Dáil debates

Tuesday, 15 May 2018

Mandatory Open Disclosure: Motion

 

9:55 pm

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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I move:

“That Dáil Eireann:recognises that:
— the CervicalCheck scandal and the reports into the deaths of babies in Portiuncula and Portlaoise hospitals have undermined confidence in the healthcare service, caused hardship and injury to families and potentially impacted on the treatment of seriously ill women;

— the Health Service Executive (HSE), every healthcare organisation in the State, or services purchased by the State or delivered on behalf of the State by the private sector, and everyone working for them, must be honest, open and truthful in all their dealings with patients and the public, and organisational and personal interests must never be allowed to outweigh the duty to be honest, open and truthful;

— there is a need for justice and support for the women affected and for the families of those women who have tragically died;

— there is a need to rebuild confidence and trust between patients and the healthcare service;

— central to rebuilding trust is full disclosure of all relevant information to patients and accountability within the health service;

— to date, the Government has failed to introduce mandatory open disclosure;

— the introduction of mandatory open disclosure is a necessary and immediate step in rebuilding confidence in the healthcare service; and

— mandatory open disclosure should not only be confined to doctors, nurses, and healthcare professionals at all levels, but it should apply across the whole health service from the ward to the top of the HSE and the Department of Health, and include all grades and categories of workers; and
calls on the Government to:
— legislate for mandatory open disclosure of all information where an error occurred that has affected the patient’s care and to do so before the next Dáil summer recess;

— place a statutory duty on all officials in the Department of Health and HSE to provide full information to a healthcare regulator, statutory agency and Minister in cases of systemic failures in healthcare;

— ensure there is also a statutory duty imposed on all officials in the Department of Health and HSE, including the Minister for Health and the Director General of the HSE, to be truthful in any information given to the Health Information and Quality Authority (HIQA) and/or any relevant statutory agency, either personally or on behalf of their organisation; and

— ensure that it be made a criminal offence for any health service worker of any grade, group or category, official within the Department of Health, or official within the HSE, including the Minister for Health and the Director General of the HSE, to:
— knowingly obstruct another in the performance of these statutory duties;

— withhold information about a patient’s medical diagnosis or misdiagnosis;

— provide information to a patient or nearest relative intending to mislead them about such an incident; or

— dishonestly make an untruthful statement to HIQA and/or any relevant statutory agency knowing or believing that they are likely to rely on the statement in the performance of their duties.”

Recent weeks have been difficult for the State, the health service and those working in the health service who do their best, work hard, turn up and do a good job, but all of those difficulties pale into insignificance in comparison with the trauma endured by the victims of the CervicalCheck scandal. In addition to that, there was the recent report into the deaths of babies at Portiuncula and Portlaoise hospitals and the battle by their families to get some information on and accountability for the deaths of their loved ones.

The issues and problems surrounding these cases have served to undermine confidence in our health service. The public knows the Trojan work that is done by staff. From porters to care assistants, GPs, practice nurses, hospital doctors, paediatric nurses, radiographers and so on, the hard work that people do is known despite the bad press that our health service often gets. People know that these staff are hard working, honest and often doing their best in a system that is overmanaged and not accountable enough. Unfortunately, in a small number of cases, a failure to be honest and accountable has cast a dark shadow across the whole of our health service. This is not fair to victims of serious adverse medical incidents who are not told about mistakes or to the majority of the service's staff.

To be clear, this motion and any legislation that comes from it are not an effort to punish healthcare and medical professionals. Rather, the motion is meant to help them and patients. It is an attempt to begin the process of cultural change that is so necessary in our health service.

Seeing as how we are discussing honesty, let us be honest: the experiment with voluntary open disclosure has not exactly been a success. Given the advice on open disclosure that was given to the Taoiseach while he was the Minister for Health, we must be honest and say that it has not worked.

I cannot emphasise enough how mandatory disclosure is a benefit to medical professionals and patients. The global evidence tells the story for itself. The motion calls for the rebuilding of confidence and trust between patients and the healthcare service. Central to that are full disclosure of all relevant information to patients and accountability within the health service.

We all agree that medical professionals should have a legal duty to be open and honest when things go wrong. Many of them agree. However, the duty to disclose should not stop at healthcare professionals. With the CervicalCheck scandal in mind, the failure to disclose goes all the way to the top of the corporate body that is the HSE. That is why our motion calls for the mandatory open disclosure of patient safety incidents if they are known within the HSE or the Department of Health, as was the case with the CervicalCheck scandal.

Recent scandals have given the impression that there is endless protection for those at the top while no such protection exists for those on the front line. The actions or omissions of those at a high level in the HSE or the Department can affect far more patients than the actions or omissions of those on the front line. If we have open disclosure for those on the ward and in the surgery, surely there also needs to be accountability and disclosure among individual executives, hospital CEOs, and members of the HSE and the Department of Health. Organisational and personal interests must never be allowed to outweigh the duty to be honest and open. More importantly, they must never interfere with the right of a patient to get information about his or her own situation.

Transparency is much needed to ensure that all of the information about a patient is made known to him or her. It must be mandatory to ensure that any patient harmed by the provision of a healthcare service is informed of the fact and appropriate remedies offered regardless of whether a complaint has been made or a question asked about them.

This motion is an opportunity to do what the victims of the most recent scandal want us to do, namely, to learn from what has happened and to take steps to ensure that it will never happen again.

Photo of David CullinaneDavid Cullinane (Waterford, Sinn Fein)
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We are discussing this motion because of the recent CervicalCheck scandal, which will not be solved behind closed doors. It can only be resolved in public and there needs to be public accountability. The Committee of Public Accounts has a duty to examine these issues, as does the Joint Committee on Health. They should be able to do their work and be supported in that regard.

Last week, the former director general of the HSE, Mr. Tony O'Brien, admitted that there had been system failures in the CervicalCheck scandal. That was an understatement. What we are looking at is a cover-up. Let me explain what I mean by "cover-up". It is becoming clear that CervicalCheck and the HSE, with the knowledge of the Department of Health, developed a damage limitation strategy. We know this because, on 29 June 2016, Mr. Simon Murtagh of CervicalCheck wrote to Mr. Michael Conroy of the Department's policy section, told him that there was a letter being issued and updated him on the progress so far. That email had two attachments, one of which I will quote. It is entitled, "Notes for consultant doctors regarding outcomes of the cancer audit process". It reads:

While CervicalCheck supports the principles of open disclosure, it is recognized that there are limitations to its universal implementation, particularly for screening services where there is an inherent recognized error rate. The assessment of avoidable harm that doctors are asked to make, which should be done in consultation with the relevant consultant doctors, should take this into consideration.

At no point in any of the memos and letters that the members of the Committee of Public Accounts, the Minister or I have seen was there an attempt by the HSE to inform the women directly. In fact, what we saw in one of the letters was that two women had asked about their smear tests and contacted CervicalCheck directly only to be told to go to their consultants. At every step of the way, barriers were put in place to women getting information that they should have been given.

CervicalCheck is openly admitting that it does not believe in open disclosure regarding its screening programme. In order to do this, CervicalCheck put in place a three-tier filtering process to limit the number of cases that went public. The first part was to leave it to doctors to tell the patients. As we know, only one in four patients were informed. Of the women who were told and threatened legal action, CervicalCheck and the laboratory in question got them to sign non-disclosure agreements as part of their settlements. Of the women who refused to sign such agreements, their court cases were dragged out so that they would die before they could get an opportunity to have justice. Indeed, three women did die.

