Tuesday, 13 October 2009
Medical Practitioners (Professional Indemnity)(Amendment) Bill 2009: Second Stage
The purpose of this legislation is to amend and extend the Medical Practitioners Act 2007, to provide for mandatory professional insurance for certain medical practitioners and to provide for connected matters. The legislation is intended to protect patients and to help doctors. It is designed to regulate doctors in order that they have appropriate insurance to practise medicine in Ireland. Currently, one can be registered with the Medical Council. One is not expected to have insurance and while it is ethically expected that one would have insurance, it is not a legal requirement nor is it a criminal offence to practise without it. The Bill seeks to address both deficits and to address ever increasing globalisation whereby doctors can visit private clinics, perform surgery and leave again. I do not denigrate such clinics. Their regulation is an issue but the purpose of the Bill is to provide an absolute guarantee to the public that doctors practising in Ireland have adequate and appropriate insurance and indemnity. They are slightly different but it is not the purpose of the Bill, lest it be construed so, that one or the other would no longer be acceptable.
The majority of doctors are responsible and they carry appropriate medical negligence insurance. However, as in all professions, some may not have an appropriate level of insurance cover either through inadvertence or design. The Department of Health and Children and the Medical Council do not know how many practitioners have insurance, what level of cover they hold, the type of insurance they hold or who provides it. Fine Gael believes that, at the very least, this information must be collected and, following the enactment of this Bill, all doctors will be required to have adequate insurance cover.
The legislation will make medical indemnity cover, forms of which can range from a formal contract of insurance to the type of discretionary indemnity provided by mutual societies such as the Medical Defence Union, MPU and Medical Protection Society, MPS, compulsory. The Bill aims to close a loophole that could allow an unscrupulous doctor to apply for medical registration and practise without insurance. We intend that insurance will be compulsory for all practising doctors and the Bill provides that the Medical Council will have the power to set the appropriate type and level of insurance to be held by different classes of practitioners. For example, eastern European countries with poor economies would consider a €200,000 insurance bond more than adequate to meet their needs whereas clearly in Ireland that would not be adequate. Currently, the Medical Council has no such power and while it states doctors must have adequate cover, there is no system of checking to make sure doctors have cover or adequate cover. Categories of practitioner, such as full-time academics, practitioners registered in Ireland but practising abroad or those retired, would be exempt from holding such indemnity or insurance cover.
This Bill is proposed in the interest of both patients and doctors. It guarantees, for the first time, that patients are protected in so far as that in the event of a mistake or medical negligence, they can claim financial compensation from a doctor. Improved regulation provides better protection to patients, removing the possibility whereby a doctor may not have appropriate insurance or any insurance cover at all. The legislation maintains trust in the profession as a whole, while ensuring all doctors have sufficient insurance cover. It will further provide that before the Medical Council can issue a certificate to practise to a practitioner, written evidence of appropriate insurance must be produced.
Someone irresponsible could practise in Ireland without the appropriate medical negligence insurance and, in the case of negligent or unsatisfactory treatment, an aggrieved or injured patient may have no redress to compensation. The Bill is intended to apply to doctors who are not domiciled in Ireland but who often practise here in private clinics, as well as practitioners normally resident in Ireland. In the event of mistakes or medical negligence, we must offer patients the best protection we can. Compulsory indemnity would instil confidence in the system and guarantee patients' redress if something went wrong.
A draft directive on patient rights in cross-border health care is being considered by the institutions of the European Union. Article 5(1)(e) of the draft directive, as proposed by the Commission, requires member states providing treatment to ensure that health care providers have systems of professional liability insurance or a guarantee or similar equivalent arrangements in place. The UK Government has sought to introduce mandatory indemnity for doctors. The legislation was approved by the UK Parliament in 2006. In parallel with bringing forward the legislation, the UK Government sought to make indemnity compulsory for other health care professionals such as nurses and midwives and mandatory indemnity is being reviewed with a view to its introduction for all professionals. Our Bill is not aimed at nurses or other medical professionals. Other countries such as Singapore and South Africa have taken steps to introduce mandatory indemnity for doctors and they have legislation in draft form. Legislation was also approved in the Cayman Islands to require doctors to have indemnity.
Irish doctors have four main options: the clinical indemnity scheme, the Medical Defence Union, the Medical Protection Society and Medisec. Historically there were other insurers but most have withdrawn. It has been troublesome to get some of them to honour their commitments. I had a discussion with an insurer earlier and there have been issues.
There are three types of insurance. Occurrence-based insurance is offered by the MPS and the MDU. If one was insured when the event occurred, one remains insured even if the claim is not processed for years afterwards. Claims-based insurance is offered by Medisec. If the claim is made years after the event and the professional is no longer insured, cover may not be in place. Run-off cover is required and that will be addressed in the legislation. The clinical indemnity scheme provides State insurance.
One of the most notable features of clinical negligence litigation is the long time lag between an alleged negligent act and an ensuing claim. Professional indemnity has traditionally been provided on an occurrence-based basis because claims may be brought many years after the event. In other words, the indemnity arrangements doctors have in place at the time of an incident can be invoked at any time in the future when a claim emerges. This may be long after they have changed indemnifiers, retired, or even after death. The alternative form of indemnity is claims-made insurance cover. Most insurance policies are offered on this basis and a policy must be in force when a claim is reported. This is all very well for some types of cover, where an incident is reported to the indemnifier almost immediately, for example, car insurance claims, but it does not suffice for medical insurance where claims could be made years later when problems are identified and claimants reach the point where there can be a court case.
Given the nature of claims-made indemnity, it is more difficult to move from one insurer to another or to take breaks from practice without the risk of gaps developing in cover. A clinical negligence claim will often be made two or three years after the original adverse incident. The claim may be made decades after the event in some cases. However, with occurrence-based indemnity, the date on which a claim is brought or reported has no bearing on the right to seek assistance. The MPS and the MDU offer such insurance.
There is no obligation to obtain run-off cover when doctors terminate their insurance policy. However, such cover should be mandatory when doctors do so to avoid gaps in cover. Normally when they move insurer, the new insurer will arrange run-off cover. When doctors leave their insurer because of retirement, career break or otherwise, the insurer could be required to offer run-off cover for a specific period and for a reasonable premium. Such cover protects patients and doctors against claims that may emerge after the policy has terminated but that arise from events unreported during their period of cover.
There is a lack of regulation in private clinics. In the public service all HSE staff, including consultants, non-consultant hospital doctors, nurses and other clinical staff employed by health agencies, are covered by the State clinical indemnity scheme. Conversely, in the private sector we do not know if a medical professional has indemnity insurance unless a claim is made. If one holds a contract with the GMS, one must produce one's insurance, but an issue arises in terms of locums and other private doctors who come and go and whom we presume have insurance but who may not on some occasions.
