Charles Flanagan (Laois, Fine Gael) | Oireachtas source

This issue was the subject matter of debate on Committee Stage. Deputy Daly is right. I do not believe we should read section 10 in isolation. Section 15 deals with matters to be addressed by the provider before making open disclosure of an incident. It is in this context, perhaps, that the issue of the apology would be best framed. I say as much because open disclosure is fundamentally about communicating with patients and their families when matters go wrong.

We referred to the issue on Committee Stage as being a human experience for everyone concerned in the context of open disclosure and a consequent or subsequent apology. Since then, serious thought was given to whether an apology should be an automatic consequence of open disclosure. The Bill, along with the Health Service Executive policy on open disclosure and the Medical Council code of conduct, takes the approach that where an apology is appropriate to the specific circumstances of the incident, then of course it should be given. Section 15 sets out what the provider must do before the making of an open disclosure. The provider must make an assessment of all the circumstances of the patient and the nature of the incident itself. At this point while considering the matters to be addressed before an open disclosure is made a decision should most likely be made in respect of an apology.

I believe it is reasonable to form the view that an apology should be a meaningful exercise and that it should be something more than simply a box-ticking exercise. It has to be more than a question of the provider making an apology and then moving on. It has to be more than a question of whether the provider considered an apology and whether it was forthcoming. I do not believe an apology should be given simply because the provider is told to apologise. It should not be mandatory for an apology to be forthcoming.

We should be mindful of the fact that it is not possible to predict every situation. We propose that each patient safety circumstance should be treated individually. Then, if the decision is to be made on the matter of an apology, it should be made by the provider taking into account all the circumstances of the case, including the health, capacity and form of the patient at the time of and after the incident in question. I believe it is eminently reasonable to form the view that an apology needs to be appropriate to the particular circumstances of the case.

The object of the exercise is to ensure we can create the best circumstances for open disclosure to take place having regard to the fact that this will be a human experience for everyone involved. Otherwise, the apology will simply become a matter of form, indifference or something less than substantial - a box-ticking exercise. I do not believe this is the intention of Deputies Daly and Wallace in the context of these amendments. Of course there will be circumstances where an apology is absolutely necessary. However, I believe the best time and place to deal with these is when the pre-open-disclosure issues are taken into consideration under section 15.

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