The one element that the CervicalCheck strategy did not bet on was Vicky Phelan. We all accept that we owe her a debt of gratitude, as do the other women.

This is a national scandal. When the Taoiseach was Minister for Health, he had an opportunity to support mandatory open disclosure. The chief medical officer was one of the people who advised him not to pursue it. Last week, I and other members of the Committee of Public Accounts asked whether the Department had received any of the three memos laid before the committee which had been given to the director general of the HSE. The chief medical officer sat beside the director general during a lengthy discussion of the memos. The director general was very clear that he had no idea whether the Department had ever seen them. Both the director general and the chief medical officer tried to help members of the committee understand what the memos meant. However, the chief medical never said that he had seen the memos and had been given the information. He knew of the strategy to pause all letters, lawyer up and contact solicitors. The paragraph in the memo which states that the women should not be told because they would become hysterical and go to the media and that CervicalCheck needed to develop a media strategy goes to the heart of this scandal. We now know from emails published today that a media strategy was put in place in October 2016. That was the outcome of a very deliberate strategy. There was a cover-up and people have very serious questions to answer. We will ask more of those questions at the Committee of Public Accounts and elsewhere. The Minister's job is to hold those who are responsible and withheld information in a cold, calculated and deliberate way to account.

10:05 pm

Photo of Gerry AdamsGerry Adams (Louth, Sinn Fein)
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The daily drip feed of revelations about the cervical cancer smear scandal and the reports into the deaths of babies in Portiuncula and Portlaoise hospitals have undermined confidence in the healthcare service and added to the trauma of the families affected. Without the remarkable courage of Vicky Phelan, the cervical smear scandal might never have become public. Her rejection of a demand to sign a confidentiality agreement was a hugely courageous and selfless act. It is proof that not only was the State covering up what was happening, it was also asking the victims to collude in that cover-up. The Oireachtas should be equally courageous and resolute in how it confronts and tackles this scandal.

It is imperative that the Government urgently introduce strong legislation requiring mandatory open disclosure in the HSE before the summer recess. Nothing less will do. Nothing less will work. The distress and grief of Emma Mhic Mhathúna, Paul Reck, Stephen Teap and many others demands that the Government take all necessary steps to ensure that there is no repeat of this scandal or of any of the others that have bedevilled the health service over the years.

There have been too many such scandals. In the 1990s, over 1,000 people, mainly women, were infected with contaminated blood products. The Blood Transfusion Service Board was warned about the matter but failed to tell those who had received the products. A report published three years ago revealed that at least 260 people who were infected with hepatitis C have died in the 20 years since the facts first emerged. Louise O’Keefe is another victim of the culture of secrecy and cover-up. It took her 15 years to win her legal battle to force the Government to pay compensation for the abuse she endured as a pupil. Many elderly women who were victims of symphysiotomy are still fighting for truth and compensation. Let us not forget the women victims of the Magdalen laundries or the mother and baby homes, or Savita Halappanavar and countless others. We must also recall that the State forces many victims, particularly women, of anomalies, injustice, malpractice or misgovernance, particularly within the health system, to fight long, expensive and stressful legal battles. Until now, successive Governments have endorsed that punitive approach. The Government approach has been to fight every case tooth and nail.

The Government stated that it will not oppose our motion but that is not the same as supporting it. I ask the Minister, Deputy Harris, to clarify the Government's position in that regard. I appeal to every Deputy to support the Sinn Féin motion and I commend Deputy Louise O'Reilly on bringing forward. I appeal to the Government to go beyond its current position by speedily introducing the legislation required for mandatory open disclosure.

Photo of Pearse DohertyPearse Doherty (Donegal, Sinn Fein)
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Ba mhaith liom tacaíocht a thabhairt don rún seo, atá curtha chun tosaigh ag an Teachta O'Reilly. Each time there is a scandal in the State, the crisis is initially downplayed. There are accusations of overreaction and so on. However, the scandal ends up being worse than it initially appeared. That was recently the case in respect of the mother and baby home in Tuam, the tracker mortgage scandal and the CervicalCheck issue. As one who comes from Gweedore, I also think of the hepatitis C scandal in that regard because Bridget McCole, a proud woman from my parish, was disgracefully treated by the Government of the day. She had to fight right up to the time of her death to ensure that justice was done. No woman or citizen should have to go through that. Accountability is hard fought for and seems almost beyond the reach of the ordinary citizen. A revolution is needed in respect of how the State treats its citizens and protects the protected few.

Níl dabht ar bith ná go gcruthóidh Sinn Féin oiread freagracht agus is féidir in Éirinn, céim ar chéim. Tá dul chun cinn á dhéanamh againn anocht leis an rún seo ata os comhair na Dála. This very simple motion is very simple proposes the introduction of mandatory open disclosure before the summer recess. As an Opposition party, Sinn Féin will work with the Government to bring that about. The Government should have brought in mandatory open disclosure previously rather than voting against it, while the Deputies of Fianna Fáil, as they do, sat on their hands. We must bring in accountability and transparency.

I received a call this evening from a constituent in Donegal whose brother died in a psychiatric ward 20 years ago. It took the family ten years to fight the State because the required information was not provided to the family's medical experts. On the steps of the court, the State told the family to settle because if it did not members of the family could lose their homes as the State was going to pursue them for everything they had. That is how the State treated people. Let us make a start, turn over a new leaf and introduce mandatory open disclosure before the summer recess.

Photo of Imelda MunsterImelda Munster (Louth, Sinn Fein)
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The culture that exists in the HSE is one of secrecy, not answering questions and a lack of transparency. The HSE is a law unto itself. That has been laid bare since Vicky Phelan brought this scandal into the public domain. The question for the Minister is whether he can trust anybody in his Department or the HSE because the only solutions offered by the HSE when it became aware of this scandal were to hide it and cover it up. Its priority was to protect the men in suits and the faceless officials behind closed doors rather than the patients. The director general of the HSE gave two fingers to patients, the public, the women of Ireland and the Minister.

It is clear that the Minister has lost control of the HSE. In spite of all the heartache, stress, worry, illness and death and everything the director general did and stood over, he was not sacked by the Minister. What will the Minister do to fix this situation? All Members know that the HSE cannot answer a question directly. There is a culture of dishonesty at the top of the organisation at the very least. The Minister has lost the confidence of the public, especially women. Who are the faceless officials in the HSE over whom the Minister has absolutely no control? Mandatory open disclosure legislation is the only solution. What happened on the previous occasion on which mandatory open disclosure came before the House? The Minister, the Government and Fianna Fáil blocked its introduction. Fine Gael voted against it and Fianna Fáil sat on the fence and abstained, as it always does. The Minister has been speaking with a forked tongue on this issue because the Government blocked mandatory open disclosure. I hope the Minister will do the right thing this time. The spotlight is on him.

The Minister has been shamed into doing it. It is no wonder there is a culture of non-disclosure and lack of transparency in the upper echelons of the HSE when no leadership has been given by the Government or previous Governments on this important matter.