During the past decade the cosmetic surgery business expanded exponentially. The absence of proper regulation in this area has meant that, on occasions, under-qualified and untrained practitioners have been allowed to perform complicated cosmetic surgery procedures such as breast augmentation, liposuction and gastric banding which have put patients' lives at risk.
A number of issues arise in that regard from the Medical Council's perspective. A doctor may be legitimately on the medical register in this country but not on the specialist register concerned. They may be operating in a specialist area such as plastic or cosmetic surgery even though they are not listed as being such a doctor on the medical register. That puts the Medical Council in a position where it is the body to insist on the type of cover people should have and make that sort of activity illegal. It is clear some resource issues may arise for the Medical Council, but it is in the public interest and the best interest of patients that this happens.
I am aware of at least two cases where a doctor came to this country, operated on a patient, the procedure was not a success and after several return visits to the clinic, the person decided to take legal action. They eventually got to court three years later. The doctor came over from England, admitted he made a mess of the operation but said that he was now bankrupt and no longer had insurance. The patient had no redress in that case and we must address those situations.
The other one is a specific case which was made public but I apologise to the family for any upset it might cause them to have it mentioned again. Absence of regulation had fatal consequences for Bernadette Reid, from Wicklow, who died following surgery for a gastric band operation in a south Dublin clinic, Advanced Cosmetic Surgery. It is reported that Ms Reid went for surgery against the advice of her general practitioner, who considered her unsuitable for the procedure because she had chronic asthma. At no time had anyone from the clinic consulted with the lady's GP or requested her medical records prior to beginning the procedure. During the course of the procedure, it apparently became obvious that she had a tumour and the operation was abandoned.
Regulation of the clinics here is another issue that arises, but it is not one we will deal with today. It is important that patients here are protected and that it is a legal requirement for anyone registered to be insured. The Bill provides for punitive penalties in terms of fines and custodial sentences, particularly for a recurrence.
I want to record that I received a telephone call from the Minister this morning, whom I know is not opposed to the Bill in principle. She will put down an amendment which imposes a moratorium in terms of the Second Reading, with which I do not have an issue. I thank the Minister for her co-operation. This Bill is for the good of patients but also for the good of doctors because the rogue doctors who do not have insurance are the ones likely to create mayhem, which eventually imposes a cost on everybody.
I wish to briefly mention New Zealand, which operates a no fault insurance-indemnity system. Interestingly, one of the people to whom I spoke today told me that their system involves rapid settlements of claims with little involvement of lawyers and savings on legal costs. This system avoids the angst and risk of costly court actions for the claimant while ensuring that the injured party receives adequate and timely compensation but, most importantly, the relevant and necessary supports for them to continue to lead a normal life in so far as that is possible. That is the key issue. Rather than awarding vast sums of money, they seek to address the deficit caused by the negligence and the sums of money awarded are much smaller.
The same company that provides legal indemnity to most doctors here in Ireland also provides a service to the doctors in New Zealand under the no fault system. We should examine that system, adapt it to Ireland's needs and introduce it here in order to save legal costs which can then be used for health care provision at the front line and also to simplify the compensation process for the patient and claimant.
We expect to pay out €60 million in medical-legal costs this year, €20 million of which will be to lawyers. It is interesting that the gentleman to whom I spoke today said that most people appear to be happy with the system in New Zealand and the only people unhappy are those in the legal profession. I commend the Bill to the House and again acknowledge the Minister's support.
I support the Bill, although not out of sympathy with my colleagues in the legal profession, as mentioned by Deputy Reilly. This is a non-controversial Bill and it should be dealt with by the House on that basis. It is an honest attempt to close a loophole in our professional regulations. I urge all sides of the House to support the principle of the Bill and ensure that Deputy Reilly's proposal is put into operation at the earliest opportunity.
When non-doctors think about medical practice we tend to refer to the origins of medicine, the father of medicine, Hippocrates, and examine the wisdom of the ancients to see the type of medicines they were prescribing at that time. Of the Greek medical texts the oath of medical ethics for physicians prescribed by Hippocrates is the one that stands the test of time. Having set up a medical school on the island of Kos, off the Greek coast, Hippocrates established a process whereby new physicians were required to swear by Apollo and a host of other healing gods and goddesses that they would do certain things and not do others.
Some of the requirements in the hippocratic oath may sound quaint today. The new physician had to swear that whatever houses he would visit - they were all "he" at that time - it would be for the benefit of the sick, remaining free of all intentional injustice, mischief and, in particular, sexual relations with both female and male persons, be they free or slaves. That is the quaint language used at the time. There were commitments that they would not give a deadly drug to anybody who asked for it, nor were they to make any suggestions to that effect and so on. There was also a commitment that he would not give to a woman an abortive remedy: "In purity and holiness I will guard my life and my art."
What is remembered most from the hippocratic oath was the commitment that the new physician would swear to all the gods and goddesses to first do no harm. In many ways that oath has been re-written through the years to suit the values of different cultures that were influenced by Greek medicine but the basic principle remains the same, namely, that the physician or the doctor will do no harm.
The problem is that at times the doctor does harm. That has always been the case over the years, and continues to be the case today. One has to accept that some injuries or trauma are avoidable, particularly when a person is in receipt of acute care. That injury or trauma might be the result of the inevitable consequences of the disease process or the unavoidable side effects of the treatment being performed, but in some instances it is clear that was not the case and that the trauma or injury suffered by the patient arose from the avoidable measures.
We do not know the full extent of the problem today. As Deputy Reilly mentioned, the full data is not available. Studies were carried out in many countries which appear to confirm the view that there is an unacceptably high level of negligent, adverse events. Some studies were done in the United States which suggest that up to 4% of hospitalised patients suffer an adverse event approximately, half of which are believed to be avoidable. Those findings could probably be applied here as well. We are probably no better or worse off.
If these are the facts, what is the remedy for the patient who has suffered those effects? The normal process is that if there are negligent adverse effects on the patient, the person is entitled to claim compensation. In the US, approximately one in eight negligent events results in a claim for compensation. I do not know what the figure for Ireland is as I do not have the data, but it may not be any different. We have as strong, or as weak, a litigious culture here as in the United States.
When a claim is made, it cannot be equated to a normal claim for personal injuries. Where there is a normal claim for personal injury, it involves a healthy person involved in an accident who has sustained some trauma. Medical negligence claims are more difficult because they normally involve somebody who has suffered a medical accident while probably already having a condition that requires some treatment. The person may have received the wrong treatment or there may have been a mistake in diagnosis.
