Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

I move amendment No. 20:

In page 49, between lines 5 and 6, to insert the following: “Amendment of section 48 of Act of 2004

40.Section 48 of the Act of 2004 is amended by the deletion of paragraph (b).”.

This amendment arises out of the report by Dr. Scally. He was commissioned to carry out a number of reports on CervicalCheck. It does not make sense that the Minister is not taking on board Dr. Scally's recommendations and providing for them in law under the Bill. Amendment No. 20 relates to the need to amendment the Health Act 2004. In relation to a culture of openness and patient rights, Dr. Scally stated "In relation to a culture of openness and patient rights, I find it extraordinary that in the Health Act 2004, there is a legal prohibition on anybody making a complaint to the HSE about the clinical judgement of a doctor or other health professional providing care funded by the HSE." The Act states:

A person is not entitled to make a complaint about any of the following matters: ... (b) a matter relating solely to the exercise of clinical judgment by a person acting on behalf of either the Executive or a service provider...

Section 48(b) of the 2004 Act states, "a matter relating solely to the exercise of clinical judgment by a person acting on behalf of either the Executive or a service provider”. That is what open disclosure means in relation to a clinical judgement. Section 48 of the 2004 Act is the obstacle here. In line with Dr. Scally's very clear recommendations, I propose we amend the 2004 Act to remove (b), which is the obstacle to clinical open disclosure. I cannot understand why the Minister has not taken that recommendation on board and why he does not provide for the amendment of the 2004 Act, in line with the clear recommendation of Dr. Scally. We previously had a situation similar to this in 2015, where the then Minister promised full, open disclosure. However, he backed off from doing that following substantial lobbying.

I would have thought, in light of everything that has happened in recent years, that the current Minister would be determined to address this matter. It is regrettable that he has not chosen to do so in this Bill. He did reference this earlier. He said he would do it on another occasion. We have heard this before and I am not prepared to accept it. The Minister has not set out any cogent rationale for not dealing with it in the Bill. It is for this reason that I have tabled the amendment. If we are serious about open disclosure, the Minister must take this amendment on board.

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