The stated intention of the Minister was to encourage open candid disclosure by medics when medical accidents occur at the earliest possible time, rather than delay admission for liability and expressions of apologies until just before a trial commences.  While the stated aims of the Minister are laudable, there are considerable concerns about the notion that all evidence gathered and/or documents created as part of such an open disclosure process, should be prohibited from use in subsequent Court proceedings.

Michael Boylan Head of the Medical Negligence Group of Augustus Cullen Law states:

“it is of concern that  the draft Legislation in its current form, stipulates that any record created by a health service provider for the purposes of making a disclosure is deemed not relevant and thus not admissible as evidence in any civil proceedings in connection with any injury or death, caused the health service provider in any medical accident”.

Such a radical provision conflicts with the long established principles of natural justice, is constitutionally suspect and is likely to impact on the trust between patient and their doctor and is contrary to the stated intention of the Minister which is to apparently foster trust between patient and doctor.

It would be abhorrent to the proper administration of justice if a Court were precluded from considering all existing information necessary to establish relevant facts which are or may be in dispute, before making a decision which determines disputed facts and would largely determine whether a doctor or hospital is, or is not, guilty of medical negligence.  There is no difficulty with a proposition that any admissions made during an open disclosure process, cannot be deemed to constitute an admission of liability in the legal sense.  However where there is a dispute on liability and on key facts, it is essential that a Court is able to consider all relevant factual evidence gathered on foot of the medical accident in question.  Any disclosure made by a doctor or hospital regarding how a patient safety incident has occurred and all records created for the purposes of making such disclosure clearly are by their nature hugely relevant in determining questions of disputed fact.

Information Deficit  

Patients are invariably at a considerable knowledge deficit compared to the hospital or doctor when it comes to establishing how a medical accident has occurred.  Any measure which makes it more difficult for the patient to get at the truth of what has happened is to be frowned upon.  It is feared that excluding statements made or documents created as part of an early open disclosure process from use in subsequent proceedings will only make the entire legal system more costly and the process more protracted.

It is also submitted that the proposed legislation is at odds with the existing Statutory Complaints Procedure which was introduced as part of the Health Act 2004.  Currently if, under the 2004 Act, a patient makes a complaint the Hospital is obliged to hold an Internal Enquiry into that complaint and any documents created as part of that complaints process are admissible in evidence in subsequent Court proceedings.  Furthermore the proposed open disclosure legislation being contemplated by the Minister is completely at odds with the position that has existed in the UK for the past 2 years.  Under similar provisions in the UK, healthcare providers must make disclosure to patients of any medical accident which has caused or may have caused significant harm to the patient.  Any documentation created as part of that process is admissible as evidence in subsequent Court proceedings.

A Question of Trust

In the opinion of Michael Boylan the Legislation is likely to foster mistrust between doctor and patient:

 “How will a patient react if he / she is provided with a clear and frank explanation about how an adverse incident occurred as part of an open disclosure process but in subsequent litigation the very same version of events is denied by the hospital or doctor?  What will that do for building mutual trust between patients and their doctors?  How is a patient likely to view a doctor who gives one version of events in a protected setting and yet swears to a different version of events in Court?  How will a patient react if he or she is prohibited from challenging the doctor on a significant discrepancy between two versions of events given at two different times? The purpose of the Legislation should surely be to allow patients to ascertain the truth of exactly how the bad outcome came about.”

A doctor’s concerns could be adequately dealt with if it was perfectly permissible for a doctor to provide an alternative explanation for an adverse event if following a period of further reflection or further factual evidence or evidence from further medical investigations throws a different light on the bad patient outcome.  However the subsequent later explanation of events should not be to the exclusion of all previous information gathered and disclosed.

It is submitted that the draft Legislation in its current form if enacted will likely lead to an increase in litigation costs.  If one party to a civil case has access to relevant factual information and the other party is denied access to the same information this is only likely to lead to more contentious lengthy and costly civil actions.  It will inevitably result in patients having to instruct numerous additional independent medical experts to adduce the necessary expert evidence to establish substandard care and/or causation.  In short the patient will be required to prove again what a doctor may have admitted in a protected setting in the immediate aftermath of the medical accident.

See link below to interview of Michael Boylan by Mary Wilson on RTE Radio 1 Drive Time (Friday 31st of March 2017 at approx. 51 mins 40 secs.)

http://rte.ie/r.html?rii=b9_10704726_83_31-03-2017_

If you require any further information about the issues raised in this article please contact Michael Boylan, Head of Medical Negligence Group, Augustus Cullen Law.

04 April 2017

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