There is medical negligence where there is a deviation from accepted standards of care and the injury is considered a result of negligence if complications arise not because of unforeseen circumstances, but improper care and treatment. That leads to the point that the least an injured claimant should expect is that having gone through the medical, legal and judicial hoops, any award given would be paid. I am aware that this is normally the case but it is clear that, in some instances, it is not. In some cases, awards granted are not recoverable because there is no indemnity insurance, which is a problem that needs to be confronted. In essence, it is the basis for the Bill.
I am quite surprised that it is only at this stage that we are closing this loophole. I am not a practising lawyer at this stage but I could not get a practising certificate without proving to the Law Society that I have liability insurance. If that is the case with lawyers, why should it be any different for a doctor going to the Irish Medical Council? Most doctors have medical indemnity insurance anyway so there would not be a significant additional burden. It would help us avoid the rogue doctor or somebody who is scalping the system and not being fair to patients or doctors who comply with the rules.
This Bill is not in any way an attack on doctors. Some 95% or 98% of doctors are doing their job properly and honestly, but we must rope off those who fall into the small percentage who do not do their job properly. The medical profession would accept there are some people like that. The president of the Medical Council said openly some years ago that between 3% and 5% of doctors were underperforming. It is quite a normal or natural position but we should guard against it nonetheless.
There is the general question of insurance. I accept that the clinical indemnity scheme established in 2002 was a big advance which covered responsibility for the vast majority of claims. There is indemnification and management of very many clinical negligence claims. From sitting on the Committee of Public Accounts, I know approximately 400 or 450 such claims were dealt with by the State Claims Agency in 2007 so the net is clearly wide enough, although it does not cover everything. That is the point we are working on here.
It is useful to consider the scenario in other countries. As I understand it, almost all the states in America require that physicians have malpractice insurance. Sometimes the awards can be very big and, correspondingly, insurance premiums can be big as well. I have no doubt that obstetricians, for example, would have hefty insurance in light of expensive awards. If that is the case, it is unfair if somebody who makes a legitimate change should then find that because the assets are not there on the part of the doctor in question, the claim cannot be met.
There are instances, as have been mentioned by Deputy Reilly, of people coming into this country, staying for a short time and leaving like a chicken flying the coop. In such cases, nobody is quite sure if the people in question have insurance and the poor unfortunate claimant, who has gone through hoops to secure an award, may have to engage lawyers - a much maligned species who try to do their best for their clients - to chase the people around the world. This is an additional job which may not be successful if the doctor in question has gone to another part of the globe. That is the background to the Bill.
The picture as presented by Deputy Reilly on behalf of Fine Gael is a simple question of regulation of doctors practising in this country to ensure that they have appropriate insurance to practise medicine. I do not see anything against making such medical indemnity cover compulsory. This is compulsory for solicitors; one cannot get a certificate to practise without proof of insurance. One cannot drive a car without compulsory insurance but, to give a gross example, if a person is amputating a leg, there is no compulsory requirement for insurance, although I appreciate that in general there is cover through the State clinical indemnity scheme. As I understand that scheme, it does not apply to private clinics, so why should the same concept not apply in the private sector?
I am very much in favour of ensuring that medical indemnity cover is compulsory for all doctors practising in this country. It is something that can be dealt with by the Medical Council, which should set the appropriate levels, as there is a wide range in the type of cover available depending on the nature of the practice being carried on. That is for the Medical Council to work on in order to establish the guidelines and requirements to be put into operation before issuing a certificate to practise to a practitioner. Nobody in this House would be inclined to vote against that type of proposal. I appreciate that certain modalities may have to be put into operation before matters can be progressed. However, I hope the Minister will indicate that she supports the Bill in principle. The modalities to which I refer can then be put in place at a later date.
I commend the work done by Deputy Reilly on this and a number of previous Bills. The legislation before us highlights the importance of having an expert in this field in the House who is prepared to bring forward good proposals of this nature. I recognise the fact that the Minister for Health and Children is prepared to accept the general principle behind the Bill, which shows that Members on all sides can, in co-operation with each other, bring forward legislation to close certain loopholes or gaps that exist.
As Deputy Reilly stated, the main purpose of the Bill is to protect patients. I am interested in making a contribution to the debate because I am familiar with a case where a patient was placed in an extremely vulnerable position and had no comeback in respect of a mistake made by a practitioner in a private clinic. Cases such as that illustrate why the Bill is important.
The Bill is designed to regulate doctors and ensure that they possess appropriate insurance to practise medicine in Ireland. The majority of doctors posses such insurance but, unfortunately, there are some who, either inadvertently or through sheer carelessness, do not. It is rather unusual that neither the Department of Health and Children nor the Irish Medical Council knows the exact number of doctors in this country who are not insured. Even if it is not mandatory in nature, there should be an obligation on doctors to inform the HSE or even their patients that they do not possess adequate insurance cover. Doctors should do this as a matter of course but, unfortunately, it does not happen.
The UK Government sought to introduce mandatory indemnity for doctors and the relevant legislation was approved by Westminster in 2006. In parallel to bringing forward that legislation, the UK Government also sought to make indemnity compulsory for other health care professionals such as nurses and midwives. Whether we want to take that route is another issue, but we should consider what the UK authorities are doing to discover if we should put in place a similar system. South Africa and other countries have also taken steps to introduce legislation relating to mandatory indemnity for doctors.
Ultimately, patients will benefit and doctors will be afforded protection if mandatory indemnity is introduced. The Bill will enable the Irish Medical Council to set the appropriate levels of insurance that will be held by different classes of practitioners. It will also exempt different categories of practitioners from the necessity of holding such indemnity. It is important that the legislation should also apply to the many doctors who are not domiciled in Ireland but who practise in private clinics here on a regular basis. It is becoming increasingly common for people to come here from abroad to carry out certain procedures on a particular day of the week or perhaps once a month.
I welcome the Bill. As already stated, I am familiar with a situation involving a particular individual which would never have arisen if the necessity to possess mandatory indemnity had been in place.
I welcome the opportunity to contribute to the debate on this important legislation. I congratulate the Minister and Deputy Reilly on discussing the issue to which it relates earlier today and I hope they will be able to reach an accommodation so that we might move matters forward.
Insurance, particularly as it relates to private medical practices and clinics, is extremely important. I am not aware of too many difficulties arising in the context of ordinary private practitioners. However, I have come across quite a few in respect of hospital and other settings. In recent days, I met a young person whose aunt encountered serious difficulties in the HSE system. If one is a certain age, even in the HSE system, one can experience problems in the context of obtaining support and assistance. I have not read the entire file I was presented with by the young person. However, I am aware that it contains documentation to the effect that the hospital involved apologised and admitted that a difficulty had arisen.
