Skip to main content
Normal View

Joint Committee on Health debate -
Thursday, 8 Dec 2016

Civil Liability (Amendment) Bill 2015: Discussion

The purpose of the meeting is to engage in pre-legislative scrutiny of the open disclosure provisions contained in the Civil Liability (Amendment) Bill 2015 with representatives from the Irish Nurses and Midwives Organisation, the Irish Medical Organisation, the Irish Hospital Consultants Association, the Irish Patients Association and the State Claims Agency.

On behalf of the joint committee, I welcome from the INMO Ms Martina Harkin-Kelly, president, and Mr. Edward Mathews, director of regulation and social policy; from the IMO Dr. John Duddy, president, and Ms Vanessa Hetherington, assistant director of policy and international affairs; and from the IHCA Mr. Martin Varley, secretary general, and Dr. Tom Ryan, president.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. I advise that any opening statement or other material submitted to the committee may be published on its website after the meeting.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

I ask Ms Harkin-Kelly to make her opening statement.

Ms Martina Harkin-Kelly

On behalf of the Irish Nurses and Midwives Organisation and the 40,000 members we represent, as president of the organisation, I thank the Chairman and members for affording us the opportunity to meet and engage with the committee on the hugely important topic of open disclosure and the potential for legislative protection to be extended in the matter. Our organisation recognises the importance of open disclosure for those who receive services from health and social service providers, for those who deliver such services and for their operation and improvement.

As the committee will be aware, the Commission on Patient Safety and Quality Assurance sought to develop clear and practical recommendations to ensure the safety of patients. Its report represents an important juncture in the development of services, ultimately with a view to improving services and ensuring organisational, regulatory and educational reform to create a culture of patient safety in the health system. One of the key recommendations made in the report concerns the development and support of a culture of open disclosure for patients and their families following adverse events. Our organisation supports the development and implementation of a system of open disclosure to improve the position of individual service users who have been the subject of adverse events and which can contribute to the improvement of the safety of the delivery of services more generally and to the ability of health care professionals to deliver services in an ethically sound manner. In this regard, we note that the Health Service Executive developed extensive guidelines on open disclosure which were launched in 2013. We further note that the operation of these guidelines, in particular on two pilot sites, has been the subject of recent extensive evaluation. The development of guidelines by the Health Service Executive would not be expected to result in an immediate transformation of the manner in which services are delivered throughout the public health service. Even within public health services where the policy is in existence there are significant difficulties and concerns about full implementation of a system of open disclosure. This is the case notwithstanding the experience of our members and the empathy they share with service users which drives them towards a conclusion that open disclosure is the appropriate way to respond to incidents of concern. It is the right thing to do and should be facilitated with legislative protections to assuage the very serious concerns of health care professionals.

In emphasising that health care professionals, including nurses and midwives, wish to participate in a system of open disclosure to improve the experience of service users, to improve the service and to ensure ethical delivery of that service it must also be recognised that health care professionals, including our members, experience significant anxiety about how disclosures might be made, the consequences of these disclosures, the messages they might be seen to communicate to service users and the potential consequences of these messages in terms of civil litigation and regulatory processes. Nurses and midwives working in health services are predominantly concerned about the potential regulatory consequences which might flow from implementation of a system of open disclosure. Our members face the potential of losing their licences to practise nursing and midwifery and consequently their careers and livelihoods and moreover facing a public inquiry with associated difficult and pervasive, yet selective and at times toxic, media coverage. This is not to say our members are not also concerned with the potential for civil litigation arising from disclosures made. This remains a significant concern in terms of the potential for any statement made to amount to an admission of liability or contribute to establishing liability in later proceedings.

A detailed submission has been prepared for the committee addressing the views of our members on all heads of the Bill. However, for the purposes of this address, I ask the committee to recognise and support the protection provided by the Bill in civil legal proceedings and professional regulatory processes. Any successful advancement in this area will be dependent on effective protection being available to professionals. Thus, at a minimum, the level of protection proposed must be maintained.

While welcoming the protection referred to, I ask the committee to consider whether it considers the definitional parameters included in head 6(2) to be sufficient to comprehend the grounds of potential liability advanced in the legislation regulating the practices of health care professionals. While the Legislature appears to have endeavoured to take as wide an approach as possible to the definition of this protection, recalling that the Legislature is attempting to deal with circumstances which involve a number of pieces of legislation which regulate a wide variety of professionals, there is a lingering concern that the interpretation of this protection by regulators may be such as to limit the protection afforded. In this context, our organisation recommends that the protection be amended to read: "A disclosure by a health service provider, made in accordance with standards set under head 4, does not constitute an express or implied admission of unprofessional conduct, carelessness, incompetence, unsatisfactory professional performance or any other ground of complaint, for the purposes of any enactment regulating the practice or conduct of an employee". It is considered this small amendment would ensure the maximum possible protection for health care professionals, including nurses and midwives, and thus facilitate the implementation of a best practice regime without the attendant fear of regulatory processes arising merely from a disclosure or an apology.

Additionally, in respect of the protection of records, there is a notable omission in head 7 in that records created by health service providers solely for the purposes of making a disclosure which are made in accordance with standards set out in head 4 will be not protected from admission in professional regulatory proceedings. As the committee will be aware, the protection afforded to health service providers, as provided for in head 6(2), comprehends the interrelationship between a disclosure or an apology and the professional regulatory domain. If it is the case that the disclosure or apology, in and of itself, will not constitute an express or implied admission in the terms described, it is surely also the case that protection must be afforded to records created solely for the purposes of making such a disclosure. If such protection is not provided, there will be a paradoxical situation where the making of a disclosure will not amount to evidence of liability in a professional regulatory context but the records created by health service providers solely for the purposes of making such a disclosure may amount to evidence of liability in a professional regulatory context. In order to ensure the appropriate protection is afforded to health service professionals, with a view, in turn, to promoting best practice so as to improve the experience of service users, the safety of services and, ultimately, facilitate the ethical delivery of care, records created solely for that purpose should not be cognisable by professional regulatory tribunals for the purposes of establishing an express or implied admission of engaging in conduct which is the preserve of those tribunals. Our organisation strongly urges the committee to consider an amendment to this head to ensure a record created by a health service provider solely for the purposes of making a disclosure, made in accordance with standards set out in head 4, would not be admissible in any professional regulatory proceedings as evidence of an express or implied admission of unprofessional conduct, carelessness, incompetence, unsatisfactory professional performance or any other ground of complaint, for the purposes of any enactment regulating the practice or conduct of an employee.

The INMO strongly urges the committee to consider an amendment to this head to ensure a record created by a health service provider solely for the purpose of making a disclosure, made in accordance with standards set out under head 4, would not be admissible in any professional regulatory proceedings as evidence of an express or implied admission of unprofessional conduct, carelessness, incompetence, unsatisfactory professional performance or any other ground of complaint for the purposes of any enactment regulating the practice or conduct of an employee. Additionally, on the promulgation of standards by the commission and the authority, we suggest the Legislature provide guidance for these bodies, in addition to the matters referred to, to ensure there would be appropriate leadership which is necessary for the change process, to ensure revised practices and policies would be subject to effective review and to ensure staff would be adequately trained to embrace this new paradigm. Furthermore, the committee will note that we have made observations on the interpretation section and the scope of personal services in the context of open disclosures.

The INMO appreciates the opportunity to make a contribution on this important issue. The implementation of open disclosure provisions and the associated benefits flowing therefrom offer significant potential to ensure the experience of service users will be improved, with the safety of services, and health care professionals, including nurses and midwives, will be facilitated to the maximum extent possible in delivering ethical care services. It is extremely important that such protections as are are proposed be retained. We strongly urge the committee to consider this commentary in regard to the necessity to make certain improvements. In particular, its attention is drawn to the proposed amendments to head 6(2) and 7. These improvements would further facilitate the implementation of best practice by allaying the fears of registered professionals. The fear such professionals feel about public professional regulatory processes cannot be overstated.

I thank Ms Harkin-Kelly. I invite Dr. Duddy to make his opening statement on behalf of the Irish Medical Organisation.

Dr. John Duddy

On behalf of the Irish Medical Organisation, IMO, I thank the Chairman and members of the Oireachtas Joint Committee on Health for the invitation to discuss the open disclosure provisions to be contained in the Civil Liability (Amendment) Bill 2015. The IMO supports open disclosure not only as a measure to prevent litigation but, more importantly, because patients have the right to an apology and explanation when things go wrong. Doctors and other health care professionals have a duty to be open, honest and transparent with patients; to reflect on adverse events and to take steps to ensure such incidents will not be repeated. Open disclosure is not about apportioning blame but about keeping patients informed of investigations and preventing future patient safety incidents. Open disclosure recognises that health care professionals are often the second victims of patient safety incidents and successful policies ensure both patients and health care staff are supported throughout the disclosure process and the patient safety investigation.

The practise of medicine is increasingly complex and while the majority of health care professionals aim to provide the best care for their patients, incidents do occur. Harm is rarely due to wilful misconduct. Harm is most often due to systems failure or unintentional human error. Patients are entitled to a full and open disclosure, including an apology, following an adverse event. Fear of litigation, fitness to practise procedures and damage to reputation have been identified as major barriers to apologising to patients following an adverse event. The IMO has been calling for a number of years for legislation to support open disclosure and protect medical practitioners in admitting liability and from fitness to practise hearings when apologising to patients following an adverse event. Therefore, it welcomes the proposed Bill. Doctors, as well as patients, must have confidence in the open disclosure process. It is essential, therefore, that the proposed legislation and the standards to be set by HIQA and the Mental Health Commission be concise and unambiguous.

The purpose of the legislation is to ensure open disclosure will not be an admission of liability and, therefore, even the fact that an open disclosure has been made cannot be construed as an admission of liability. Standards for disclosing patient safety incidents must ensure disclosure will be timely and factual and that principles of patient consent and confidentiality will be protected. There must be clarity about thresholds for disclosure and responsibility for disclosure. While the legislation will provide doctors with medico legal clarity when it comes to apologising, open disclosure policies can fail without an organisational culture that supports open disclosure. Open disclosure is stressful and time-consuming. Often it can take some time to establish the facts. There may be differences of opinion or a breakdown in communication.

The evaluation of the HSE’s national open disclosure pilot scheme identified a number of critical success factors in open disclosure and recommended that the roll-out across the HSE include a supportive hospital environment and organisational culture, leadership, sufficient resources within the hospital, including a risk management department with expertise to support and engage clinical and non-clinical staff in open disclosure, good quality training, clear guidance on reporting and multidisciplinary approaches to reporting and learning. In addition to developing standards for open disclosure, the Department of Health, the HSE and other health care organisations must ensure all of the supportive structures and resources will be in place to support open disclosure not only in hospitals but also in general practice and community settings, including education and training programmes, support from colleagues and line managers, guidance material, counselling services and risk management teams. There must be some recognition that open disclosure will reduce the time spent on clinical duties.

A greater focus must be placed on prevention of patient safety incidents. IMO doctors are increasingly concerned about the effects of successive budget cuts and reduced staffing levels on patient safety and quality of care. OECD figures from 2013 show that Irish public hospitals operate at 93.8% capacity, well over the established safe occupancy threshold of 85% and above the identified 92.5% tipping point that has been shown to result in significantly higher patient mortality. The largest barrier to patient safety in the country is the low number of medical specialists per head of population and the inadequate distribution of resources based on medical or social need. Health services are significantly overstretched and clinicians are dealing with a constant stream of emergency patients without the time or resources to engage adequately in audit and patient safety and quality improvement initiatives. It is imperative that all clinical services operate with sufficient minimum financial and manpower resources to provide safe, quality and evidence-based care.

I thank Dr. Duddy. I call on Dr. Ryan to make his opening statement on behalf of the Irish Hospital Consultants Association.

Dr. Tom Ryan

I thank the Chairman and committee members for giving me the opportunity to address them on this important issue. The Irish Hospital Consultants Association, IHCA, has over 2,500 members and represents 85% of hospital consultants in Ireland. The association and its members support the adoption of a national policy on and standards for open disclosure. In fact, the association has been engaging constructively since May 2013 with the HSE’s national advocacy unit and the State Claims Agency in this regard. It is to be welcomed that the policy and standards will soon be placed on a statutory footing.

As doctors, patient safety is at the heart of everything we do. It must be recognised that the provision of health care is complex and becoming more complex with the passage of time. In the provision of complex care adverse outcomes will always occur for a proportion of patients. In some cases, the adverse outcome arises as part of the normal risk of complications associated with therapy, surgery and other procedures. In a more limited number of cases mistakes and errors may occur. Naturally, the risk of mistakes and errors is exacerbated where care is being provided in a health system that is under-resourced and overstretched. When things do go wrong, it is important that we communicate with patients and their families in an open, honest and transparent manner. However, we must also recognise and cater for the needs of the far greater number of patients and their relatives who encounter a recognised complication of therapy not related to deficient care but which is nonetheless disabling and distressing for those involved.

In so far as the draft heads of the Bill are concerned, we note that much of the detail of open disclosure will be contained in standards to be set out by HIQA and the Mental Health Commission following enactment of the legislation. We note, however, that the heads of the Bill include a definition of "patient safety incident" which, as drafted, extends to events where no actual injury or harm has occurred. This is a more expansive definition in the light of the current national guidelines which define an "an adverse event" as an incident which results in actual harm. In this context, the association urges the committee to consider applying the standards as detailed in the current national guidelines.

