David Cullinane (Waterford, Sinn Fein) | Oireachtas source

I support the amendment. This section is problematic. This goes back to what I said earlier about Dr. Scally's report, which is this is one of the areas he is most certainly not satisfied that enough has been done. He specifically cited this part of the Act as problematic. A number of high-profile cases have come before the High Court in recent weeks, regarding mistakes and errors that formed part of clinical judgments. These were often in cases of clinical negligence or questionable clinical judgments being made by clinicians. This will happen in any health service. We accept the vast majority of judgments are, by and large, the right judgments. However, when a patient determines the judgment to be wrong, there is no option for the individual to make a complaint. We need to be looking at something, such as a health oversight body, that could deal with some of these issues. It is an area we need to look at.

In the context of what the Minister said earlier and the offer of the Oireachtas Committee on Health in respect of looking at the outstanding elements of Dr. Scally's report, this is one of the critical elements for me. I appreciate the issues we are dealing with are complex, which is why we need to tease them out and to make sure we get them right but there seems to be a difficulty here. People come to us as politicians all the time and ask us to make representations on their behalf in regard to health issues. They are not satisfied that they might be waiting six months for a procedure. Sometimes a family will say to me as a public representative that they are not satisfied with the clinical decision that was made for a relative or themselves. I always make the point that I am not a clinician. Clinicians have to make decisions. I cannot second-guess what a clinician does. It is not part of my role as a public representative. There should be a process, which does not exist at the moment, for a patient or a family acting on behalf of a patient to make a complaint. Complaints are only complaints and, obviously, they then have to be adjudicated upon. In many situations, it is possible the complaints would not be upheld because the clinical judgement may be independently determined to be right. However, at the moment there is no avenue for people.

There are lots of high-profile cases that end up in the courts where damages are paid on behalf of the State, and rightly so, to people who have been wronged. Part of the problem in some of those cases is the area of clinical judgement. It is not the only factor but it is part of it. For that reason, I do not understand why this was not dealt with. Perhaps the Minister will explain why that element of Dr. Scally's report on this critical issue was not dealt with. During the pre-legislative scrutiny of the Bill in the Oireachtas Committee on Health we had a constructive but quite lengthy discussion on this. At that point, I was not clear on why there was resistance, other than the reason that it was complex. Of course, we have to properly tease out all of these issues but I was not satisfied that I was being assured as to why this was not dealt with.

I support the amendment. I imagine the Minister will not be accepting it. He will probably argue the matter is complex and that it will take more than the amendment to deal with the issue. This is in addition to all of the intended, and possibly unintended, consequences that might flow from this amendment being accepted. That is the reason we need to come back to this. The Minister needs to make a commitment to look at this issue. I have met many patients over the past number of years who have made the point they cannot make a complaint and that there is nowhere for them to go. The Ombudsman is not an option. There are no options for them. For that reason, I will be supporting the amendment.

See this speech in context