Jerry Buttimer (Cork South Central, Fine Gael)
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I apologise for the late start. This meeting must conclude at 11.20 a.m. because we have a long-standing appointment with the European Commissioner for Health and Food Safety which will begin at 11.30 a.m. and we must allow for the changing of equipment. I remind members and those in the Visitors Gallery that mobile phones should be turned off as they interfere with the broadcasting of the meeting, even when in silent mode.

The first part of this meeting concerns the rising costs of professional medical indemnity insurance. The cost of medical indemnity insurance has risen by at least 40% in the past 12 months and could increase further. We will hear evidence from a number of representatives of the medical profession and insurance bodies with a focus on the rising costs of premia. I welcome representatives of the Irish Hospital Consultants Association, the Irish Medical Organisation, the Medical Protection Society and the State Claims Agency. I also welcome people in the Visitors Gallery and those watching and listening at home and online. It is important to note that a further committee meeting will be held on Tuesday, 27 January to hear parents' perspectives on clinical negligence.

Before we commence, for the information of our guests, I draw to their attention that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the joint committee. If, however, they are directed by it to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable. I ask witnesses to note that we have a busy schedule this morning and to confine their opening statements and remarks to the allocated time of six minutes. This will be followed by questions and answers from members. I ask members to be concise and precise in their questioning. I am sure witnesses will be able to give us any further information we require afterwards. I invite Mr. Ciaran Breen, director of the State Claims Agency, to make his opening remarks.

Mr. Ciaran Breen:

I thank the Chairman and the committee members for the opportunity to address them on the challenges facing the medical profession and consultants in particular arising out of the high cost of professional medical indemnity. By way of introduction, the NTMA is designated as the State Claims Agency, SCA, when performing the claims management and risk management functions delegated to it under the National Treasury Management Agency (Amendment) Act 2000. The SCA's principal objectives are to ensure that the State's liabilities in respect of personal injury and property damage claims and the expenses of the SCA in respect of their management are contained at the lowest achievable level and to implement targeted personal injury and property damage risk work programmes to mitigate litigation risk in State authorities and health care enterprises to reduce the cost of future litigation against the State. The SCA's remit covers personal injury and third-party property damage risks and claims relating to certain State authorities, including the State itself, Ministers, the Attorney General, health care enterprises, the Commissioner of An Garda Síochána, prison governors, community and comprehensive schools and various bodies.

In October 2013, the Government delegated to the SCA the management of personal injury claims concerning the ingestion of the medicinal products Celvapan and Pandemrix. In April 2014, the SCA's remit was further extended with the delegation to it by Government of the management of personal injury and third-party property damage claims in respect of an additional 61 public bodies, bringing the total number with the SCA's remit from 56 to 117.

We have 2,840 current clinical claims under management. The estimated contingent liability in respect of those claims is €1.159 billion. Clinical claims are managed under a number of separate schemes by the SCA. Under the main scheme, the clinical indemnity scheme, the State has assumed responsibility for the indemnification and management of clinical negligence claims arising from the diagnosis, treatment and care of patients in public health care enterprises. The SCA resolved 487 clinical claims during 2014 at a cost of €70 million. The SCA achieved significant savings in the management of personal injury claims in 2014. An independent actuarial assessment projected that €202 million would be required during the year to cover both the cost of resolving claims and managing ongoing active claims. The net cost, taking account of successful recoveries from third parties, was €104.6 million, which was a saving of roughly 48% compared with the actuarial projection. We received 609 new clinical claims in 2014. Maternity services related claims, which are largely obstetric claims, accounted for 23% of all new claims and 61% of the estimated liability of all new claims due to the high values associated with these types of claims.

On the number of claims received by specialty and cost and the cost of claims resolved, the average cost of personal injury clinical claims resolved in 2014, which includes awards, settlements and related legal and other costs, was on average €140,000 compared with €67,000 in 2009. We point out that this increase is mainly due to the lag effect of 2,500 consultants whose claims were previously handled by medical defence organisations joining the clinical indemnity scheme from February 2004. Inevitably, this has resulted in a significant increase in the number and severity of claims. In maternity services cases, particularly those involving brain injury to infants, there is typically a period of five to seven years between the date of the adverse event which gives rise to a claim and the date of resolution of the claim. An additional factor in the higher average cost per claim was the High Court decision in a 2009 precedent case to increase by 38.5% the level of general damages in catastrophic injuries cases from €325,000 to €450,000. Legal fee costs have increased in conjunction with award settlement costs. The table with my presentation sets out the detail in the years 2008 to 2014 of all the claims that have been resolved.

Under the clinical indemnity scheme, the SCA has responsibility for indemnifying consultants in full-time and off-site private practice, by reference to the caps arrangements, in respect of clinical claims which exceed certain limits or caps. The caps arrangements and their cost to date to the clinical indemnity scheme are more fully described in the submission we gave with this opening address.

Jerry Buttimer (Cork South Central, Fine Gael)
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I thank Mr. Breen. I invite Mr. Simon Kayll, chief executive of the Medical Protection Society, to make his opening remarks.

Mr. Simon Kayll:

We have provided a submission and I will speak to it briefly. I thank the committee for the opportunity to present to it today. We absolutely appreciate the difficulty that our subscription rates may cause some consultants. The subscription increases that we felt it necessary to apply over recent years have certainly made the rates significant and difficult for some consultants to afford. We appreciate that this may be causing them concern and potentially driving them away from practice, which may put more pressure on the State. We feel we have to charge the subscription rates we believe are necessary to cover the costs we are incurring on behalf of our members. We have to be financially secure as we are providing an indemnity to them for many years into the future.

It can be five, ten, 15 or even 20 years, in extreme cases, between an incident and the payment of compensation. MPS, the Medical Protection Society, is a not-for-profit organisation that does not have shareholders but is a mutual company owned by its members. All moneys paid by them are retained in the organisation for their benefit. It has been operating for 123 years, providing membership in Ireland for 100 years. It is the world’s leading protection organisation for doctors, dentists and health care professionals, protecting and supporting the professional interests of more than 290,000 members around the world and more than 16,000 in Ireland. MPS is committed to Ireland and will stay for as long as its members wish. It is not an insurance company, and all benefits of membership are discretionary.

MPS provides indemnity for clinical negligence claims, a range of additional supports for our members who may be subject to regulatory matters, complaints or inquests, and a range of risk management and education courses. The indemnity provided is occurrence-based protection, while that of insurance companies is on a claims-made basis. Occurrence-based indemnity means that if a practitioner is a member at the time an adverse incident occurs, he or she can ask for assistance years later even if he or she is no longer a member or has ceased practising. Claims-made cover, as provided by insurance companies, means the member must pay continuously.