We consider this to be important because otherwise we would end up with open disclosures for many incidents such as patients spending a night on a trolley which could be regarded as a patient safety incident without causing harm; surgery being cancelled because there are not enough theatre nurses available, or a patient waiting six months to be seen in the outpatients department. It is important that there be some harm in dealing with the patient safety issue. Contemporary medical care has to take account of individual variation in the response to patients and allow doctors to administer patient specific therapy. Variations in care, the way it is provided and its outcome are well recognised as an acceptable part of practice. They are to be encouraged and should not be regarded as a safety incident. We are concerned that variations in care that did not result in patient harm might end up being regarded as a safety incident and subject to open disclosure. This flexible approach to patient care should be adopted to take account of the normal processes of patient care which might be inhibited by an excessively expansive definition of patient safety incident.

The association welcomes the inclusion of provisions that an apology made in connection with an allegation of clinical negligence will not constitute express or an implied admission of fault or liability and that evidence of an apology will not be admissible in associated court proceedings. Nonetheless, while the association supports open disclosure, there remains a concern that it could potentially have a negative impact in increasing the number of clinical negligence claims in the courts. The association understands from the national advocacy unit that there is no evidence in other countries to indicate that litigation increases following open disclosure. We are conscious that this experience may not be extrapolated directly from other jurisdictions which have a fundamentally different legislative framework and claims culture. Overall, Ireland experiences a significant number of legal claims alleging clinical negligence. This, of course, gives rise to serious implications for the State in terms of compensation and legal costs. It also impacts on the affordability of clinical indemnity cover for doctors. The cost of clinical indemnity cover in Ireland has doubled in recent years. The net effect of the escalating costs is that some consultants have ceased practice, retired early, limited the scope of their practice or emigrated. Our understanding is the State Claims Agency has also experienced a significant rise in the level and cost of claims in recent years. These are all risks linked with open disclosure. Accordingly, while welcoming the introduction of the legislation on open disclosure, the association would also welcome the introduction of more extensive legislation to address the concerns in this area. In particular, it considers that the open disclosure legislation would be enhanced if it also provided for a mediation service. Such a service would ideally help to remove the concerns of patients and their families without recourse to an adversarial legal process and would benefit patients, doctors and everybody involved in the health care system.

When litigation does occur, it is preferable for it to be conducted speedily. The last Government introduced legislation on pre-action protocols to speed up the exchange of information between parties in clinical indemnity cases, but this legislation has not yet taken effect. We understand it is awaiting an order from the Minister for Justice and Equality.

The association would also welcome the committee's support for the reform of the law of tort applying to clinical indemnity cases. Other jurisdictions reformed the law in this regard several decades ago. The Medical Protection Society, the indemnifier for Ireland, has proposed that a Bill also be introduced to define the tort of clinical negligence such that a wrong that unfairly causes someone else to suffer loss or harm would only be established where both a breach of duty and direct causation of injury was proved. It is very important that the breach of duty or practice be shown to have directly caused the injury. We understand the Department of Health is concluding an assessment of the potential benefits of reducing the caps and extending the provisions of the State Claims Agency's clinical indemnity scheme.

Many of the association's members have supported and continue to support the implementation of the current open disclosure policy and guidelines. The association wishes to reaffirm its support for open disclosure and will continue to engage constructively with all relevant stakeholders having particular regard to the draft legislation and the subsequent formulation of standards by the relevant authorities. The association and its doctor members welcome the work of the committee in this important area. We continue to be available to engage with it.

I thank Dr. Ryan and all of the delegates for their opening statements.

I welcome the delegates and thank them for their presentations. I think everybody agrees that we must introduce a duty of candour or open disclosure in such a way as to ensure confidence in the system on the part of those availing of and providing the service. It must be fair and equitable and defend the integrity and rights of individuals providing the service. Clinicians have a right to integrity and respect and to defend it, even if it means through litigation. The hope always is that open disclosure and a duty of candour would reduce recourse to the adversarial and legal process and that people might be able to accept open disclosure as final.

Dr. Ryan spoke about a mediation service. Will he give us some further information? Would it be possible for a mediation service to be provided within the scope of the Bill whereby the service and the evidence provided would not drift and be used in a court case? It is one thing to provide for open disclosure, but it is another to sit around a table and start discussing a mediation process that might eventually break down and end up in the adversarial court system. Are there examples in other countries?

At what stage is there an obligation on a clinician or a health care professional to look an administrator or manager in the eye and say the service is no longer safe? At what stage is there a moral or ethical duty on members of the association to say they can no longer do something because it is unsafe? We have seen cases where very often it is the doctor or nurse who talks to the patient or the family about an adverse event and those who may ultimately be responsible are nowhere to be seen, as in the case of the report on the Midland Regional Hospital, Portlaoise. Is there an obligation on us to extend the duty of open disclosure and candour not only to clinicians and the medical professionals working on the front line but also to senior management in the health service and those who may ultimately be responsible? I would like to hear the delegates' views on that matter. I am not talking about headhunting, but open disclosure ultimately involves accountability for those who have experienced an adverse event.

Perhaps I might have clarity on these issues.

As regards its organisational mindset, the HSE is made up of myriad organisations, including representatives of trade unions and professional bodies. Is there an awareness and an acceptance among Dr. Ryan's members that having a duty of candour and open disclosure would be positive, or is it just at the top levels where people sit around tables and have a chat and believe it is the right thing to do? Are the individual members who do their jobs every day supportive of the process involving open disclosure and a duty of candour? Are they even aware of what it is about? Have broad discussions taken place with the membership about this legislation and what it could entail for individuals? They may have to stand in a room, issue an apology and explain what happened among their peers.

The Dáil recently dealt with a Bill concerning the State Claims Agency. When enacted, it will obligate clinicians in the private sector to take out professional indemnity insurance. The State Claims Agency will pay out approximately €212 million in costs this year. In 2014 it paid out €106 million; therefore, the figure has doubled in the space of two years. That is a frightening statistic in view of the fact that a lot of that money could have been spent elsewhere in funding services to prevent adverse events.

How difficult is it to recruit and retain staff? Dr. Ryan mentioned that some people were throwing in the towel owing to indemnity insurance costs. I assume that there are huge variations. In dermatology, for example, the costs are reasonable, but they are expensive in obstetrics and gynaecology. Is there any way to have a cross-cover system in place? We talk about risk sharing and equalisation in the health insurance market; is there any way, therefore, we could be imaginative in risk sharing in the insurance cover market for health professionals? If not, we will have loads of dermatologists but very few obstetricians, which would not be great for either profession.

I first ask Dr. Ryan of the Irish Hospital Consultants Association to address those issues.

Dr. Tom Ryan

There were a lot of questions asked. I will deal with the ones about the public system first.

On open disclosure, there will be a lot of ramifications not just for clinicians but also for those involved in the administration of the health care system. From my own experience of talking to relatives of patients who have suffered an injury or died as a result of a procedure, they obviously want an apology. They want openness and candour, but they also want a promise that an event will not recur. The vast majority of relatives are more concerned to ensure it will not happen to anybody else. It is a big problem in the health care system if the hospital system is run at 95% capacity and does not have enough consultants. The open disclosure legislation will leave a clinician in a position where he or she has apologised for an adverse event but cannot give a guarantee or make a promise that it will not happen again because he or she has no direct control or influence over how the hospital is funded, resourced or organised. With open disclosure there will have to be a greater element of clinical governance within the hospital system in order that hospitals will be run more on a medical than a bureaucratic basis. That would be the natural follow on from the transparency and openness that will result from having an open disclosure policy. These may be good for the hospital system as the truth never hurt anybody. It is worth telling the truth - that one cannot run a hospital system at 95% capacity and expect nobody to suffer. There will, therefore, be a lot of knock-on effects. I do not expect the knock-on effects to be felt by doctors and nurses; the big knock-on effect will be felt by those who organise and administer the health system. That will happen down the line as a result of this legislation.

The second question was about the mediation service. Very often after an adverse event or an unexpected death that was not necessarily due to an error, the family are faced with a group of nurses and doctors whom they may not trust that much or whom they have only recently met. Their loved one has died or suffered an injury and very often they need a third party who can say: "Look, everything was done properly here. In these circumstances it is to be expected that some patients will not do well. The doctors and nurses did everything they could to try to care for your relative, but, unfortunately, things did not work out as they would have hoped." Currently that service is provided by a solicitor. The family receive a copy of the notes, go to a solicitor and ask for a medical opinion which they receive from a third party and the case immediately steps into the adversarial arena; therefore, the costs go up and the level of animosity increases. The duration of the proceedings and the time taken to arrive at a resolution of the family's concerns increase exponentially. It would be far better if there was a third party, perhaps even an external person, to counsel the family on what actually happened, that the doctors, nurses and hospital did the best for their loved one and did not actually do anything wrong. That is important if one wants to defuse the avalanche.

What if they had not done their best?

Dr. Tom Ryan

Then, as part of an open disclosure process, the doctors and nurses would have to admit that things had gone wrong. My specialty is intensive care. When one attends international meetings, one hears a lot about adverse events. There is always a session on medical and administrative error. Some 80% of errors are systemic. Individual errors that cause harm to a patient are extraordinarily rare. System errors which cause harm to patients include deficient systems, overburdened systems, under-resourced systems and systems in which all of the doctors are tired, there are not enough nurses or beds or there is inadequate access to diagnostic imaging. Doctors recognise this from their own experience, their knowledge of the literature and information they receive in attending international meetings. Having said that, everybody makes mistakes during his or her professional career. It is recognised that at some stage in their medical careers most people will be sued, either because of an error or an alleged error. Mistakes do happen and when they do, we need to be able to own up to them openly and honestly and allow the family to be compensated for any wrong or injury suffered as a result of mistakes we have made. There is no harm in this; it is good.

Mr. Martin Varley

I will add two comments in response to Deputy Billy Kelleher's question about mediation. The Medical Protection Society and the State Claims Agency are promoting mediation services as an alternative.

Based on the most recent information I have seen, probably from 12 months ago, the take-up was running at approximately 3% to 5% of cases. I am sure the State Claims Agency could provide more up-to-date information if its representatives were to come before the committee.

A very interesting question was raised about how one could ensure mediation, as an exercise in itself, would not spill over and be a precursor to litigation. If we could find some way of ensuring mediation would be effective and resolve the matter, it would be hugely important in having matters resolved more quickly and also at reduced cost. The State Claims Agency would be in a position to give its insight based on operating mediation services in recent years.

In response to the question on risk sharing between specialties, there are a number of indemnifiers in the market which, I hope, compete on price and other such matters. With the spread of risk between various specialties, by the very nature of procedures one carries out, it might prove difficult to introduce risk sharing and loan burden sharing in terms of cost. That will probably be the biggest obstacle in doing so because individuals can move between indemnifiers-insurers.

I thank Mr. Varley.

Dr. John Duddy

I wish to respond to a couple of questions from Deputy Billy Kelleher about the ethical or moral obligation on doctors to go to managers or administrators when they have concerns. The Medical Council’s guide to professional ethical practice places an obligation on doctors to do this when they have patient safety concerns about how a service is being provided. That said, it leads to the Deputy’s next question in the sense that there is no obligation on the administrator or manager to do anything about it when these concerns are raised. That can create a difficulty for many doctors.

The other interesting thing about the Medical Council guidelines is that if a doctor is in a managerial position, there are ethical obligations placed on him or her to ensure patient safety and provide safe patient care. A different standard is applied to managers who are doctors and managers who are not doctors because the former are at risk of being reported to their regulator if they are in a management position and a patient safety incident occurs. That is of concern. Our members have put forward motions at meetings to support the introduction of ethical obligations for health care managers to be accountable and have a duty similar to managers who are doctors.

Is it the case that if a manager of a hospital is a nurse or a doctor, he or she is governed by his or her professional body?

Dr. John Duddy

Yes; it is correct that the regulator is in charge.

Whereas an administrator is not ultimately accountable to any entity.

Dr. John Duddy

That is correct. There is no regulator overseeing the activities of lay administrators.

In response to the question on support from doctors, certainly our members support having an open disclosure regime because the idea is to protect patients and ensure they receive the information they need when an adverse incident occurs. The intention is that it would protect doctors in disclosing that information. From discussions with our members, they are in favour of having such a regime.

Ms Vanessa Hetherington

On risk sharing across specialties, that is something that would need to be brought up with the indemnifiers.

I accept that the issue is not related to the purpose of this meeting.

Ms Vanessa Hetherington

The Medical Protection Society almost has a monopoly; therefore, it would be a matter of discussing risk sharing with it.

Mr. Edward Mathews

In response to Deputy Billy Kelleher’s questions about the moral and ethical obligation to report, the situation for nurses and midwives is similar to that outlined by Dr. Duddy. The most recent version of the code of professional conduct and ethics for nurses and midwives carries an ethical obligation to report issues of concern. We must be realistic in this committee. Sometimes people are afraid to report concerns. There are consequences in that regard. We have had people accused of professional misconduct before the Nursing and Midwifery Board of Ireland for failing to report concerns in circumstances where they had done so and their concerns had been ignored.

