Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I move amendment No. 24:

In page 25, line 35, to delete "may" and substitute "shall".

This is a substantial grouping and I will deal with the amendments in mini-groups. Amendment No. 24 is the most important. This relates to the discussion we have just had and, therefore, I will not repeat the points raised. I will, however, strengthen some of them. The Bill proposes a voluntary open disclosure system. It would be remiss of me not to point that there has been a voluntary open disclosure policy in our hospitals since 2013 and all the evidence and anecdotes point to the fact that it has not done much good. The UK system of a mandatory duty of candour is much better. When the Bill was before the health committee, it was stated mandatory open disclosure could make the reporting of near misses less likely, to which the Minister of State referred earlier, and that was teased out. The jury is out on that and the evidence does not necessarily support that.

Second, open disclosure of serious incidents is too important in the context of patient safety for disclosure by staff and health service providers to be left on a voluntary footing. This has to be viewed in the context of the ingrained culture in the health service to deny and cover up.

There are too many examples of this culture. The response of the health service to the hepatitis C scandal, the deaths of babies in Portlaoise hospital and cases of maternal deaths and catastrophic injuries has been to admit nothing. This approach is ingrained in the Health Service Executive and will not change if we say, "Listen lads, do not worry about it now." We have to tackle this culture head on.

Failure to introduce mandatory disclosure will result in honest health care providers that make disclosures being penalised because other providers do not disclose. This is a catch-22 scenario. I have been contacted, as I am sure have other Deputies, by people who have experienced serious medical negligence, particularly around births. Notwithstanding the voluntary open disclosure policy in place and despite having repeated meetings with the relevant health service provider, they were not told everything they needed to know. They had to take cases to court to obtain the information they needed, which is precisely what we are trying to avoid in this legislation. The Bill came about because of the policy of voluntary disclosure.

To give an example, one couple who contacted me had to pay €10,000 for expert reports to get answers about what happened to their child. They also had to pay for specialised health care for their child for the three years it took for the case to come to court. Voluntary open disclosure will not address any of these cases because it is already in place. Mandatory open disclosure and the measures provided for in our amendments, including the protection provided in cases where apologies are made, would go a long way towards addressing this issue. Amendment No. 24 is of particular importance to us.

A second group of amendments provides that the disclosure will take place as soon as practicable after the incident. As currently drafted, the Bill leaves it to the health service provider to make a disclosure at a time it considers to be appropriate. A more speedy reply should be mandated. Obviously, it would not be appropriate for a service provider to have a meeting when the person is still ill or sick. The provision that the hospital will make a statement when it is appropriate to do so, having regard to the health of a patient, goes without saying. The term "as soon as is practicable" covers this but the current wording is too open-ended.