Mick Wallace (Wexford, Independent) | Oireachtas source

I will address the amendments in the group which deal with apologies and the provision that an apology shall not constitute an admission of liability. This is a crucial issue. As noted in the discussion on the second group of amendments, apologies are one of the most important aspects of any open disclosure process. The Australian Commission on Safety and Quality in Health Care reviewed this matter and reported that a full and sincere apology following an adverse event is a key element of successful disclosure and that, for patients, an apology is the most valued part of open disclosure and fundamental in the reconciliation process.

There is evidence to suggest that apologies assist the recovery of harmed patients, promote forgiveness and the early resolution of disputes and reduce litigation and legal costs. That is why we propose to retain the provision that apologies should not count as an admission of liability and cannot be submitted as evidence of liability in court. We want to encourage apologies and health care providers to be comfortable giving them.

The importance of apologies in medical practice is reflected in the fact that many jurisdictions have passed so-called apology laws. These laws provide that apologies by health practitioners do not constitute an admission of liability and they exist to encourage health practitioners to say "Sorry" when things go wrong. Such laws are in place in many US states and Canadian provinces. Crucially, what all these apology laws have in common is that they only indemnify apologies and do not have anything to say about information gathered during open disclosure or other forums. Our amendments are essentially modelled on this concept. An apology is not a legal admission of liability and should not be treated as such. Information and facts about an incident are information and facts and should be treated as such, not excluded from evidence in subsequent proceedings.

My final point in regard to this group of amendments is that in the UK a mandatory statutory duty of candour was introduced in 2014 after the Mid-Staffordshire health care scandal on the recommendation of the Francis report. The UK duty of candour has nothing to say about protection from liability. All it says is that if something goes wrong and a patient is harmed, the health care provider has to own up to it, provide full information on the incident, say "Sorry" to the patient, provide the patient with help if he or she needs it, and tell the patient when further inquiries are undertaken into the incident. Liability is not mentioned.

I note the following in the review of potential costs conducted by the British Government before the UK brought in its 2014 duty of candour regulation. One of the most commonly cited barriers to providers being candid is the fear that being candid and providing more up-front information about patient incidents can lead to a risk of increased litigation and that offering an apology might be interpreted as an admission of liability. On the other hand, it has also been suggested that being candid can reduce litigation costs as often the main motivation for bringing about a medical negligence claim is to seek more information about mistakes in care or due to a perceived failure of the provider to apologise.

Overall, the evidence on the likelihood of litigation is unclear. Despite this, the Bill seems to be built on the presumption that openness with information and apologies will inevitably lead to more litigation and more pay-outs, but the evidence for that does not exist. There is no evidence to say that it does that is not contradicted by other evidence to say that it does not. The British review referred to is almost painful in its Tory focus on the potential costs of open disclosure in terms of increased litigation sidelining the moral and ethical obligation of openness to a significant degree. Even they could not come up with any evidence of litigation increase.

We are at nothing in legislating for open disclosure if we do not in every way encourage openness. We are doing a massive disservice to patients and we are standing in the way of improving the health service.

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