Dr. Duddy also made a very good point about the professional responsibility held by managers who are professionals. There will always be a cadre of nurses and midwives who are at director and assistant director level managing a significant workforce and who are torn in meeting their obligations. I represent members who are fighting tooth and nail to stop lay managers, as we call them, bringing clinical managers into meetings to issue a clinical imprimatur about dangerous decisions to cut care services or reduce resources. Professionals are being used in that way within the service to provide cover for others, for example, doctors and registered nurses and midwives. They are being asked to sign off on a reduction in services which they find extremely difficult.

The core question was whether there should be an ethical or moral duty extended to other personnel in managerial positions. The answer is yes, there should. It is not the case that they are responsible to no one. This is not a question of putting staff against staff within the health service. These managers are responsible to their employer and everyone has that responsibility, but what they do not have liability for – I say this advisedly – is being paraded in front of the media before their professional regulatory tribunal. Sheer fear fills nurses and midwives when they receive a letter from the Nursing and Midwifery Board of Ireland. It is frightening. People are suicidal at the thought of appearing in public hearings before the Nursing and Midwifery Board of Ireland. I can say this because almost 80% of my work involves representing nurses and midwives who appear before tribunals. They are ordinary people earning ordinary wages who did not take a job to be regulated in that way, but that is not the purpose of this meeting. That is the system that is in place and I do not challenge it, but we must be realistic and say the burden carried by registered professionals in services is extraordinarily high and the burden should be shared with others because many incidents are heavily affected by the systemic difficulties in the health service. Individual professionals are defending themselves before their regulatory body against the system which resists any admittance of a systemic error and tries to blame everything on an individual. The moral and ethical duty should be extended. I am sure members of the committee are aware that the Department of Health is working on a code of conduct for all staff within the health service. It should carry with it some other regulatory responsibility, for which we have long called. It has been a motion at our annual conference that all persons providing health services be subject to regulation, not just the registered professionals.

A question was also asked about the organisational mindset. It was whether we had engaged with our members on their view of the importance of open disclosure. To paraphrase, the question was whether it was a big ticket item. We discussed the issue at our annual conference in May and there was unanimous support for having a system of open disclosure and on the importance of open disclosure for those receiving services in terms of the improvement of safety, but there was a morbid fear of professional regulatory proceedings, in particular.

One must bear in mind that most, but not all, of our members are working in the public health service in which the clinical indemnity scheme deals with the civil litigation element as opposed to individual private insurance holders; therefore, that issue did not come to the fore as much. Fear was expressed about the making of a disclosure, an apology, or both, and this being admitted in professional regulatory proceedings. I ask the committee to pay special attention to the fact that within the heads of the Bill there is protection against documents produced solely for the purpose of making such a disclosure or an apology not being admissible in civil proceedings, but they would be admissible in professional regulatory proceedings because they are not subject to any protection. It is very much a paradox to understand how one would create a real culture of patient safety where people would make disclosures, including what my colleagues have said, namely, that in a minority of cases it might amount to an admission of wrongdoing. The fact that a disclosure was made would not be admissible, but any document prepared in making it would be. The question is whether people would say it. They would have to produce documents in the first instance and it is not realistic that they would. That is a significant omission from the Bill. I am not sure whether it is by design or by accident, but it is something that requires significant attention. There is a mindset within the professions of nursing and midwifery that staff want to empathise with the patient or service user. They want to talk to patients when something goes wrong or there is a near miss to explain what happened, but the big fear is of professional regulatory proceedings. There is also a systemic problem within the system. We do not have a universal culture bedded in which is responsive in a timely fashion to the needs of patients.

We have good examples throughout the health service of people being responded to in a timely fashion, but we also have appalling examples. We see this leading to regulatory cases and civil litigation where people are not given the service they deserve when something goes wrong or there is a near miss. In that regard, we support it. Our members also support it strongly. However, there must be leadership within the organisation, effective implementation and effective protection for it to be useful. Otherwise, it will be a great thing at a very high level that everyone supports but which very few do.

Ms Martina Harkin-Kelly

I concur with all of my medical colleagues present. On the current level of sheer distress, our IMO colleague has mentioned that most hospitals operate daily at full capacity. He gave the figures for 2015. I can tell the committee that the figures for 2016 will be much higher. All of our members - midwives and nurses - within most acute hospitals and primary care facilities within the community complete daily a disclaimer notice highlighting the potential for risk within every single unit and department. To answer Deputy Billy Kelleher who queried whether we were highlighting the risks, nurses and midwives most certainly are.

There are two ends to the culture story. There are always two sides to every biscuit. While there is the culture of the organisation, there is still the pervasive culture of blame within it and to run for the hills when something happens. Unfortunately, those who provide care 24/7 - nurses and medics - are usually the front-line individuals who are at the end of giving the information. I stress that our colleague in the Irish Hospital Consultants Association referred to the multidisciplinary team. This team encompasses the service managers, as well those involved in decision-making processes. I agree with Deputy Billy Kelleher that there should be a duty of candour. Following the Mid Staffordshire crisis, duty of candour legislation has been introduced in the United Kingdom and it is not possible to run for the hills or be transferred laterally or centrally. We have gone down this route, but whether I am a maternity or obstetric consultant, work within the integumentary system or another system of care or a nurse on a medical or surgical floor, that is my work domain. I am not easily transferable elsewhere and away from the immediate issues at hand. I cannot disappear into the ether. I will always be there and always have to face the music.

On culture and the mindset, at the end of the day most Irish people - citizens of the country - just want answers, but the unruly bureaucracy in the system mitigates against this. I think it was mentioned, but the ability to put the structures and processes needed in place is key. Clarity and guidelines are key. My colleague, Mr. Mathews, referred to support for second and third victims - nurses, medics, medical professionals and members of the multidisciplinary team who are also victims in this scenario. We have to keep track of this also. Culturally, within Irish society, change is difficult, as is change in any cultural mindset, but particularly when involved in civil litigation or regulatory processes. It is pervasive and inbuilt into the mindset. The media perhaps have a lot to contribute with regard to what is sometimes very toxic coverage of events that are live and real for many of our members, as well as for the patients and victims and their families. That aspect also needs to be considered.

I agree that there should be a duty of candour. I would not want anyone to run for the hills. The music has to faced by everyone, but we need to be careful in the blame culture. We have to get the facts right. Good clarification is important.

I thank the delegates for their presentations. I will refer to some of the issues touched on, the first of which concerns where there is an adverse event but no explanation of the outcome. I know of a case where it was decided that an external person would be appointed to carry out a review. The person to carry out the review was agreed to, but someone in administration decided they were not suitable. Eighteen months later, the expert review has still not taken place. While they can meet the family affected, the hospital staff would prefer to meet them and say what the external review found. However, because someone on the administration side of the HSE was dictating who should carry out the external review, the process has been delayed. In such cases the matter proceeds to litigation because the family immediately presume something is being hidden, while everyone in the hospital wants to ensure fair and accurate information is given. That is one issue. Have the delegates come across that issue - the lack of understanding on the administration side of the HSE of the urgency attached to giving answers to the families affected?

The second issue I wish to raise has been touched on. A number of parties are involved when there is an adverse event and some staff are extremely traumatised by it, but there is a lack of support for staff. This issue is being raised more and more. There is a feeling the adverse event only affects the patient or his or her family, but it also affects staff. What is the delegates' view on how we can improve the support levels for staff within hospitals?

The third issue that has been touched on and which I wish to mention briefly is direct causation. The delegates have stated different jurisdictions have examined the issue. Will they outline what those jurisdictions are and the difference the change has made. One of our problems is that we have now moved ahead of the United States in terms of the level of litigation within the health service and medical services. This cannot continue as it is costing a serious amount of money. We heard the figures this morning. We need to start working on how we can reduce the level of litigation and expedite the giving of explanations. Without introducing legislation, what immediate steps could be taken at ground level within various medical facilities? We seem to have parked this issue in a lot of places, but there has been very little change. I have heard of cases of people who prepared statements for inquests where no legal advice of any description was given before the statements were submitted. I am speaking about front-line staff, doctors and nurses, whom administration did not facilitate. What is the delegates' experience? What can be done at ground level at this stage to assist staff on the front line in order to reduce the problems being encountered? If a member of staff has experienced an adverse event, that will affect his or her work rate. How can we work with him or her? I am speaking about taking decisive action within a short period to help staff and ensure we can assist them in order that they can better perform in their jobs.

Ms Martina Harkin-Kelly

As regards there being a lack of support, I have to agree with Senator Colm Burke. There is an entity within the HSE or, from a public service perspective, the employer, of which the union is the organiser and in which the preparation of statements is part of the role of the union. Staff working within hospitals are left to their own devices, with minimal support, and there is minimal guidance for managers on how to access support. The same support systems are not operated in all areas. The occupational health service is overwhelmed because of the current financial crisis in terms of retention and recruitment. Staffing levels have dropped because there has been no replacement of the quantified number of medical professionals required to man these departments. There is another very lonely entity which comprises carers. We work in a caring organisation but minimal care is provided for carers, which is a worry.

Speaking from an organisational perspective, there are good structures in place. Our members are regularly updated on the services we provide at our annual delegate conference, branch meetings, section meetings and on our website. There are also structures that are regularly advertised on the HSE's website. However, I caution that they do not always operate on a 24-7 or 7-7 basis. As the representative body of members, in the past we have occasionally had to deal with very stressed employees at perhaps 8 p.m. or 10 p.m. in a call which could have lasted for an hour and a half or two hours. Post-traumatic stress disorder is associated with it.

The initial pilot training on open disclosure consisted of a half-an-hour information session followed by three and a half hours of role play. However, the mechanism used in the roll-out of that training worries me because a system in which the trainer is trained is not the proper one to cascade information down to all employees. It is important that information on open disclosure be available much more widely and incorporated into the induction programme for medical staff, including nurses and midwives. The general public also needs information on open disclosure.

The Senator is correct that the delays are a problem. Timeliness is important. The information needs to get out, as Dr. Duddy mentioned. When information is not timely, there is the mindset that the HSE is hiding something. Therefore, timing is key. The information must be made available within 24 or 48 hours, or even immediately. We talk about the golden rule in treating myocardial infarction, MI, or heart attack patients. It is equally important when an adverse event occurs that that golden rule also be instigated as it keeps the wolf from the door which is vitally important.

That is all I want to say. My colleague Mr. Edward Mathews might like to say something.

Dr. John Duddy

I wish to respond to Senator Colm Burke's first two questions. On the lack of understanding in giving information to patients, there is good evidence in the numbers of patients and families who say they have taken a court case just to find out what happened. There is a sense that the institution's primary concern is the protection of its own reputation. There is a sense that it is defending itself rather than allowing the patient or his or her family to find out what happened. That is a common organisational response. We saw it in other instances with the Catholic Church and so on in which the response was to defend the institution. I hope this open disclosure legislation will bring that culture to an end in order that health care professionals will act without having to worry about potential knock-on effects on the part of management or their employer. At the end of the day, that is what this is about: allowing patients and their families access to information when an adverse event happens.

The Senator's second question was about the lack of support for staff when involved in an adverse event. Again, there is very good evidence in the medical literature as regards the second victim syndrome which health care professionals experience across the board when an adverse event occurs. Like Dr. Ryan, I work in neurosurgery, an area in which we frequently look after critically ill patients and in which there are poor outcomes, as I have experienced myself. The support from colleagues and employers has been variable. It is something that should be instituted across the board, particularly in high-stress medical specialties such as intensive care, general surgery, neurosurgery, obstetrics and so on. There should be some obligation on the employer to provide support for staff who have been involved in these events. That is something we mentioned in our statement.

Dr. Tom Ryan

One question asked by the Senator was about the law of tort and causation. That issue is discussed at a point at which everything has failed because there has been a complete breakdown of trust and everybody has become adversarial. The law of tort was reformed in the United Kingdom in the early 1990s and in Australia in 2002. Whether a variation of care was coincidental with or had led directly to an adverse outcome is important because care is variable and should be individualised and personalised. It should not be regarded as poor or of a lesser standard just because there has been some minor variation. Oftentimes, one sees minor variations of care quoted in the media as if they were causative. That issue needs to be addressed if for no other reason than that it is unfair on the family, the doctors and the health care administration that there is unnecessary litigation and unnecessarily high awards. It is only logical that if a case goes to litigation to pursue a wrong, the wrong has to be proved and the causation determined, rather than inferred, implied, imputed or suggested. It must be proved that an action led directly to harm.

On the administration of health care systems, all centralised health care bureaucracies assume an animus of their own and tend to become depersonalised. Very often the people who head up centralised health care systems have little or no direct clinical contact with the patients at any stage during their careers. All one has to do is look at the NHS and the Mid Staffordshire report to see how attempts to micro-manage patient care from a bureaucratic office at some remove from the direct patient interface failed, compromised care and led to an adverse outcome. That brings us back to how the health care system is governed. It highlights the complete absence of clinical governance in the Irish health care system, with the sole exception of the voluntary maternity hospitals which have proved outstanding successes in providing excellent care for large numbers of women on a minimal budget. There is a problem with an excessively bureaucratic and isolated health care administration trying to run what is essentially a service system. That is my response to Senator Colm Burke's second question.