10:15 pm

Photo of Denise MitchellDenise Mitchell (Dublin Bay North, Sinn Fein)
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The motion is about ensuring that every healthcare service in the State is open and truthful when it comes to dealing with patients and the public. I could not believe what I was reading in recent reports that CervicalCheck issued a circular to consultants saying it was up to individual doctors to tell patients about their misdiagnosis. I refer to the Medical Council's guidelines on disclosure, which state patients and their families, where appropriate, are entitled to honest, open and prompt communication about adverse events that may cause them harm. It is clear that those guidelines were not followed. Patients need to be able to have trust in their health service and that means they need to get the full truth. The HSE should not wait until a complaint is made before it tells a patient the truth. That is morally wrong. If we are all in agreement, I ask Members to support this motion because all patients deserve openness, transparency and full communication from the health service.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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I appreciate the opportunity to update the House this evening on the work the Government is doing on open disclosure and accountability, in response to the motion before us this evening from Deputy O'Reilly and her colleagues, which we will not be opposing. We will not be opposing it because we want to work with this House to legislate in this area. I welcome the invitation from Oireachtas colleagues to work with speed and priority in terms of trying to legislate in this area. It is abundantly clear that the cases of women and families affected by the recent issues which have emerged in relation to the CervicalCheck screening programme raise very great issues of trust in our health service. Dealing with patients honestly and openly, including when errors and mistakes are made, is key to restoring and improving that trust. I have heard clearly the calls that some good must come from such awful pain and hurt and that we must learn and work to ensure it will never happen again.

As Members are aware, last week the Government approved proposals to provide for mandatory open disclosure, through the forthcoming patient safety Bill, in respect of serious patient safety incidents, including issues relating to screening. The new Bill will provide for mandatory external notification of serious patient safety incidents to the appropriate regulatory body, be that the Health Information and Quality Authority, HIQA, or the Mental Health Commission, mandatory open disclosure of serious incidents to the patients affected by them, ministerial guidelines for clinical audit and the extension of HIQA's remit to private hospitals, which is something that has long been sought.

In the context of the motion before the House and in light of some recent commentary, it would be helpful to recall the policy approach my Department has adopted on open disclosure in recent years. It has been informed by a number of elements, including the experiences of comparable countries and the 2008 report of the Commission on Patient Safety and Quality Assurance, more commonly known as the Madden report. The open disclosure provisions brought forward last year were based upon the principles set out in the Madden report. That report recommended the adoption of legal protections for health service staff when making a disclosure to patients or their families. It did not recommend that mandatory open disclosure be legislated for but it did recommend that it should be mandatory to notify the relevant regulatory authority, such as HIQA, when a serious incident occurs. That is now being provided for in the patient safety Bill.

The legislation to provide for a voluntary approach to open disclosure has been enacted following the passage of the Civil Liability (Amendment) Act 2017 and regulations flowing from it are due to be brought forward shortly. As colleagues are aware, this legislation was also subject to pre-legislative scrutiny by the Oireachtas Joint Committee on Health. We have seen in recent weeks much understandable criticism of the use of the word "voluntary" in this context, but I want to be very clear: that should never be equated with a view that open disclosure is something which clinicians or health service staff should regard as optional, which clearly was the case. It is quite clear that there is a completely understandable expectation, one that I share, that patients should be told about any incidents with regard to their care that may have occurred. Open disclosure should happen in the right way, in all circumstances. Put simply, patients must be informed. That is clearly the standard expected in the HSE's own national policy on open disclosure, and as Deputy Mitchell indicated, it is a requirement placed on doctors by the Medical Council. It is a standard that, while expected, has simply not been met. Open disclosure works best when doctors, nurses and other professionals are supported and encouraged to be open, honest, communicative, empathetic and supportive to their patients when things go wrong. They should apologise. Maintaining the trust and confidence of patients is essential. Unfortunately, as we know all too well it does not always happen. There are too many examples where patients have not been dealt with honestly and openly and some of those painful and devastating experiences are all too fresh in our minds and in the minds of citizens. The trust we place in those who care for us or those we love when we are ill is a sacred one and when breached, it adds an extra painful injury.

In seeking to change the culture of the health service with regard to open disclosure, it is recognised that there is a number of serious incidents where it is appropriate to introduce a requirement in law for mandatory open disclosure. That is why provisions for mandatory open disclosure will be incorporated into the new patient safety Bill. When this legislation is enacted, Ireland will be placed at the apex, legislatively, of international practice in this area. We have made some strong progress in promoting patient safety and quality in the delivery of health services and we must do all we can to ensure that we prevent harm and error.

Out of very tragic and painful circumstances, we have learned how to respond and to improve. That is referenced in the motion before the House tonight. It is true of maternity services in Portlaoise hospital and the subsequent HIQA investigation, and in the promotion of openness and accountability in Portiuncula Hospital, the report of which was published just two weeks ago. In both Portlaoise and Portiuncula, we have put in place comprehensive, focused plans that have seen clear improvements to the maternity services being delivered by those hospitals. That is an example of how the system can and must learn from painful events to ensure they do not happen again. It is a recurring theme that patients who have been through the worst of circumstances themselves are strongly motivated by the wish that what happened to them should never happen to anyone else. The desire to see good things come from bad situations - this fundamental humanity - has led to some people who probably never intended or expected it becoming public advocates, making a hugely beneficial contribution to our health service.

My Department and I will continue to place great emphasis on engaging with patients who have experienced harm in a sensitive and compassionate way and with a strong commitment to their needs and desire to help bring change. In keeping with that commitment, I wish to inform the House this evening that this morning, I notified the Government of my intention to ensure the appointment of at least one patient advocate to the new board of the HSE. If this board is to be any different to the boards of the past it cannot just be the usual suspects sitting on a State board with a box ticked. This must be a board that has the right skill sets and they must include patient advocacy and representation. I received approval this morning to proceed with that measure. I know there is cross-party support for it and I will work with colleagues to legislate for it before the summer recess.

Accountability, effective organisational alignment and good governance are central to the organisation and functioning of the health service. The Sláintecare report rightly placed an emphasis on the need for both clinical and managerial accountability, stating:

The Committee strongly believes there is a requirement for clearer clinical and managerial accountability and governance throughout the system. This includes clarity at all levels, from the Minister for Health, the Department of Health, the HSE and healthcare providers.

As such, I view the advancement of Sláintecare as representing a key opportunity to improve accountability processes - one which I intend to take with both hands.

It is important to recall that healthcare professionals can also be held to account through their individual regulatory bodies, be that the Medical Council, the Nursing and Midwifery Board, as well as the Pre-Hospital Emergency Care Council and CORU. Each of those bodies has defined procedures to operationalise this accountability system and to protect the public in line with the relevant legislation. Furthermore, the Health Act 2007 already provides significant powers to HIQA in respect of its monitoring and investigatory roles, including to enter and inspect at any time any premises owned or controlled by the HSE, to inspect, take copies of or extracts from and remove from the premises any documents or records, including personal records, inspect the operation of any computer, inspect any other item and remove it from the premises, interview any person working at the premises concerned in private and require an explanation of any record.

