Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

Fianna Fáil will be supporting this long-overdue legislation which underwent scrutiny at the Oireachtas Joint Committee on Health last year. Patients must be able to trust that they are getting from their doctors the full facts about their own medical tests and conditions, including any adverse events and errors that have happened. Those doctors and healthcare professionals must feel free to be able to share this information with patients and to do so without fear of legal consequences.

The Bill represents a serious, healthy and necessary legal change for the environment in which our healthcare professionals will be working. However, it has taken far too long for the legislation to come before the House and does so in the final few months of this Dáil. In 2016 when the Taoiseach was Minister for Health he said he would not introduce mandatory reporting. This was in spite of his promising in 2015 that he would introduce mandatory reporting. Until the CervicalCheck crisis arose, the Minister, Deputy Harris, had decided to introduce voluntary open disclosure rather than the mandatory scheme outlined in the Bill. The HSE published its disclosure guidelines in 2012 and its national healthcare charter from that year states: "Patients can expect open and appropriate communication throughout their care, especially when plans change or if something goes wrong."

We are finally debating this Bill four years after the then Minister and now Taoiseach boasted about preparing a wide-ranging package of patient safety measures when it came to disclosure and eight years after the then Minister, Senator Reilly, promised a patient safety authority that was never established. There has been a complete lack of urgency from successive Fine Gael-led Governments when it comes to open disclosure and patient safety.

It is critical that patients know the full facts and we all know this did not happen in the case of CervicalCheck. We have all pointed criticism at CervicalCheck, some of which is very necessary. It is worth acknowledging that no other country even tried to do what CervicalCheck tried to do with its historical audit in looking back at every case and telling the women affected. Ireland is the only country where an attempt was even made to communicate with the women. There was some limited implementation of this in the British National Health Service, NHS, but it does not exist anywhere else.

However, it did not reach the bar it set for itself and as we all know many women were very badly let down. In most cases the information was communicated to the doctors, but for a variety of reasons outlined in the Scally report and through debate over the last year and a half, we know that much of this critical information was not communicated to women or their families. It should have happened and this legislation will help ensure it happens in the future.

We know about the cases from the 221+ group. However, the Royal College of Obstetricians and Gynaecologists, RCOG, review has revealed many more women who did not know. With her permission the case of Ms Bernadette Kiely has been referenced openly in this Chamber previously. In this case a CervicalCheck audit had found discordance. None of this was communicated to Ms Kiely. She was not included in the 221+ group as she should have been. Just as worryingly, when she got her RCOG review results which found the discordance and referenced the CervicalCheck audit, she then approached the HSE and asked to join the 221+ group but was told she could not. She only got her patient files when her solicitor acted on her behalf. Even now they have not been provided with all the relevant files.

I have read through the file in detail and believe she is unambiguously entitled to the ex gratiapayment of €20,000. However, when Ms Kiely and her solicitor asked that she be eligible to the payment, she was told by the HSE that she was not entitled to it. She was then told to find whatever receipts she could from her previous medical care, including drugs and that if she could pull these together the HSE would reimburse her. We have a long way to go in full open disclosure and in reacting properly to women who have not received disclosure.

Three days ago, in a clinic in Wicklow I met a lady who was part of the RCOG review and where discordance was found. She came to me because she is still completely at sea. She does not know if she is entitled to the €2,000, which I think she should be. I believe they all should be entitled to that even though we read in the newspapers that they are not. Although she has not been told about any previous CervicalCheck audit, the discordance was found from a 2014 smear test, which indicates to me there probably was an audit. She said she is now required to fill out sheaves of paper and forms and has not got the support she needs.

I am not making any political points here; we all want what is best. However, we need to do much better in supporting these women in open disclosure and critically in supporting them after open disclosure. Over many years we have all dealt with heartbreaking cases of people who have fought the system and, in many cases, lost because the State wields the threat of legal action and legal costs like a weapon against largely defenceless citizens. In denying them access - I have met, as the Minister may have done, parents whose baby died during childbirth. Audits were conducted and there was a thorough look-back at what happened. Errors were found but all of this was hidden and kept from the parents.