On the staffing issue, in high acuity areas we have to accept that there will be staff burnout. Everybody is not capable of dealing with stress seven days a week, 24 hours a day for five or ten years, at the end of which period most people will burn out. That is natural. Anybody with any empathy will suffer from symptoms of burnout after a period of prolonged stress, but we need empathetic staff on the front line to look after patients.

Many younger nurses come to intensive care, practise for five or ten years and then move to some other sphere in the health care system. They bring valuable knowledge and behaviours with them to the rest of the system. It is good that there is movement in the health care system. It is good for the the system and staff. There is nothing worse than forcing a nurse or a doctor to stay in place when he or she is burning out because he or she cannot deal with the stress. That is a natural part of a high acuity care system.

There is the question of whether medical staff were prepared for the Coroner's Court. In the past the Coroner's Court provided a great service for relatives. After somebody had died and if there was a question about the quality of care provided, we were always able to refer a case to the coroner. The coroner was a dispassionate, independent reviewer of the quality of care provided and the court was a great forum to attend. Unfortunately, however, the Coroner's Court has become adversarial, which it is not supposed to be. One ends up in the court testifying to the coroner but being cross-examined by a barrister. The point of the Coroner's Court is that there is a free exchange of information. One is there as the coroner's witness to provide him or her with help in determining the cause of death, but the presence of barristers for both sides completely inhibits this. The over-legalisation of the adjudication of what happens in patients who suffer adverse outcomes inhibits open disclosure. That is a problem.

I thank Dr. Ryan. I have a question for Dr. Duddy on the practicality of making an open disclosure in a timely fashion. Who do he believe should be present at that open disclosure? Should it be the principal team leader, a member of the nursing staff, a member of the administrative staff or all three, to have an even open disclosure in order that everybody will understand what is being said?

Dr. John Duddy

There should be a representative from all three. One of my colleagues referred to the multidisciplinary team. There should be a representative from all aspects of it. That allows everybody to look at it from their perspective and give all of the relevant information.

To whom should the open disclosure be made? Obviously, it might not be made to the patient but to a relative or a number of relatives. How would Dr. Duddy see the process being set up within 24 or 48 hours of an adverse event occurring?

Dr. John Duddy

It could be difficult. That is one of the difficulties with its practical implementation because, obviously, there are implications for patient confidentiality and the patient's consent to information being revealed to a third party. One way would be, whenever a patient is admitted to hospital, having him or her identify next-of-kin. If he or she is conscious, he or she should be able to understand some of his or her information would be revealed to the next-of-kin should an adverse event happen, even when they were not aware of it. That might be one way of doing it.

Regarding the protection of the evidence or information given in an open disclosure, how much information should be made available to the patient or his or her relatives? Will it become adversarial if one says, "What I am saying to you now cannot be used in further proceedings relating to this incident"? How does Dr. Duddy see it panning out?

Dr. John Duddy

If it is said explicitly from the start, obviously that will not create a very good environment in which to have an open conversation about what happened. However, all parties could be informed in advance that it would be an open conversation to explain what had happened. We are always told in our training that apologising is not an automatic admission of liability. Perhaps it might be made clear that the purpose of the conversation is to apologise or explain what went wrong, as opposed to starting from a defensive footing. There are ways in which it could be communicated clearly to patients and their families.

I put Dr. Duddy on the spot. Do the representatives of the INMO have a view on the matter?

Mr. Edward Mathews

On the points you have addressed, it is important to have key care givers present. They include the medical and-or surgical lead person. In terms of a nursing or midwifery staff presence, whether it should be a staff nurse or midwife, a clinical midwife manager or a clinical nurse manager would depend on the circumstances involved, but it is important. There should also be somebody from administration present. I am conscious that we are talking about service users and that it is an extraordinarily vulnerable time for people. It is within the heads of the Bill that the Legislature has advised the commission and the authority that they should produce in their guidelines how a person who is receiving the disclosure should be supported. That is important also. Perhaps it might be done by the patient advocacy office or other services within the HSE. The Bill does not cover the HSE only. It covers both private and public care services.

The point we have made in our submission which is important and touches on the points the Chairman is making is that while the heads of the Bill provide wide scope for the authority and the commission to provide guidelines - there is guidance given on a number of matters - noticeably absent is anything relating to governance, review or leadership within an organisation to make an open disclosure and the training of staff in that regard. That includes staff who will have to make the disclosure and people who will have to manage it in a 24/7 cycle and facilitate meetings. If they are to be run properly, they will not be meetings at which somebody will say, "We will have that down in the nurse manager's office." It will have to be planned and properly delivered. One significant amendment that could be considered - it refers to Senator Colm Burke's point about improving matters on the ground - is making it a requirement for the authority and the commission in their standards to direct how organisations should approach governing in this way, leading to an open disclosure policy, how it would be reviewed and, importantly, how staff would be trained in that regard.

On what is said to people at the beginning, one need not say in a meeting that they cannot use what is said. The protections provided in the Bill relate to professional regulatory and civil liability proceedings. People can be invited to attend the meeting and told it is taking place in the context of making an open disclosure. They can be told what it is. At that difficult time in a person's life there is no need to mire him or her in the minutiae of legal niceties. Once the meeting has been convened and people are notified that a meeting is being held under this heading, if things fail later and when matters come to be considered by solicitors and-or the Nursing and Midwifery Board of Ireland, NMBI, the Medical Council, CORU or other regulators, they will know then about the information. It is not a matter to which I have given huge consideration but, from an empathetic point of view, I share Dr. Duddy's concern that it hardly seems to be an open discussion if one starts by saying, "Anything I say to you now cannot be said to anybody else."

Dr. Tom Ryan

I wish to make a comment from personal experience. Perhaps it is also the experience of my colleagues. When something has gone wrong, openness and speed are key. It is important not to wait until the morning and for the administrative staff to come to work. It is important not to wait for a formal meeting to be held. It is important for the doctors concerned to tell the truth on a one-to-one basis. Personally, I show the patient the chart and walk him or her through it, sometimes in the middle of the night. That is the only way to do it. If there is a delay, the patient or relatives immediately see it as an attempt to hide things. It must be done as soon as possible after the event and in as open a manner as possible, with full and free access to as many of the medical notes and much of the information as is available to show the patient or relatives on a confidential basis. One cannot wait for the administration staff to come to work. If something goes wrong on a Friday night, one cannot wait until the Monday. It must be done there and then; one must start the process oneself. As a consultant working in an Irish hospital, one must take ownership of the process. It is the consultant's patient. Perhaps the consultant advised the patient to undergo the procedure or perhaps he or she performed it. It is the consultant's problem and he or she must take ownership of it. It is nobody else's problem.

We cannot have a situation where administration staff are attempting to control the process.

I thank Dr. Ryan. I am sorry for keeping Deputy Louise O'Reilly so long.

I will group the Deputy's questions with those of Deputies Kate O'Connell and Bernard J. Durkan.

I will be as brief as I can.

Reference was made to the full capacity protocol and the figures for this year, which we have obtained. I will offer one example. In Limerick the protocol was in operation 283 times between 1 January and 14 November, that is, 88% of the time. I am happy to share the figures with the committee. We obtained them as part of the freedom of information process.

I am mindful that there seems to be a divergence of views. I am acutely aware that accountability does not and should not mean taking responsibility for systemic failure and systematic and long-term under-funding of the health service, although that is often what happens. I appreciate the point made by Dr. Ryan.

I am keen to hear the views of the deputations on this point. When an adverse incident takes place and the patient or relative is informed at the earliest possible opportunity, the process does not always involve one person. Several people can be involved and they should be all involved. Sometimes it results from a systemic fault that is not easily explainable. It may or may not have something to do with the rules that apply. That brings me to my question. We have had a discussion about it, but I am keen to tease the matter out further. Who should be present when the disclosure is being made or, to put it another way, the chat is taking place? I am keen to get a clearer picture of where we are going. My view is that all of the people involved should be fully trained as they will require protected time. Moreover, it will have to be part of the modus operandi of every hospital and health care facility. Let us suppose there are three people in a room, two of whom are regulated health care professionals and of one of whom is not. The process is over for the person involved in administration. I mean no disrespect to such persons, but the process is over for them once they have the difficult conversation. Unfortunately or fortunately - whatever way we view it - for the regulated health care professional, the discussion might only be the start of a long process in dealing with the relevant regulatory body. There has been some discussion about this matter and I am keen to know whether the suggestion is that the people involved in administration should somehow be regulated statutorily. Is it enough for guidelines to be issued? I have a view about this. I am conscious that there will be three people in the room, two of whom will be accountable to another body outside the hospital and the HSE but the third might not be and the process will be over for that person. I am interested in hearing the views of the deputations on that point.

There was considerable discussion of the adversarial process in place. We also need to be cognisant of the fact that we are dealing with people who for whatever reason have had a bad experience. I am unsure whether education alone will be enough or whether this legislation plus education will be enough to change the culture. I have had experience of this at what is now the Nursing and Midwifery Board of Ireland which used to be known as An Bord Altranais. Often what happens is that people are not satisfied with the answer they have received and pursue the matter. Individuals are held to account for failures that are not within their control. The people who have some of the answers and are responsible for some of the rules and regulations - generally known as the bureaucracy - will never sit in front of a regulatory body. I am conscious that this legislation does not address that point, but do the deputations believe it can or should? Is other legislation required?

I wish to refer to some of the points raised by Deputy Louise O'Reilly. Reference was made to this being a consultant's problem. The question is: who is in charge? I am mindful of the fact that there are recruitment challenges within the HSE and I am seeking the views of the deputations since they represent the people who work in hospitals. Let us suppose a hospital consultant is in charge of a team but had no involvement in its recruitment. Perhaps there is anecdotal evidence that some of those filling posts may not be the optimum people to fill them because of a shortage of applicants. Perhaps I have it wrong, but how on earth can a hospital consultant be the person to take the hit when he or she had no involvement in the recruitment of the team? He or she may not necessarily be 100% happy with the standards of those operating in it. It seems a little unfair, therefore, that the hospital consultant is the person who is in the firing line.

Let us suppose an adverse effect occurs at birth. There are certain practicalities. Given all of the dealings I have had in hospitals in recent years, it is my understanding everyone is usually working at maximum capacity. How then can we pull a consultant out of the system and into a room when he or she probably has 40 other things to do? Let us assume the mother is alive, that the father is present and that something has happened to the newborn infant. I can picture myself in that scene. If two doctors and a person involved in administration were to land in on me, I would immediately take the view that it was a little much. The consultant leads the team and is responsible, but what are the practicalities involved? How would a panel of individuals landing in on a patient after an adverse event be perceived by the patient?

We need to protect staff. Let us suppose medical staff are working in situations that are not the optimum and that things are not ideal in an emergency department or delivery suite. How will the hospital be made liable for the terrible conditions in which staff may be working? Sometimes things are not within the control of staff at all. A team might be down two staff members; there might be a leak or perhaps someone did not put the trolley in the right place. I am concerned that someone who entered medicine to help and cure people is constantly blamed when everything goes wrong, especially when some things could not possibly be his or her fault.

There is also the question of burnout having worked for ten years at maximum capacity. Is this issue dealt with at any stage when people are training? Are they told that they will have ten good years in intensive care and will then be put out to pasture for the remainder of their careers? It seems that we are not placing much value on people if it is acceptable that we will work the living Jesus out of them for ten years and then send them away on their bike because we can get in another gang of fools to be worn out in the following ten years. The team is ultimately responsible.

There is also the right to one's good name. I am always mindful of this when I hear things in the news about certain events. Someone from RTE may be in front of a medical person who may not necessarily have done anything wrong. I am conscious that this must be of concern to his or her family. Obviously, people assume that if others are on television, they have done something wrong. I am conscious of the stress this might cause for their families, as well as for themselves. What is in place to protect them and provide counselling for them to deal with any post-traumatic stress they might suffer after an incident?

Let us suppose a professional is involved in a situation where something bad has happened and he or she goes to the patient to explain what has happened. How will he or she treat someone else immediately after that? Is this built into the skill set such that the professional will be able to compartmentalise it and move on to the next job? This is about professionals being the fall guy and being in charge but perhaps not being able to control the situation. It is a question of being held responsible for things they cannot possibly control. I am keen to hear the comments of the deputations on that point.

I will allow a final contribution by Deputy Bernard J. Durkan. I ask everyone to be conscious of the time as another group is due to join us at 11.20 a.m.

I promise that I will be as quick as possible. I apologise for having to leave earlier, but I had to attend another committee meeting. Unfortunately, the medical profession has not yet identified a way to enable people to bilocate, but I am hopeful.

I thank the delegations for sharing their views with us. A few simple things affect us all and we all have personal experiences. For the individual directly affected, it can have a positive or a negative impact that will never leave. In the past year and a half I had five experiences with which I was unhappy. The matters were not personal but concerned my constituents. If things had been done differently at different times, the outcomes would have been different. I appreciate the suggestion the health sector is under-resourced, understaffed and overstretched, but I am not sure it applies in all cases. Three things happen. First, there is a fatality and the case ends up in court. Serious problems arise, including castigation, etc. Second, there is permanent damage, which is sad, especially where children are involved. Obviously, the parents are traumatised, as is the child, and forever will be. Is there something wrong with the procedures in dealing with some cases? I do not know the answer as I am not an expert in this area. Third, there is the event that is near fatal. Fortunately, in this case the person recovers. Without a shadow of doubt, there should be a meeting held and an admission of responsibility. Unfortunately, none of this happened and it was left to me to arrange a meeting at which nothing was admitted because an apology would have provided a basis for future litigation. I do not see why a meeting cannot take place, without prejudice, and there cannot be an admission. I do not see why an ex gratia payment cannot be issued in some cases in a situation where hundreds of thousands of euro or, in some cases, millions would otherwise be awarded through the courts.

