Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I move amendment No. 24:

In page 23, to delete line 14 and substitute “incident.”

This large and important group of amendments deals with information being admissible in court and the issue of apologies. I will address the first issue and Deputy Wallace will discuss the latter issue.

Section 10 requires substantial amendment and we were disappointed that the amendments we proposed to the section on Committee Stage were defeated. The section holds that neither information provided nor an apology made during open disclosure will be admissible as evidence in court in regard to any action that arises from the patient safety incident that has been disclosed. It also holds that information provided and any apology made will not be admissible as evidence of any professional malpractice or misconduct in a professional misconduct investigation. As we stated on Second Stage, the idea that factual information provided at an open disclosure meeting would later be denied in court by a health service provider is ludicrous and contrary to the principles of natural justice. As the Medical Injuries Alliance pointed out: "It would be abhorrent to the administration of justice if a Court were precluded from considering all existing information necessary to establish relevant facts which are or may be in dispute, before making a decision which determines disputed facts."

Another major issue arises with the proposal to prevent a patient from being able to rely on any information provided during an open disclosure process. Rather than diminishing mistrust, this provision is likely to breed more distrust. If, for example, a patient is provided with a clear and frank explanation of how an adverse incident occurred and the very same facts and version of events are subsequently denied in court by the service provider, how will this build trust in the health service?

We have less difficulty with the proposition that information provided pursuant to the legislation cannot be deemed to constitute an admission of liability in the legal sense. We have not proposed to remove this provision in section 10(1) because we do not have a problem with it. Our amendments would also retain the protections for apologies currently provided for in the Bill and apologies could not be submitted as evidence of liability. Deputy Wallace will elaborate on that point in a moment.

The purpose of the amendment is to emphasise that where there is a dispute regarding liability, it is essential that the court is able to consider all factual evidence gathered on foot of the incident in question, including any facts obtained during open disclosure and all records created for the purpose of making that disclosure. We must view this issue in the context of court proceedings. Allowing information and records provided as part of an open disclosure process to be entered as evidence in court proceedings does not necessarily mean the court proceedings will succeed. All the legal safeguards that normally operate in such circumstances will apply in any case because even if the information and documentation gathered as part of the disclosures process were admissible as evidence of fact, the patient would still be required to establish liability, absent a formal acknowledgement or admission of same. As such, the question of liability still has to be determined.

We are providing only for access to factual information. This offers ample protection for the service provider, particularly when one considers that the burden of proof a patient must discharge in any civil action is set very high. It must be proved that a doctor has been guilty of a failing for which no other reasonable doctor of like skill or experience would be guilty. That is a high threshold.

Another significant issue is that if information gathered or provided as part of the disclosure process cannot be admitted as evidence in court, it will result in court cases becoming much longer and more expensive. Dr. Tom Ryan of the Irish Hospital Consultants Association, in his submission to the Joint Committee on Health's pre-legislative scrutiny hearings, stated: "When litigation does occur, it is preferable for it to be conducted speedily." The State spends tens of millions of euro fighting damages claims, as do the individuals involved in making such claims. It is a shocking fact that the State spends more on fighting clinical damages claims and paying out damages than it spends on maternity services. If the current provisions on open disclosure are allowed to stand, it is likely that litigation costs will increase because if one party to a civil case has access to relevant factual information and the other party is denied access to this information, legal battles will become more hard fought, lengthy and costly. In addition, one has the emotional and psychological damage done to those who are already victims in these types of cases.

If the amendments are not accepted and in the absence of being able to use the independent factual information to which I referred, patients will be forced to pay for and obtain their own independent medical experts to give the expert evidence needed to substantiate or establish that their care was substandard as well as causation. Given that this will have already been established through the open disclosure process, they should not be forced to shoulder this additional burden to obtain this information. The system is highly deficient in this regard.

Similar provisions apply in respect of information in professional misconduct hearings. Again, factual information should be provided at such hearings, which are not as onerous as cases involving civil actions. There is no reason this information should not be provided.

The Francis report in Britain led to the establishment in the United Kingdom of a statutory duty of conduct. The Queen's counsel who produced the report, Robert Francis, made the reasonable point in regard to professional misconduct proceedings that professional regulators would be far more lenient on those who owned up to errors with a serious effect on patient safety than they would be with those who denied it or tried to cover it up. Mr. Francis stated: "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 being honest and open about it than not"." He is exactly right on that point and we have a long way to go before we reach anywhere near that stage. Denying people taking civil proceedings access to factual information that they were given previously in an open disclosure process later is an incredibly serious flaw in this Bill.

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