There has been a deterioration in the claims environment for GPs, dentists and consultants. The latter has been more extreme as a combination of both the number of claims reported and their severity. We provided a graph in our submission comparing the experience in Ireland to that in other countries, in which one will see a rapid increase over the past several years in Ireland. I must point out that these are actuarial estimates of the cost of indemnity for claims per member for the year in question. The impact of the deteriorating claims environment is felt differently by MPS than the State Claims Agency because MPS has to fund itself on a prospective or pre-funded basis, collecting money now for incidents which occur this year but for which claims may not arise for many years in the future.

How are we dealing with this deterioration of claims? Before we put up our subscriptions in the middle of 2014, we delayed for three months while we communicated with stakeholders, including the Department of Health, the Irish Hospital Consultants' Association, IHCA, the Irish Medical Organisation, IMO, and our members. This was to educate and communicate to them what was going on and to see whether there was any short-term relief that could be applied, particularly through a reduction in the indemnity caps. Subsequently, we developed a campaign highlighting the effects that the reform of tort law and the legal process would have on the future costs of clinical indemnity.

We do not believe indemnity costs have increased because of a deterioration in professional standards. The economic climate that has pertained may have given rise to some issues. There is growing evidence, not only in Ireland but other countries, that a poor economic climate encourages patients to sue. Lawyers who might previously have earned income through commercial work that has dried up may turn their attention to personal injury claims. These problems are further compounded by the lack of an efficient and predictable legal process. General damages, special damages and the legal costs associated with resolving claims tend to be higher in Ireland than we experience elsewhere.

We have launched a campaign for procedural and tort law reform. There is a need for urgent introduction of a pre-action protocol, recommended by the working group on medical negligence and periodic payments, as well as judge-led case management.

Following a review of the US and Australian experience of similar deterioration in the claims environment and their responses to this, we have put forward several significant recommendations which we believe could begin to tackle these concerns, such as a tariff of general damages, a limit on general damages and making legal fees more proportionate to the size of claims.

Jerry Buttimer (Cork South Central, Fine Gael)
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I call on Mr. Martin Varley of the Irish Hospital Consultants Association, IHCA, to make his opening statement.

Mr. Martin Varley:

I thank the Chairman and other members of the committee for the opportunity to address them on this important issue.

Acute surgical and medical services are provided through 50 public and 20 independent acute hospitals. There are approximately 2,600 approved public contract consultant posts in public hospitals, of which more than 200 posts are vacant or filled through temporary ad hocarrangements, more than 400 are consultants who practise exclusively in independent hospitals, and up to 600 are consultants who may practise on a part-time basis in independent hospitals. Independent hospitals carry out about 250,000 theatre procedures annually, accounting for about 40% of the total number of procedures requiring anaesthesia in acute hospitals. Consultants in private practice also provide care for medical patients and are responsible for a significant proportion of outpatient consultations.

All hospital consultants in public and independent hospitals are required to be indemnified against claims for medical negligence as a condition of their employment or practice rights. This will soon become a statutory requirement. The cost of clinical indemnity for private practice consultants has doubled for certain specialties in the past two years. In the past year alone, clinical indemnification charges payable by consultants in private practice increased on average by around 40%. Charges for those in high-risk categories, which include most surgical specialties and obstetrics, increased by between 54% and 68%. These increases in 2014 were on top of increases of between 49% and 67% implemented since 2008, including increases of up to one third in 2013 alone. The effect of the foregoing is that indemnity charges have increased to unaffordable levels for consultants in private practice, as highlighted by the following approximate annual charges. These are €337,000 for obstetrics; €104,000 for neurosurgery and spinal surgery; €97,500 for bariatric surgery, gynaecology, orthopaedics, excluding spinal surgery, plastic surgery and refractive laser surgery; €77,000 for cardiothoracic surgery, general surgery, ophthalmology, otorhinolaryngology, urology and vascular surgery.

Substantially increased indemnity charges have become increasingly unaffordable in the light of cuts in health insurer procedure fees of 20% or more since 2008. The ongoing uncertainty with regard to future indemnity costs is exacerbating the situation. The indemnification increases have been attributed to a higher frequency of claims in Ireland, increased awards in the courts and lack of progress in reforming the law in medical negligence claims.

The need to reform the law in this area was identified as an urgent requirement when the State Claims Agency’s clinical indemnity scheme was established over a decade ago. At the time, caps were introduced so that the cost of indemnity would be affordable. It was recognised at the time that €100,000 was regarded as the limit of affordability for obstetrics and the annual charge for surgery was about €30,000 at the same time. Today’s costs are around three times those levels, highlighting the extent of the problem that has arisen in the interim.

The cost of indemnification for consultants in Ireland is a multiple of that charged in the UK and other jurisdictions. This is primarily due to the fact that the UK reformed the law over a decade ago to address the issues which were driving up their costs and similar actions have been taken in other jurisdictions. In contrast, no reforms have been implemented here. If the law were eventually reformed, it would take several years to affect costs.

The net effect of the escalating costs of indemnity charges is that an increasing number of consultants have ceased private practice. An estimated 20 consultants ceased private practice in 2014 because the cost of clinical indemnity has become unaffordable, and more are planning to cease in 2015 if the unaffordable costs are not addressed. This includes cessations in general surgery, ENT, orthopaedics, pain medicine, neurology, gynaecology, urology and other specialties. Full-time private practice obstetrics is no longer viable in the State. It seems highly likely that many private practice vacancies will remain unfilled unless the escalating indemnity costs are addressed. If they are not addressed, the current crisis will result in fewer patients being treated in private hospitals, which currently treat around 40% of surgical patients requiring anaesthesia and a significant number of medical patients as well as being responsible for a high proportion of outpatient consultations. As a result, more patients will be forced to seek surgical and medical care in public hospitals, which had approximately 60,000 patients on their elective surgery waiting lists in October, an increase of 20% on October 2013. In addition, as we all know, 377,502 patients were awaiting outpatient appointments in public hospitals as of October 2014.

The working group on medical negligence, chaired formerly by Mr. Justice John Quirke and now by Ms Justice Mary Irvine, has submitted a report to the President of the High Court and the Minister for Justice and Equality with recommendations for the introduction of pre-action protocols, including the related draft legislation as outlined by Mr. Simon Kayll. The protocols, if introduced, would assist in reducing uncertainty and the costs associated with medical negligence claims, as has occurred in the UK. The working group has submitted an additional report on proposed rules of court for more intensive case management of medical negligence cases, including a requirement for the exchange of information within defined time periods, as applies in the Commercial Court, in order to reduce delays and costs.