I agree entirely with Dr. Ryan that one is better off in being upfront in addressing cases from the beginning. There should be a policy of dealing with cases when things go wrong, which would mean openness and disclosure. Such a policy would generate public confidence and a patient would realise he or she was dealing with an institution which would not cover anything up, even for its own sake, which wouldl outline the circumstances involved, the situation that presented itself and whether it could have been prevented. By all means, the health service should take that route.

There is nothing wrong with mediation. On numerous occasions I have participated in mediation in such cases and other circumstances. In some cases the courts had failed, but I will not continue in this vein. The point that abides with me is simple. Public and patient confidence must be restored. If it does not prevail, it will dampen the medical profession, hospital services, general medical services, etc. To what extent can the delegations advance the possibility of mediation and the offer of an ex gratia payment without prejudice? Even though irreparable damage has been caused to a person or a person may have passed away, in some cases the hurt can be assuaged by somebody deciding to make an offer. Let us remember that if a case goes further, it will cost a hell of a lot more.

I suggest we hear concluding remarks from each group.

Dr. John Duddy

I will try to address a few of the questions asked.

Deputy Louise O'Reilly asked whether management guidelines would be sufficient. Her question was linked with Deputy Kate O'Connell's request that hospitals be made responsible for poor conditions. In short, I do not think simple guidelines would be sufficient. I have already spoken about the double standards. If a doctor or a nursing professional is in a management role, he or she is accountable to his or her regulatory body, whereas an administrator who is not a health care professional is not. There needs to be proper regulatory oversight of those in administrative roles in the health care service.

Deputy Kate O'Connell asked why hospital consultants should be responsible for the actions of non-consultant hospital doctors, NCHDs, they have not hired. That raises a few questions because a lot of the time NCHDs come from other countries and have not worked in the Irish system before. They are thrown in at the deep end in a different culture and health care environment in which speak people speak a different language. The Medical Council is working on a programme, Safe Start, to assist new doctors in joining the system, both interns who have graduated from Irish universities and those who come here from abroad. Having a proper induction process to introduce them to the health care system in Ireland will improve matters.

The Deputy asked whether the issue of burnout was addressed during training. I can only answer from my own experience as a trainee in the Royal College of Surgeons in Ireland and confirm that it provides such training. It identifies the symptoms of burnout in order that one will be able recognise them in oneself, will know how to address them and what support systems have been put in place by the college and one's employer to prevent burnout from happening. The issue has been addressed in the surgery community, but I cannot speak for other specialties.

Mr. Edward Mathews

On the number of people who should be present in a room which was Deputy Louise O'Reilly's specific question, my answer is not simple. My colleague has made the point that in some cases they should include the consultant, which is absolutely appropriate. In some cases it might involve a nursing and midwifery issue and they might include the nurse or midwife. When I mentioned an administrator being present, I was referring to nursing administrators. There are administrators available 24/7. I see my colleague's point very clearly. One should not have to wait for the general manager to come in the following morning. Who should be present depends on the circumstances involved. Those who are able to provide adequate explanations should be present. To reflect my colleague's remarks, there is potential initially to have an interim meeting to explain what happened, to be followed perhaps by a follow-up meeting if there has been a systemic error.

I will address the point made by Deputy Bernard J. Durkan. There has absolutely been no suggestion from this side of the room, certainly from my organisation, that staff shortages or anything else are a explanation for everything that goes wrong. Mistakes are made; there are systemic and individual errors. There are things which happen that are not anyone's fault.

On the regulation of managers, there is regulation of health care professionals to protect the public because those who hold a licence to practise have the potential to do great good, but they can also do great harm if they do something wrong. Managers and administrators in the health service have the potential to do great good and also great harm and I have yet to understand why we are regulated and they are not. I cannot make our stance any clearer.

The majority of Deputy Kate O'Connell's questions were directed at my physician colleagues. I will address her questions about the fitness to practise process and the support available in the service. I can tell her that there is perfunctory or zero support for those going through regulatory processes. It is non-existent. It falls to organisations such as the IHCA, the IMO, the INMO or our parallel representative organisations to support them. One will have individual instances in which people are supported by good managers. I do not wish to deny that that happens, but there is no systemic support available.

A point was made about inquests. Our members now have a huge fear of inquests. When they attend, they worry that they will be torn apart in cross-examination. The counsel or representative who is supposed to be present to support them is there to support the institution or the employer and will not even intervene in the most egregious cross-examination.

I am conscious that time is short. The committee is considering the issue of protection in making a disclosure. We have not made the following point. The heads of the Bill are very important in that they extend not only to health services but also to personal and social services.

There is a rider in the definitions included in the Bill which states it only refers to health or personal social services provided to deal with medical issues. Many elderly people or those with a disability receive personal social services provided for them by professionals which do not have a curative or a treatment element. For example, it may involve a social outing. Why should they or their connected persons be excluded from an open disclosure if they fall while on a social outing, for instance? Why should it not be explained because it was not related to treating or preventing an illness? There is a valid proposition to be made that this aspect should be included. If we are talking about service users, say, a person with a disability, an elderly person or connected persons, they will want to know what happened. Why should they be treated less favourably because they are availing of a service not provided for medical reasons? We are supportive of this measure. We request the committee to give serious consideration to the substantive submission we have made in seeking amendments to the definition of "professional regulatory processes", as well as extending the documentary protections to professional regulatory processes.

Dr. Tom Ryan

The buck has to stop somewhere in the health care system. Somebody has to be accountable for the quality of patient care provided. Currently, it is consultants who take that responsibility every day and they need to be supported.

The non-consultant hospital doctor, NCHD, and nurse recruitment process is a HR disaster. The HR system in the HSE regards health care staff as a liability, not as an asset, and treats them as such. That is why we cannot recruit or retain staff in the health care system.

As to when one should admit there has been a problem and who should be in the room, very often one has to continue caring for the patient whom one may have just harmed. One has to maintain that patient’s trust. If the patient in any way senses one is prevaricating, obfuscating or being less than open, one loses his or her trust and the atmosphere becomes poisonous. One has to be honest, open and upfront as early as possible. Sometimes the details of what has happened are confidential to the nurses and doctors looking after the patient and it would be inappropriate to have an administrator in the room. However, the admission has to be made early, open, full and honest, but one has to maintain the trust of the patient. If one is open and honest with the patient and apologises when something has gone wrong, one will not be sued. There will be no litigation. All the patient will want is an apology and some guarantee the same adverse event will not happen again in the future. There will, however, be implications for the health care system of such openness and honesty. One implication will be there will be a need to have more resources focused on the front line and more clinical governance of the system.

Ms Vanessa Hetherington

There has been much discussion about open disclosure in the hospital setting, but events also happen in general practice and the community setting where the supports need to be made available, too.

I thank Ms Harkin-Kelly, Mr. Mathews, Dr. Duddy, Ms Hetherington, Mr. Varley and Dr. Ryan for giving us some valuable insights into open disclosure. They will be taken on board as we progress through the legislation.

Sitting suspended at 11.25 a.m. and resumed at 11.35 a.m.

The joint committee will now engage in pre-legislative scrutiny of the open disclosures provisions contained in the Civil Liability (Amendment) Bill 2015 with the Irish Patients Association and the States Claims Agency. On behalf of the committee, I welcome from the State Claims Agency Mr. Ciarán Breen, director, and Ms Catherine Tarrant, head of clinical claims; and from the Irish Patients Association Mr. Stephen McMahon, director; Ms Margaret Murphy and Mr. Mark Molloy.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. I also advise that any submission or opening statement submitted to the committee may be published on its website after the meeting.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

I invite Mr. McMahon to make an opening statement on behalf of the Irish Patients Association.

Mr. Stephen McMahon

I would like to clarify that my colleagues, Ms Margaret Murphy and Mr. Mark Molloy, join me today as associates in an alliance with the Irish Patients Association to address this important issue. I take the opportunity to publicly congratulate Mr. Molloy and his wife, Róisín, on their receipt of a People of the Year award last Saturday.

I thank the committee for the invitation to meet it. While we respect that it is hearing from a range of stakeholders, as patient advocates, we call for a statutory requirement on health care professionals to disclose to patients when an adverse event occurs. My older brother, Raymond, has cerebral palsy and paraplegia resulting from an injury at birth. My wife, Fiona, suffered from severe post-natal depression following the birth of our children. These and other experiences led us to found the Irish Patients Association.

The Irish Patients Association was launched on the RTE programme "Today with Pat Kenny" 21 years ago. At the time patients were disempowered; they had no voice; they were talked down to by the system. Even within the system there were these silo effects. The patients' charter was nothing more than a piece of paper, with no real commitment to deliver on its aspirations. The words "patient advocacy" were new and for many on waiting lists, the advocate of choice was their local Deputy. During the years we have been involved in many areas of the health care system, always faithful to patients and their families by keeping them at the centre of all decision making. Reform has been glacial. However, much has been done to improve quality and safety. We welcome and support this, but it is a matter of trust: trust in the system for patients and wider society. It is, however, also a matter of rights. We cannot remember everyone, but we can remember Mrs. Rebecca O'Malley whose cancer diagnosis was delayed; the late Mr. Kevin Murphy whose mum, Margaret, is with us this morning; Mrs. Savita Halappanavar who died as a result of delayed treatment; Ms Bimbo Onanuga whose death was recorded as medical misadventure; Ms Dhara Kivlehan who died as a result of delayed treatment; Mr. Colin Evans who died as a result of a medication error; the late baby Mark Molloy whose dad, Mark Snr., is with us this morning and the late Mr. Gerry Feeney, aspects of whose hospital care were deemed to be unacceptable.

Do we have a problem? Yes, we do. I refer the committee to a recent study, the findings of which were published in the British Medical Journal on 10 February 2016, entitled, The Irish National Adverse Events Study, INAES: The frequency and nature of adverse events in Irish hospitals - a retrospective record review of 2009 data byNatasha Rafter et al. One in eight patients admitted to hospital during 2009 experienced adverse events. Of these, 20.8% witnessed moderate recovery within one month; in 8.6% of cases there was a permanent disability of less than 50%, whiile in 6.7% cases the event contributed to the death of the patient. How many of these patients were told that the mistake was avoidable? This is just the tip of the iceberg as no adverse events were studied in the community, by the family doctor or in nursing homes and there was no study of the impact of unequal access to health care for those waiting too long to be seen or undergo surgery.

The issue of consent has changed the doctor-patient relationship in the past 20 years. The HSE's policy on consent states, "It is a basic rule of common law that consent must be obtained for clinical examination, treatment or investigation". The Constitution reaffirms this rule, as does international law. Therefore, any exception to the rule would be subject to intense judicial scrutiny since the purpose of the rule is to uphold one of the most basic of all rights, that is, the right to bodily integrity. The argument in favour of consent as an indispensable precursor to treatment is born out of the concept of patient autonomy which, in turn, is based on the rights of individual self-determination and bodily integrity in Article 40.3 of the Constitution.

Simply put, a patient does not consent to an adverse event. As stated, it is not lawful to undertake an examination, treatment or an investigation without such consent. Surely, the patient has a statutory right to be told when such a violation of consent occurs or if the management of services has caused an event?

Who is best served by the establishment’s current position that there should not be a statutory obligation for the patient to be told? Management, policymakers and other agencies have an obligation to disclose adverse events. The Medical Council of Ireland is not an inquiry as it certainly does not use information it has and knows the consequences of issuing it or not.

In addition to supporting the law, a patient safety advocacy agency must be independent of the Department of Health and the HSE similar to HIQA which is a jewel in the regulatory crown. The language of advocacy is moving from passive participation to the language of rights and active involvement in many ways. Change and reform in the health care system must not be preceded by preventable funerals and injury to patients. We need to make open disclosure the law because it is needed and members can do it

I would like during the questions and answers session to address the issue of accountability of management and public servants who govern the day-to-day system. I thank the Chairman and members for giving me this opportunity. I introduce Ms Margaret Murphy.

I thank Mr. McMahon. I invite Ms Murphy to speak.

Ms Margaret Murphy

I am delighted to have the opportunity to address the joint committee today. I am the external lead adviser of the World Health Organization's patients for patient safety programme which advocates for a culture of safe care that is more inclusive of patients and families. Advocates like me in the WHO are not career advocates. We have not chosen this work for ourselves, rather it is a response to circumstances that has brought us to this work. It is a responsibility that has been thrust upon us by events, one which we would gladly forfeit for the restoration of the lives and well-being of our loved ones who have been harmed by health care, albeit unintentionally. The previous Minister for Health actually described non-disclosure as tantamount to a hit-and-run road accident.

