Jim O'Keeffe (Cork South West, Fine Gael)

I support the Bill, although not out of sympathy with my colleagues in the legal profession, as mentioned by Deputy Reilly. This is a non-controversial Bill and it should be dealt with by the House on that basis. It is an honest attempt to close a loophole in our professional regulations. I urge all sides of the House to support the principle of the Bill and ensure that Deputy Reilly's proposal is put into operation at the earliest opportunity.

When non-doctors think about medical practice we tend to refer to the origins of medicine, the father of medicine, Hippocrates, and examine the wisdom of the ancients to see the type of medicines they were prescribing at that time. Of the Greek medical texts the oath of medical ethics for physicians prescribed by Hippocrates is the one that stands the test of time. Having set up a medical school on the island of Kos, off the Greek coast, Hippocrates established a process whereby new physicians were required to swear by Apollo and a host of other healing gods and goddesses that they would do certain things and not do others.

Some of the requirements in the hippocratic oath may sound quaint today. The new physician had to swear that whatever houses he would visit - they were all "he" at that time - it would be for the benefit of the sick, remaining free of all intentional injustice, mischief and, in particular, sexual relations with both female and male persons, be they free or slaves. That is the quaint language used at the time. There were commitments that they would not give a deadly drug to anybody who asked for it, nor were they to make any suggestions to that effect and so on. There was also a commitment that he would not give to a woman an abortive remedy: "In purity and holiness I will guard my life and my art."

What is remembered most from the hippocratic oath was the commitment that the new physician would swear to all the gods and goddesses to first do no harm. In many ways that oath has been re-written through the years to suit the values of different cultures that were influenced by Greek medicine but the basic principle remains the same, namely, that the physician or the doctor will do no harm.

The problem is that at times the doctor does harm. That has always been the case over the years, and continues to be the case today. One has to accept that some injuries or trauma are avoidable, particularly when a person is in receipt of acute care. That injury or trauma might be the result of the inevitable consequences of the disease process or the unavoidable side effects of the treatment being performed, but in some instances it is clear that was not the case and that the trauma or injury suffered by the patient arose from the avoidable measures.

We do not know the full extent of the problem today. As Deputy Reilly mentioned, the full data is not available. Studies were carried out in many countries which appear to confirm the view that there is an unacceptably high level of negligent, adverse events. Some studies were done in the United States which suggest that up to 4% of hospitalised patients suffer an adverse event approximately, half of which are believed to be avoidable. Those findings could probably be applied here as well. We are probably no better or worse off.

If these are the facts, what is the remedy for the patient who has suffered those effects? The normal process is that if there are negligent adverse effects on the patient, the person is entitled to claim compensation. In the US, approximately one in eight negligent events results in a claim for compensation. I do not know what the figure for Ireland is as I do not have the data, but it may not be any different. We have as strong, or as weak, a litigious culture here as in the United States.

When a claim is made, it cannot be equated to a normal claim for personal injuries. Where there is a normal claim for personal injury, it involves a healthy person involved in an accident who has sustained some trauma. Medical negligence claims are more difficult because they normally involve somebody who has suffered a medical accident while probably already having a condition that requires some treatment. The person may have received the wrong treatment or there may have been a mistake in diagnosis.

There is medical negligence where there is a deviation from accepted standards of care and the injury is considered a result of negligence if complications arise not because of unforeseen circumstances, but improper care and treatment. That leads to the point that the least an injured claimant should expect is that having gone through the medical, legal and judicial hoops, any award given would be paid. I am aware that this is normally the case but it is clear that, in some instances, it is not. In some cases, awards granted are not recoverable because there is no indemnity insurance, which is a problem that needs to be confronted. In essence, it is the basis for the Bill.

I am quite surprised that it is only at this stage that we are closing this loophole. I am not a practising lawyer at this stage but I could not get a practising certificate without proving to the Law Society that I have liability insurance. If that is the case with lawyers, why should it be any different for a doctor going to the Irish Medical Council? Most doctors have medical indemnity insurance anyway so there would not be a significant additional burden. It would help us avoid the rogue doctor or somebody who is scalping the system and not being fair to patients or doctors who comply with the rules.

This Bill is not in any way an attack on doctors. Some 95% or 98% of doctors are doing their job properly and honestly, but we must rope off those who fall into the small percentage who do not do their job properly. The medical profession would accept there are some people like that. The president of the Medical Council said openly some years ago that between 3% and 5% of doctors were underperforming. It is quite a normal or natural position but we should guard against it nonetheless.

There is the general question of insurance. I accept that the clinical indemnity scheme established in 2002 was a big advance which covered responsibility for the vast majority of claims. There is indemnification and management of very many clinical negligence claims. From sitting on the Committee of Public Accounts, I know approximately 400 or 450 such claims were dealt with by the State Claims Agency in 2007 so the net is clearly wide enough, although it does not cover everything. That is the point we are working on here.

It is useful to consider the scenario in other countries. As I understand it, almost all the states in America require that physicians have malpractice insurance. Sometimes the awards can be very big and, correspondingly, insurance premiums can be big as well. I have no doubt that obstetricians, for example, would have hefty insurance in light of expensive awards. If that is the case, it is unfair if somebody who makes a legitimate change should then find that because the assets are not there on the part of the doctor in question, the claim cannot be met.

There are instances, as have been mentioned by Deputy Reilly, of people coming into this country, staying for a short time and leaving like a chicken flying the coop. In such cases, nobody is quite sure if the people in question have insurance and the poor unfortunate claimant, who has gone through hoops to secure an award, may have to engage lawyers - a much maligned species who try to do their best for their clients - to chase the people around the world. This is an additional job which may not be successful if the doctor in question has gone to another part of the globe. That is the background to the Bill.

The picture as presented by Deputy Reilly on behalf of Fine Gael is a simple question of regulation of doctors practising in this country to ensure that they have appropriate insurance to practise medicine. I do not see anything against making such medical indemnity cover compulsory. This is compulsory for solicitors; one cannot get a certificate to practise without proof of insurance. One cannot drive a car without compulsory insurance but, to give a gross example, if a person is amputating a leg, there is no compulsory requirement for insurance, although I appreciate that in general there is cover through the State clinical indemnity scheme. As I understand that scheme, it does not apply to private clinics, so why should the same concept not apply in the private sector?

I am very much in favour of ensuring that medical indemnity cover is compulsory for all doctors practising in this country. It is something that can be dealt with by the Medical Council, which should set the appropriate levels, as there is a wide range in the type of cover available depending on the nature of the practice being carried on. That is for the Medical Council to work on in order to establish the guidelines and requirements to be put into operation before issuing a certificate to practise to a practitioner. Nobody in this House would be inclined to vote against that type of proposal. I appreciate that certain modalities may have to be put into operation before matters can be progressed. However, I hope the Minister will indicate that she supports the Bill in principle. The modalities to which I refer can then be put in place at a later date.

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