Tuesday, 16 May 2017
Civil Liability (Amendment) Bill 2017: Second Stage (Resumed)
I feel like I am out of sync with everybody else on this, because while I am obviously very glad the Bill is before us today - there is no doubt about it, it is incredibly long-awaited - the biggest problem I have with it is that there are two key areas it was specifically teed up to address but, as far as I can see on both scores, it is deficient and will need radical overhaul if it is to achieve what all of us hoped it might. The two areas relate to periodic payment orders, which other Deputies have addressed, and open disclosures. In the manner in which both are dealt with in the Bill and in the way they have made it into the final stages of the Bill, they nearly end up thwarting the very objective that was there in the first place.
There are two problems with the open disclosures provision. The first problem is that in its current form, the Bill essentially provides that any open disclosure made and any information gathered as a result of the open disclosure process cannot be relied upon as evidence in any subsequent civil actions. As far as I am concerned, this conflicts with long-established principles of national justice and is likely to adversely impact on the trust between the patient and the health service, which is what the Bill is designed to enhance. In other jurisdictions, like the UK, for example, no such restriction is placed on this information. The other key problem with open disclosure is that, in our legislation, it is voluntary and not statutory. That is a massive failing as far as I am concerned.
The periodic payment orders are obviously long-awaited. Other Deputies who spoke have addressed that. The Bill could have represented an excellent opportunity to address the deficiencies in the existing lump sum model for compensation by replacing it with periodic payment orders, but in order for such a system to work, the periodic payments have to be linked to the right index. It will not work otherwise. It must ensure that annual payments remain pegged as closely as possible to the future cost of medical care and treatment. That is what we should be striving to get to. The original recommendation unanimously endorsed by the judicial working group on medical negligence was that an earnings and cost-related index would be introduced. Perhaps for budgetary reasons, although I do not know, the Bill before us has actually gone for a completely different model and recommends a harmonised index of consumer prices as published by the CSO, which is, as I said, the opposite of what the judicial working group recommended. It completely ignores the group's unanimous recommendation. Linking payments to the consumer price index actually ignores the difference between the general increase in consumer prices compared to the much greater increase in medical wages and treatment costs. Therefore, as it currently stands in the Bill, there is a very real danger that the Government is putting people who have been catastrophically injured in our health service at risk of running out of the money they need to live and maintain an adequate quality of life.
I know, and the Minister of State will undoubtedly say, that there is a review built into the Bill to examine the operation of the index every five years. However, that is a bit half-baked. It is the worst of all worlds. It is as if we know it is limited and we are just throwing something in there. I do not think it is adequate. This must be addressed when the Bill goes to a later Stage. I compliment the work done by the Medical Injuries Alliance in its address to the health committee on these issues.
I would like to develop the points about open disclosure a little bit. In the Bill in its present form, they are totally inadequate and contrary to the principles of natural justice. Again, the Bill states that any disclosure and associated information provided as part of the open disclosure in accordance with the legislation is not admissible as evidence in any court proceedings in connection with any injury or death caused by the health service provider. This is an absolute missed opportunity as far as I am concerned. The system we have at present is clearly not working. All the Deputies have articulated that position. People who are injured by our health service are at present forced into litigation to find out what happened and to try to get justice. Yet, we have had a national open disclosure policy since 2013. The policy has not changed the fact that expensive and antagonistic litigation is the only way ordinary citizens have to get anywhere near the truth. That is a fact.
It is interesting that back in February 2015, then Minister for Health, Deputy Leo Varadkar, described doctors who failed to be fully open about incidents as the medical equivalent of a hit and run. He is right about that. He said at that time that if more doctors were open about making mistakes, there would be fewer lawsuits. That is true, and I think it has been verified in other jurisdictions. He promised to make it mandatory for medical and nursing staff to admit errors that have caused harm to patients. That promise has not been delivered in the legislation before us. When people make open disclosures, is it more about protecting the system rather than giving patients and families the right to full and open disclosure? Preventing evidence gathered through open disclosure from being used in subsequent court cases is ludicrous and I think it would be constitutionally suspect. I believe the Medical Injuries Alliance made good points in regard to this. It states that it would be abhorrent to the administration of justice that a court might be precluded from considering all existing information necessary to establish relevant facts before making a decision on questions of liability.
