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.