In November 2014, MPS published a paper entitled Challenging the Cost of Clinical Negligence: The Case for Reform, which the IHCA supports. Mr. Kayll has outlined the details of that report to the committee. The association has written to the Minister for Health and the Minister for Justice and Equality requesting urgent reform of the law and implementation of the recommendations of the working group on medical negligence. I stress that reform of the law in this area represents the fundamental solution to the problem, but it will take time to implement and take effect. Separately, for that reason, the association has been in regular contact with the Minister for Health and his senior officials in the Department of Health and also with the State Claims Agency on proposals that could address the crisis in the interim, because reforming the law will take time and we are concerned about a significant exodus of consultants from private practice.

The Department has analysed the potential benefit of reducing the caps under three scenarios. Reductions in the caps would deliver lower indemnity charges for consultants, and this is one of the potential solutions that needs to be considered. The potential benefit of the State Claims Agency offering indemnity cover for consultants in private practice has also been discussed. It is the view of private practice consultants that this option should be assessed further in a committee with members from the Department of Health, the State Claims Agency and the IHCA. The establishment of the proposed committee is essential to advance the assessment of the most effective solutions to address the unaffordable cost of clinical indemnity.

While we understand that work has been advanced to assess a number of potential solutions in conjunction with the State Claims Agency, the unfolding crisis is expanding at a rapid pace. In the absence of an effective solution, a growing number of consultants are considering ceasing private practice or either retiring early or emigrating to where they can practise with affordable indemnity. Unfortunately, such developments will result in greater delays in treating patients and longer waiting lists in already extremely overstretched public hospitals. The association welcomes the opportunity to discuss these critically important issues with the committee and we look forward to answering questions from members.

Jerry Buttimer (Cork South Central, Fine Gael)
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I thank Mr. Varley and I welcome Professor Trevor Duffy, the president of the Irish Medical Organisation.

Professor Trevor Duffy:

The IMO would like to thank the Chairman and the committee for the invitation to present our views today on how to tackle the rising cost of professional medical indemnity insurance. I will not rehearse the increases outlined by both the State Claims Agency and the MPS, nor the impact this is having on current private practice as outlined by Mr. Varley. While we recognise that there has been an increase in both the quantity and size of settlements in recent years, an inefficient and lengthy legal process has been blamed for the rise in claims costs. Recommendations to make the litigation process more efficient and less costly are welcome and necessary in the immediate term; however, the IMO is of the view that in order to reduce the cost of claims, litigation should be a last resort after all other avenues have been explored. We firmly believe that any system of negligence should have the primary aim of improving the quality and safety of clinical care. In our view, litigation is not good for the patient, the doctor or the State. Patients have often experienced significant trauma or injury as a result of an adverse event. For many patients, lengthy and expensive court proceedings are often the only recourse available to them in order to receive an explanation and compensation for what happened and to ensure appropriate long-term care and support. This process can subject the patient to a considerable level of emotional stress and may serve to aggravate the patient's condition.

Doctors are often the second victims of an adverse event. The majority of doctors undergo a significant level of emotional stress as a result of litigation and fitness to practise procedures that accompany litigation. Fear of damage to their reputation and loss of livelihood can impact on a doctor's psychological and physical health, resulting in anxiety, depression and an exacerbation of existing health problems.

In addition to the growing cost of claims experienced by the State Claims Agency, the consequence of an adversarial litigious system is that doctors will often practise defensively, such as ordering more diagnostics or treatment than necessary, or they may avoid treating certain high-risk patients. For some it may lead to early retirement, or they may discourage others from entering the profession.

The majority of health care professionals aim to provide the best care for their patients. Rarely is harm due to wilful misconduct. Most often, harm is due to systems failure or unintentional human error. Alternatives to legal proceedings should be explored. Court proceedings can often be avoided if there is full and open disclosure, including an apology, following an adverse event. Fear of litigation is a major barrier to frank apology and communication with patients following an adverse event, and health care staff are often the second victims of such events. We have been awaiting the publication of the health information Bill since 2006, which was intended to provide protection to a health professional from admitting liability when apologising. This would be a major step towards promoting open disclosure and changing the culture of adversarial litigation following an adverse event. Rather than focusing on apportioning blame, open disclosure policies should support patients and doctors and focus more on learning from adverse events in order to reduce harm and improve patient safety.

The Government could consider the introduction of a no-fault claims system for certain cases. While the UK rejected a no-fault claims system for fear it would increase the number of claims, other countries such as New Zealand and the Scandinavian countries have had no-fault systems in place since the 1980s. Under no-fault claims systems it is no longer necessary to prove clinical negligence but patients must prove that the treatment or medical process caused harm. There is generally some guidance on compensation payments and in some countries the system is limited to certain types of injury. Since introducing a no-fault claims system in 2004, court proceedings for clinical negligence in France have been reduced to one third.

There is a need to promote alternative dispute resolution mechanisms such as mediation, arbitration or collaborative practice. Collaborative practice requires the patient and his or her family, health care professionals, solicitors and insurers, to commit to an open and transparent resolution of the dispute without going to court. In the event that clinical negligence cases end up in the courts, a number of organisations and groups have recommended changes to tort law and the litigation process in order to speed up the process and reduce the cost of litigation. The working group on medical negligence, litigation and periodic payment orders, chaired by Mr. Justice John Quirke and subsequently by Ms Justice Mary Irvine, has made recommendations to the Government on periodic payment orders, pre-action protocols and case management rules. The Law Reform Commission recommended that tighter limitation periods for commencing legal proceedings could reduce the cost of insurance. In addition to these measures, MPS has recommended that the tort of clinical negligence should be more clearly defined; that limits are placed on damages awarded; that a certificate of merit should be introduced to ensure only meritorious cases are brought forward; and that a cap is placed on lawyers' fees for smaller-value cases.

Furthermore, we believe that health services in Ireland have been subject to unprecedented budget cuts over the past six years with no measurement of the impact of these cuts on patient safety. Between 2008 and 2014, health service funding has been reduced by 27%, or approximately €4 billion, while staffing levels have been reduced by 11%, or nearly 13,000 whole-time equivalents, since peak levels in 2007. In the same period, the number of acute hospital beds in the system has decreased by 1,631, or 13%. In the meantime, demand on the hospital system has risen, with emergency department, inpatient, outpatient and day-case activity increasing steadily. Under-resourcing and understaffing are regularly cited as contributing to major adverse events. A study from Germany found a tipping point estimated at 92.5% bed occupancy whereby clinical staff become more prone to error due to rationing of resources and elevated stress levels. The impact of political financial decisions on patient safety must be recognised and financing and staffing levels must be restored to stabilise the hospital system.