That said, the events of the past few weeks have no doubt been shattering. The Government has tried to be guided by some grounding principles, namely, getting to the truth of what happened, ensuring that women affected are being contacted and supported and rebuilding confidence in the lifesaving CervicalCheck screening programme and, more broadly, other cancer screening programmes. We have tried to move quickly to work with the Opposition to establish the Scally inquiry, based on broad terms of reference to reflect the concerns of the Opposition to look into these and other matters. We expect an interim report at the start of next month and a final report by the end of it.

This has not been kicked into the long grass. This is an inquiry to which we need answers quickly. The Government is then committed to establishing a full commission of investigation for any outstanding issues. There will also be an international clinical expert review led by the Royal College of Obstetricians and Gynaecologists. This will review the results of screening tests of all women who have developed cervical cancer who participated in the screening programme since it was established. This will provide independent clinical assurance to women about the timing of their diagnosis and any issues relating to their treatment and outcome.

We have also agreed a comprehensive package of health and social care measures to try to put in place some practical supports for the women and families affected by the issues relating to CervicalCheck, including things like medical cards, counselling services, transport costs to and from hospital, child care costs, experimental drug costs and anything else we can do to ease the burden even a little. The HSE has now appointed a central national co-ordinator to lead this service response and has put in place a local contact in each HSE area so that people can go and sit with the women and their families and talk to them about the personal package of supports that can be put in place for them.

As Deputies referenced previously, we have also announced that the State Claims Agency is advancing a new initiative aimed at expediting resolution of the nine outstanding legal cases in a sensitive manner utilising mediation wherever possible. In not opposing this motion, I want to be clear that the Government is committed to progressing, as a matter of urgency, legislation to provide for mandatory open disclosure for patients and mandatory reporting of serious incidents to the relevant regulator. I look forward to working with colleagues on all sides of this House to ensure we do so as quickly as possible.

10:25 pm

Photo of Stephen DonnellyStephen Donnelly (Wicklow, Fianna Fail)
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I welcome tonight's motion on the need for mandatory and enforceable open disclosure. I acknowledge the work done by Deputy O'Reilly in tabling this motion which Fianna Fáil will be supporting.

The HSE's policy on open disclosure is not ambiguous. It is not a "nice to have" or an aspiration. The HSE's 2013 policy document describes open disclosure as "an open, timely and consistent approach to communicating with service users [...] when things go wrong in healthcare". It says that all health and social care staff have an obligation to fully and openly inform and support service users as soon as possible after an adverse event affecting them has occurred. What has happened with CervicalCheck is completely at odds with the HSE's own policy of open disclosure and represents a catastrophic failure of corporate and clinical governance.

Patients have a right to their own information, to know about their own care and to know when mistakes are made in that care. That is the essence of open disclosure and that is what the HSE policy has stated for the past five years but that is not what happened at Portiuncula Hospital, for example. The report on Portiuncula has not received the attention it deserves because of the CervicalCheck issue. Indeed, we must find time in the House to give that report the required attention.

A review of maternity services at the hospital was published two weeks ago. The review examined the delivery and neonatal care of 18 babies and found that serious failings in maternity care led to the death of three babies and serious injury to three more. The main failings identified were a lack of senior staff, a lack of training in midwifery and poor communication between staff and patients. In 17 of the 18 cases examined, parents were not given proper details about the care of their babies. Reviews were carried out but parents were not told about them. In fact, some parents only became aware of reviews carried out in 2011 when they read media reports in 2015 on serious deficiencies in maternity care at Portiuncula. Not only did they not know that a review had been carried out, they did not know that there was any clinical issue at the hospital. Open disclosure obviously did not happen with CervicalCheck either. As we now know, 19 women have died without being told the truth and hundreds of women are only now being told of errors in their screening because of the brave stand taken by Vicky Phelan and others.

I am not convinced that the spirit of open disclosure is being seen and experienced by the Oireachtas on this issue either. On 2 May, the Oireachtas Joint Committee on Health met senior officials from the Department of Health, the HSE and CervicalCheck. On 9 May, the committee met the Minister for Health, the Ministers of State at his Department, the then director general of the HSE, senior departmental officials as well as officials from the HSE and CervicalCheck. Those meetings took place over the course of about eight hours and after those eight hours, I went away with the very clear understanding that the first that the director general's office and the Department knew about this issue was in 2018. I have discussed this with colleagues on the committee and every one I have spoken to who spent those eight hours in committee also walked away with the same understanding, namely, that it was this year that the director general's office and the Department were notified.

The Minister can imagine my surprise when I found out the following day, due to questioning at a meeting of the Committee of Public Accounts, that the director general's office and senior departmental officials knew in 2016. In fact, there is a year's worth of correspondence in 2016 that somehow, over the course of eight hours of committee, the officials involved forgot to mention, ironically, in a meeting about a non-disclosure scandal. I am not accusing the Minister of anything because the officials have said that he did not know but that is not good enough.

A few hours ago we got copies of that correspondence. The memos include a warning that public confidence in the national screening programme could take a hit when women were told what had happened. I take no issue with such a warning because confidence in the national screening programmes is essential. Any official raising a flag about a potential risk to confidence and suggesting that the Department and the screening service need to think things through and respond appropriately is simply doing his or her job. That is fine. I do not take any issue with that but I do take issue with what is written in the 11th document in the folder of correspondence where the HSE and CervicalCheck, in collaboration or communication with the Department of Health, decide that open disclosure does not really apply to them. They opt out of open disclosure.

In a note prepared for consultants in June 2016 and shared with the Department there is a section dealing with the principles for communication of the outcomes of a reviewed case, which states that while CervicalCheck, "supports the principles of open disclosure, it is recognised that there are limitations to its universal implementation.". That is not the case according to the HSE's open disclosure policy. Not only do they not engage in open disclosure, they explicitly reference it and then say they are not applying it to themselves. The Department of Health knew this. The memo was prepared in 2016 and yet somehow, none of the officials thought to mention that during eight hours of health committee meetings on the issue.

As the Minister knows, a question and answer document was also prepared in 2016, which suggests that if it is indicated by the outcome of the review and "if it is appropriate for the circumstances of the woman", the doctor is asked to discuss the cancer audit process, the review and the review findings with the woman. They are giving themselves opt-outs all over the place. They are also giving the doctors opt-outs. Vicky Phelan's doctor took grave exception to this and wanted her to be told, although he did not want to do it himself. This culture has to change.

We need to introduce mandatory disclosure but we also need to understand why doctors are not already engaged in mandatory disclosure in these cases. We have been told at committee that this is partly because of legal threat or legal fear. If that is the case, it needs to be nailed down. If there are other reasons, they also need to be nailed down because it is fine for us to legislate for mandatory disclosure but we also have an obligation to clinicians to make sure it is safe for them to engage in same.

I believe the reaction to this scandal, in terms of supporting the women, has fallen well short. The Minister was told in a memo ten days beforehand that something could happen, but he ignored that. The HSE and the Department of Health were discussing it for two years beforehand. We found out in other minutes from 2012 that better communications were needed in respect of the patient safety issue. Despite years of warnings, nothing seemed to be done when the story broke in The Irish Times. We know that two in five of the women who have called the helpline are waiting on a call back. It is not good enough. We need more political leadership. The Minister and the Taoiseach need to step up and take more charge of this.

