open disclosure process.

Discussion

This comparative analysis of open disclosure frameworks in Australia and New Zealand reveals two distinct approaches to balancing system-level governance with individual patient rights. These differences, shaped by unique regulatory philosophies and healthcare system structures, offer valuable lessons for international healthcare systems grappling with the same challenges. The findings highlight the complex interplay of institutional, legal, ethical and implementation factors in shaping policy design and delivery, and they underscore the need for a nuanced approach that leverages the strengths of both models.²²

Australia’s emphasis on system governance, driven by the NSQHS Standards⁴ and the accreditation process, is effective in fostering a culture of continuous quality improvement and organisational learning. This approach aligns with the principles of a just culture, which encourages reporting and learning from error without immediate blame.² However, as the implementation science framework reveals, this flexibility can lead to significant variability in the application of open disclosure, as well as in resource allocation and the integration of patient feedback. While clinical leadership is identified as a critical success factor, the framework lacks explicit mechanisms to ensure that this leadership is consistently translated into effective practice at the clinical level.

In contrast, New Zealand’s rights-based model, which is legally mandated under the Code of Health and Disability Services Consumers’ Rights,⁵ provides a clear and unambiguous framework for individual clinician accountability and prioritises individual patient entitlements. The strong emphasis on cultural competence, particularly for Māori health, is a notable strength of this model. However, the legalistic nature of the New Zealand approach, while ensuring compliance, may inadvertently foster a tick-box mentality, which could detract from the relational aspects of open disclosure. The focus on individual rights may also create a significant administrative burden and may not be as effective in driving broader systemic improvements as a governance-focussed model.

The central trade-off between system governance (Australia) and patient rights (New Zealand) is a key finding of this study. Australia’s approach, which promotes systemic learning, may at times deprioritise the experiences of individual patients. Conversely, New Zealand’s strong legal mandate, while ensuring accountability, may not be as effective in fostering proactive systemic change or leadership accountability.

The proposed hybrid model: integrating strengths for a more robust framework

A hybrid model of open disclosure, integrating the strengths of both the Australian and New Zealand frameworks, could offer a more robust and effective solution. Such a model would combine the system-wide learning and quality improvement focus of the Australian approach with the legally mandated patient rights and strong ethical considerations of the New Zealand model. This would create a framework that is not only responsive to the needs of individual patients but also committed to continuous improvement at a systemic level.

The key components of this proposed hybrid model would include:

• A dual focus on system-level governance and individual patient rights: This would involve integrating open disclosure into a broader quality improvement framework, while also ensuring that individual patient rights are legally protected and enforceable.
• Clear and consistent standards for implementation: The model would include clear and consistent standards for the implementation of open disclosure, with a focus on ensuring that all patients, regardless of their location or circumstances, have access to the same high-quality process.
• Strong clinical leadership and a supportive organisational culture: The model would emphasise the importance of strong clinical leadership and a supportive organisational culture in promoting a just and learning culture.
• Comprehensive training and support for healthcare professionals: The model would include comprehensive training and support for healthcare professionals, with a focus on developing their communication skills and their ability to respond to the emotional needs of patients and their families.
• A commitment to cultural competence and health equity: The model would be designed to be culturally competent and to promote health equity, with a particular focus on the needs of Indigenous populations and other vulnerable groups.

International implications and transferability

The findings of this study have implications for other countries seeking to develop or refine their own open disclosure frameworks. The proposed hybrid model, with its dual focus on system-level governance and individual patient rights, offers a potential solution for countries that are grappling with the same challenges as Australia and New Zealand. The model is designed to be adaptable to different national contexts, and it provides a framework for developing a more effective and equitable approach to open disclosure.

The successful implementation of such a model would require a strong commitment from policymakers, healthcare leaders and clinicians, as well as a willingness to invest in the necessary resources and infrastructure.²³ However, the potential benefits of a more robust and effective open disclosure framework, including improved patient safety, enhanced patient trust and a more just and learning culture, are significant.

Australia’s emphasis on system governance, primarily through the NSQHS Standards⁴ and accreditation, fosters a culture of continuous quality improvement and organisational learning. This aligns with a just culture, encouraging reporting without immediate blame.² However, as highlighted by the implementation science framework, this flexibility can lead to variability in application, resource allocation and feedback integration. Clinical leadership, while critical, requires more explicit mechanisms to translate commitment into consistent practice.²²

New Zealand’s rights-based model, legally mandated under the Code of Health and Disability Services Consumers’ Rights,⁵ supports individual clinician accountability and prioritises individual patient entitlements. This provides a clear framework, reducing ambiguity. Its strong emphasis on cultural competence, particularly for Māori health, is a notable strength. However, this legalistic approach, while ensuring compliance, may inadvertently foster a tick-box mentality, potentially detracting from relational aspects. The focus on individual rights may also place greater administrative burden and not inherently drive broader systemic improvements as effectively as a governance-focussed model.