We believe in an automatic entitlement to health and social services for people with disabilities. People with disabilities should have automatic entitlement to health care and social supports, including access to community therapy services afforded by a medical card in order that patients and their carers are not required to sue to ensure appropriate long-term care and support.

Billy Kelleher (Cork North Central, Fianna Fail)
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I welcome the witnesses to the committee. There is obviously an issue with the impact on the staffing of our health services in terms of consultants but equally in terms of the last point made by the IMO on the broader issue of the impact of cuts on our health service. We hear week in and week out of the pressures on front-line service providers in our emergency departments and of the impact that can have on the acute hospital setting. It is an area we should delve into to determine whether there is a tipping point beyond which negligence becomes a consequence the more we keep paring back on staff and supports for them in our hospitals and health services in general. It is something we should look at as a committee. Health care professional advocacy groups and trade unions have raised that point. Very often, we might take the jaundiced view that it is raised for the purpose of looking for more resources for their members. Equally, one must take into account that they are professionals trying to provide a service to the public and when they say there are risks to patient safety, we should take that on board and investigate. We should note that their comments are not always about self-interest and that they always have patient safety foremost in their minds.

The more I listened to the contribution, the more I realised that the State Claims Agency is paying out, indemnity costs are going up, more people are leaving private medical practice and more patients are ending up in the public health system, which puts more pressure on that system. The common denominator is that it costs the State a great deal of money. While the State is there to pick up the tab, the merry-go-round must stop at some stage. One cannot have a situation where the State is consistently the one that ends up funding everything while also failing to bring forward legislation, the latter being a failing on the part of the Oireachtas. That impacts on the recruitment of consultants, their retention in the private sector and the public health system coming under further pressure.

Somebody said that litigation is not good for patients, but I assure the witnesses that medical negligence is not good for them either. We must try to get the balance right between a litigation-conscious society and our barristers and solicitors moving from other areas of the economy into personal injuries when there is a downturn. While it is accepted internationally that personal injuries increase when there is a downturn in the economy, the question one must ask is whether the cause is cutbacks in our health services leading to a higher incidence of medical negligence or legal professionals moving into personal injuries practice. We might have to do a bit of work on that. The patient is the person who is damaged by medical negligence and he or she has an entitlement to seek redress. We should ensure that there is a seamless, streamlined way for a person to vindicate his or her rights in the most cost-effective way while ensuring that we limit the cost to the State.

What other countries can the witnesses point to that may have a similar type of common law system and a similar type of medical system? What comparative countries could the committee look at to see where things have been done properly and a lower cost of professional indemnity achieved? Where are there high medical and enforcement standards with a legal system that allows people to seek redress? Are we really that far out of kilter with other similar countries in terms of our legal structures and, if so, how far out is that? The capping that was set years ago was breached and then we had court cases where the courts increased the awards by up to 40% in the area of obstetrics. While we tried this before, it has drifted again. We set the caps and it worked for a while, but it seems we have moved back to where we were.

We also have to listen to other groups. Barristers and solicitors should be brought in so that we can discuss the matter with them. In respect of the State Claims Agency and discussions around indemnifying medical professionals, how far down the road has that process gone? Where do witnesses see the benefit in that or is it a matter of transferring the problem from one area of the State to another?

Is there a particular age profile among the consultants who are leaving the country or dropping out of private practice? Are they younger consultants or are consultants in all age cohorts beginning to drift from private practice and to leave the country? I would be very concerned if we were losing the best and our brightest younger people as well.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I welcome the witnesses to the committee. It strikes me that the medical negligence claims system in the State serves neither patient nor practitioner well. While I have no doubt that there will be a significant concentration in our toing and froing on the cost, there is without question the fact that there is huge stress and distress involved for all parties, including patients, their dependants and their loved ones, and practitioners.

It is important to share that, in advance of this meeting, we received a significant correspondence from people from throughout the country who had been through this process. The word "inundated" is probably a little strong, but it was significant. Their stories are absolutely harrowing and they have a common experience apart from the tragic incident that changed their lives in almost all cases, which is that it took years to get to a resolution. I can empathise with their cry and their pain and I consider that this is the issue that must addressed. I had, in reading some of the correspondence, images of our television screens through the years.

We would also have seen it in the print media. One would see a family coming out of a court experience following a decision or an award, whatever the case might be. We would all have forgotten what their story was; it may have happened years before. Heaven only knows what such a family will have been through over the intervening time. It is most unsatisfactory.

We are all human beings and it is not only the patient and his or her loved ones who are affected. No practitioner sets out to do some wrong or harm. The protracted process must also take its toll on them. None of us is an automaton. I am deeply concerned that there is a disposition on the part of the State Claims Agency and the Medical Protection Society to approach almost all of the cases that present from a deny-and-defend perspective. There is something very amiss in all of this because we are compounding hurt and pain by that approach.

I am conscious that the British system introduced legislation on the legal duty of candour last November. I recall that the Minister for Health, after the exposé of the series of stillbirths in Portlaoise some 12 months ago or thereabouts, commented that he would commit to the introduction of a statutory legal duty of candour. We met the families involved. They were misled, misinformed and left in the dark, which is unacceptable.

I would like to ask the State Claims Agency and the Medical Protection Society a question. Is it the case that, following an adverse incident in any of our hospital sites, medical practitioners and nurses are obliged to advise the respective organisations of said incidents? Is it the case that they are not obliged to, and generally do not, advise patients and their families? Is it the case that the organisations, in turn, do not advise the parties concerned and do not encourage those whom they may represent to act in an open and forthright way?

I return to my first point, namely, that we are all human beings after all. People put into a position whereby they have to defend their case and know the tragedy of their experience, due to the fact they are challenged, are being put in a very difficult position. The trajectory is one of open conflict. That can be changed through openness, honesty and advising the patient of anything that may not have happened as it should have done or as intended. With that approach, a significant cost factor - protracted legal battles - would be addressed. There are substantial savings to be made in that area. The savings would be not only in terms of the cost of the ultimate settlement and the legal costs associated with years of direct engagement, but also in human, psychological and other related terms by the absence of stress over long years of embattlement. I ask the State Claims Agency and the Medical Protection Society to address with candour at this committee the question of whether they would favour the introduction of a duty of candour for all practitioners and would honour and respect said legislation if it were to be introduced.