It is also very important to understand disclosure is not about blame, neither accepting blame nor apportioning blame, rather it is about integrity. It is about being truly professional and demonstrating that professionalism. It is about preserving that relationship of trust between doctor and patient. It is about learning and improvement. I would say exhortations, training and resolve alone will not work despite the very good work being undertaken at the moment by the HSE and the State Claims Agency in respect of rolling out a training programme. Exhortations alone will not work as they will take too long to work. There is an absolute need for mandatory open disclosure underpinned by legislation, which is certainly evidenced by a number of items. We are asking the legislators to do the right thing for the people, their constituents.

It is an inalienable right of any patient entrusting their own care and that of loved ones to the health care system to have the assurance that in the event of error, open disclosure will be practised, learning will occur and improvements to prevent recurrence will be put in place. The continuing mantra from patients leaving the courts is that they do not want it to happen to anybody else.

There is a very real need to break the cycle of deny and defend which catapults patients and families into a litigation process to gain access to truth and acceptance of responsibility. I would love the opportunity to illustrate this in respect of my family's case. Families have an entitlement to the respectful management of serious clinical events in accordance with the process outlined by the Institute for Healthcare Improvement, IHI White Paper. Closing ranks, lame excuses, collegiality and inappropriate responses undermine the system we are trying to bring to a state of excellence.

It will support staff, especially front-line staff in doing the right thing because with legislation they must do so in contrast to putting their heads above the parapet and stepping out from the crowd. It will address the shared abandonment which staff and families often experience in the aftermath of events. I would like to have an opportunity to give an example from a staff member. There is a need to move away from the language of "encouraging" or "promoting" open disclosure to saying disclosure is what we have to do because it is the law. The members of the Oireachtas are the law makers.

We need to dispel the myths. It will not result in an escalation of litigation, as borne out by the Michigan experience. I can furnish the statistics from it, for example, the experience of Dr Rick Van Pelt and his patient Linda Kenny. Neither will it result in avoidance of reporting because it is the law. Some 90% of the respondents to the Irish Medical Council survey said they trusted doctors to tell the truth. Is it not more unacceptable when that high level of trust can sometimes be betrayed?

We need to strengthen the effectiveness of the HSE training initiative in respect of disclosure. In regard to disclosure training events, I would like to know who attends, the attendance rates and the number of high level staff who attend, are being trained and are promoting disclosure. We need to interrogate this.

For me as an individual it is important because I am Kevin's mother, I was present at his birth. I know every detail of that birth. I was also present when he died and, as his mother, I needed and deserved to know everything about the circumstances which brought that about. However, over and above that, I needed to be assured that lessons would be learned and that those lessons would be disseminated all in the hope of preventing a recurrence. Patients like Kevin and me place our trust in the legislators.

I thank Ms Murphy. I invite Mr. Molloy to contribute.

Mr. Mark Molloy

I thank the Irish Patients Association for inviting me to participate this morning.

Since the death of our son, Mark, in 2012, my wife, Róisín, and I have been active in seeking reform to the health service to attempt to implement change to many serious patient safety issues and obstacles that we encountered during this time. We would like to take the opportunity to welcome the many improvements and patient safety supports and initiatives that have been introduced in the past three years.

Unfortunately, our experience is of a system where great lengths will be pursued to contain adverse events by people at all levels and in various roles, who appear to have the fall-back position of complete impunity in the knowledge that while their actions may have catastrophic consequences for patients and a significant effect on front-line staff, there are no effective mechanisms in place to make them accountable for poor performance. While the State will continue to pick up the tab for the financial consequences of their actions, it is the lack of a statutory accountability framework that we believe is the single biggest impediment to health care reform in Ireland.

In the immediate aftermath of Mark’s death, we asked the management of the maternity unit why our son had died. We essentially sought open disclosure but were misled. Before Róisín left hospital seven days later, we asked the same question and were misled again. We know now that they had the answers at that time. We met the management of the hospital five weeks later and were once again not given the answers that they had. As each tier of HSE management did not give us the answers that were known to them about Mark’s death, we moved to a higher tier all the way to national director level, and were, as the then Minister for Health, Deputy Leo Varadkar said last year, lied to many times. Of course, as we now know, our experience was the same as that of many others.

I have read through the committee transcript of the meeting with the chief medical officer, Dr. Tony Holohan, and Dr. Kathleen MacLellan from the Department of Health and agree with the vast majority of their submission, particularly in relation to making open disclosure mandatory within the HSE for a certain level of adverse event and above. However, where we disagree is on whether open disclosure should be voluntary or statutory.

The management investigation that resulted from our last appearance before this committee in May 2015 is now more than one year overdue for completion, and estimates suggest it will be at least March 2017 before it is complete. This investigation is about non-disclosure by senior HSE management and this, in particular, is where we feel voluntary open disclosure in the health service collapses.

It is no secret that there is an apparent significant disconnect between HSE front-line staff and management, yet the enormity of the cultural shift that this voluntary initiative would require, like with any company, would demand top-down buy-in and full support if it were to be effective. How can we expect front-line staff to disclose openly and voluntarily when they witness management going to such lengths to contain incidents? Unfortunately, it simply will not happen.

While to err is human, self-preservation is one of our most basic instincts. We submit to the committee that the battle to encourage an open disclosure culture in the health service is long since lost at this stage and only through the introduction of statutorily based open disclosure and, most important, and this is such an important point, overseen by a broader legal accountability framework for all health care professionals in Ireland, can we have confidence that patients will be appropriately informed when things go wrong.

I thank the Chairman and members.

I invite Mr. Breen of the State Claims Agency to make his opening statement.

Mr. Ciarán Breen

I thank the Chairman and the joint committee for giving me this opportunity to address the consideration of the open disclosure provisions contained in the Civil Liability (Amendment) Bill. I am joined by my colleague, Ms Catherine Tarrant, solicitor and head of clinical claims.

The National Treasury Management Agency, NTMA, is designated as the State Claims Agency, SCA, when performing the claims and risk management functions delegated to it under the National Treasury Management Agency (Amendment) Act 2000. The SCA's principle objectives are to act fairly and ethically in its dealings with people who have suffered injuries and who take legal actions against the State or State bodies while acting in the best interests of taxpayers, and the families of the people concerned; and to implement targeted personal injury and property damage risk work programmes to mitigate litigation risk in State authorities and health care enterprises to reduce the costs of future litigation against the State. The SCA's remit covers personal injury and third party property damage risks and claims relating to certain State authorities, including the State itself, Ministers, the Attorney General, the Health Service Executive, HSE, the voluntary health care sector, An Garda Síochána, the Irish Prison Service, the Defence Forces and community and comprehensive schools.

In October 2010, the SCA and the HSE, with the support of the Medical Protection Society, MPS, commenced a two-year open disclosure pilot project at two sites, the Mater Misericordiae University Hospital, Dublin, and Cork University Hospital. The project objective was to provide training and other resources to support managers, doctors and other health care professionals in engaging in the open disclosure process with patients and their families; to provide support and guidance for health care professionals on how to communicate with patients and their families following an adverse event and to manage the challenges and communication which can occur; and to demonstrate the importance of open disclosure for patients and their families, health and social care staff and the wider organisation. It was planned that the learning from the pilot project would be used to inform the development of a national policy and supporting guidelines on open disclosure, as well as to provide a standardised national open disclosure framework to be implemented across all health and social care services that would progress, foster and practically support a culture of openness in an informed, sensitive, inclusive and safe environment.

Subsequently, an independent external evaluation of the project was proposed by the national project team to ensure independence, objectivity and transparency for all of the stakeholders involved. The evaluation of the project was deemed important in assessing the impact of the work undertaken within both pilot sites, progress to date, to what extent the project had met its objectives, and whether a change of practice had occurred. The learning from the pilot projects, international best practice and the drafting of the two hospital policies was used as the basis for drafting the national policy and guidance which was launched by the then Minister for Health, Senator James Reilly, on 12 November 2013. Three further supporting documents were also launched, including a staff support booklet, patient information leaflet and staff briefing guide.

The findings from the evaluation demonstrated that the main barriers to implementing open disclosure included concerns over increased litigation costs, fear of damaging or losing the relationship with the patient, fear of a loss of reputation or career progression, lack of institutional support, lack of training in how to practice open disclosure, and the emotional impact on clinicians of adverse events.

In 2010 the SCA undertook the open disclosure project in conjunction with the HSE so as to ensure an open and consistent approach to communications when things go wrong in health care. The agency took the view that it was time to formalise the process of expressing regret upon the happening of an adverse event, keeping the patient informed, providing feedback on investigations and outlining the steps taken to prevent a recurrence of the adverse event. Since 2010, the SCA and the HSE have jointly trained almost 3,000 staff in open disclosure and approximately 9,000 staff have been briefed. This morning I was informed by a colleague that this figure has grown to 14,000.

Training in open disclosure is critical to its success. How clinicians and other practitioners communicate with a patient when things go wrong is important. The quality and frankness of the communication following an adverse event may determine whether that patient will make a complaint or claim. Providing clinicians and practitioners with the proper skills of communication with patients in what can be a difficult and stressful set of circumstances, following an adverse event, is of the utmost importance.

The SCA strongly supports the Department of Health's legislative provisions to support open disclosure which will ensure clarity for everyone involved in the open disclosure process and provide consistency across the many parts of the health system as to how open disclosure is understood and delivered. The SCA welcomes the provision within the intended legislation which provides legal protection and privilege in connection with open disclosure of adverse events to patients. The agency endorses the provision of such legal protection and privilege for the information and apology to be made available to a patient as required by the intended legislation. The agency welcomes the fact that an apology may not be interpreted as an admission of liability and may not be used as such in litigation against the health enterprise. This important provision will, in our view, create a climate of open engagement by practitioners, freed from the worry of an apology constituting an admission of liability and will, therefore, create a more balanced environment within which practitioners can honestly and conscientiously engage with patients in the aftermath of an adverse event.

It is our view that a voluntary system of open disclosure is the optimal approach and the Bill's provisions will provide the appropriate balance to protect patients and practitioners involved in open disclosure.

As Ms Murphy has to attend a lecture later, she has requested to make an additional statement.

Ms Margaret Murphy

I thank members for facilitating me. In my opening statement I referred to the Michigan experience. Back in 2004 the University of Michigan health system adopted a full disclosure policy, not necessarily as a result of legislation. In its words, it moved from a deny-and-defend approach to "apologise and learn when we are wrong, explain and vigorously defend when we are right and view court as a last resort". As a result, between August 2001 and August 2007, the ratio of litigated cases were reduced from 65% to 27%, average claims processing time was reduced from 20.3 months to eight months, insurance reserves were reduced by two thirds and average litigation costs more than halved. Savings were then invested in patient safety initiatives. Not only is it the right thing to do, but there is a good business case for it, too.

The United Kingdom has enshrined a duty of candour in legislation. This statutory duty came in at the end of 2014. We are hearing anecdotally that it is having a positive effect on changing the culture in the health system. It is appreciated that changing culture does not happen overnight. However, having the duty of candour in place certainly helps focus attention. For decades we have campaigned for a statutory duty as opposed to just guidance or contractual arrangements. Small parts of the medical profession have resisted, fuelled mainly by warnings from medical defence organisations that it would have unintended consequences, make matters worse or drive reporting underground. There is no evidence that unintended consequences have resulted in the United Kingdom. All of the major organisations now accept statutory duty.

The arguments for and against duty of candour were meticulously considered as part of the Mid Staffordshire NHS Foundation Trust public inquiry which came down firmly in favour of introducing a statutory duty. It is now one of the fundamental standards for health and social care providers in England, underpinned by the United Kingdom's Care Quality Commission statutory regulations.

The authorities in Scotland recently carefully considered whether to introduce a statutory duty and, following consultation, the Scottish Parliament passed legislation to bring such a duty into effect. It should become operational in 2017. Wales and Northern Ireland have signalled their intention to do likewise. There are operational lessons to be learned from the United Kingdom and we would have to consider these.

The Canadian Patient Safety Institute is compiling a dossier of how the disclosure debate stands in all of its provinces. The Government of Saskatchewan passed legislation requiring the reporting and investigation of critical incidents in health care as of September 2004. The Manitoba Government passed legislation in 2005 to amend the Regional Health Authorities Act and there are other examples. The amendments in legislation required that critical incidents be reported. If a critical incident occurs, the regional health authority or prescribed health organisation must ensure appropriate steps are taken to fully inform the individual, including the patient, of the facts of what occurred, the consequences of the critical incident as they become known, the actions taken and the actions that will be taken to address the consequences. A complete record of the critical incident must be made promptly and must be accessible to the individual in question. Disclosure is not an event but a process.

This approach supports staff, especially front-line staff, to do the right thing because it is what they must do. I will give an example in respect of the registrar who looked after Kevin who clearly accepted a significant degree of responsibility for the sad outcome. I had a chance encounter with him while exiting a lift six weeks after Kevin's death. As he made to enter the lift, our eyes locked and he was clearly trying to place me. All I said to him was that I was Kevin Murphy's mother. The man's face blanched and he blurted the out words, "I did not think he would die." He backed out of the lift and ran away down the corridor. We had just come from a very unsatisfactory encounter with a head of department and I turned to my husband and said, "Oh my God, they have abandoned us but they have abandoned him too."