Regardless of whether one is dealing with private practitioners or the public health service, patients and their families are not really interested in insurance or money. Rather, they are concerned with regard to the availability of support services in the aftermath of the relevant procedure or whatever. The woman whose case was brought to my attention is no longer able to walk properly. Ten months after her first operation, she is not properly healed. If she wants to go shopping or whatever, she is obliged to rely on her niece or some other relative to provide transport. She requested a mobile or electric wheelchair but was informed, in no uncertain terms, that it cannot be provided. The woman lives in an old person's dwelling, which is very suitable because it has been adapted to meet her needs. However, she cannot go shopping or whatever without asking one of her relatives to travel a long distance to assist her. The individual in question is not interested in insurance but she would appreciate some assistance.
I am aware of quite a number of problems that have arisen in respect of private medical practices. Everyone is aware that some doctors come here from abroad - in some instances to fly in for the day - to do short-term work. The Bill seeks to ensure that such individuals are properly insured and that there will be a follow-up system in place. If a doctor from abroad carries out a procedure here and then returns when a difficulty arises and states that he or she has no money, the patient involved is left in an extremely weak position.
I commend the Bill, which is in the interests of both patients and doctors, to the House. As Deputy Reilly stated, it will guarantee that, for the first time, patients will be protected in that, in the event of a mistake or medical negligence, they will be in a position to claim financial compensation from doctors. Improved regulation provides better protection to patients, removing the possibility that doctors may not have appropriate insurance or any insurance cover at all.
This legislation is both straightforward and important. I welcome the fact that the Minister and Deputy Reilly may be able to reach an accommodation so that a system of mandatory indemnity might be brought into being as quickly as possible. Such a development would ensure that people can be guaranteed their rights.
I move amendment No. 1:
To delete all words after "That" and substitute the following:
1. Supporting the important role of the State Claims Agency in its administration of the clinical indemnity scheme, whereby the State has assumed responsibility for the indemnification and management of clinical negligence claims arising from the diagnosis, treatment and care of patients;
2. Welcoming the recommendations contained in the report of the Commission on Patient Safety and Quality Assurance to ensure that safety and quality of care for patients is paramount within the health care system;
3. Acknowledging the establishment of an implementation steering group this year to drive implementation of the commission's recommendations;
4. Noting with satisfaction the passing by the Oireachtas of the Medical Practitioners Act 2007, the main objective of which is to provide for a modern, efficient, transparent and accountable system for the regulation of the medical profession and to satisfy the public and the profession that all medical practitioners are appropriately qualified and competent to practise in a safe manner on an ongoing basis;
5. Welcoming the ongoing commencement of provisions of the Medical Practitioners Act regarding registration, fitness to practise procedures and for supervising medical education and training at basic and specialist level;
6. Endorsing the work of the Medical Council in preparing for the commencement of provisions in relation to the maintenance of professional competence of all medical practitioners;
resolves that the Medical Practitioners (Professional Indemnity) (Amendment) Bill 2009 be deemed to be Read a Second Time, on 31 January 2010.".
It is now two and a half years since the House enacted the medical practitioners legislation of 2007. This was a comprehensive modernisation of legislation governing the medical profession that then dated back 30 years. It was a good debate and an important moment in legislating for patient safety and standards in health. It was clear from all contributions in that debate that at the heart of the doctor-patient relationship is trust. When one is a patient or when one's family members are patients, one wants to have the utmost confidence and trust in one's doctor not from the perspective of blind faith or deference, but for good reason. However, I do not believe that people want a bevy of lawyers, legislators or insurers metaphorically sitting in on confidential discussions with their doctors.
A system characterised by trust, patient involvement in feedback, no-fault reporting, responsiveness to complaints, fair processes and continuous learning is much preferable to one based on suspicion, defensiveness, opaque procedures, blame and litigation. I believe the clear sense of the House two years ago and subsequently is that Members want health care to be built on the first model and not the second, by supporting trust and confidence rather than relying on blame, litigation and compensation. I believe Members also share the view that to achieve the highest quality of medical care and trust in the relationship between doctor and patient, it is essential that it is supported by a modern infrastructure that exists outside the relationship itself. Just as Members no longer believe it sufficient for professions to monitor and regulate themselves on their own, they also do not think it appropriate to rely solely on personal traits and training to achieve a high level of care and trust in the doctor-patient relationship. Consequently, the Government is supporting and reinforcing quality care and trust through an infrastructure.
First and most important in this infrastructure is medical competence assurance. This means the initial rigorous training of doctors, followed by a continual process of competence assurance. The Government has provided and supported key institutions with authority and public confidence to ensure medical competence, principally, the new Medical Council and the professional colleges. Another part of the supporting infrastructure for the doctor-patient relationship comprises clear processes to deal with cases in which things go wrong, ranging from negligence at one extreme to honest mistakes and plain accidents or coincidences of small events. Even if they are never used, the existence of full professional indemnity insurance, fair and open complaints procedures, fair and thorough fitness to practise hearings, whistleblower protections and so on is critical to engendering confidence on the part of patients in both each doctor and in the practice of medicine itself.
I believe great progress has been made on these fronts in a variety of legislation and initiatives as part of the health reform programme. In addition to the innovations in the Medical Practitioners Act 2007 and the new Medical Council, the Government has established the Health Information and Quality Authority, HIQA, as the body that will set standards for health care providers beyond the personal and professional competence of individual clinicians. The clinical indemnity scheme is working well to provide assurance for patients and doctors alike on medical claims. My colleague, the Minister of State, Deputy Áine Brady, will set out some important provisions of the Medical Practitioners Act and features of the clinical indemnity scheme.
This year, I commenced provisions relating to whistleblower protection in the Health Act 2004. The Oireachtas also enacted the Pharmacy Act 2007, which provides for a complete overhaul of the regulation of pharmacy and which updates legislation that went back to the 19th century. Again, patient safety, continuing competence assurance and the achievement of quality services is at the heart of that legislation. It is evident from the work of the Pharmaceutical Society of Ireland in the past two years that this new and modernised regulation is working better for patients and the public interest. The same is true for HIQA, which in just a few years has made tangible progress towards higher standards of care and higher public confidence in the services received. Furthermore, the Department set up the patient safety commission, which also gave its backing to the commission's report. An implementation process is now under way under the direction of the chief medical officer and his team. A key part of the thinking behind the patient safety commission is to involve patients and their perspectives in the achievement of higher standards. This idea is based on the insight that, in the 21st century, a grounded, trusting doctor-patient relationship is based on mutual respect and two-way feedback.
It is in the overall context of the infrastructure supporting patient safety and the doctor-patient relationship that I perceive and welcome the motivation behind Deputy Reilly's Bill. As Deputy Reilly has well articulated this evening, the motivation is that patients would be assured that professional indemnity insurance is, in fact, in place for every doctor who practises in the State and in whom they place their trust. I agree fully with the objective behind this Bill. Patients need the assurance of the competence and professional insurance of their doctors. The question is how does one most effectively achieve such assurance.
