Seán Fleming (Laois, Fianna Fail) | Oireachtas source

I cannot accept that answer as I do not think it is adequate. Mr. Breslin specifically said, in relation to open disclosure, that the matter was dealt with last year by way of the Civil Liability (Amendment) Act 2017, to which I am sure he was referring. This committee has been dealing with this issue and the State Claims Agency for quite a considerable period. I will display on the screen the letter that we received from the HSE on 8 February 2018 specifically dealing with open disclosure. I will read one paragraph from the letter because I do not believe that the matter has been dealt with at all by the Department. I refer to PAC No. 1075B, dated 8 February 2018. There was a substantial document from the HSE about open disclosure with which Mr. Breslin will be familiar. Let us look at near the end of the last page of the letter from the HSE that deals with legislation. The letter was written to the committee on 8 February of this year. The letter reads, "One of the main barriers to open disclosure identified in the independent evaluation of the national programme is fear of litigation." Mr. Breslin has just said that and he said that he had dealt with that. The letter continues:

This is a barrier which is identified in many international studies. This has now been addressed in part 4 of the Civil Liability Amendment Act 2017 which provides protective provisions for staff when they engage in open disclosure in that the disclosure and any apology provided cannot be used as an admission of liability in a court of law. This will have a significant impact when commenced [I emphasise that the last two words are "when commenced".] in relation to increasing the confidence of staff when engaging in open disclosure discussions with patients/service users.

This committee received the letter on 8 February. I tabled a parliamentary question to the Minister for Health immediately after we received the letter, on 27 February, asking when section 4 of the Civil Liability (Amendment) Act 2017 would be commenced, and if the Minister would make a statement on the matter. Part 4 of the Act is headed "Open Disclosure of Patient Safety Incidents". Therefore, we are talking about Part 4 of the Act. The reply to my parliamentary question reads as follows:

Part 4 of the Civil Liability (Amendment ) Act 2017 which provides for the voluntary open disclosure of patient safety incidents was signed into law in November 2017.

Work has commenced on the drafting of Regulations to accompany Part 4 of the Act. Consultation with the various stakeholders including the Health Service Executive, HIQA and the Regulators is underway. It is intended to commence Part 4 in the near future.

More than three months ago, we were told it was intended to commence Part 4 in the near future. Those provisions on open disclosure that the Secretary General referred to in the Act, passed by the Oireachtas on 22 November 2017, have not commenced. This week, the Minister stated in the Dáil during the debate on this topic, “The legislation to provide for a voluntary approach to open disclosure has been enacted following the passage of the Civil Liability (Amendment) Act 2017 and regulations flowing from it are due to be brought forward shortly.” The Secretary General's said here today, “This legislation has since been enacted, following the passage of the Civil Liability (Amendment) Act 2017, and regulations flowing from it are due to be brought forward shortly.” Six months after legislation was passed, the Department of Health has not brought forward the regulations to commence the legislation which was passed by the Oireachtas on 22 November 2017.

Will the Department take me through the steps of who is working on this and at what stage of preparation are these regulations? Without these regulations, we have no open disclosure. The HSE has my sympathy being caught in this bind. It has had a national policy of open disclosure from 2013 but it cannot implement it because the Department has not given it the legislative framework to do so. The Secretary General stated today that is why provisions for mandatory open disclosure will be incorporated into the forthcoming patient safety Bill. How about implementing the legislation we passed six months ago? The Department should not talk to us about what it is going to do in the future when it is sitting on legislation for six months which it has not yet implemented. The HSE and the clinicians are in a bind and are no better off with the passage of this legislation. Why has there been a delay? As Chairman of this committee, I have been on this case with letters, parliamentary questions, opening statements and Minister's statements. They say it is all going to be done in the near future and shortly. Who in the Department has been working actively on these regulations to allow open disclosure to have any effect? How close is the Department to having this matter concluded? It is wishful thinking to be talking about the next batch of legislation when Department has not implemented the last.