I have less difficulty with the proposition in the Bill allowing that admissions made pursuant to the legislation cannot be deemed to be an admission of liability. That is fair enough. However, when there is a dispute on liability, it is essential that the court has the right to consider all relevant factual information gathered on foot of the legislation. That has to include any open disclosure and all records created for the purpose of making that disclosure.
Let us be clear about this. Patients are at a massive disadvantage compared to the health service provider in terms of knowledge when it comes to establishing how an adverse incident came about. Let us be clear that it is the service provider that is in control of the information.
Sadly, unless we change this legislation on Committee Stage, it will not change. Patients might get some more information but will not be able to do anything with that information which is totally wrong and makes the legislation somewhat redundant. Allowing information and records given over as part of an open disclosure process to be entered into evidence in court proceedings does not mean the court proceedings will proceed. That is fair enough. The legal safeguards are still there because the patient would still be required to establish liability when there was not an admission of same. That would provide ample protection for the service provider, in particular when one considers the burden of proof the patient has to reach in any civil action is very high because it has to be proven the doctor is guilty of a failing which no other reasonable doctor of like skill or experience would be guilty of.
It is important to examine the legislation that exists in other jurisdictions. A statutory duty of candour has existed in the UK since 2014. Following an adverse incident there, health service organisations must give a patient a full explanation of what is known at the time, including what further inquiries will be carried out. Organisations must provide an apology and they must keep a written record of the notification to the patient. On top of that there is a statutory duty to provide reasonable support for the patient, such as emotional support or an interpreter, to ensure the discussions are understood by the patient or his or her family. The UK's guidance note on implementing the duty of candour states: "A public authority’s objective must not be to win the litigation at all costs but to assist the court in reaching the correct result and thereby to improve standards in public administration." That is what we should be trying to achieve by this legislation.
The UK's statutory duty of candour came about as a result of the Francis report which investigated catastrophic failings of the NHS in Staffordshire. We are devastatingly familiar with catastrophic failures here in Ireland. Deputies should think of Portlaoise or Portiuncula. The HIQA report into the deaths of babies in Portlaoise was hailed at the time by the then Minister, Deputy Varadkar, as a watershed in terms of maternity services in Ireland. It was published years after some of the incidents occurred. The report made sweeping criticisms of the HSE and its staff for repeated failures in the care in the units and, critically, the failure to learn from those mistakes over the years. Who is to say that, had they learned from those mistakes, some of the tragedies would not have occurred. A statutory duty of candour is one of the ways to address this.
Despite having Portlaoise in our recent history, the Government has shied away from this in the legislation. I cannot understand it. Let us look back. The HSE director general, Tony O'Brien, threatened to injunct HIQA when he saw its first draft report on Portlaoise and its criticisms of senior management. All this happened at a time when the HSE had a voluntary open disclosure policy similar to the one we are debating here. It has not done much good for the families in Portlaoise who spent ten years trying to highlight what went on at the hospital. I find it a bit bizarre that the Department's briefing note states there is no question that the protections in section 10 provide a hiding place for "incompetent, negligent or other unprofessional patient care" and that "organisations and health professionals continue to have accountability mechanisms." Having spent a lot of time working with families and the campaign to ensure mandatory inquests in cases of maternal deaths, I can tell the Minister of State the accountability mechanisms that are there now are not fit for purpose.
