Dáil debates

Tuesday, 13 October 2009

Medical Practitioners (Professional Indemnity)(Amendment) Bill 2009: Second Stage

 

12:00 pm

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)

I welcome this Bill and urge the Government not to oppose its passing Second Stage. The practice has grown up, a very negative and unwelcome one, that the Government almost automatically votes down Opposition Bills on Second Stage. This Bill should go to Committee Stage during which any differences and difficulties can be addressed.

The Government and its advisers do not by any means have a monopoly of wisdom in these matters. We have heard much about respect for democratic institutions but such respect is not enhanced by a practice where only Government legislation is allowed to proceed, which happens all too often in respect of Private Member's Bills, and Opposition legislation is opposed, even if the Government agrees with its principles and main elements. I hope and expect that the Government agrees with the principles and main elements of Deputy Reilly's Bill.

This is a health service-related Bill and gives us an opportunity to address the issue of our health service providers and our health system of which we have heard relatively little in the House recently. The economic crisis, the collapse of financial institutions, NAMA, the massive deficit in the public finances, the exposure of extravagance on the part of those in high office and the growing levels of mass unemployment have all served to obscure the ongoing and very serious crisis in our public health services.

Since autumn 2007 a regime of cuts has been introduced across the public health services that has made a bad situation much worse. Frontline health care workers in our public health services, including medical practitioners, are under severe and growing pressure. In this situation it is far more likely that mistakes will be made, whether through inevitable human error or through negligence, with very serious consequences for patients and their families.

Everything must be done to prevent such errors and omissions. We must never have a repeat of the systemic failure which led to the horror of the Michael Neary scandal or the symphysiotomy scandal. What happens when things do go wrong? The scandals I have mentioned highlighted the need to reform the Medical Council which was a shield for the medical profession rather than a watchdog for the public. That was addressed to some extent in the Medical Practitioners Act 2007. There is, however, a need to address in a comprehensive way the whole issue of compensation for those who suffer as a result of medical error or negligence. Under the current system people have to take long drawn-out cases through the courts at great expense to themselves, to the public health services and to the taxpayer. The only real winners in this system are the lawyers.

This Bill deals with one aspect of the problem and that is the lack of regulation of doctors to ensure they have appropriate insurance cover to practise in Ireland. Most people would be very surprised that such legislation is not already in place. It is also quite amazing, as Deputy Reilly pointed out, that the Department of Health and Children and the Medical Council do not know how many practitioners have insurance, what level of insurance they hold or who provides it. This is a worrying situation which we must address urgently. I concur with the explanatory memorandum of the Bill which states the majority of doctors are responsible and carry appropriate medical negligence insurance but, as in all professions, some may not have an appropriate level of insurance cover, either through inadvertence or, sadly, design.

I welcome the intent of the Bill to make medical indemnity cover compulsory for all practising doctors and provide that the Medical Council will have the power to set appropriate levels of insurance to be held by different classes of practitioners. The Medical Council has no such power and only recommends that doctors carry such insurance. The Bill also provides that before the Medical Council can issue a certificate to practise to the practitioner, written evidence of the appropriate insurance being in place must be produced to the Council. It provides for circumstances in which insurance may lapse and makes it an offence to practise without insurance where such insurance is required.

The precise role of the Medical Council as proposed in this Bill would probably need further scrutiny and this is another good reason for the Government to allow the Bill to take its natural course so we can address the substance of those issues on Committee Stage. I appeal again to the Government to allow it to proceed through Second Stage and to accommodate engagement by all parties and voices interested in addressing this important and serious area. It is alarming that someone irresponsible could practice here without the appropriate medical negligence insurance and in the event of negligent or unsatisfactory treatment an aggrieved or injured patient may have no redress to compensation. That is a very serious situation.

Legislation such as this is required to address such a major flaw in our system. This legislation would regulate the system as far as the doctor is concerned but more comprehensive reform is required. Members of the Oireachtas Joint Committee on Health and Children earlier this year received an illuminating presentation about the no-fault compensation which operates successfully in New Zealand. I was present and was most impressed that the scheme focusses very much on the needs of those who suffer as a result of medical misadventure. Their medical needs, family circumstances, employment situation, home adaptation, transport requirements as well as financial needs are taken into account. In contrast, the system here is more of a lottery with the prospect of either a large sum of money or a dead end at the conclusion of the process.

In recent years the New Zealand Government relaxed previously strict criteria for access to its no-fault scheme. Patients who sustained injury from medical mishaps could previously access the Accident Compensation Corporation's scheme only if they met certain criteria. To access the scheme the adverse consequence either had to be rare, "occurring in one per cent or less of cases where that treatment is given" or required a finding of fault on the part of a practitioner or organisation. Thus a victim of a car crash could get compensation from the scheme without first having to prove fault, but the same did not necessarily apply to patients who sustained an injury as a result of medical treatment. The removal of the two thresholds was designed to end the inconsistencies in the ways injuries were incurred and make it a true no-fault scheme.

In 1999 the current Taoiseach, who was then Minister for Health and Children, was questioned about the possibility of introducing such a no-fault scheme in respect of children born with disabilities. The Master of the National Maternity Hospital had recently proposed the introduction of such a scheme. Deputy Cowen stated then that several interested groups and individuals had pressed for the introduction of a no-fault scheme for these cases. He said that apart from removing the need for parents to sue hospitals and doctors to ensure that the care needs of their children were secured, it would save on the high legal and other transaction costs associated with litigation. It would also represent a move to a compensation system based on needs rather than alleged negligence. Deputy Cowen said, "Under the present adversarial system the parents of children who cannot establish negligence do not receive any compensation". The case for the passage of this legislation is clearly made. I strongly commend to Government that given the need, it should accommodate its passage and use the opportunity on Committee Stage to make the Bill amenable to its range of concerns rather than reject it at this time.

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