Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I move amendment No. 23:

In page 22, line 22, to delete "where" and substitute "when".

This has been a long day. This group of amendments is essentially about the same issue, namely, making it mandatory for service providers to apologise at an open disclosure meeting. At present it is up to the service providers if they want to say sorry when something goes wrong. We do not think that is good enough. We had a really long discussion on the matter on Committee Stage. However, I did not find the Minister's objections to be satisfactory. He mainly said that if one made it mandatory they would only apologise begrudgingly and sure that is no good at all. I do not accept that logic. It is clear from the definition of a patient safety incident in the Bill that it means something went wrong. The Bill provides for an optional apology by a provider for something that went wrong. I find that utterly bizarre. The open disclosure meeting would not take place at all if an incident had not happened in the first place. In that sense, we do think it is dangerous to make an apology optional because we are creating a situation whereby health service providers can say to a patient that they hurt them, this is how it happened and that is the end of it, that they are not going any further on that. That is wrong. Even a gritted-teeth apology is better than no apology.

Voluntary apologies are all the more bizarre when we look at the very strong protections that exist for apologies in the Bill. The entire Bill is crafted in a way in which any apology given is not an admission of liability. It cannot be entered as evidence of liability in court so even if our amendments in regard to information provided in the course of open disclosure being admitted are accepted, apologies would still be protected by this legislation so there is nothing to fear here. We drafted our amendments to section 10 in the way we did precisely because apologies are so important to people. It touches on a point made by Deputy Connolly earlier. This would save the State money because people do not want to turn to litigation. Quite often all they want is an acknowledgement that people are sorry for the wrong that was done to them.

I wish to make two points about open disclosure. One is that there should be a full explanation of all the circumstances in terms of what went wrong and joined to that would be an apology. To acknowledge the fact and not to apologise for it is like a double insult. It is leaving open the possibility of people going into incredibly stressful incident meetings and open disclosure meetings where they are hurt, confused and probably fuming. It is fundamentally accepted culturally that when one hurts someone, one should say sorry. The only people who do not believe that are psychopaths. It is a normal way of good human interaction. When a patient hears that the health service provider has wronged and hurt him or her and then shrug its shoulders and does not take it any further, I believe some patients would be so incensed by that that they would launch civil suits that they would not otherwise do when all they were looking for was an apology in the first place. I think it leaves us open to more costly civil action – costly for the patients to be fair but also costly for the State. That will leave us with a lot of hurt and angry people, which is not what we are supposed to be doing. The Bill is supposed to engender confidence in the health service.

My final point on the issue of mandatory apologies is the following. I am sure the Minister will say that in the vast majority of cases the health service providers will apologise. That is great. Perhaps they will but perhaps they will not. Let us even say they will. We would be happy with that, but the problem in leaving an apology as an option in the Bill is that we are explicitly giving service providers moral cover if they do not apologise. I think that, perversely, will make apologies less likely. In fact, by not making it mandatory and given all the protections that exist for apologies we are undermining the confidence of health service providers in the strong protections for apologies that already exist in the Bill. They will rightly wonder if an apology is not an admission of liability and, if they cannot be admitted as evidence of such, why they are optional. Any basic, decent human being would say that if one does something wrong one should apologise. I think we are leaving a gap of doubt from which uncertainty would flow and that is just not good enough for the service providers or the patients.

The Minister used an example on Committee Stage. He reminded us of when we were children and our parents would tell one's brother to apologise if he hit his sister and he reluctantly said sorry. In the case of bad behaviour from a brother, should a parent say a child should not apologise? Is it not the case that the next time such an incident occurred the brother would know he had to apologise or he would be embarrassed in front of his sister by his parents giving him a clip around the ear and making him apologise? It is part of learning. We have a dysfunctional health service that needs to learn. The fact that it must learn to apologise is pretty sickening to be honest but I think it is a reality and we should train it because the health service is like a delinquent child and it needs a lot more intervention than most children in the State do to correct its defective behaviour and to make providers behave like decent human beings with compassion and empathy. If it is the case that they will all apologise anyway, that is great, but the amendment is for the cases where they do not.

Sadly, the experience of all Deputies who have had constituents come to them about this is that many elements of our health service providers do not do that.

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