Given the complexities and sensitivities of medical indemnity insurance, the method deserves detailed reflection from the legal, administrative and practical points of view. This is the reason the Government has tabled an amendment this evening to the effect that the Second Reading of the Bill will be deferred until the end of January next at the latest. In the meantime, I will ensure that the draft legislation receives full analysis and consideration from all the relevant policy and legal expertise available to me. I will revert to Deputy Reilly and the Fine Gael Party before the end of next January. I also intend to keep him informed and fully consult him on particular aspects as I proceed. I also am happy to include Deputy Jan O'Sullivan in this process.
More generally, I welcome this opportunity to work together with other parties on improving assurance for patients in potential legislation. Our legislative system is designed to be deliberative but our politics are adversarial, often excessively so. This can lessen the occasions for collaborative, deliberative work on legislation driven by shared objectives or certainly can drown it out in public communications so the public too seldom sees Members as legislators working together on common objectives. This Bill provides Members with such an opportunity. I thank Deputy Reilly for introducing this Bill in his party's Private Members' time. I acknowledge the constructive spirit in which it has been offered and I undertake to examine it honestly and fully in consultation with him and to revert to this House before the end of January.
Áine Brady (Minister of State with special responsibility for Older People and Health Promotion, Department of Health and Children; Minister of State, Department of Environment, Heritage and Local Government; Minister of State, Department of Social and Family Affairs; Kildare North, Fianna Fail)
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I am happy to have the opportunity on behalf of the Government to participate in this debate on Deputy Reilly's Bill, which proposes the introduction of mandatory professional indemnity cover for medical practitioners by way of an amendment to the Medical Practitioners Act 2007. The Government accepts that systems must be in place that minimise to the greatest extent possible the need for patients to initiate civil litigation and thereby avail of the cover which professional indemnity provides. All Members have a shared wish to ensure that patients are protected from harm in so far as humanly possible. Progressive policies implemented by the Government have underlined its commitment to this issue. Indeed, the very Act which this Bill proposes to amend contains a large number of significant measures which at their heart intend to promote the protection of patients.
I wish to take this opportunity to outline some of the significant advances in the area of the reform of professional regulation. As Members are aware, the Minister for Health and Children has undertaken an ambitious legislative programme in recent years as part of the health reform programme. While the Health Act 2004 was the primary focus of this programme, significant importance has been placed on bringing forward legislation relating to modernising professional regulation. The new Health and Social Care Professionals Act 2005, the Medical Practitioners Act 2007 and the Pharmacy Act 2007 are now law. I am pleased to note that work also is at an advanced stage on the preparations for the publication of the nurses and midwives Bill.
The main purpose and aim of the Medical Practitioners Act 2007 is not to provide in detail for redress after an adverse clinical event, but to shift the focus entirely to a more proactive system of robust registration and regulation of the medical profession before any such event occurs. The Act, which repealed legislation that was almost 30 years old, was signed into law in May 2007 following a wide-ranging consultation and serious consideration of the matters which needed to be addressed. The Act is being commenced on a phased basis to allow for a smooth transition to the new procedures which the Medical Council must introduce. The main objective of the Act is to provide for a modern, efficient, transparent and accountable system for the regulation of the medical profession, which will satisfy the public and the profession that all medical practitioners are appropriately qualified and competent to practise in a safe manner on an ongoing basis.
Key areas addressed in the Medical Practitioners Act include governance, membership of the Medical Council, registration, fitness to practise procedures, education and training and maintenance of professional competence. Strengthening and clarifying accountability is a priority under this Act. Modern governance arrangements applicable to other statutory bodies in the health service and across the wider public service now apply to the Medical Council.
For the first time ever, the new Medical Council now has a majority of members who are not medical practitioners. This principle now applies to the regulation of the medical profession, as to other health professionals and non-health professionals. It is important for public confidence that members of a profession themselves do not have majority control in the governance of their regulatory body. This is paramount to the ongoing development of openness and transparency in the work of the Medical Council.
The Medical Practitioners Act places significant emphasis on the responsibilities that come with the privilege of registration with the Medical Council. It is now an offence for a medical practitioner to practise medicine in the State unless he or she is first registered. Significant penalties are attached for breaches of these requirements. The establishment of a new register of medical practitioners consisting of four divisions, which came into effect on 16 March 2009, is particularly important. Most doctors will be registered in one of the following three divisions: specialist division, trainee specialist division or general division if they are neither a specialist nor in an approved internship or specialist training post. The remaining division is for visiting medical practitioners from the European economic area providing temporary and occasional services.
Under the Act, doctors with suitable non-EU specialist qualifications are able to gain direct access to specialist registration. Provisions are also included to help doctors holding refugee status to become registered. The Act provides for a number of routes for complaints and concerns to be addressed. A mediation process for dealing with less serious complaints by agreement of the parties concerned is provided for. The Act also includes means for a complaint to be referred to the statutory complaints process established under the Health Act 2004, or to the procedures of another body or authority, or for the referral of a matter to competence assurance procedures, where appropriate. Openness and transparency in procedures must be demonstrated. Over the years, it has been of significant concern that fitness to practise procedures were conducted behind closed doors and that the Medical Council was precluded by legislation from disclosing any details regarding the conduct of inquiries. Arising from these concerns, the Medical Practitioners Act provides that, in general, fitness to practise inquiries are to be heard in public. The council held its first public fitness to practise inquiry hearing on 4 March 2009.
The support of doctors and the protection of patients require the modernisation of medical education and training processes. Provisions on medical education and training have been significantly developed over those included in the Medical Practitioners Act 1978. The new medical education and training functions for the Medical Council, which commenced on 16 March 2009, also cover the functions of the former postgraduate medical and dental board. The Department of Health and Children is currently focused on developing policy, evaluation and financial frameworks to ensure that there are sufficient numbers of highly competent doctors trained to deliver a patient centred, high performance service in Ireland. The Government policy to have a consultant-provided service requires that sufficient numbers of highly qualified doctors are trained in order to meet the needs of the health service into the future.
The Act provides in detail for the Medical Council to approve and monitor medical education and training at all levels. It deals extensively with the approval and monitoring by the council of education and training for medical students, interns and those undertaking specialist training. This includes the specification of guidelines and standards on curricula, training facilities and other matters. The Medical Council has an ongoing role in monitoring, inspecting and approving compliance by medical education and training stakeholders with these standards and guidelines.
