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.