David Stanton (Cork East, Fine Gael) | Oireachtas source

I am concerned that the Deputies do not understand the aim of the legislation and have missed the philosophical point, as Deputy Daly called it. I understand there was extensive pre-legislative scrutiny by the Oireachtas Joint Committee on Health, as mentioned by Deputy Daly. The matter has been examined.

This set of amendments relate to the protections given for open disclosure in relation to admissibility. Part 4 provides for certain protections for information given to the patient at an open disclosure meeting, including that the information and written statement given to the patient are not admissible as evidence of fault or liability in a court in relation to the patient safety incident or a clinical negligence action that arises from the consequences of that patient safety incident. I think we are in agreement. That is the nub of the matter. Deputies Daly and Wallace have proposed changes to this provision. Again, my colleague, the Minister for Health, appreciates the reasons for their concerns. I will expand further on the reasoning that led to the approach that has been taken here.

Open disclosure should be a genuine engagement between the patient and his or her doctor or health service provider. It should not be hindered by other concerns and fears. However, a persistent barrier to open disclosure, one which has been recognised in other jurisdictions and which has emerged from Irish research into this issue, is the perception of negative legal consequences arising from engaging in open disclosure. The origins of the provision in Part 4 on non-admissibility as evidence of fault or liability lie in the recommendations made by the Commission on Patient Safety and Quality Assurance in its report called Building a Culture of Patient Safety. The commission was chaired by Professor Deirdre Madden. It identified fear of litigation as a barrier to open disclosure. It recommended that legislation should ensure that open disclosure, which is undertaken in compliance with national standards, cannot be used in litigation against the person making the disclosure. Fear of litigation was also a consistent issue raised in the HSE's evaluation of the national open disclosure pilot scheme. The Oireachtas Joint Committee on Health was sympathetic to the view that buy-in is essential to open disclosure. The culture in our health service can sometimes stand in the way of people making open disclosures and this fear is part of that culture.

The intention behind Part 4 is to initiate a culture shift by supporting an environment where the patient's information needs can be addressed positively and as soon as possible. Patients will receive information applicable to the patient safety incident in an open disclosure made under Part 4. Moreover, they will still have full access to their medical records which, in line with good professional practice, will contain all information relevant to their care and treatment and will continue to be admissible. On balance, it is considered that the system of open disclosure provided for in the Bill offers the greatest likelihood that patients will receive the information they seek after an incident without the need to resort to the courts system simply to get a straight answer.

A consistent theme from patients is that they prefer to receive information and explanations and, where appropriate, an apology directly after an incident and not have to go down a legal route to get this information or apology. Litigation may sometimes be inevitable, but it should never be the case that a patient or his or her family has to go to court simply to find out information on a patient safety incident. Ultimately, open disclosure is a human process underpinned by honesty and respect. The intention behind the legislative provisions to support open disclosure is to create a safe space in which honesty and respect can flourish and lessons can be learned by health service providers and health practitioners and acted on to improve the health service.