The core trade-off between system governance (Australia) and patient rights (New Zealand) is central. Australia’s approach, promoting systemic learning, may sometimes de-prioritise individual patient experiences. Conversely, New Zealand’s strong legal mandate, while ensuring accountability, might not inherently foster proactive systemic change or leadership accountability. A hybrid model would ideally integrate Australia’s robust quality improvement and systemic learning with New Zealand’s commitment to patient rights and explicit ethical considerations, providing actionable insights for clinical practice and addressing interprofessional team dynamics.

Limitations

This study’s limitations include its reliance solely on publicly available policy documents. While these documents provide a foundational understanding of the frameworks, they may not fully capture the nuances of real-world implementation, including informal practices, unwritten norms or day-to-day challenges faced by healthcare providers. In particular, the differences in tort law have not been explored in depth and may be an important factor in how differences in policy are realised. The dynamic nature of health policy means some aspects of the analysed documents may have evolved since their publication; efforts were made to acknowledge the most current available information. The interpretation of policy documents is inherently subjective, a limitation mitigated by the systematic application of theoretical frameworks and a multi-faceted analytical approach.

Future research

Future research should build upon this analysis by incorporating empirical data on actual implementation and outcomes. This could involve qualitative studies (e.g., interviews with patients, providers, policymakers) and quantitative studies (e.g., impact on patient safety indicators, litigation rates, healthcare costs). This is important in both countries.

In New Zealand, the Accident Compensation Corporation’s (ACC) no-fault scheme, which was introduced in the 1970s, effectively limits organisational liability for adverse events through its “treatment injury” programme. While legislation has been introduced to mitigate moral hazard (lack of incentive to guard against risk where one is protected from its consequences) related to this for worker safety, no equivalent legislation exists for patient safety. Professional regulation and the HDC’s open disclosure framework focus on clinician compliance; however, no equivalent to worker health and safety legislation exists for boards and executives of healthcare organisations to ensure accountability for patient safety.²⁴ Around 2002, Australia experienced a major medical indemnity insurance crisis resulting in the Ipp report, which prompted tort law reforms across all jurisdictions.²⁵ This means that while litigation for healthcare-acquired adverse events and negligence occurs, there are limits to liability for both organisations and practitioners. While there is some understanding of the role of litigation in healthcare quality, further work is warranted in both Australia and New Zealand.^26–28

Further investigation into the economic implications, including detailed cost–benefit analyses and the broader economic burden of non-disclosure, is warranted—particularly given New Zealand’s no-fault approach to treatment injury. Research exploring the effectiveness of specific training programmes, leadership interventions and patient engagement strategies in diverse healthcare settings would also be valuable. Studies focussing on the long-term impact on trust, transparency and a just culture,²⁹ and the operational integration of open disclosure with broader quality and safety systems, would provide important insights.

Conclusion

This comparative policy analysis of open disclosure frameworks in Australia and New Zealand highlights the distinct yet complementary nature of their respective approaches. Australia’s framework, which is grounded in system-level governance and continuous improvement, fosters a strong learning culture. In contrast, New Zealand’s legally mandated, rights-based model emphasises individual consumer entitlements and clinician accountability. This study has identified the key trade-offs between these two models: Australia’s flexible, system-oriented approach encourages broad leadership-enabled quality enhancement but can lead to inconsistencies in implementation, while New Zealand’s prescriptive, rights-focussed model guarantees individual practitioner legal accountability but risks fostering a compliance-driven culture and moral hazard from health system and services leadership.

The findings of this study suggest that a hybrid approach, which integrates the strengths of both models, could provide a more robust and effective framework for open disclosure. Such a model would combine the system-wide learning and quality improvement focus of the Australian approach with the legally mandated patient rights and strong ethical considerations of the New Zealand model. This integrated framework would aim to achieve widespread systemic safety enhancements, while also promoting individual patient advocacy, transparency and redress.

For policymakers and healthcare administrators, the key recommendation is to move beyond a singular focus on either system-level governance or individual rights, and to instead embrace a dual approach that integrates both. This would involve developing a clear and consistent national framework for open disclosure that is flexible enough to be adapted to local contexts, while also ensuring that individual patient rights are legally protected and enforceable.

For clinicians, the key recommendation is to embrace a culture of open disclosure that is grounded in empathy, respect and a commitment to learning from error. This would involve developing strong communication skills, as well as a willingness to engage in open and honest conversations with patients and their families following an adverse event.³⁰

By fostering a culture that is learning-orientated, legally accountable, culturally sensitive and economically conscious, healthcare systems globally can move closer to realising the full potential of open disclosure as a transformative practice for patient safety and trust. Future research should focus on the empirical evaluation of hybrid models of open disclosure, with a particular focus on their impact on patient safety, patient satisfaction and healthcare costs.

View Table 1, Figure 1–3.

View Appendix.