10:35 pm

Photo of Marc MacSharryMarc MacSharry (Sligo-Leitrim, Fianna Fail)
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As we have learned, the HSE's 300-page guidance document on the open disclosure policy is honoured more in the breach than in the observance. It is clear that open disclosure is a selective policy that is applied when it suits and abandoned when it does not suit. I want to say a couple of things. The five principles of care of the Royal College of Obstetricians and Gynaecologists were the subject of a question in an exam taken by UCC medical students recently. The first of the five principles, to which we all aspire, is that "women should be at the centre of their own care". I suggest the way we operate in this country is that women should be at the centre of their own care as long as it does not pose any threat to the establishment or to the system. We have seen from the HSE and from the management of this issue that as a collective, these organisations, which have some very fine individuals working in them, serve the system rather than the people or the patient. We have heard about and seen the documentation that has been referred to by many Deputies, including Deputy Donnelly. One of the most shocking things we have learned about is the existence of pro forma letters. Other Deputies may have mentioned them before I came to the Chamber. These letters were drafted in the same way that one drafts a word document with little boxes to suggest that this or that might be spelled differently. A box in the section of the letters dealing with open disclosure stated that this should be deleted if the person in question was deceased. That is a damning indictment of the situation.

I have to say that in recent days, the Minister for Health and the Taoiseach have been excellent commentators on events as they have been happening. However, I have seen no leadership and I still see no leadership. Where is the open disclosure? I acknowledge that we got some documents today. It has been suggested that there are 40 million documents. It seems to me from looking at the documents that have been provided that they have been very selectively chosen. There are some things in them. I think there are many more documents we have not yet seen. The Minister has said he knew nothing about this situation, just as the Taoiseach has said he knew nothing about it when he was Minister for Health. I am sad to say I simply do not believe them. It is simply not credible. I understand there are weekly or monthly management meetings between the assistant secretaries for acute hospitals, the Secretary General and the Minister. The Taoiseach would have attended these meetings when he was Minister for Health. Are there minutes for those meetings? If so, why were they not included in the information that was released to us today? They should have been included.

I would like to ask a question about the staff of the Department at assistant secretary or Secretary General level, and down the chain of command as defined under section 5 of the health Act 2013. Does that legislation endow plenipotentiary status on the staff in question to act in the names of the Minister and the Taoiseach without running it by the Minister first? The Minister might not have had the memo in his hand, but I find it incredible that he was not advised of what was in it and what was going on. While I cannot prove it yet, I have no doubt that the health committee and the Committee of Public Accounts will find out that this is the case. I ask the Minister to be much more forthcoming with the facts and not to drip-feed them. I am hugely sceptical regarding the reason for the selective leak from the Cabinet of Dr. Scally's comment that the committees are disruptive to his work. I am equally sceptical regarding the Taoiseach's remark last week that the Committee of Public Accounts is not a place for this. Where would we be without the Committee of Public Accounts? I will conclude on that point as I do not want to take any more of my colleagues' time.

Photo of John BrassilJohn Brassil (Kerry, Fianna Fail)
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I welcome the Private Members' motion that has been proposed by Sinn Féin. It took the courage of Vicky Phelan to blow the lid on the culture of cover-up and denial that exists in the HSE, in the Department and at Government level. A sea-change in culture is needed to bring about the change that is necessary. Page 83 of the Sláintecare report deals with leadership, governance and accountability. It is a blueprint for the Minister, the Government and all future Governments in dealing with these critical areas. I remind the Minister that under the heading of "HSE Governance Structure", the Sláintecare report recommends:

  • The Minister for Health is held responsible and accountable on a legislative basis for delivery of healthcare, the health system and health reform
  • An independent board and Chair is appointed to the HSE at the earliest opportunity, by the Minister, following a selection process through the Public Appointments Service. Board membership reflects the skills required to provide oversight and governance to the largest public services in the State
  • The Chair of the Health Service Board is accountable to the Minister for Health
  • The Health Service Director General is accountable to the Board
It is all there. We need to implement it. The message that all employees of the HSE and the Department of Health and all members of the Government need to take from this unfortunate tragedy, which is continuing to unfold, is that covering up a mistake or an error is a far bigger crime than creating the error itself. If we are ever going to have accountability in our health service, that has to be the culture in which we proceed into the future.

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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Twenty days have passed since Vicky Phelan walked out of a court room and told us her story. During this 20-day period of uncertainty for women, we have been confused by the mixed messages from the HSE and the Government. No words of comfort can be offered to the women or families affected by the CervicalCheck scandal. The names of Vicky Phelan, Emma Mhic Mhathúna, Stephen Teap and Catherine Reck will stay ingrained on all of our minds for a long time. Since the Government became aware of Vicky Phelan's case on 16 April last, there has been an absence of political leadership. The memorandums that were revealed at last week's meeting of the Committee of Public Accounts constitute another example of how we have been drip-fed information over recent weeks. It appears that the Minister and the Government were caught unaware by this revelation. This reflects poorly on the leadership and management of the Government. The memorandums reveal a policy of managing risk by means of containment and concealment. The needs of women and their families were simply not prioritised or recognised. We must remember that this scandal was brought to light by Vicky Phelan, who was forced to take her case to the High Court. If she had not had the bravery to tell her story, we might never have known about this scandal. The interviews of members of other families caught up in this awful scandal have rightly captured the hearts of Irish people. It is understandable that people are angry. We need to see leadership and accountability. Just as importantly, we need to see empathy. We need to be assured that the Government understands what has happened here. The Government - first and foremost - is meant to protect people. It has failed in this basic requirement. It has failed these women. The least that can be done to ensure this does not occur again is to provide for mandatory open disclosure.

Photo of Jackie CahillJackie Cahill (Tipperary, Fianna Fail)
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I welcome the Sinn Féin motion. There is general support for the thrust of it. Patients must trust that they are getting the full facts from their doctors as soon as is practical. In turn, doctors must feel free to share sensitive information without fear of legal consequences. Mandatory reporting is needed to achieve this. The Government has indicated that mandatory reporting will be implemented, but one has to question why it was not in place before now. In 2016, the then Minister for Health and current Taoiseach said he would not introduce mandatory reporting even though he had promised to introduce it a year previously. Last year, the Minister for Health, Deputy Harris, decided to introduce a voluntary open disclosure scheme rather than a mandatory one. It should not have taken the Vicky Phelan case for the Government to act. All the woman affected by this scandal, and indeed all patients, deserve full disclosure on the part of the HSE and the Government. We know there is something deeply wrong with the culture in parts of the HSE. The current scandal with the CervicalCheck programme, which has left women in doubt about the results of their tests, is one of the highest magnitude. Irish women deserve better. The courage of the women affected by the scandal in the face of deception of the worst kind by the HSE is nothing short of amazing. All the women who have been affected by this scandal must receive all the facts regarding their cases.

Trust in respect of any issue is hard won. In this case, the HSE has lost the trust of the women of the country. The concept of screening the population for a potentially life-threatening disease was forward thinking but who can trust the system when those responsible for running it have deceived their patients and dragged them through the courts? Those responsible within the HSE should be ashamed of themselves.

We must be very clear that no other woman should have to enter into legal battle with the HSE to get the truth about her medical records. The women of this country want to see real action and not an endless charade of investigations with no tangible outcome. It is a defining moment in how serious the Government is about bringing the HSE under control. It is also a defining moment when we will see if the Taoiseach, who is responsible for this Government, has real compassion for the women of the country and does not view them as a further opportunity for self-promotion.

