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.