The Medical Practitioners Act 2007 makes provision for a new statutory framework, to be operated by the Medical Council, for the maintenance of professional competence of registered medical practitioners. The intention of these provisions is to ensure that doctors remain highly competent throughout their careers. The council will be required to develop, establish and operate one or more schemes of competence assurance, to submit it to the Minister for consideration and to develop statutory rules regarding the operation of the scheme, which must be laid before the Houses of the Oireachtas. Provisions of the Medical Practitioners Act relating to the maintenance of professional competence are the only ones that remain to be commenced. This will be undertaken when the council has developed the relevant schemes. The council has indicated that it expects to be in a position to introduce the professional competence element of the Act in 2010.
The Medical Council's Guide to Ethical Conduct and Behaviour provides that doctors must ensure that they have adequate professional indemnity for the work they perform. I welcome the fact that the council recently completed a review of this important guide and I have been advised that it expects to be in a position to launch the latest version to the profession and the public by the end of November 2009.
I refer to the arrangements currently in place in the State regarding medical indemnity. In particular, I wish to highlight the progress the Government has made on improving the situation for health professionals, including doctors, working in the State. In recent years we have moved to a much more efficient system for providing for indemnity of professionals in our public health services. Under the clinical indemnity scheme, the State has assumed responsibility for the indemnification and management of clinical negligence claims arising from the diagnosis, treatment and care of patients. The clinical indemnity scheme was established because commercial insurers either withdrew from offering insurance cover to obstetricians and obstetric units or were not in a position to provide cover at affordable rates. This was due to the escalation in the size of court awards and associated costs in cases of birth-related cerebral injury.
The scheme is managed by the State Claims Agency and was established in July 2002. One of the main advantages of the scheme is that it rationalised the myriad of medical indemnity arrangements which had applied up to that point. The clinical indemnity scheme means that each enterprise, for example, each hospital or HSE area, assumes legal liability for its employees' alleged clinical negligence. Claims against consultants were brought within the scope of the scheme on 1 February 2004.
The clinical indemnity scheme has responsibility for developing and implementing a national clinical risk management strategy, including the development of clinical risk management standards. The clinical indemnity scheme advises and assists participating enterprises on the adoption of effective risk management. This includes assistance in the development of policies, procedures and guidelines that promote good clinical practice. Risk management advice is informed by analysis conducted on a central national database of adverse clinical incidents reported to the clinical indemnity scheme by health care enterprises. Health care enterprises record adverse clinical incidents and near misses, clinical negligence claims and anticipated claims, employer's liability and public liability incidents and claims. Clinical incidents are reported to the clinical indemnity scheme without patient identification details. The identity of patients and of any staff involved in incidents is revealed to the clinical indemnity scheme only if litigation ensues.
Clearly, the clinical indemnity scheme could not include private practice by consultants undertaken off the public hospital site. However, a number of years ago, in order to address a serious emerging issue whereby cover was either unavailable or withdrawn for obstetric services, the Government undertook measures to ensure that the cost of professional indemnity cover for consultants working in private practice remained available and affordable. This was done by capping the amount of cover that doctors need to purchase and providing a State-backed indemnity over and above that limit. This important system has worked extremely well in making professional indemnity insurance much more accessible and affordable for the medical profession. The level of these caps has been independently reviewed on two separate occasions and has been found to continue to achieve the Government's aims on its introduction.
I am pleased to have had the opportunity to speak on this important matter. I look forward to listening to the debate and the many views that will be put forward on this issue.
I welcome the opportunity to speak. I thank Deputy Reilly for publishing the legislation. The Government is pleased with the principle of the legislation and Members will resolve that the Bill be read a second time tomorrow evening, in line with what the Deputy proposed. It can be considered in January 2010. It is good to see general agreement on this issue, notwithstanding that a number of details must be worked out.
The Bill seeks to regulate doctors so they have the appropriate insurance in order to practise medicine in Ireland. We live in a litigious society and insurance is important. Nobody could engage in medical activities without such cover because it would be an enormous risk to himself or herself and to his or her patients if something went wrong. As was pointed out, medical indemnity cover is to be compulsory for medical practitioners who are specified by the Medical Council as requiring such cover. I agree with the principle of this but I wonder whether the Medical Council is the best arbiter of these issues. Many of these cases can end up in court and judges may take a different view to the Medical Council as to the level of cover required. Some of these issues will have to be put on a statutory footing to ensure the courts have clear guidelines.
I do not normally mention courts when discussing legislation but inevitably when things go wrong some of these cases end up in court. This is one of the main points I want to discuss with regard to education and training and risk assessment and analysis by the HSE. I also want to draw attention to differentiating between the role of the Department, which will pass the legislation, and the HSE, which will be involved in its implementation through its employment of doctors, consultants and other professionals in the health services and ensuring that the taxpayers' interest is well-covered.
When considering much of the legislation which comes before us in the Dáil one's personal experience as a TD in a constituency can be invaluable in contributing to a debate such as this. I have seen a significant change of emphasis in the HSE with regard to risk assessment and analysis. In my early days as a TD I was aware of many cases that went to court because something went seriously wrong and people ended up with a difficulty for the rest of their lives - or it might have been a temporary situation where something went wrong for example in the delivery of a child where the mother was not satisfied with the outcome - and people sought information and there was a clam-up. People then sought information under the Freedom of Information Act but still could not get all of the answers they sought. Bitterness crept in because they felt something was covered up or hidden. They then engaged solicitors and once solicitors get involved an issue takes on a life of its own and the possibility of good communication and talks stops at that stage. I know the State Claims Agency now deals with all of these cases but historically it did not and many difficulties were created.
I have been impressed by some cases of which I am aware because of local people approaching me as a TD when they were not satisfied with a situation. Often, all people want is an explanation of what happened and what went wrong. There has been a reluctance in the system to provide that information because of fears that it will lead to admissions of guilt or negligence which will open the floodgates. It is a vicious circle because this fear prevents those in the HSE assessing the case from providing information to a patient and the lack of this information provokes the patient to step up activity. One of the most important things we need to do is break this vicious circle.
We must improve the communication skills of doctors. Notwithstanding the significant improvements made in this area in recent years, many people going to a doctor are numbed if they receive bad news and when they go home and try to explain it to their families they do not remember exactly what was said. It is a very basic point but people should write down their questions before they visit a doctor because they will forget to ask the very obvious questions. I know it sounds strange to state this but everybody knows it from his or her own experience. One will ring a consultant's secretary the following day and explain that one meant to ask a particular question and ask the consultant to phone back. However, he or she is busy and the treadmill goes on.
I agree with the principle of the legislation before us. It is important that there is proper indemnity and insurance and I accept the role being outlined in the Bill. The establishment of the implementation steering group this year to drive implementation of the recommendations of the report of the Commission on Patient Safety and Quality Assurance, many of which will require legislative change, is to be welcomed and I look forward to that happening in due course.