10:45 pm

Photo of Declan BreathnachDeclan Breathnach (Louth, Fianna Fail)
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I am reminded of the words, "Honesty is the fastest way to prevent a mistake from turning into failure." We have gone a long way toward doing that in respect of the cervical cancer debacle. I have always been in favour of mandatory reporting. Like others, I am reminded of my own region in the context of the events involving Fr. Brendan Smith and the conduct of Mr. Shine and Dr. Neary. If the behaviour of certain individuals had been the subject of mandatory reporting, I am sure that many of the women who lost their wombs, had symphysiotomies or were harmed in any way as a result of their interaction with the health service, much of this could have been at least prevented.

What has happened in the context of the CervicalCheck scandal is utterly unforgivable. As I argued last week, there is major overhaul required in the clinical governance and management of the HSE. The Minister for Health needs a team of medically trained people in charge of the HSE. That team should include top consultants and physicians in all sectors and also nursing managers. In the main, we have been hiring people with management qualifications to manage the HSE and most of those people are involved in crisis management. The people are screaming out for change. They want trust in the system. I appeal to the Minister to consider the observations I have made, as somebody who has been involved with the health service since 1991.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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My party and I will be supporting this motion. We will also be facilitating the new patient safety Bill. It should be prioritised in whatever time this Dáil has left. I believe the current Dáil's time is probably very short and I am not sure if we will get to the Bill because of what has been revealed in the past week or so.

Open disclosure and good governance go hand in hand. The reason we do not have open disclosure in the area of health is, frankly, from what we have seen over the last couple of weeks, that there is not good governance in either the HSE or the Department. At the highest levels, the Department is actually dysfunctional. I am not sure if the Minister can trust his own people or the HSE. I looked back at the Civil Liability (Amendment) Bill. There was lobbying going on to change it from being mandatory for open disclosure and they changed from "shall" to "may". The reason given was to promote a climate for cultural buy-in. That is civil servant speak for saying they do not want it and it is not something that would be conducive to the manner in which they work, the culture of the organisation or the culture of the HSE. That should not have been allowed to happen and now it is going to have to be cleaned up by the Minister. The former Minister for Health, our current Taoiseach, did not do it and the problem continued on into the present day. We have to have mandatory open disclosure. It has to cut through all organisations and has to be across all sectors and throughout every occupation in healthcare. Patients and those dealing with them must be given all the information as quickly as possible.

The memo the Minister received a few weeks ago in respect of Vicky Phelan's case says that, in 2014, the outcomes of clinical cancer audits were used by CervicalCheck for educational purposes only. That does not fill one with confidence that there was going to be open disclosure in the first instance. Today the Joint Committee on Health received a letter. Luckily, I am a member of that committee and of the Committee of Public Accounts, so I have got a great deal of documentation in the past couple of weeks. The letter the joint committee received is from the former head of CervicalCheck to the programme manager of acute hospitals in respect of communication issues. It is astounding. The letter is dated 7 September 2017 and is addressed to Mr. Colm Henry. It states:

The key areas identified for improvement relate to communication - both of the process itself and regarding the outcome and interpretation of any findings. We in the programme have been working on a prospective process of notification and consent.

It also states that a new leaflet - this was September 2017 and women had not been told - entitled Reviewing Your Screening History, would be given to women shortly after diagnosis. A leaflet. It was not a case of sitting down and deciding how the women would be told. There is a series of documents in which, for over a year, those involved discussed this matter. During that time, they did not decide how they were going to communicate and be open with these women. The idea was to produce a leaflet and that was to be used where women wanted to be informed. The letter goes on to describe other actions which, knowing what we know now, are laughable.

In June 2016, a letter was sent by CervicalCheck to clinicians telling them to inform patients. We know that one in five did so. The issue here is why that letter was not sent to managers in the hospital network as well. The Minister must trust me when I say that they are asking the same thing. This issue would have been dealt with a lot quicker. At the Committee of Public Accounts last week, the State Claims Agency indicated that it was told that all women were informed. We now know, and the Minister accepts, that this was not true. They were not told. Open disclosure, my foot.

Open disclosure must be mandatory. From 1 May, the Minister asked for a full, open trawl of all documentation and, in fairness, we got the documents from the Department of Health. We still do not have them from the HSE. I asked two questions on 3 May in respect of when all hospital managers across the 11 hospitals and the seven networks were told about the audit. Guess what? I have not been given an answer. That would be very useful information and I am still demanding that I get it before the Joint Committee on Health meets tomorrow. How long does it take to send an email out to all of these managers to ask when they first heard of the 2014 audit? This is critical information that I and my fellow health committee members would like to have. The Minister also said it was a full trawl. When the Committee of Public Accounts met on Thursday last, the chief medical officer was sitting beside Tony O'Brien and the latter was able to reveal these memos to me in my capacity as Vice Chairman of the committee. The memos were actually known but the Minister had not been told about them. Last Thursday, after two and a half weeks of this crisis, the Minister had not been told about these memos that actually ended up with the chief executive of the HSE resigning. How does that make the Minister feel? I served as a Minister previously and I know how it would make me feel. That is not the way a functional Department of any kind should operate in respect of what is the biggest health crisis in many years.

In recent days, I spoke to the family of a lady who passed away as a result of this in 2016. She took legal action before she passed away. Members of her family have been trying to get the Minister to speak to them but they have not heard from him.

10 o’clock

I will pass on the details to the Minister and I would appreciate if he could ring the family in question immediately. They have made the effort. They did not have open disclosure. They took legal action before she actually died. They do not feel the State Claims Agency is dealing with the case compassionately. That is still going on now. I spoke to the people concerned before I came into the Chamber tonight and I know the details of this case. If there had been open disclosure from day one, the legal issues which are being dealt with now surely could have been concluded. It would have meant her children, her husband, her brother and sister and her extended family could have some form of satisfaction that at least the State acknowledged it had done wrong and that the case was not been dealt with appropriately. Will the Minister please speak to the people in question in the next 24 hours?

10:55 pm

Photo of Ruth CoppingerRuth Coppinger (Dublin West, Solidarity)
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I move amendment No. 1:

To insert the following after “performance of their duties.”“— cease the policy of outsourcing and tendering for this programme;

— repatriate the screening programme to Ireland under the control of publicly funded not-for-profit laboratories;

— fund all costs necessary to retest any woman affected, and ensure that women whose general practitioner requests a gynaecological appointment are treated as urgent and not placed on a waiting list;

— provide the Dáil with all available facts, figures, results and information in relation to screening test results and detection rates across the different laboratories used by CervicalCheck for each year from 2008 to the present day, identifying the different laboratories where the testing was done and any pattern of differences between these laboratories for each of these years; and

— ensure that all those presiding over this substandard service, or failing to disclose these facts to affected women, whether in CervicalCheck, the Health Service Executive, the Department of Health, including the relevant health Ministers, be held fully accountable and responsible for these failings."

I wish to share time with Deputy Bríd Smith.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Is that agreed? Agreed.

Photo of Ruth CoppingerRuth Coppinger (Dublin West, Solidarity)
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I have only four minutes but it is completely insufficient for the points which I want to raise.