Séamus Healy (Tipperary South, Workers and Unemployed Action Group)
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I welcome the witnesses and thank them for the presentations. It is quite clear that the system that deals with medical negligence is not fit for purpose. I welcome, in particular, the presentation from the Irish Medical Organisation because it reflects, to a large extent, something I have said for quite some time. As late as last week I mentioned the cuts of €4 billion to the health service, the reduction in staff of 13,000 and the 2,000 beds taken out of the system, while during the same period there was a significant increase in activity. Staff are under pressure every hour of every day. My local hospital is working at something like 120% capacity on an ongoing basis. That is the background which feeds into this area.

I also welcome the reference by the IMO to open disclosure and apologies to patients and their families arising from adverse incidents. Does that represent, from the IMO's point of view, an acceptance of a legal duty of candour? Would it support such a requirement in the future? Would the other organisations present support the introduction of a legal duty of candour? The nub of the question is the adversarial nature of the process from the very outset. Patients and their families are kept in the dark, misinformed and misled. Openness, apology, immediate action and a legal duty of candour are key to making some attempt to solve this problem.

Many patients who have been involved in medical negligence are frustrated from the outset by the nature of the procedures and the lack of timeliness and openness in the process. If there was more openness and disclosure, and apologies were issued where necessary, that would be very important to the patients who have suffered adverse effects. It would be effective from the point of view of the clinicians, hospitals and institutions involved. I ask the witnesses to address the questions of openness, candour and speedy action.

That some of these cases can go on for years is very difficult for the patients involved. I believe it also gives rise to significantly increased financial costs eventually. Will the various witnesses address that area which I believe is key to beginning to solve this problem? As I said at the outset, it is an area that is simply not fit for purpose.

Jerry Buttimer (Cork South Central, Fine Gael)
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I now call the other members of the committee starting with Senator Burke, followed by Deputy Mitchell O'Connor and Senator Crown.

Colm Burke (Fine Gael)
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I thank the witnesses for attending and providing such comprehensive submissions. I disclose that I am a solicitor and I hope they will not hold that against me when replying to my questions.

The witnesses have stated that at the end of 2014 there were 2,840 claims with the State Claims Agency at an estimated cost of €1.159 billion. Over what period is that likely to be paid out? Is it a short period or would it be over the next five years? Will the witnesses outline the amount per annum the State Claims Agency expects to pay out over the next five years?

At the moment in obstetrics and orthopaedics the first €590,000 is covered by the private indemnifiers and in all other categories I believe €1.18 million is covered by the private indemnifiers. If that capping level were reduced, for example from €500,000 to €250,000 and from €1.18 million to €500,000, what would be the additional cost to the State per annum? Have the witnesses calculated the effect of reducing the capping levels? That is one of the issues that need to be dealt with.

Has the State Claims Agency considered the possibility of taking over the management of all personal injury claims, both public and private? What additional cost would this be to the State? Obviously people in private practice would still have to pay premiums to the State Claims Agency at that stage. Would the State Claims Agency have the capacity to take on such a role at this stage?

My next question is directed to the Medical Protection Society. According to the submissions from the Irish Hospital Consultants Association and from the Medical Protection Society, premiums have risen by up to 68% in the past two years. In some cases the insurance premium for a private practice is now in excess of €104,000 per annum. Are similar increases likely over the next two years? If that happens, will the Medical Protection Society remain in the Irish market? Previously the Medical Defence Union pulled out of the Irish market. Does the Medical Protection Society envisage being in the Irish market in five years time? The Medical Protection Society witnesses have made a very strong case about the level of claims increasing. If there is no change, do they envisage the Medical Protection Society being in the Irish market in five years time?

I wish to follow up on a point Deputy Kelleher made. The Medical Protection Society is involved in a large number of jurisdictions around the world. If Mr. Kayll became Minister for Health in the morning, what jurisdiction does he believe would be most appropriate for us to follow in order to have fairness for the patient and at the same time have a system in place that deals with all of the issues mentioned this morning?

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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We hear a lot about fraudulent claims. Do the witnesses have statistics on how many fraudulent claims are made? The statutory duty of candour law was introduced in the UK in November. Has this legal duty of candour changed the culture and policy on the part of insurance companies? Will it result in less aggressive policies by hospitals and insurance companies in pursuing lengthy legal cases?

John Crown (Independent)
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I also make a disclosure; I am a doctor. It was a real shock for me when I came back in 1993 from New York, which is often considered the medical litigation capital of the world, to find that Ireland, where we had a certain set of prejudices about the perception of doctors in our society and a non-confrontational nature, was at the time third in the world for medical claims, and I believe we are now second. People do not really understand this. This is a uniquely dangerous environment in which to practise medicine in terms of the risk of litigation.

A major contributory reason is that the medicine is not that good. It is not that the doctors are not that good but there are far too few of them and they are given incredibly unrealistic workloads. The eyes of my colleagues in this committee start to glaze over when they hear me say this. For most specialties we have approximately one fifth or one sixth the number of specialists per head of population when compared with countries in continental Europe. We tend to have about 70% of the number that the UK has and the UK is pretty much second worst in the world for the number of doctors per head of population for most specialties as well. As a result we have people who are seeing vastly larger numbers of patients than doctors will in other countries. As a result, even with all things being equal and even if the quality of the care, systems and backup were exactly the same, statistically an Irish doctor is more likely to be sued because he or she has far more interactions.

Of course, there is another factor. If doctors are having far more interactions, the chances are that the quality of those interactions is suffering. They have a real problem, given that they are practising in an environment with a unique set of risks, such as a tiny number of CT scanners, an inadequate number of operating theatres, and waiting lists which would be hilarious if they were not so tragic and are only surpassed in the OECD countries by the UK. The British must thank God every day that the Irish health system exists because we keep them off the bottom of the charts for international public systems. This was the problem I came back to 20 years ago and it is not a whole lot better now. We can then throw in the perfect storm of the economic meltdown which meant that suddenly there were cutbacks to an already constrained system. There is a failure to appoint replacements in positions that were already desperately overworked and underprovided for.

I do not want to put too much of the blame for this on lawyers, but certainly a contributory factor was that a lot of lawyers had a lot of free time on their hands and were suddenly looking for other opportunities when conveyancing became no longer possible.

When I came back to Ireland I took a lot of criticism for saying this. The system was so poor, the way the health system was structured so poor and the outcomes were so poor, there was the potential that medical litigation could be in some senses creative. It could help to fix problems and highlight problems. However, I do not think that is the primary reason for having it.