I welcome the Bill. The main thrust of Deputy Reilly's Bill is to provide for insurance requirements for medical practitioners in Ireland. The clinical indemnity scheme, which was established in 2002, plays an important role in the provision of professional indemnity in the public health care system. Through the clinical indemnity scheme, the State is responsible for negligence claims arising from the care and treatment of patients in public health care. Up to the establishment of the clinical indemnity scheme, each defendant in a clinical negligence case, such as the hospital, doctor, nurse, consultant and health board, had separate legal representation. This was due to the diverse insurance and indemnity schemes of which each was part. This significantly increased legal costs, added to the time it took to process a case and led to many insurance providers either refusing certain types of cover or offering it at vastly increased premiums. This was a particular concern for hospitals with obstetric units and for obstetricians and gynaecologists due to the increasing costs and amount of cases arising from birth-related cerebral dysfunction. Under the clinical indemnity scheme, each hospital or HSE area, depending on the circumstances, now assumes liability for its employees' alleged negligence. This has provided us with a far more cost-effective system of professional indemnity within the public health care system. The clinical indemnity scheme plays an important role in our public health care system and the House should recognise and support the State Claims Agency in implementing it. However, we have to recognise that the structure of the clinical indemnity scheme is based on enterprise liability and as such it is not an insurance based scheme. As a result, we need clarification as to whether the clinical indemnity scheme would fall foul of Deputy Reilly's Bill if it was passed into legislation by the House.
Deputy Reilly's Bill proposes that the Medical Council should regulate for the form and level of medical indemnity cover required by each medical practitioner practising in Ireland. As things stand, the Medical Council's guide to ethical conduct and behaviour states that, "Doctors must ensure that they have adequate professional indemnity for the work they perform". I have a concern about the ability of the Medical Council to adjudicate on what is the appropriate minimum sum of indemnity necessary for each class of medical practitioner, as it would be required to do under the Bill. A similar provision was passed in a Bill in Britain in 2006 which required medical practitioners to hold an adequate and appropriate indemnity arrangement. The General Medical Council, which is Britain's version of our Medical Council, has established an expert working group to advise on what constitutes an adequate and appropriate indemnity. After two years of deliberations, this expert working group has yet to resolve what looks like such a simple issue.
On reading the Bill I freely admit there is merit in a number of the proposals which have been put forward. The issue of medical indemnity is one which poses a serious challenge to medical practitioners throughout the world. We certainly do not want to find ourselves in a position where patients who suffer from the negligent acts of medical practitioners discover that the practitioners concerned do not have an adequate level of medical cover or even worse, no insurance at all.
Deputy Reilly's stated aim of ensuring that we do not allow practitioners, particularly those from abroad, to practise in this country without insurance is certainly admirable. However, I do not believe we should divorce the sole issue of medical indemnity from the wider issue of the general standards of patient care and quality assurance which we expect of medical practitioners in Ireland.
The Commission on Patient Safety and Quality Assurance has advanced a very clear strategy for the future direction of patient care in Ireland. This group has made 134 recommendations which it wants to see adopted. Among these recommendations are proposals on the licensing of public and private health care providers and proposals for the introduction of a system of privileging of health care professionals. An implementation steering group has been established to commence the implementation of the commission's recommendations and its first report is due to be published shortly. I welcome the recommendations of the commission and feel they will make a significant contribution to the standard of health care provided. I also acknowledge the work being done by the implementation review group, which is chaired by the chief medical officer of the Department of Health and Children. I look forward to seeing its first progress report and to seeing how it proposes to turn the commission's recommendations into practical solutions to our health care needs.
I begin by adding to the collaborative atmosphere in the House by stating the Labour Party also supports Deputy Reilly's legislation and congratulates him on introducing it. I must comment on the fact that unfortunately when the 9 o'clock news is shown tonight this element of collaboration in the Chamber will not be the top item coming from this building. That said, it is positive and perhaps there is much more of it here than the public ever realises.
I am somewhat surprised no EU directive is in place in this area, as much legislation emanates from the EU in attempts to regularise what occurs in different member states. In the past, we all used to travel with our E111 forms. The E112 card allows one to travel from one member state to another to avail of medical treatment if they cannot obtain it at home. Considering there are many EU-backed opportunities to travel for different health care and treatments, I am somewhat surprised there is no overall standard in medical professional indemnity coming from the EU.
There is more movement of persons seeking treatment and of medical practitioners practising in other countries. This does not just apply to within the EU. I knew of a person from the Limerick area who, sadly, died in the United States when having cosmetic surgery some years ago. People do travel outside of the EU to have various cosmetic medical procedures. This legislation does not cover the dental area but many people are travelling for dental procedures to various countries. I am not sure whether they are covered by an indemnity scheme. If not, I would hope it could be incorporated in the legislation in the future.
We live in a world in which there is much commodification of medical care and where procedures are an item people buy in the private sector rather than getting treatment in a public system in which doctors work for the public good, as Deputy Jim O'Keeffe said earlier. This is part of the driving force behind Deputy Reilly's legislation. Medical practitioners, some of whom do not live in the State, carry out certain medical procedures but are not adequately covered by insurance. It is important this piece of the jigsaw is in place. The Minister of State, Deputy Áine Brady, outlined what procedures are already in place. The obligation to have clinical indemnity is not on the Statute Book but should be.
I was impressed with the New Zealand system of no-fault indemnity when the Committee on Health and Children received a presentation on it. It makes much sense and is one we should be considering. It is built on trust between patients and doctors and the kind of principles that guide people who work in the medial profession. The €60 million a year spent on medico-legal issues, €20 million of which goes on lawyers-----
-----would be better spent in the overall health budget. As Members are only too aware of the various areas in which more moneys need to be spent, I will not list them. The New Zealand system should be examined with a view to introducing it in Ireland.
The Minister of State said the Medical Council's guide to ethical conduct and behaviour provides that doctors must ensure they have adequate professional indemnity for the work they perform. The problem is that it is only a guide, not obligatory. It is therefore possible for people to ignore or not to be aware of this guide.
Several speakers referred to the large costs involved in indemnity in obstetrics where mistakes have been made. Very often they are not actual mistakes but misadventures surrounding a child's birth. The claims are large because of the long-term effect for a child. The clinical indemnity scheme has been a way of addressing the difficult issues in this area.
The Health Information and Quality Authority, HIQA, does a very good inspection job but primarily deals with public health institutions. There is an urgent need to regulate private medicine. With the current spirit of collaboration, I should perhaps not have a go at the political ideology of the Minister for Health and Children, Deputy Harney, with regard to co-location and the encouragement of private medicine across the system. It is a matter that profoundly disturbs me, however, and is not in accordance with the Labour Party's philosophy. If much more private medical care is to be introduced in the system, it must be properly regulated and controlled.
