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

Perhaps I am very cynical, but I believe it will be hard to separate litigation from the open disclosure process. If a lawyer is making a case on behalf of someone who is claiming medical negligence, a doctor having previously apologised for the matter in question will be a very powerful piece of evidence if liability is denied.

Line 15, on page 23 of the Bill, was referred to by Deputy Clare Daly. It states the disclosure or apology shall not, notwithstanding any other enactment or rule of law, be admissible as evidence of fault or liability of the hospital or the doctor. It does not state the apology shall not be admissible but that it will not be admissible as evidence of fault or liability. I would have believed somebody taking a case on behalf of an individual who was apologised to by a doctor could produce that evidence at a hearing and state he or she was not relying on it as evidence of fault for liability but to ask the doctor whether he had apologised to the client after the operation. That will obviously be a powerful piece of evidence in front of a judge. If a hospital or a doctor apologises, or if there is disclosure, it will come out, but it cannot be relied on by the court as evidence of fault or wrongdoing. It is, however, relevant in terms of the general factual matrix of the case. The concerns of Deputies Clare Daly and Mick Wallace will not be as problematic for a person taking a case as interpreted on a first reading. One will be able to get the evidence in, which is why I might be cynical about the potential effectiveness of this measure. This is very worthwhile legislation. Let us try it. There will, however, be a very close parallel with litigation.