Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I move amendment No. 18:

In page 23, to delete line 14 and substitute “incident.”.

I am beginning to lose my way with these amendments, which makes a great argument for pre-legislative scrutiny. This subject is a complex issue and in some ways philosophical.

Deputy Wallace and I tabled these amendments because we felt that section 10 required a lot of amendment. Section 10 holds that neither the information provided nor an apology made during open disclosure will be admissible as evidence in court in regard to any action that arises from the patient safety incident that has been disclosed. It also holds that the information provided, and an apology when it is made, will not be admissible as evidence in a professional malpractice or misconduct investigation, etc.

As I pointed out on Second Stage, that factual information at an open disclosure meeting could potentially be denied later by a health service provider in court is mental. Such a situation is completely contrary to the principles of natural justice. The Medical Injuries Alliance has pointed out that the scenario is abhorrent to the administration of justice. I refer to a court being precluded from considering information necessary to establish the relevant facts before making a decision on a question of liability. This is a huge issue and, therefore, this group of amendments is one of the key important groupings.

The proposal to prevent a patient from being able to rely on information provided during the open disclosure process will have the opposite effect and breed more distrust. Let us say a patient is provided with clear and frank information on what caused an adverse incident but later the very same facts or version of events are denied by the service provider. What will that scenario do for a patient's trust? His or her trust will be shattered. That is why my colleague and I made a distinction between an apology and information. To deny factual information under open disclosure being used later on is completely wrong. People gave evidence to the Oireachtas Joint Committee on Health during pre-legislative scrutiny on this matter. We are saying when litigation does occur, it should happen speedily. If people are denied access to information they know exists or are prevented from using it, we will get into big costly proceedings. The victims will have to pay their legal representatives to unearth the information through other processes. The amendments call for the court to have the ability to evaluate all relevant factual evidence on foot of the incident in question. This includes facts developed in open disclosure and any records for the purposes of making the disclosure. That does not mean that the case will be lost or that the person's court proceedings will succeed. The court must still evaluate the claim. To deny information that exists as part of these proceedings would be completely wrong and that is why we tabled our group of amendments. We have made a distinction between the information and an apology, which feeds into the earlier discussion.