A substantial number of memos were sent around from the Minister's office. Over seven months, these memos record that the issue of non-disclosure to victims was discussed in several meetings by dozens of people. We are meant to believe that the previous Minister for Health, now the Taoiseach, and the current Minister were not informed. That is frankly not believable. In the memos, it shows that legal cases were being discussed for seven months. In one meeting, on 3 March 2016, the matter comes up under the heading AOB at a meeting attended by 12 people from the Department of Health, the NCCP, National Cancer Control Programme, and the HSE. It stated that letters will issue to clinicians - hardly an AOB item. The next reference is 29 March 2016 to the chief medical officer from the national director of health and well-being. He seems to have been very involved in all of this. The issue of cover-up was immediately raised in that second memo in March which we saw at the meeting of the Committee of Public Accounts. By April, a formal process of informing clinicians, references to volumes of letters and labs threatening legal action if the information is passed over.

By June, there is a seven-page letter sent to doctors to explain how not to tell their patients. For example, there is advice to doctors that when a case is reviewed, if the woman does not wish to be informed, her preference should be respected. How would the woman know she does not want to be informed if she is not actually informed? The advice is not to tell people about the audit unless they ask about it. It is outrageous.

The same letter also stated that if the woman asked about her screening history, she should be informed at this time about the audit process. She was not to be told about the audit process in the first place. That level of meticulous planning by a whole load of people in three sectors of the health service is not believable. It is not believable that people at the top of the Department of Health did not think to tell the Minister that one of the major health programmes of the State, the CervicalCheck programme, was under serious threat. All of the language throughout is about mitigating the risk.

In the middle of all of this - the Taoiseach was Minister at the time - while the companies are threatening legal action, they are actively encouraged to enter a closed bidding process to get the contract for another two years. Why was that done? Was there no concern whatsoever about the different lab results from the three labs which were put up on the CervicalCheck site? Will the new smear tests that women are allowed to get still go to Quest laboratories? Over the weekend, Ministers said they were not using the Vicky Phelan lab but they are still using Quest which has a much lower detection rate than the others. Will the Minister for Health invest in public labs attached to public hospitals for the HPV vaccine?

I have run out of time but I do not believe the Taoiseach or the Minister were not informed of all of this cover-up.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I welcome the Sinn Féin motion and support its calls for transparency and openness. It is telling that when such calls were explicitly removed from previous Bills by the Government, there was obviously something to hide. Welcome as all of that is, I do not believe it gets to the nub of our problem. I will continue to emphasise that there is an ideological decision at the core of this problem, namely, the decision to outsource health services and to privatise them. It was a decision taken by the Fianna Fáil-Green and Mary Harney Government back in the day. The justification then and now to do this was that our system had limited capacity but also the private system is much more efficient and reliable than a public system based on publicly funded hospitals with clear oversight and accountability. When warned in 2008 that in ten years’ time that this would lead to major health issues for women, it fell on deaf ears. When Senator James Reilly became Minister for Health, he completely forgot the furore he created about outsourcing when he was in opposition. That was neatly followed by the next health Minister, not the Taoiseach, and then by the current Minister, Deputy Harris.

We need to question the whole creeping poison of outsourcing and privatisation of health services. We will see it in other services as well, causing major problems for people and major political decisions which are justified by the market. They say it is great to have competition as it brings down prices and makes more efficiency. It actually does not. It creates dangerous situations for women's health and lives. From the data the national cervical screening programme compiles, we can find out quickly and succinctly the rates of detection. This will allow us to compare the misdiagnosis rates coming from labs contracted by the Fianna Fáil-Green Government to rates from the not-for-profit public system before 2008. I have repeatedly asked the Minister's office for answers to questions that I do not believe are rocket science.

For example, can we see a list of the labs which dealt with the results of the 209 women who were misdiagnosed? We were initially told they would be called lab A, B and C. We are then told they would be named. I still cannot get that information. As late as today in meetings with departmental officials, they said it depends on how the information is got. We just want the information, not the process as to how it is got.

The urgency is simple. If we find that outsourcing is the cause, that means that responsibility lies with Mary Harney as health Minister under the Fianna Fáil-Green Government, then with the Fine Gael-Labour Government and then the current Government. If outsourcing is the problem, then the call by the Medical Laboratory Scientists Association to repatriate the service without any further delay and put it in the hands of the publicly funded health service and not-for-profit needs to go out. Otherwise, we are playing around and messing with women's health. Like how we outsource terminations to Britain, we are outsourcing cervical tests to the United States. It is not good enough and has to end. Women's lives matter. That is what this whole sad debacle proves.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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I wish to share time with Deputy Fitzmaurice.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Is that agreed? Agreed.

11:05 pm

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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Instead of a motion on mandatory open disclosure, a more fitting motion would have been one of no confidence in the Government. I do not believe addressing mandatory disclosure will change anything as long as we have Fine Gael in power with Fianna Fáil in support or vice versa. We will continue to see scandal after scandal as long as the two establishment parties continue to play musical chairs across the Chamber. After all the competitive outrage between Fianna Fáil and Fine Gael in recent weeks during the CervicalCheck scandal, we are still no closer to holding those responsible to account. The reason no one has been held to account is because those responsible are in a partnership for Government. Fianna Fáil and Fine Gael have engaged in a disingenuous exchange, blaming the so-called HSE culture. It is a convenient culprit with no individual to blame. The refusal to call for Tony O'Brien's resignation was an attempt to save face. The thinking is it is far better if someone else talks the blame in order that Ministers will not be held to account instead. The partners in government, including the Independent Alliance, the Labour Party in the previous Government and other parties have also failed to hold the establishment parties to account for their outright failure to deliver for women in this country.

What is being played out in the Dáil is disingenuous, given how Fianna Fáil almost brought down the Government over a bunch of emails from the Department of Justice and Equality. Yet, the party recoils when asked if the death of women in this instance would lead them to do the same.

We are at risk of becoming a parody of ourselves if we have not already done so. Fianna Fáil and Fine Gael jointly and separately shaped the health system we have today. Therefore, they are wholly responsible for the inadequacies and failings of women in the State. As the authors of our monolithic health service, the two main political parties have facilitated the increasing privatisation of health provision throughout the country by radically moving away from the notion of healthcare as a right. Since the establishment of the State we have never had a public healthcare system. Even in post-war Europe, while other countries developed their health systems, Ireland had the Catholic Church in control of our health. It put aside notions of free and accessible healthcare while viewing them as an interference on family life.

Fianna Fáil, alongside the Progressive Democrats, invented the two-tier health system. Meanwhile, Fine Gael has explicitly pushed the HSE towards a private enterprise model. The bottom line will become the sole motivation of health chiefs. Healthcare provision is ultimately being compromised as the system is owned and run by special interest groups intent on maximising profit. Successive Governments have also been keen to treat our public health system like a private entity by incorporating management systems that view individuals as statistics rather than in human terms.

Outsourcing is another sign of the encroaching privatisation of our health service. Outsourcing is essentially transferring control and accountability to private sector organisations. The HSE chose to avail of the laboratories outside the State despite concerns regarding the preservation of quality control across two jurisdictions. If we keep the same parties in government, we will only see more and more outsourcing of essential services when we really need to move towards a publically controlled and universally accessible single-tier national health service. We need to view healthcare as a fundamental right.

