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.