We desperately need to fix the health system if we want to reduce the risky environment in which doctors practise. I believe the cohort of doctors and nurses we have is unsurpassed. I can obviously speak with a greater degree of expertise on oncology than I can on other areas. The kind of training Irish doctors get, because so many of them train abroad in unbelievable centres of excellence, tends to mean that we have people of extraordinary quality in posts here being asked to do impossible jobs, and we need to fix that.

I will not talk about specifics. However, obviously in the aftermath of the Galway obstetrical tragedy a few years ago, there was much discussion about the possibility of individual liability. The central problem in Galway and elsewhere is that Galway is at the bottom of the charts for the number of obstetricians per head of population in Ireland and Ireland is at the bottom of the charts for the number of obstetricians per head of population in the world. Until we fix those problems we will not fix the crisis.

Deputy Ó Caoláin asked about the culture of transparency. I have got two minutes. If you want me to leave, Chairman, I will leave.

Jerry Buttimer (Cork South Central, Fine Gael)
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Senator, with respect, if you had been here for the beginning of the meeting-----

John Crown (Independent)
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I am sorry, but I was actually seeing patients at the beginning of the meeting.

Jerry Buttimer (Cork South Central, Fine Gael)
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-----you would have heard that we have to finish by 11.20 a.m.

John Crown (Independent)
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I do my best to complete a complex set of responsibilities.

Jerry Buttimer (Cork South Central, Fine Gael)
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Senator, you might just show respect to other members of the committee and stop grandstanding. We have been here since 9.30 a.m. The point I was making is that the Senator has just one minute remaining in his contribution.

John Crown (Independent)
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I will leave others to judge if I am grandstanding. Part of the problem of the culture of secrecy in Irish medicine is that when Irish doctors, whose instinct is to be honest when something happens, try to be honest, they are immediately advised by the administrators in the hospital and by the lawyers to shut up. That is what happens. Therefore, the problem regarding the lack of transparency when accidents happen is usually caused by the administration.

I have some specific questions for the Medical Protection Society, MPS. I would like to pay tribute to the MPS. It is a non-profit organisation and any doctor who has ever needed its services realises that at a time which can be the loneliest in one's professional career, it is good to have friends like them on one's side. I thank the society for all the work it has done for Irish doctors.

I have two questions for Mr. Kayll. First, what is the justification for increasing the premium of somebody who has worked all of their career with a mixed public-private practice, but then, perhaps in order to take early retirement, becomes a full-time private practitioner, and only sees private patients in the same place as they always saw patients? What is the justification of increasing it not by a couple of per cent but fivefold? This is happening. People who were paying €10,000 per year for medical malpractice cover from MPS when they had large private practices as part of a mixed practice, suddenly find when they become full-time private practitioners that their premium is increased. Can it be backed up by actuaries that their risk increases fivefold or are they in fact cross-subsidising some other part of the medical risk pie? It looks to me as if they are.

Jerry Buttimer (Cork South Central, Fine Gael)
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Go raibh maith agat.

John Crown (Independent)
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I have a question for the State Claims Agency. If this major increase is occurring on the private side, are we seeing it on the public side also? We must assume that for a non-profit organisation like the MPS malpractice premia roughly match payouts, allowing for the fact that it needs to build up a war chest for changes in future years. The State Claims Agency is author of data which suggests that its claims over the time when MPS fees have gone up threefold, fourfold or fivefold have also gone up by that amount. How have its pay-outs changed in the past several years?

Jerry Buttimer (Cork South Central, Fine Gael)
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For the record, the Senator spoke for over seven minutes. I remind the witnesses that we must finish by 11.20 a.m. in order to facilitate the second part of the meeting.

Mr. Simon Kayll:

A number of points have been raised. The policy of MPS is absolutely not to deny and defend. We believe a speedy resolution of claims is in the best interest of the patient, the doctor and our financial fund and we are keen to settle claims as quickly as possible. In our submission, we gave an example of a case where we admitted liability within six weeks of notification. However, because of the legal system, the plaintiff's solicitors, did not engage in an early settlement and the case ran on and on. We believe there is an element within the system that does not allow easy and quick resolution.

A number of committee members alluded to the point made by Professor Duffy that litigation is not the best way to go. However, in Ireland, there is a lack of a process of complaint to which patients could take their lesser concerns and complaints rather than pursue a legal complaint. We fully support honesty and open disclosure. We have supported the duty of candour in the United Kingdom and have worked with the HSE and the State Claims Agency here on a communication model we call "Assist". We have worked extensively on this communication model, which supports open and honest disclosure. On the dental side, we have worked with the Irish Dental Association to introduce a dental complaints resolution scheme. Again, we are trying to encourage, within the community in which we work, ways of resolving concerns of patients with their clinicians that do not necessarily result in litigation. I have no experience of fraudulent claims. It takes a lot to bring a fraudulent claim for medical negligence and our experience is pretty much nil in that respect.

A question was asked regarding which countries we might look to as examples. It is very difficult to do this because of the nature of health care and because the split between primary and secondary care and between private and state medicine change all over the world. However, pre-action protocols seem to have made a significant difference, as does judge-led case management, in the United Kingdom since they were introduced. Hence the reason we are building on that experience and making that recommendation here in Ireland.

I am not sure I have answered all of the questions.

Jerry Buttimer (Cork South Central, Fine Gael)
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We will come back to this again if we have time.

John Crown (Independent)
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What about my question about the increase in fees - do they parallel the payouts?

Jerry Buttimer (Cork South Central, Fine Gael)
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Sorry. If the Senator does not mind, I will chair the meeting. I have called Mr. Breen.

Mr. Ciaran Breen:

I am not sure whether Deputy Kelleher asked a specific question of the agency. Deputy Ó Caoláin queried whether the State Claims Agency has a disposition to approach cases on a deny and defend basis. I can understand why he might have that view. We see tragic pictures of catastrophically injured children before our courts and we read the reports in The Irish Timesand other media, which make it look like we exist always to deny, defend and delay. I do not ever forget there is a badly injured child in these cases or the tragedy for the family involved. Deny and defend is not what we are about.

Some of these cases are very complex from the point of view of causation. All Deputies and Senators would understand that where we are paying out sums of up to €30 million, it would be remiss of us if we did not forensically examine those claims and the complex issues that lie at the heart of them. Often, one of the real difficulties in these cases is that while the length of time from when the child was born to the date the claim is resolved is an extraordinary period of time, it does not correspond with the period from when the claim was made to the claim resolution. However, I accept these cases take too long and this is why we have advocated reform in the form of the pre-action protocols. I and others have worked hard in the medical negligence working group to try to get these on the Statute Book so they can guide our behaviour in our engagement on these cases in a more meaningful way.