In the past week I have noted an advertisement for a certain private hospital's cancer services. While the State is rationalising cancer services into eight specialist centres, with large demonstrations against such moves, especially in the north west, it seems a private hospital can have the numbers of patients going through its cancer services which are nowhere near the critical mass we are told are essential in cancer care. It is urgent there is proper monitoring, control and investigation of private health care providers. Many small private health care units can go on their merry way without any great investigation or inspection from the State. That does no service to their patients. In many cases, people pay high private insurance premia when they could get much better cover if they stuck with the public health system. People, however, go into the private system because they can buy attention and care faster in it.
Deputy Reilly's Bill addresses private practitioners who carry out procedures in this country but who may not have adequate cover. They tend to be practising in areas that would not be normally dealt with in the acute hospital services. They are, however, increasingly becoming a feature of this country's and other countries' health systems.
I note the Minister will accept Deputy Reilly's Bill but her amendment seeks until 31 January to discuss further the issues around the legislation. While that sounds reasonable to me, this legislation is required and there should be no great delay in whatever deliberations are necessary on the Government's part. I commend Deputy Reilly on introducing the legislation.
I welcome this Bill and urge the Government not to oppose its passing Second Stage. The practice has grown up, a very negative and unwelcome one, that the Government almost automatically votes down Opposition Bills on Second Stage. This Bill should go to Committee Stage during which any differences and difficulties can be addressed.
The Government and its advisers do not by any means have a monopoly of wisdom in these matters. We have heard much about respect for democratic institutions but such respect is not enhanced by a practice where only Government legislation is allowed to proceed, which happens all too often in respect of Private Member's Bills, and Opposition legislation is opposed, even if the Government agrees with its principles and main elements. I hope and expect that the Government agrees with the principles and main elements of Deputy Reilly's Bill.
This is a health service-related Bill and gives us an opportunity to address the issue of our health service providers and our health system of which we have heard relatively little in the House recently. The economic crisis, the collapse of financial institutions, NAMA, the massive deficit in the public finances, the exposure of extravagance on the part of those in high office and the growing levels of mass unemployment have all served to obscure the ongoing and very serious crisis in our public health services.
Since autumn 2007 a regime of cuts has been introduced across the public health services that has made a bad situation much worse. Frontline health care workers in our public health services, including medical practitioners, are under severe and growing pressure. In this situation it is far more likely that mistakes will be made, whether through inevitable human error or through negligence, with very serious consequences for patients and their families.
Everything must be done to prevent such errors and omissions. We must never have a repeat of the systemic failure which led to the horror of the Michael Neary scandal or the symphysiotomy scandal. What happens when things do go wrong? The scandals I have mentioned highlighted the need to reform the Medical Council which was a shield for the medical profession rather than a watchdog for the public. That was addressed to some extent in the Medical Practitioners Act 2007. There is, however, a need to address in a comprehensive way the whole issue of compensation for those who suffer as a result of medical error or negligence. Under the current system people have to take long drawn-out cases through the courts at great expense to themselves, to the public health services and to the taxpayer. The only real winners in this system are the lawyers.
This Bill deals with one aspect of the problem and that is the lack of regulation of doctors to ensure they have appropriate insurance cover to practise in Ireland. Most people would be very surprised that such legislation is not already in place. It is also quite amazing, as Deputy Reilly pointed out, that the Department of Health and Children and the Medical Council do not know how many practitioners have insurance, what level of insurance they hold or who provides it. This is a worrying situation which we must address urgently. I concur with the explanatory memorandum of the Bill which states the majority of doctors are responsible and carry appropriate medical negligence insurance but, as in all professions, some may not have an appropriate level of insurance cover, either through inadvertence or, sadly, design.
I welcome the intent of the Bill to make medical indemnity cover compulsory for all practising doctors and provide that the Medical Council will have the power to set appropriate levels of insurance to be held by different classes of practitioners. The Medical Council has no such power and only recommends that doctors carry such insurance. The Bill also provides that before the Medical Council can issue a certificate to practise to the practitioner, written evidence of the appropriate insurance being in place must be produced to the Council. It provides for circumstances in which insurance may lapse and makes it an offence to practise without insurance where such insurance is required.
The precise role of the Medical Council as proposed in this Bill would probably need further scrutiny and this is another good reason for the Government to allow the Bill to take its natural course so we can address the substance of those issues on Committee Stage. I appeal again to the Government to allow it to proceed through Second Stage and to accommodate engagement by all parties and voices interested in addressing this important and serious area. It is alarming that someone irresponsible could practice here without the appropriate medical negligence insurance and in the event of negligent or unsatisfactory treatment an aggrieved or injured patient may have no redress to compensation. That is a very serious situation.
Legislation such as this is required to address such a major flaw in our system. This legislation would regulate the system as far as the doctor is concerned but more comprehensive reform is required. Members of the Oireachtas Joint Committee on Health and Children earlier this year received an illuminating presentation about the no-fault compensation which operates successfully in New Zealand. I was present and was most impressed that the scheme focusses very much on the needs of those who suffer as a result of medical misadventure. Their medical needs, family circumstances, employment situation, home adaptation, transport requirements as well as financial needs are taken into account. In contrast, the system here is more of a lottery with the prospect of either a large sum of money or a dead end at the conclusion of the process.
In recent years the New Zealand Government relaxed previously strict criteria for access to its no-fault scheme. Patients who sustained injury from medical mishaps could previously access the Accident Compensation Corporation's scheme only if they met certain criteria. To access the scheme the adverse consequence either had to be rare, "occurring in one per cent or less of cases where that treatment is given" or required a finding of fault on the part of a practitioner or organisation. Thus a victim of a car crash could get compensation from the scheme without first having to prove fault, but the same did not necessarily apply to patients who sustained an injury as a result of medical treatment. The removal of the two thresholds was designed to end the inconsistencies in the ways injuries were incurred and make it a true no-fault scheme.
In 1999 the current Taoiseach, who was then Minister for Health and Children, was questioned about the possibility of introducing such a no-fault scheme in respect of children born with disabilities. The Master of the National Maternity Hospital had recently proposed the introduction of such a scheme. Deputy Cowen stated then that several interested groups and individuals had pressed for the introduction of a no-fault scheme for these cases. He said that apart from removing the need for parents to sue hospitals and doctors to ensure that the care needs of their children were secured, it would save on the high legal and other transaction costs associated with litigation. It would also represent a move to a compensation system based on needs rather than alleged negligence. Deputy Cowen said, "Under the present adversarial system the parents of children who cannot establish negligence do not receive any compensation". The case for the passage of this legislation is clearly made. I strongly commend to Government that given the need, it should accommodate its passage and use the opportunity on Committee Stage to make the Bill amenable to its range of concerns rather than reject it at this time.