To this day, those parents are struggling to get justice.

These cases are extraordinary and they are not just on the medical side. In this House, we tend to focus on the medical side but we must take a broader view. For several years, I have been dealing with the case of a social worker employed in child protection who was asked to do something in a case. The expert had clearly said this should not be done and the social worker raised a flag and said he was not comfortable doing it. The HSE set out to destroy this guy. It brought him to the High Court and the legal costs in the case reached the point where he was going to lose his house. He ended up having to leave the service and the country. All he was doing was trying to protect a child and follow the expert advice that had been given. I wrote to the director general of the HSE and said I wanted this case investigated but he refused. I also wrote to the Office of the Ombudsman asking to have the case investigated. It also refused to do so on the ground that it was a child protection issue and informed me that I should contact the Ombudsman for Children. I met the Ombudsman for Children who said the case did not warrant an investigation. The HSE, having destroyed a good man for protecting a child, refused to investigate, as did the Ombudsman and the Ombudsman for Children. This is the reality for those who see something wrong and refuse to act in a certain way because they do not want to create a patient safety incident. The case I raise is a live one. We need to look at our hospitals and medical care and also social care.

It is critical that clinicians feel they are legally protected. Based on the conversations I have had with clinicians, they do not feel protected at the moment. I am aware that amendments will be made to the Civil Liability Act. We must engage in great detail with the clinicians. They must be assured that they have legal protections and we must ensure that resources are in place. This will require training and may require other supports. Counselling may be required for patients and their families and also, in many cases, for the clinicians. These can be very difficult things for people to do.

Whatever process is put in place, it should be at an appropriate level of administration. There is a real fear that clinicians, in trying to comply with this law, will be buried in paperwork and red tape. They need to spend most of their time keeping people well and treating patients who are sick. Of course they must do what is prescribed in the Bill but we cannot bury them in red tape. We need standardised and simple processes where the right information can be communicated to the right people and organisations without giving rise to an onerous burden of red tape.

State agencies will also need additional resources. A great deal of new information will go to HIQA, the Mental Health Commission and perhaps other State agencies. These bodies will have to investigate and get involved, as they should. That is one of the reasons we are doing this. For them to do that, however, they must have additional resources. We cannot have circumstances where sensitive and important information begins to make its way to our regulators and statutory agencies, including safety agencies, if they do not have the professionals they need to go in and investigate and work with our hospitals, healthcare providers and patients to make sure these things are acted upon and improvements are made.

I welcome the additional powers being given to HIQA in respect of private hospitals. By and large, our private hospitals are pretty good. They put in place their own rigorous safety processes and audits, often with independent and international oversight. It is right and proper that the State's regulatory and safety agency can investigate any of the private hospitals in the same way as it can investigate public hospitals.

I do not have a copy of the Minister's speech. With regard to open disclosure, he spoke of clinicians now being able to stand up and say they made a mistake, got something wrong, fell short and apologise for doing so. I encourage the Minister to look to his Government on this and lead by example. The Select Committee on Health met last week when it was asked to approve an additional €338 million for health. We got the relevant information late on the night before the meeting. Members were in the Chamber voting at the time and discussed the Supplementary Estimate at 9 a.m. the following morning. The previous year, we received the information at 10 p.m. on the night before the committee meeting. One of the most important roles of the House is to interrogate money. The reality is that the information we got was not what was needed, did not have the detail we needed and we got it on the evening before a 9 a.m. meeting had been scheduled to discuss it. If we are to have open and full disclosure, we must lead by example. The information has to be given out in a more timely manner. The Minister could also lead by example. The Minister and I had a back and forth discussion in the committee on cost overruns and parliamentary questions. In a non-adversarial way, I put it to him that perhaps he would like to correct the record with regard to responses he had given to Deputy Cowen. He refused do so and ended up having to correct the record in the Chamber.

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