Alex White (Dublin South, Labour) | Oireachtas source

That is not true.

I want to address the other points. Deputy Shortall spoke about a concern, if I understand the point, that if a psychiatrist was asked to make a certification and declined to make a certification, would he or she then be in a position where they would have a concern that they might be subject to litigation in the future, having declined to make a certification. The normal rules of medical negligence apply here. The famous case of Dunne and Holles Street hospital is the case we all know about, which set out the basic principles of medical negligence. In terms of the true test, it is that as long as a doctor is acting in a way where he or she is not guilty of the kind of failure that no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care. It sounds a little clumsy but that is the test well known and applied by the courts every day of the week. The same principles apply in these circumstances as would apply generally. One would have to prove that the doctor had deviated from a general and approved practice.

We know there is a broader debate about defensive medicine, namely, that there is a concern that doctors not just in this country, but in different parts of the world, are acting in a way that always has an eye on the possibility of being sued. We are all aware of that problem and that general challenge in medicine that it should not become defensive medicine and that doctors should not act all the time or at any time thinking about what will happen if they are sued. It is no different here than it is in any other similar circumstances. Deputy Shortall, or the Chairman, can correct me if I am wrong on this but the psychiatrists in the two sets of hearings raised many issues but I do not remember that issue being raised. I say that tentatively. I may be wrong but I do not remember any of the psychiatrists worrying that they could be sued for declining to make a certification in the circumstances outlined by Deputy Shortall. I respect the point but the specific concern the Deputy has raised is misplaced.

The last point I will make concerns what Deputy Mulherin said, and I do not want to add too much to it other than to say that we are all familiar with a commonly known phrase, justice delayed is justice denied. It means that if a person does not get justice at the time their right has been engaged, it is just as bad as depriving them of the right. If somebody engages a constitutional right and that right and entitlement is his or hers, delaying it is tantamount to removing that right. We cannot do that, and it would certainly be unconstitutional. Delay is just as bad in many circumstances as removal of the right, and we cannot do that.