Civil Liability (Amendment) (No. 2) Bill 2018: First Stage

I move:

That leave be granted to introduce a Bill entitled an Act to provide for mandatory open disclosure of a patient safety incident, to introduce a mandatory requirement that the patient be provided with any additional information which later becomes available and for that purpose to amend the Civil Liability (Amendment) Act 2017 and to provide for related matters.

I thank the Ceann Comhairle for granting me leave to introduce this Bill. The purpose of this Bill is to amend the Civil Liability (Amendment) Act 2017 to correct the wrong which was made at the time to make open disclosure voluntary as opposed to mandatory. The decision by the Government, which was supported by a Fianna Fáil abstention, to make open disclosure voluntary was a mistake. We in Sinn Féin have always opposed making open disclosure voluntary. We, along with Independent Members and others in this House, voted to make it mandatory on 8 November 2017 during Report Stage on the Civil Liability (Amendment) Bill 2017. We were defeated that day, but this Bill seeks to right that wrong. A year earlier in a Joint Committee on Health debate on open disclosure, I argued forcefully for mandatory open disclosure.

Indeed, I argued for it again on Leaders' Questions with the Taoiseach, Deputy Varadkar, on 21 February last in light of the case of Ms Alison McCormack, who had a breast cancer misdiagnosis. The practice of keeping quiet when things go wrong is often prevalent in our medical culture and only a statutory duty of candour will address the situation.

Most recently the fallout from the CervicalCheck scandal has shown the limitations to a process of voluntary open disclosure. I welcome that the need for mandatory open disclosure with legislative underpinning is now accepted right across this House and was supported in the passing of a Sinn Féin Private Members' motion calling for mandatory open disclosure. It should not have taken another scandal to change the minds of those who wanted open disclosure to be voluntary, however. Telling the truth where there is a patient safety incident should be mandatory and legislatively underpinned to ensure this.

Nobody believes the health service can be run without error or risk but people demand that it show compassion and be truthful and honest. That is not what has happened to date. This is not what happened with Vicky Phelan, Emma Mhic Mhathúna and others affected by the CervicalCheck scandal. It is not what happed with Alison McCormack and her breast cancer misdiagnosis. It is not what happened when there were errors leading to baby deaths and injury in Portiuncula Hospital and it is not what happened when there were errors leading to baby deaths in Portlaoise hospital.

Section 2 amends the definition of "incident" contained in section 8(2) of the 2017 Act so as to provide that the term "incident" includes a patient-safety incident that has occurred within the previous five years.

Section 3 amends section 12 of the 2017 Act. Section 12 of the 2017 Act is a key provision in that it provides the mechanism under which the open disclosure of a patient safety incident is made.

Section 12 of the 2017 Act is amended by replacing "may" with "shall" so that the initial wording of section 12 concerning open disclosure of a patient safety incident would instead read: "Where a patient safety incident occurs in the course of the provision by a health services provider of a health service to a patient, the health services provider shall make, in accordance with this Part, an open disclosure of the patient safety incident".

Section 4 of the Bill amends section 18(1) of the 2017 Act. Section 18(1) provides for the voluntary disclosure of additional information concerning a patient safety incident to the patient at any time after the initial disclosure has taken place.

Section 4 of the Bill seeks to amend section 18(1) of the 2017 Act in two ways - first, by changing from voluntary to mandatory the requirement to disclose additional information to the patient where it becomes available and, second, by requiring that the additional information be made available to the patient "as is reasonably practicable" rather than merely "at any time".

In order for open disclosure to work, it must be mandatory and it must be legally underpinned. This Bill addresses the problems surrounding the current system and amends the Civil Liability Act 2017 to provide for a mandatory system of open disclosure in our health system.

Collectively we have said we no longer want to see patients effectively having to go to war with the HSE to find out really basic information about themselves and their own treatment. This House was wrong when it voted to make open disclosure voluntary. I am proud that Sinn Féin did not support that but we now have an opportunity, regrettably in light of yet another scandal, to put that right.

Is the Bill opposed?

Question put and agreed to.

Since this is a Private Members' Bill, Second Stage must, under Standing Orders, be taken in Private Members' time.

I move: "That the Bill be taken in Private Members' time."

Question put and agreed to.