Across Australia there seems to be some variation in acceptance by the courts of ‘terms not to be disclosed‘ orders, which seek to constrain the publication of settlement amounts. Agreements or orders between parties which go further than that, prohibiting disclosure of the facts of the claims, seem relatively uncommon.

Even rarer (if found in Australia at all) must be settlement agreements which prohibit reporting to regulatory bodies. Apparently such clauses were found in about 9% of settled claims in a recent US study. I would appreciate comment from anyone aware of the use of such clauses in Australia.

The authors of the US study published in JAMA Internal Medicine Sage, Jablonski & Thomas concluded:

An academic health system with a declared commitment to patient safety and transparency used nondisclosure clauses in most malpractice settlement agreements but with little standardization or consistency. The scope of nondisclosure was often broader than seemed needed to protect physicians and hospitals from disparagement by the plaintiff or to avoid publicizing settlement amounts that might attract other claimants. Some agreements prohibited reporting to regulatory agencies, a practice that the health system changed in response to our findings.

Sage & Ors, Use of Nondisclosure agreements in medical malpractice settlements by a large academic health system.

JAMA Intern Med. Published online May 11, 2015. doi:10.1001/jamainternmed.2015.1035

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