Clare Daly (Dublin Fingal, Independent) | Oireachtas source

The key point is that there is a difference between the apology and information gathered in an open disclosure. What we are proposing would not change any of that in that apologies are indemnified legally and no admission of liability or nothing we are doing would change that in that it could not be used against somebody. What the Bill does do, however, is provide that information gathered through an open disclosure is prohibited from being utilised as evidence in later court proceedings, but that goes against the grain entirely. Denying in court a statement or evidence given in an open disclosure meeting will cause a huge problem. Consider the circumstances if the policy works properly and we all get to where we are trying to go, which would entail health service providers changing a deeply ingrained cultural problem in the service. Let us be honest about this problem. There has been a voluntary open disclosure mechanism in place since 2013 and it has not really changed anything. That is where our amendments are coming from. There has to be a means of forcing open disclosure. To say something produced in an open disclosure may not be relied on later by somebody in a court case is completely wrong. Where there is something in a file stating a certain incident occurred and the person concerned is not happy with the open disclosure process, he or she may decide to proceed to litigation later. The Bill should be about reducing the volume of litigation. Where the legislation would make knowledge disclosed of a certain incident inadmissible, one would have to employ really costly medical experts to obtain information proving the occurrence of what one knows occurred. There would be much more costly and lengthy litigation at the later stage. Information is never excluded from these processes. On the point I made earlier, it is still up to the courts to decide whether the action succeeds based on the information made available. We are just talking about the potential to hide information from the courts.

We do understand the Bill and that it is being put forward as a benefit for patients. That is what we would all like to see happen, but the way in which the Bill is framed is very much about preventing litigation and the fear of litigation which have been part of HSE culture in any case. The implication is that openness with information, apologies and all the rest will lead to litigation and more payouts whereas it should be the opposite. The evidence suggests it can be the opposite, which is what we want. We are about encouraging openness and reducing litigation, not the opposite.

There was a good quote from the British Government when it brought forward its duty-of-candour regulation of 2014:

One of the most commonly cited barriers to providers being candid is the fear that being candid and providing more upfront information about patient incidences can lead to a risk of increased litigation, and that offering an apology might be interpreted as an admission of liability. On the other hand, it has also been suggested that being candid can actually reduce litigation costs, as often the main motivation for bringing about a medical negligence claim is to seek more information about mistakes in their care, or due to a perceived failure of the provider to apologise. Overall the evidence on the likelihood of litigation is unclear.

Based on this, what we are trying to do is appropriate.