A substantial amount of work needs to be done on this issue. I will explain the abandonment we experienced when we met the individual in question. At a significant point in Kevin's care, crucial blood tests were telephoned to the general practitioner's surgery. These were written down on a Post-it note by the practice nurse who, as a result of the conversation, offered the correct diagnosis to the general practitioner. However, the general practitioner came up with his own differential diagnosis and when writing the letter of referral to the hospital filtered the test results, only including those elements that supported his diagnosis and omitting the critical calcium reading, which was the issue. As a consequence, this reading was not seen by the various people looking after Kevin. When we met the head of department he showed me the Post-it note. This is how patients are treated in the aftermath of events. He asked me what I made of it and I said there was a very high calcium level at 5.73 mmol/L where the normal range is between 2.05 and 2.75 mmol/l. He said that even if the reading had been seen by his consultant colleague, it would not have meant anything to him. I asked why this would have been the case and he replied that the reading was not written as he would write it. I asked to see the note again. It used the term "cal" for calcium, "sod" for sodium and "pot" for potassium. I asked him whether he was saying that because it was not written in scientific notation, it would not mean anything to someone like him. The man actually replied "Yes". It was at that point that I lost faith because I identified a reluctance to be decent, honest and humane and to have compassion for heartbroken people. That is what drove us down the road of litigation, which is a road that patients do not go down.

Monetary compensation was never an issue for us as a family. A sum of money does not exist that would equate to my Kevin. We could not imagine any circumstance in which we would derive a benefit or pleasure and, as a consequence, we donated the settlement figure to two charities, Bóthar and the Make-A-Wish Foundation. I am totally convinced that proper disclosure and honesty would have been far more beneficial to us and the clinical staff involved. Instead of focusing so much energy on defending a lawsuit, this energy could have been invested in identifying improvement measures and putting them into place. Perhaps one of the first things we have do is examine why essentially decent and professional people often behave in a very inhumane manner in the aftermath of adverse events.

I repeat my plea for legislation to be introduced because legislation would make reporting happen. We do not need wriggle room because leaving wriggle room would mean people would avail of it. I have made copies of my expanded statement for each member should they wish to read it. I thank the committee for its indulgence.

I thank Ms Murphy for her statement. I am conscious that members may have to attend the Dáil at 12.45 p.m. I ask Deputies Louise O'Reilly and Bernard J. Durkan to pool their statements and questions.

I am also conscious of time as I may have to leave the meeting a little early.

I welcome Ms Murphy's comment that people are good and decent, want to do the right thing and need to be supported to do so. The question for us is whether they need to be compelled to do the right thing. In such a circumstance, what must we do to ensure they feel fully supported? As Ms Murphy acknowledged, there are people in the health service who want to do the right thing but may not feel they should have to answer for the system.

When they appeared before the joint committee, officials from the Department of Health expressed a fear that mandatory open disclosure would lead to a box-ticking exercise. I am interested in hearing the views of the witnesses, including those from the State Claims Agency, on that matter.

I congratulate Mark and Róisín Molloy on their much deserved award. I am sure they are very proud.

With regard to the training that was provided as part of the pilot scheme, was protected time given to that training and what number of staff were trained? Mr. Molloy referred to the legal accountability framework and the need for health care professionals to have a legal accountability framework. It could be argued that there are some provisions in place already, with some professionals having outside regulatory bodies while others do not. Is it Mr. Molloy's view that a legal accountability framework should cover all persons in hospitals or should it be confined to health professionals, namely, doctors and nurses? Should it extend to administrators, those who run the canteen and hospital cleaners? Should it be in place for everybody?

I thank the delegates for their attendance and the evidence they have given.

I thank our guests for their attendance and their frank and open statements which prove that nobody except those directly involved - the patient and his or her close relatives - has an understanding of the trauma caused in the circumstances that have been described. I congratulate the delegates on their presentations.

Speaking to a previous delegation to the committee, I noted that Deputies are regularly called to mediate and intervene. One of the questions frequently put to us is whether we are competent to make a decision in a particular case. I am regularly asked this question and I always reply in the affirmative, although I am not medically competent to do so. On some occasions, one does not require a great deal of expertise to be able to determine that something is going wrong. In a number of the cases described, it would have been clear to any layperson that something had gone wrong. For instance, in this day and age, no one should acquire an infection from a hypodermic needle, particularly one that would cause permanent damage to a patient or child. Similarly, women should not be placed at significant risk in childbirth, as has occurred in certain cases about which we have been informed.

We need to get away from that risk and remember that the patients, two patients in some of those cases, have rights and entitlements. On the question of whether voluntary disclosure versus a statutory obligation is the way to go, there is no doubt in my mind. It has to be mandatory. Otherwise, the choice will be on the one hand and on the other.

I remember once being asked about a particularly traumatic case involving a lot of people and my immediate line at that time was that there should be an admission and things should proceed from there. It was going to happen anyway. There was going to have to be an admission and that was what happened. However, it did not happen until after protracted legal disputes. It should not have to happen that way because the trauma and suffering affecting the patient and the family are sufficient without having to have to go through the proof part of it later in court. That may well have to be the case, but at least there would be some recognition of their trauma at an earlier stage.

There is a grave danger. In the past it is possible that things went unchallenged and unnoted but we have now reached a situation in terms of what the public expects and what professionals expect also in terms of professional protection whereby disclosure is necessary in everybody's interests, including of those who have temporary or permanent damage. I accept the point about the principle versus the monetary compensation. I have mentioned before that there should be some immediate response by way of acceptance that something went wrong and an attempt should be made to cross the bridge to the patient or other relatives by simply saying something went wrong and, without debate and without prejudice, some compensation should be made. There would be then at least a recognition that the authorities admitted that something went wrong or at least acknowledged that something went wrong and, as a result, it might in some way assuage the hurt and trauma. The trauma will stay forever and a day but the hurt at that particular moment can in some way be assuaged by the manner in which the patient and the patient's family is treated.

Mr. Ciarán Breen

I will respond first to Deputy Louise O'Reilly. I am very conscious in responding on open disclosure of acknowledging the terrible tragedy of Margaret and Mark's personal stories. It was actually that kind of tragedy that propelled us to begin our open disclosure project back in 2010. Specifically, I address the Deputy's question about whether I think it should be compulsory or voluntary. We take the view that it should be voluntary; we sometimes have in medical negligence matters. We have found that where people are told they have to go into mediation, as has happened sometimes where mediation has been ordered, it has not been a satisfactory process. One is compelling people to do something. We think that at the heart of the patient-doctor relationship lies frankness and when things go wrong it should be acknowledged on a voluntary basis. It creates a climate of much more openness and less box-ticking. I agree with the Department about that. It also creates a real conscientious engagement by practitioners and doctors with a process on a much more open basis. That is certainly our view.

I have a fair amount of experience of this and mediation could never be compulsory. One cannot force someone to mediate because by its very nature mediation is voluntary. I certainly would not support any forced mediation purely because it would just not work. The question related to the actual disclosure itself.

Mr. Ciarán Breen

I am sorry if I confused the Deputy, which I might have done.

I apologise if I was not clear.

Mr. Ciarán Breen

I was simply taking mediation of an example of where one forces people to do something. There are some occasions where it can be ordered by the court. I was simply making the point that when one compels someone to do something, it works less well than when one invites someone to be open, frank and conscientious about what they are doing. Have I addressed the particular question?

There was a question on training and the experience in the two pilot hospitals.

Mr. Ciarán Breen

When the project started, it was acknowledged that this had to be done properly. In relation to the pilot projects and what is happening in the roll-out of training, it is very much around protected time and ensuring the people who should be briefed and trained are. We have a process of training the trainers also and rolling it out across hospitals. To give the committee an idea on the number of trainers, there are roughly 244 people who have been trained to train others in the process.

Is that at all levels?

Mr. Ciarán Breen

Yes. There is engagement at all levels.

Is it also all disciplines?

Mr. Ciarán Breen

Yes.

There was another question on a legal accountability framework.

Mr. Stephen McMahon

Before offering the floor to Ms Murphy, I will just address some other insights to this issue. I am not a legal person, but I have spoken to a few people and they say there will be very few courts which would make a decision simply on an apology. It would not really have that great a significance, albeit it is part of it. It may actually be to someone's credit. The reason we are looking for statutory mandatory open disclosure is that we are not of the view that it will drive things underground. We live in a law-abiding society where people abide by the laws as best they can. It is so important because we know from what is happening out there and from the various studies that they are the tip of the iceberg.

To try to answer Deputy Louise O'Reilly's question on accountability, it is true, as Mark is on record saying, that doctors, nurses, pharmacists, allied professions are all regulated. If they do not perform at their best, they can be hauled before the regulator and may ultimately lose their incomes. Within the hierarchy of the public service, there is not that accountability, but there should be. We hear at times, as the Deputies know themselves when they have heard about the reconfiguration of health systems nationally, that some service may be closed. However, we never see that resource actually moved to wherever it is supposed to go. That is part of accountability and open disclosure, too. It is not simply saying that it is the front-line staff who have to go and make that disclosure. If resources are needed to make the system safer, as we know there are having heard about one hospital yesterday that needs more investment, that is not within the remit of the CEO, the national director or the director of the HSE. It is up to the Government and the Department of Finance on behalf of society to make that investment.

We deal with about 500 cases per year and in the past 21 years that is a lot of people with whom we have had contact. In a huge percentage of those cases, the people were not interested in litigation. As Margaret and Mark said, they want to know what happened and why and an apology. We say to people that they should go back to the hospital in a year's time and see what has been implemented from the study. It is an aspect about which we do not often hear. What has actually come out of that event? I hope that has provided the committee with some insight.

Ms Margaret Murphy

I would like the committee members to put themselves in the shoes of someone who has experienced harm in health care and to ask what they would want for themselves. Would they really want the physician and the organisation to have the option to speak honestly to them or would they want the assurance that the physician or the organisation must speak honestly to them? If that is what the members would want for themselves, it is incumbent on them to make it possible for the rest of us. That is my stake in the ground as it were.

Furthermore, mandatory open disclosure will actually support staff rather than cause them to go underground. It will move the relevance of the training much higher on individuals' agendas and I imagine the uptake of training will increase. Staff themselves will demand high-quality training because it needs to be in the contract. This is part of how we do things in the health care system.

I mentioned Ms Linda Kenney and Dr. Rick van Pelt in the United States. He was the anaesthesiologist who made the error. This is all about people, specifically doctors who, having done harm, find themselves in vulnerable situations. It must be one of the most horrific experiences to know one has contributed to the death of an individual. The instinct is fight or flight, but we are better than the animals and we need to rise above that. Dr. Rick van Pelt connected with a part of himself he did not know existed. He so desperately wanted to speak to his patient. He was told by insurers, the hospital and colleagues not to go there and that he did not know the can of worms he would open. He went along with this advice for a while but eventually could not take it any longer and doctor and patient met. It was a difficult meeting between the doctor and the woman he almost killed, but he said that on that day, with great relief, an 800-lb gorilla got off his back. That is some image, to be toting around an 800-lb gorilla 24-7, and one can get shut of it by having a decent conversation with another human being. The sky will not fall. Together, Ms Linda Kenney and Dr. Rick van Pelt founded the organisation Medically Induced Trauma Support Services, MITSS, which supports patient, family and clinician when things go wrong. Good things can, therefore, come out of such cases. I have seen them present jointly at conferences and they are a wonder to behold. To avoid the wriggle room and confusion, that must be how things are done here. The members of the committee are the legislators. We ask them to legislate.

Would Mr. Molloy like to comment?

Mr. Mark Molloy

Yes. We live in a locality where there are many health care workers and front-line staff and we have found that most of them will tell us they would embrace open disclosure. It would give them a safe environment to disclose. Many staff will say a certain event happened not because of them but because of the environment in which they work. However, they fear management and they fear recrimination if they tell, almost like whistleblowers, but if open disclosure is in place as the law for all people, it creates a safe environment.

We regularly hear that our doctors and nurses are going to the United Kingdom, Australia, Canada and America. These are the hubs of open disclosure. It is the law in the United Kingdom. The NHS did not break down in 2014 when open disclosure became legal. Doctors and nurses are still entering the NHS. There is no fear on the part of medical staff and no desire to walk away from this. It has been embraced, and this is the direction in which people are going.

I have a fear, which I have mentioned to the Department of Health, that health care workers of a lesser ability may decide to come to Ireland to work because in the United Kingdom one must own up to one's mistakes whereas in Ireland one does not have to do so. Such workers may think they may sail under the radar for a while. It is important to note that when the former Minister for Health, Deputy Leo Varadkar, came to Portlaoise and spoke to families, the same names came up time and again. These were not one-off incidents. Had there been a legal duty of open disclosure, many of those repeat events may not have happened.

Regarding the accountability framework, the HSE is the biggest employer in the State, with 100,000 employees, and it does not have a mechanism to discipline its own staff. It is crazy. One staff member of Áras Attracta served some time in prison but he is still employed by the HSE. The HSE cannot discipline him under its own mechanisms.