In regard to notification of adverse events, there is a statutory duty on all hospitals to notify their adverse events to the State Claims Agency and we analyse those events. Where issues are arising from the adverse events, we try to feed back to the enterprises in the form of risk management solutions. On the question of open disclosure and the legal duty of candour, unequivocally, we support open disclosure and the duty of candour. In fact, we led with the HSE and the Medical Protection Society on a project which originally began at two sites, in the Mater and Cork University Hospital. This is being rolled out to many hospitals and is an ongoing issue for us. In this context, a significant issue that needs to be dealt with concerns how we protect the apology in terms of any legal battle that might ultimately ensue. This needs to be sorted. If it was sorted in the form of a statutory measure, open disclosure would become much more a feature of hospitals than it is currently.

Senator Burke asked about the 2,840 claims and the €1.159 billion and over what period these moneys would be paid out. These claims are in a cycle evolution, from recent ones to older ones, and will be paid out over a number of years. The average payout we have had over the past number of years in a single year has been in the order of between €100 million to €125 million. We expect the figure next year to increase significantly. One of the reasons we expect this gross increase is because of the absence of periodic payment order legislation. We worked hard in the medical negligence working group on this, but it has not come onto the Statute Book. The courts are indicating the temporary arrangement we had, where we were paying periodic payments to families and where families had to come back to court, is a cause of stress which is not good for families. They have said they are going to revert those periodic payments into lump sum payments, which will certainly affect our cashflow in the years ahead.

Senator Colm Burke asked about the possibility of the State Claims Agency taking over indemnity insurance claims for private consultants from what we might call the ground up. I expect it is his intention that they would pay a premium to the agency. It is a policy issue for the Department in the first instance as to whether it should take on such a responsibility. Once the decision was made, I can assure the committee that we would do so, as we have done in the past in the case of any business the Government decided to delegate to us to handle. We always have capacity to take on what we believe to be new work on behalf of the State.

I assure Deputy Mary Mitchell O’Connor that on a look-back basis, in terms of the clinical negligence profile from 2002 until now, as distinct from the non-clinical negligence profile, we never had a case in which we would have said it was fraudulent.

In response to Senator John Crown, specifically on the question of whether we are seeing a greater number of claims, from 2008 we had 426 claims in one year; in 2009 there were 400; in 2010, 457; in 2011, 544 and in 2012, 772. Many of the claims in the latter year related to De Puy hip implants.

John Crown (Independent)
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I am sorry, but what did Mr. Breen say?

Mr. Ciaran Breen:

I referred to the De Puy hip implants. We resolved the issue with the company and liability does not rest with the State. There were 721 claims in 2013. Again, the number was affected by the number of symphysiotomy cases on our books. In 2014 we had 609 claims.

Professor Trevor Duffy:

I will take the questions in no particular order.

There was a discussion about what other countries had similar systems of medical care and tort law. There are several systems in the developed world to address the problem, all of which are of varying complexity in terms of medical and law systems that are not necessarily comparable. We firmly believe we now have an opportunity and a responsibility to examine the matter in a constructive manner for the future, not to waste another ten years, as has happened since the clinical indemnity scheme was set up.

The profile of consultants dropping out of private practice is mixed and multifactorial, but, in particular, this issue is affecting procedural specialists. It is also affecting young specialists. Older specialists might choose to retire completely, whereas young specialists are choosing to leave the country or not to come back. That would be a major decision factor in making that choice.

More tellingly, as an organisation, we strongly support the concept of open disclosure. It is something that is being pushed strongly through the Health Service Executive. We have great concerns that legal or statutory responsibility or a duty of candour should be supported in the sense that it does not equate to an admission of liability on the part of the practitioner.

One member stated the system of medical negligence was primarily about redress for patients. Our experience is that generally patients are not looking for an adversarial or punitive process of redress; rather, they are looking to learn about and understand what happened to them and to ensure it will not happen in the future. In that context, the alternative mechanisms we have discussed and proposed are being examined as they offer a much better system that would be fit for purpose and fit with the values of the medical profession, namely, care and compassion and the culture of learning, which is at complete variance with the current adversarial system.

Dr. Gerard Crotty:

I will deal with a number of the questions asked. First, in response to the specific question asked by Deputy Seamus Healy on whether we supported a duty of candour, yes, we do support open disclosure and communication and honesty at all stages of the clinical process. In that regard, we highly commend the support and education provided by the Medical Protection Society which are very useful for our members in that respect. It has been shown that open disclosure and good honest communication reduce the likelihood of litigation. However, we echo the comments of other speakers that a legal duty of candour should be backed by appropriate protection and that an admission of untoward events should not in itself be used as evidence of culpability. This should be included in legislation, probably the promised health information Bill.

We also support the development of the various alternatives to litigation that have been mentioned and also, in so far as cases will continue to go through the legal system, the procedural reform and tort law reform to which reference have been made. However, we emphasise that all of these will take time to result in any change on the curve in terms of the cost of claims and the projected future cost of claims and, therefore, subscriptions to the Medical Protection Society. We emphasise that there is also a need for urgent action to deal with what is an unfolding crisis in terms of consultants who when their next premium falls due, may cease to practise and leave the country.

A question was asked about the age profile of those who were leaving. It is across the age spectrum. Some are older and approaching retirement, but those who do not show up in the statistics are those who have not commenced to practise in this country; whatever about someone with a mature practice with borrowings paid off being able to support the payment of such high premia, it is untenable for many that they commence to practise in a private hospital in this country. They are commencing to practise abroad and do not appear in the Irish statistics. As a result, it will be very difficult and perhaps impossible to replace those who have left and the provision of services in specialties in certain private hospitals may cease entirely. The major concern is the transfer of the workload to public hospitals which are already overburdened.

Mr. Maurice Neligan:

I have a lot of experience of this issue. I was appointed as a consultant in public practice under a type II Buckley contract in 2005. I resigned in 2012 and have been engaged full-time in private practice since; therefore, I have seen both sides of the argument. If things continue the way they are going, in the future the people who will be discommoded will be all patients. The reason I say that is I am already seeing patients who do not have health insurance attending my clinic with members of their family saying they will club together to pay for their mother to have a hip or knee replacement operation. These are patients who have served the community. They have paid their taxes throughout their lifetime and now when they need treatment, they cannot access it and have to pay for it themselves. If things continue the way they are going, consultants will drop out of private practice for whatever reason – this will happen - and these patients will be forced back into the public system. That is the burning issue among my 400 colleagues.

