Dr. Tony Holohan:

The advice I gave was that there had been advocacy for mandatory open disclosure in all circumstances. The advice I gave reflected on a review and examination of the international evidence which showed that, although it was almost counterintuitive, it was the case that mandatory open disclosure in all circumstances carried with it risks in the sense that it, first, sometimes conferred a view among medical practitioners that the risk of medical legal actions was increased, which could make them less likely and less willing to make such disclosures. If it is applied as written in all situations, as opposed to being targeted at the most serious cases, as we plan to do, it will unnecessarily bureaucratise the reporting and potentially lead to mandatory disclosure.

The reality is culture is what is important as opposed to law. The law may say something, but, frankly, doctors do not tend to look to it for guidance in conducting clinical practice. Something in the law might lead to more box ticking style reporting. We want to encourage the safe space and support the culture of open disclosure in its development by ensuring that when something goes wrong which is the reality and a feature of everyday clinical practice because the sciences, people and technologies are not perfect, the first thing that is done is that, rather than withdrawing from patients, as we have seen happen in some patient safety instances, doctors, nurses and other senior staff will metaphorically put their arms around the patients and support them through understanding. That is a relationship that is built over time; it is not a single event. Putting something in legislation on its own will not deliver that culture.

The view is that the combination of mandatory reporting, where appropriate, and voluntary support by giving doctors assurance that protection will be available in wider circumstances if they come forward and do the right thing in the so-called safe space will lead to and support more a culture of open disclosure. We will have standards for how that open disclosure should be done, recorded and so on. The science on it, so to speak, is not absolute. These are judgments. There is not a huge body of international evidence in that regard, but it tends to point in that direction. There are other areas of social science and so on where these questions also play out. The extent of mandatory reporting can sometimes actually drive down reporting, increase fear on the part of those reporting and so on.

That was the reason for the advice which the Oireachtas committee reflected in its report.