There were eight inquests into maternal deaths in Ireland between 2007 and 2015. All of them had to be fought for tooth and nail by the families involved in the face of intense HSE stonewalling. All eight were marked by consistent under-co-operation or non-co-operation by the hospitals involved. Families need to know when tragedies happen. Sadly, tragedies will happen and it is not necessarily anybody's fault. It is life. We need to be open when they happen. Our hospitals are chronically understaffed and underfunded which means accidents are probably guaranteed. The full scale of the crisis has to be known by the public and a statutory duty of candour is the key way of providing an impetus for change. There is a huge issue here because the proposal to prevent a patient from being able to rely in any way on the open disclosure process is likely to breed a lot more distrust. What will it do to public confidence in our health service if a patient is provided with clear and frank information about how an adverse incident happened but later in court the very same facts and version of events are denied by the service provider? The reality is the Bill, as structured at present, will lead to increased legal costs. The State already spends tens of millions in fighting damages claims as do the families who have to put up the money in fighting for it. If one party to a civil case has access to relevant factual information and the other party is denied access to the same information, the only consequence will be much more hard-fought, lengthy and costly civil actions. Patients will be forced into a situation of instructing a bunch of independent medical experts to give expert evidence needed to establish sub-standard care or causation, something which had potentially already been established under the open disclosure process but which they could not use in court. It is bizarre and will need to be changed. If the open disclosure is legislated for properly, it will lead to an improvement in the level of trust patients have in our health service, which is supposed to be one of the objectives. I genuinely believe, as the then Minister, Deputy Varadkar, said two years ago, it would lead to fewer civil actions, less trauma for injured patients and families and less money wasted on litigation. It will not happen as the Bill is now. In some ways the Department of Health agrees because the report of the commission on patient safety and quality assurance, published almost a decade ago in 2008, said:
Over the last two decades there has been growing support in the international literature for the concept that doctors should make full disclosure of medical errors to their patients. As well as enhancing patient safety by the acknowledgement that an error occurred, it is also in keeping with the ethical commitment of honesty to patients. Failure to communicate effectively with patients following errors therefore damages the integrity of the profession. Studies show that openness can decrease the trauma felt by patients following an adverse event and that patients often forgive the medical error when it is disclosed promptly, fully and compassionately and action is taken to make sure it does not happen to another patient.
That is the battle the spouses and partners of the women who lost their lives in maternal deaths in our hospitals over the last number of years engaged in when they launched their campaign to secure mandatory inquests in cases of maternal deaths. It cannot bring their wives back but it can stop it happening to somebody else. That has to be the objective of this litigation. Last week, I again met in my office an incredible man, Micheál Grealy, who is 84 years of age and whose wife, Kathy, went into hospital on Christmas Day 1972 to have their first baby. The baby was born on Christmas Day and died because the Coombe did not realise the mother was rhesus negative and the baby was rhesus positive and did not correct it. Even worse than that, Kathy was given an anaesthetic when she should have been given and epidural. She vomited, which resulted in Mendelson's syndrome, and died seven weeks later in 1972. Her husband, at 84 years of age, is still carrying on the fight to find out what happened in that case.
He has seen documents which state his wife's death was avoidable, but he has had no explanation of why it happened. The names of the medical personnel involved in the case, the anaesthetist in particular, were withheld from him for decades. He eventually found out the correct name, following which medical personnel involved in his wife's care gave him information which led him to believe the anaesthetist had had a drug problem and probably should not have been working on that tragic day. He has still not received proper answers. These are things that follow people for a lifetime and the damage and trauma caused are reprehensible.
We have nothing to fear from a proper duty of candour which can actually also protect doctors and nurses in terms of personal liability for accidents. In the final Francis report which led to the statutory duty of candour in the United Kingdom Mr. Robert Francis, QC, very reasonably made the point about professional misconduct proceedings that professional regulators would be far more lenient on those who owned up to errors that had a serious effect on patient safety than they would on those who denied or sought to cover up their lapses. He said, "We need a situation where the legal advice is going to be, 'I know this is unfortunate, but you are going to be better off by telling them about it and by being honest and open about it than not'." Sadly, this Bill, as structured, will not do that. We owe it to people who will fall foul or be the victims of adverse incidents in the health service to deliver a proper Bill. I hope we can work together on Committee Stage to ensure the Bill will deliver on open disclosure and periodic payment orders in a way in which all of us believe citizens should be treated.