Having worked in the public system, I know that it took two years to be given a routine outpatient appointment to see about a joint replacement. It took a further two to three years to have surgery performed. They are the facts and that is what is going to happen. More people will be forced into the public system which will not be able to cope. We know what is happening in Beaumont hospital where there are rolling theatre closures. I have particular experience of this in Cappagh Hospital where my colleagues work and where there have been rolling theatre closures for years. The system will collapse and it will be catastrophic. This issue needs to be addressed in terms of having a fair indemnity insurance cost to allow consultants to continue to practise.

Having seen it from both sides, that is my honest opinion.

Colm Burke (Fine Gael)
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I would like to ask the MPS about premiums increasing by 60% in the past two years. Does it believe this will happen again over the next two years? If that occurs, where does that leave the MPS within the Irish market? It is important that question is answered.

Mr. Simon Kayll:

We are absolutely committed to the market and to providing indemnity to our members here. Our experience over the past year, since we had a large increase, has not been nearly as bad as the experience prior to that. We do not anticipate that our subscription rates will need to increase by nearly as much as they have done in the past two years. There will be an increase. Everything being equal, claims inflation in most territories is around 7% or 8%, so that is just the cost of a claim that would naturally progress from one year to the next, even if there is no increase in frequency. That is the sort of reality we face in most countries. There will be an increase but it will not be as much as we have seen in the past. We want to stay here and to provide service to our members. While that is our intention, we have to charge rates that we consider financially affordable for the MPS in order that our members can come to us in five, ten or 15 years when they need assistance. If we do not get those sums right, we will not be there for them at that time and their patients will not receive compensation. However, the way things are looking, we intend to be around. That is our expectation.

Colm Burke (Fine Gael)
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If the capping levels are reduced-----

Mr. Simon Kayll:

If the capping levels are reduced, then obviously the subscriptions will reduce because the indemnity risk the MPS is taking will decline and we will share that with our members and we will reduce our subscriptions. As I said before, if the capping levels happen to be reduced retrospectively, then we will rebate our subscriptions retrospectively.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Mr. Kayll and Mr. Breen, on behalf of the MPS and the SCA, respectively, indicated their support for a duty of candour. I presume legislation would allow for a duty of candour. However, they are both, as I requested them to confirm, the recipients of the critical information that, by and large, is withheld from the affected patient. Do they not recognise that there is a responsibility on the MPS and the SCA to adhere to a duty of candour, as things stand, even though it is not legally enforceable currently? Is it not the case that they would have a duty to impart the information appropriately or at least to advise the respective hospital sites for the clinician or the practitioner that they should be upfront, open, transparent and honest with the patient concerned? At the end of the day, a part of all the benefits that would accrue would be the experience of the MPS and the SCA themselves.

John Crown (Independent)
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I asked a very specific question which Mr. Kayll may have skipped. Will he quickly take me through the thought processes that justify why somebody who has had a mixed public-private practice throughout his career and becomes full-time private and may not have any increase in the volume of his workload suddenly finds that his malpractice premium does not go up by a number of percentage points but manifold, as in the case of a colleague who recently told me his went from €10,000 to €50,000, even though he was working in the same hospital and seeing roughly the same number of patients he saw over his entire career? The mere fact he no longer had a public practice, suddenly meant he faced a fivefold increase. Does Mr. Kayll have actuarial figures which support that demographic of people becoming fivefold riskier at that point in their career or is this a manifestation of cross-subsidisation?

In truth, we all have the experience of the MDU having left Ireland. Is there any sense that the MPS is throwing its hands up, saying it just cannot deal with this country because it is too complicated, the legal system is too complex and the claims are too frequent and it is just pulling the whole show down?

Mr. Simon Kayll:

I will take the point on open disclosure and candour first. We absolutely support it. We run education programmes for our members and encourage them to be open, to disclose and to show candour. We cannot compel our members to do that nor can we compel them to report to us adverse incidents but we absolutely advocate and support it.

In regard to Senator Crown's question, when a member leaves public practice and chooses to go wholly private, even if the quantity of that private practice stays the same, for the first 12 months his or her subscription does not increase, but after that it does. The Senator is quite right that it could increase quite substantially.

John Crown (Independent)
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Fivefold.

Mr. Simon Kayll:

Actuarially, the risk for him or her has not changed but we put all our private consultants into a pool. At the moment, we do not have a mechanism to rate more specifically on the quantity of work they do. To do so, it would mean we would need their income or some measure of their work. That is something to which we aspire, but at the moment we do not have the facility to do that and, therefore, we have to rate them as a pool. I appreciate those who are doing less work are paying proportionately a bit more and vice versa,but that is the reality of where we are. We have aspirations to change that in the future but it is not something that can be done quickly or easily.

In regard to Senator Crown's point about us throwing up our hands, the times are very challenging in Ireland but, as I said, we are committed. We are very much the predominant indemnifier in Ireland. We are owned by our members. As long as our members in Ireland want us to stay here – we believe we can do so in a financially responsible way - then we will face these challenges and we will stay.

Mr. Ciaran Breen:

I would like to respond to Deputy Ó Caoláin because there may be a misunderstanding in regard to what we are doing. We are not hiding anything from patients. Under the data protection laws, when adverse events, which the hospitals are duly obliged to notify to us, are notified to us, they are anonymised, so we simply know that an adverse event has occurred. We do not know whether there was negligence attaching to the adverse event at that time. In fact, the only time that becomes de-anonymised is when it becomes the claim and we begin to get into the issues surrounding it. We are using all of these clusters of adverse events on a learning basis for hospitals to feed back risk management solutions to them. However, it is not a question of us having information which we are not imparting to patients.

Mr. Maurice Neligan:

In respect to openness, I would certainly like to compliment Mr. Kayll and the MPS on the classes and the education they give to consultants on an ongoing basis. The confidentiality issue is being overplayed. Everyday patients present who are unhappy or have a genuine grievance in terms of a poor outcome. We never hear about most of those patients because the understanding between the patient and the consultant is such that an explanation is all that is required and people move on in a spirit of trust. It is rare for that to break down to an extent where it becomes litigious or something that will go to court, when obviously the dynamic changes. The majority of these are dealt with and one never hears about them.

Jerry Buttimer (Cork South Central, Fine Gael)
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I thank all the witnesses for attending. This is the first of a set of hearings and we will resume again on Tuesday next. We will suspend until 11.30 a.m. when we will meet the European Commissioner for Health and Food Safety. Again, I thank everyone for attending and for their co-operation and participation.