Open disclosure comes to the fore in management. Nurses and doctors can appear before their professional bodies but only where a complaint is made, and this is important. We were told Mark's death was just one of those things and were told to go away. Had we done so, nobody would have been put forward to face questions as to whether they were fit to practise. We knew Mark died so we were able to follow up on the matter. What about the people who do not know an adverse event has happened? This regularly happens in the health service. This is the near miss. I work in construction. I am a quantity surveyor. Near misses are so important. They prevent things happening time and again. This is what needs to be reported on and this is why the accountability framework is so important. When these near misses occur, there is a legal duty on people to report them. We have a management investigation ongoing. I have the HSE's open disclosure policy here with me. Two of its signatories are people in front of whom Róisín and I sat before we went to the media. We appealed to them to do something about this. We said it is going on in every regional hospital in the State. They did nothing. Subsequently, when HIQA investigated the matter, they tried to block the investigation, and the investigation which in turn arose from that is ongoing. These are the signatories to the open disclosure document produced by the HSE. This is the top-down management that will introduce this voluntary measure across the board with which people will comply, yet they do not comply with it themselves. It must be on a statutory footing if it is to work.

The two final questioners are Senators Colm Burke and John Dolan.

I thank all the delegates for their very comprehensive presentations. I wish to start with Mr. Breen of the State Claims Agency. He might indicate to us the change in the level of litigation in the past three or four years, in particular the figures paid out in 2014, 2015 and 2016. What is his view in this regard for the next 12 months to two years? My understanding from listening to Deputy Kelleher this morning is that the figure has almost doubled in the past two to three years. Obviously, the system we have is not working. Therefore, it is important we take on board the open disclosure being talked about to see whether we can have a better system put in place.

The second issue I wish to raise concerns staffing levels in hospitals, especially where there is a whole changeover of medical staff. With nursing staff, there is a little more permanency, but many general doctors, in particular in the past few years, have been hired as locums and agency staff. I am concerned about the handover process within hospitals and whether we have a safe handover system. According to Mr. Breen's information, what is the evidence that this is causing some of the problems whereby, for example, an agency doctor is on one site today and a totally different site tomorrow and, therefore, the patients cannot get an explanation and the consultant is left trying to put the pieces together? From Mr. Breen's experience, has this been causing a problem?

Another issue is coming up which I have heard articulated by people who work in the hospital system. Given that so many staff have left the Irish medical scene and gone to England, Australia, Canada and the United States, we are not necessarily getting the best staff in many areas. The big challenge has been in maternity services. A report in 2003 indicated that by 2012 we should have 180 maternity consultants. Currently, I think we have about 130 whole-time equivalent consultants in maternity services. This is the field which sees the highest level of litigation. There does not appear to be an urgency on the part of the HSE and the Department to resolve this issue.

My final question is for Mr. McMahon. He talked about 21 years' experience. I know he is convinced this is the right way to go, but in those 21 years, has anything really changed or are we just getting more of the same?

I thank all of the delegates for their perspectives and being with us. I feel the need for a virtual moment to honour the fact people have died and have had their lives hugely changed. There are two parents here and there are so many others. I know from my own work in the disability area that some people got there for these reasons.

Mr. Ciarán Breen has a full understanding of the situation in which people find themselves. That said, the presentation by the State Claims Agency stated, "While acting in the best interests of taxpayers..." Taxpayers have a lot of skin in the game. They keep the whole show on the road and they have been under a lot of pressure. However, let us suppose the State Claims Agency's remit was to act, "in the best interests of the health and well-being of the people of Ireland". While the agency does not get to decide what are its terms of reference, I believe that is a significantly different place to come from. Mr. Breen might want to venture a comment on that.

Ms Murphy talked about the Canadian situation in recent years, the UK duty of candour and the Michigan experience. To what extent have those changes, and others like them, in any way impacted on Ms Murphy coming to her view? She also spoke about Dr. Rick van Pelt and his road to Damascus conversion, or at least it was not too different from it. It strikes me as an irony that he and many others were, in a sense, compelled to keep their mouths shut, and they are being told by the current system that the thing to do is to keep schtum, yet the view of the State Claims Agency and others is to let this be voluntary. Is there not a case to go down the road of a mandatory approach? If the place goes to the dogs in terms of claims, the State is well able to shut the door quickly if it needs to. Would that not be a better way to go at this time? We wear seatbelts and we do not drink and drive because of penalty points, not because we woke up some morning and realised, "I could die if I do not wear a seatbelt" or, "I could kill someone". It was that type of compulsion that led to people saying, "I should not even smoke in my own house, even though there is no law against it." Is it not possible that compulsion is the thing to wake up us lazy people and make us ask why we were not doing what we should?

I thank the delegates for attending.

As a GP, I know we all now engage in reflective practice. An extremely important part of what we do is to sit down and think what we have done this day, this week or this year. There is a growing acceptance among the medical profession that, rather than being diminished or disempowered by this, it is actually fulfilling and empowering for the doctor to do it. That is being carried out among all the medical professions, certainly in general practice. I just wanted to make that comment.

Ms Catherine Tarrant

I want to address Senator John Dolan's question about our mandate being to act in the best interests of the taxpayer, and whether, if our remit was to act in the best interests of the health and well-being of the people of Ireland, that would leave us in a different place. Mr. Breen and I want to clarify that when we speak about our mandate being to act in the best interests of the taxpayer, that is very much the part of our job that focuses on an unjustly inflated claim that may be made by a patient's solicitor or, indeed, a patient's family's solicitor. Where we come from in that regard is to deal with the quantification of claims and to ensure unjustly inflated claims are weeded out.

The nub of the issue I am trying to get at is whether it is voluntary or mandatory. I accept what Ms Tarrant is saying.

Ms Catherine Tarrant

From the State Claims Agency perspective, we always have a policy of admitting liability at a very early stage. As soon as the matter becomes clear to us that any substandard care has taken place, we have a policy of admitting liability early, where appropriate, and we make every effort to deal expeditiously with every meritorious claim that is brought to us. Mr. Breen has addressed our view in regard to the mandatory or voluntary position.

Mr. Ciarán Breen

If I could come back to that point, it is not that we have any kind of ideological objection to a mandatory or voluntary approach. It is a genuine feeling on our side, given we meet lots of participants in the health service such as junior hospital doctors, registrars, consultants, nurse practitioners and others. The view generally is that there are times when one has to compel people in terms of behavioural models in regard to drink driving and so on. It is different in the area of health, however, given the complexity that can attach to any particular case. For an obstetric case involving the tragedy of a cerebral palsy baby, for example, because it is so complex, the idea of a mandatory approach would drive people in a certain way and mean they will be more protective, rather than more expressive of an open and frank environment. That is our view based on-----

Could that mean that they are more protective in their practice?

Mr. Ciarán Breen

I mean more protective in regard to open disclosure. The Department has given evidence before the committee that it becomes something that requires to be done because it is mandated to be done, rather than something which should go to the absolute heart of the patient and health enterprise relationship. There should always be a voluntariness about admitting wrong when there is wrong. Our position consistently from the day we took over the clinical indemnity scheme has been that doctors or nurses should always admit when they are wrong and they should engage with the patient very frankly. We have always taken that view. There is nothing to be gained by our agency ever defending a case which is not defensible or where we are giving advice to people or having people who, as the Senator said, are compelled to keep their mouths shut. On the contrary, we tell people they should talk frankly to patients, they should tell them when they are wrong and they should tell them about what they are going to do within the system to prevent a recurrence. There would be nothing to be gained for us at the litigation end from defending something which is indefensible. As Ms Tarrant said, we always try, at the earliest point in time, to admit liability in the litigation process, rather than defend and deny, which leads nowhere other than to more excessive costs. I hope that addresses the point.

Mr. Mark Molloy

I will come in on the issue of box ticking, about which the Department of Health was worried. From my own experience, if the box had been ticked on the morning Mark died and somebody had held up his or her hands and told us why he had died, it would have saved us two, three or four years of absolute emotional torment in trying to find out why he had died. Róisín was also badly injured that morning and was lucky to pull through. As we sit here today, we still do not know what happened to her. The consultant will not tell us what happened to her and why she was injured. I would take a box-ticking exercise at any stage over the torment of trying to find out.

Ms Margaret Murphy

I have a number of points, the first of which concerns becoming overprotective in making a disclosure. The reality is that there is a very high level of overprotection. People are very careful about what they disclose. I cannot see it getting any worse; it is bad enough as it is.

It was absolutely wonderful to hear the Chairman describe what he and his colleague had in place. As a family, we have seen the dark side of health care, but we have also seen its bright side. Currently, our family are enjoying very good care from particular individuals in the health care system and it is right that I acknowledge it. I become very uncomfortable when I hear about the complexity of health care, that it is something special and different and that situations need to be handled differently from how they are handled in other industries. Open disclosure underpinned by legislation would be a comfort to health care professionals who want to disclose. They are doing it within the confines of the law and it would be a very real comfort to them. It would also be a great example for others.

Dr. Albert Wu talks about the golden moment, which he says is in the days and weeks immediately following an adverse event. He acknowledges all of the reasons Mr. Ciarán Breen mentioned people do not disclose or have an aversion to disclosing because they are very real concerns for individuals. Mandatory open disclosure will drive the training and supports that will be necessary to allow people to engage in it. It will help them to do it even better than the training provided. It will become the way things are done. It will be a big task and it will not be easy. A job of work will have to be done. It is not just about writing a few lines in a statute. I am totally convinced that it will be a wonderful job of work that will benefit patients, families, clinicians and the health care system as a whole. We are wonderful at writing policies and I see policies from all over the world. Ours are up there with the best of them, but we are absolutely rubbish at implementation.

Cultural change is exactly what we need to drive.

I asked a question about the Canadian, Michigan and UK experience of open disclosure. Has the State Claims Agency taken these or similar recent developments into account in coming to its view?

Mr. Ciarán Breen

Yes. Before we set out the project at the beginning in 2010, we carried out a great deal of research into how we could roll out our project. Having said that, when we rolled it out, we did not come to any conclusion until we got to the end of it and re-evaluated what it had achieved and what we thought the future might look like. We looked at all of the international comparators and the experience in other places and came to a view on the matter. I fully understand Ms Murphy’s position. I have a great deal of empathy for it and can understand that sometimes human behaviour has to be sanctions-led and mandated. We all understand this in terms of behavioural models. We took an overall view. I do not think there is a huge difference between us. If the Oireachtas was to decide this would be mandatory, those of us in the system who are dealing with it at our end and at the practitioner end would obviously get on with it.

I raised an issue about the level of compensation. Could it be dealt with?

Mr. Ciarán Breen

Can I answer it briefly because I understand we are under time pressure?

Mr. Ciarán Breen

There is no doubt that the cost of operating the clinical indemnity scheme which indemnifies all clinical negligence events is increasing sharply. I will say two things about this. In terms of international comparisons, because it has only been in place since 2002, our scheme is regarded actuarially as immature. It was always going to develop along a certain trajectory which is very much within our actuarial estimations. Having said that, there are a number of complications which arise largely from the fact that in the Gill Russell case the Court of Appeal confirmed the High Court's decision on reducing the discount rate, the rate used in calculating special damages related to the cost of future care and so on. It grossly increased the value of awards in catastrophic injury cases, in particular.

We have a system which we have tried to operate for families in which we operate what we call periodic payment orders. They are not underpinned by legislation. We wanted to give families certainty that they would receive the exact amount and that they would never have to worry about the risk of investment and so on. We did this on an interim basis in the hope periodic payment order legislation would eventually come through. I understand it will come through in the next while. We were settling cases on the basis of interim payments. They returned to court every two, three or five years, depending on the system we were operating. Unfortunately, what has happened is that, understandably, in very many cases, parents and families have run out of patience with the system. They do not like coming back to court on return dates. They do not like the fact that their children have to be re-examined. We understand this and sympathise with them. In many cases, people have opted for a lump sum rather than continuing periodic payments, but this complicates litigation costs. To give the committee an idea, this year we expect to spend somewhere in the region of €220 million on the clinical indemnity scheme. Next year we think that figure will jump sharply and probably exceed €300 million. There are certain volatilities and assumptions in our actuarial model about this. The ingredients are whether we will have the pre-action protocols and the periodic payment order legislation in place. If they were to be put in place, it would have a dramatic effect on how we might reduce the cost.

I thank Mr. Breen.

Is the other issue I raised about the changeover of staff a feature of cases? We have relied very much on agency staff, especially junior doctors. There is a very fast turnover of staff. Is this having a detrimental effect as a result on litigation?

Mr. Ciarán Breen

To answer that qustion very honestly, we have not picked it out as an issue which is driving litigation costs. The reason is that in very many cases, when one looks at liability and causation, one will find that there is a complex set of factors feeding into it. The Senator will not be surprised by this. We do not look at what an individual doctor does. We look broadly at how and why an event happened. Afterwards our risk management team tries to apply the lessons learned with the hospitals.

I have no doubt, however, that the resource issues which are recognised are contributing somewhat. One sees it mostly, for example, in emergency departments and such areas.

I thank Mr. Breen. On behalf of members, I thank the State Claims Agency representatives, Mr. Ciarán Breen and Ms Catherine Tarrant, and the Irish Patients Association representatives, Ms Margaret Murphy, Mr. Stephen McMahon and Mr. Mark Molloy, for coming to the committee to give evidence.

The joint committee adjourned at 12.50 p.m. until 1.30 p.m. on Wednesday, 14 December 2016.
Top
Share