Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

Mandatory apologies are unusual in our law. In defamation cases, one of the remedies a person generally seeks and gets is an apology but there is nothing in the Defamation Act to say that a publisher is mandated and required to apologise; it is something one does if one wants to. Members are trying to present this legislation as though its result will be harmonious and that doctors and medics will put their hands up. Unfortunately, it is unlikely that that will happen. Insurance will have an impact on that. Insurance companies will insist that doctors disclose in their policy renewals whether they have had any patient safety incidents, made any open disclosures or apologised under this legislation.

The reason I asked about the UK is that although there is a duty of candour, there is nothing as specific as this legislation. There is a provision at section 10(1)(c)(ii) of the Bill stating that if one makes a disclosure or apology it will not "invalidate or otherwise affect" a contract of insurance. I am concerned that many insurance providers will now stipulate that contracts of insurance will be governed by UK law rather than Irish law, which will mean that individuals will have to disclose whether they have been party to a patient safety incident or to an apology.

On the issue raised by Deputy Clare Daly regarding an apology, the amendment under consideration is amendment No. 17, which proposes to delete “where” an apology is made and substitute “when” an apology is made in section 10(1) and I am sure that subsequent ones seek to mandate it. An apology has legal consequences. Irrespective of what is set down in this legislation, an apology can have future legal consequences. On balance, an apology should be voluntary and genuine. To force a person to apologise takes that away. As I said, I could be wrong.