What is the Patient Safety Bill?
On the 5th of July 2018, the general scheme of the Patient Safety Bill was approved by the Government and was referred to the Oireachtas Health Committee for consideration. The Bill provides for the mandatory open disclosure of serious patient safety incidents to those who have been harmed by them.
Is it sufficient?
As plaintiff solicitors, it is Augustus Cullen Law’s perspective that the bill is certainly to be welcomed, as it is the first time a mandatory, rather than voluntary, duty of candour has been suggested in Ireland. However, it should be acknowledged that it has taken a national scandal – the Cervical Check scandal - for our politicians to bring this topic of a mandatory duty as a priority onto the political agenda.
There also exists a worrying and in my view, illogical restriction in the Bill. Patients who have suffered an adverse outcome due to medical error would not be allowed to use this information in legal or regulatory proceedings. In short, the bill allows patients to be told what happened to them but, having been told what happened, they are not able to use this information about their own healthcare in any civil, legal or regulatory proceedings.
That being the case, patients would then be forced to gather the same information they have been already given through the legal process, thereby likely increasing the time such a case would take and the legal costs involved at a time when both of these aspects of litigation are being heavily criticised.
The logic behind the “protected” types of disclosure is repeatedly stated to be to allow medical practitioners to feel that they are in a safe environment and can communicate openly with their patients without fear of legal proceedings. However, it is worth noting that it is already in the medical practitioners’ professional code to be open with patients, albeit on a voluntary basis (see section 67 of the Medical Council Guide to Professional Conduct and Ethics 2016). While any culture of ‘blame’ must certainly therefore be avoided, a duty of candour where a patient is told the facts about a medical error causing harm, but also told that they cannot use these facts in a meaningful way in legal proceedings, could well lead ultimately to more litigation, not less.
We have been waiting a very long time in Ireland for a mandatory duty of candour or mandatory open disclosure to be introduced in Ireland and surely therefore, if we are finally going to do, it should be done properly. We would propose the final version of any legislation providing for a duty of candour should ensure the following:
- That disclosure is indeed mandatory, as envisaged by the general scheme of the Patient safety bill 2018
- That patients’ information is theirs, to do with as they will;
- That unsuitable or incomplete legislation is not rushed in, in a ‘knee jerk’ response to a national scandal, but is carefully considered and carefully drafted;
- That full training be provided to medical staff and practitioners as to their obligations under the duty and as to how they should communicate with patients.
- That staff are supported and that there is no culture of ‘blame’ but rather the emphasis is on learning from errors to avoid repeating them.
- That patients should be advised of the facts that are known as soon as they are known, but that to furnish a hasty written apology or a pro-forma document purporting to provide more detail than is actually available, just to comply with what looks like a prompt and efficient timescale should not be a priority
- That the resources are put in place to ensure that the statutory duty is robustly regulated and that penalties are applied where this does not occur
An objective shared by all sides of the debate about candour is to improve standards of care and reduce harm to patients caused by medical errors, which in turn should reduce the number of claims. It seems clear that a mandatory duty of candour addressing the key points set out above would be a major step towards making this happen.
11 October 2018