I twice introduced a Bill to enshrine economic, social and cultural rights in the Constitution, including the right to healthcare. Both times, Fine Gael voted down the Bill while Fianna Fáil abstained. It is clear we will never develop a rights-based approach as long as the two establishment parties are in power.

It is no coincidence that these systematic failures have happened on the grounds of women's healthcare. These failures include the death of women under the eighth amendment, the countless women who have undergone symphysiotomy procedures, the needless death of newborns in Portlaoise hospital or the scandal today with CervicalCheck. Male chauvinism has been a persistent feature of the HSE and Government. Women outside these Chamber walls are sick of seeing crocodile tears and listening to male politicians verbally dissecting their bodies again and again for political gain. Women do not need a scapegoat. They need an alternative to the current Government. They need a government that can provide an adequate health service to meet the needs of women in the country and to hold itself to account.

Photo of Michael FitzmauriceMichael Fitzmaurice (Roscommon-Galway, Independent)
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I welcome the Sinn Féin motion. The only question is what will change. In recent weeks we have been at meetings on mental health with the Minister. The HSE officials basically told us that they do what they want and they bring whoever they wish to a meeting. What are we going to do? Are we going to bring in legislative change that will make people accountable?

The first job for the new person over the HSE is to tear the executive apart. We cannot make something that is wrong right, no matter how hard we try, if it keeps failing the people. I believe we need to start. No one should be appointed full-time. People should only be appointed on an acting basis. Then, if they are not doing the job, the simple fact should be that they will not be left there.

I have seen the Minister come out and apologise several times. Yet, the Minister is well aware of other matters. We have this cervical problem but the Minister is aware of the problem with mental health services as well. He is aware of 14 operations that people have had in Galway. Tomás Coleman is well-known and has been on every radio station. The Minister is aware that he has young children and has been left lying on the floor but nothing has been done. The HSE does not give a damn about people like that. In years to come, the aforementioned 14 people will probably go to the courts. The Minister will have to apologise and say sorry about it. Apologies or whatever are no good to the people who have died. We have to decide whether we are going to take the power back or allow ourselves to be given the two fingers by the HSE. That is what we are being given right around this floor. It is an elephant out of control. If it is not reined in, then neither this motion nor any other motion on any given week are of any use. We have crisis after crisis and we come to the Chamber and talk in debates on motions but nothing changes, no one gets fired and nothing happens. We simply roll on to the next problem. That needs to start changing or the people of Ireland will not put up with it.

Photo of Michael CollinsMichael Collins (Cork South West, Independent)
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I welcome the opportunity to speak on mandatory open disclosures in health service provision. I support mandatory open disclosure as a central part of the health service. The rights of patients or service users have to come first. When a person attends a health facility to receive care of any kind, that person expects a safe outcome. To be fair, most health workers at all levels do their utmost to give the patient the best quality of care possible but they are stretched to the limit with extraordinary workloads. People are grateful to hospital staff. Time and again one hears patients praising staff. However, sometimes things can go shockingly wrong and when this happens, as we have seen recently, there can be a tendency to circle the wagons and to protect the organisation. The rights of patients are forgotten or trampled on.

What happened in recent weeks indicates no accountability was shown from the top all the way down though the HSE. It was nothing short of horrendous. It still leaves a bad taste in the mouths of many people. The Taoiseach, Ministers and Ministers of State all circled the wagons. No one was going to be made accountable. The idea was simply to cover over the ever-widening cracks as the days were going on. How often do we see patients or families having to go to the courts for disclosure orders? The HSE drags them through the courts no matter how ill they are. This has to stop. Since voluntary open disclosure will not always work, I believe there should be a legal obligation to make an open disclosure to the patient or relative when there is an adverse outcome or when a serious incident has affected the patient.

Photo of Michael HartyMichael Harty (Clare, Independent)
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I am sharing time with Deputy Danny Healy-Rae.

Open disclosure, duty of candour or apology laws all mean the same thing. They are about the patient and trust. That is the fundamental issue that underpins these laws. They are not about the institutions, the doctors or the process. They are fundamentally about open disclosure to the patient if an adverse event has occurred. That is the critical element. The process should never trump the patient. The hospital or institution should never trump the patient.

The definition of open disclosure covers the transparent sharing of information of an adverse event with a patient. It is not rocket science. It is simple. Safeguards are built into the legislation to ensure that it operates without liability. The medical professional does not admit that he or she was at fault but admits that something has gone wrong. That issue is fundamental to what we are speaking about tonight.

Patients have a right to know. As the Minister said, rightly, voluntary does not mean optional. That is crucial. The Joint Committee on Health looked at open disclosure in two sittings in the context of the Civil Liability (Amendment) Bill. The committee came up with the recommendation that it should be voluntary. There were good reasons for that but of course, voluntary does not mean optional. The purpose of open disclosure is to foster a culture of openness. It is ethical and that is underpinned by the requirements of the Medical Council in its 2016 guidelines. It is absolutely a requirement to be ethical and open with patients. It improves patient safety and that is also an important issue. If there is an error, we need to review it, look back and see how that error can be prevented in future. It is also a learning opportunity for health professionals. Trust and openness are critical to what we are speaking about tonight. In fact, rather than increasing litigation, I believe open disclosure reduces litigation. Being open with patients is important because often all they want to know is that something went wrong.

While many of them are not seeking retribution, they need to know that something went wrong. Open disclosure in the case of CervicalCheck should have started when there was a look-back at the previous smear. Patients should have been informed that they had cancer, their previous smear would be subject to a look-back and they would be informed of its result. That was the fundamental issue in this case.

It is now proposed to introduce mandatory open disclosure. This may well be the approach we must take because voluntary open disclosure will not impose a requirement on health care institutions or the medical and nursing professions to admit something went wrong. As such, open disclosure must be mandatory. In the case of CervicalCheck, the process trumped the patient, which is wrong.

This controversy has again brought into sharp focus the recommendations in the Sláintecare report. The Taoiseach spoke this morning of reinstituting the board of the Health Service Executive. He also spoke of accountability, governance and answerability, all of which are embedded in the Sláintecare report. One year after it was delivered, the Minister has not yet responded to the Sláintecare report. None of the issues to which I alluded requires money. Only a change in legislation is required to underpin open disclosure, accountability and governance, from which everything else flows. The Minister must take the Sláintecare report seriously and respond to it positively as soon as possible.

11:15 pm

Photo of Danny Healy-RaeDanny Healy-Rae (Kerry, Independent)
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I am glad to have an opportunity to say a few words on this important topic. People are horrified by recent disclosures. I thank Emma Mhic Mhathúna and Vicky Phelan for publicising what happened to them and speaking so eloquently about how their lives have been changed forever.

It appears the Government has decided to establish a new board to monitor the Health Service Executive. This is not the right approach as it will create another buffer of bureaucracy between elected members and the HSE, which already has enough managers. There are enough Ministers in the Department of Health to hold HSE managers to account for what they are not doing. I have asked the Minister many times to take HSE managers to task for what they were not doing in various areas, which I do not propose to list. The HSE receives a large amount of money and it is not held to account for how it is spending it. A veil of secrecy operates in many departments and areas of the health service. I am familiar with this from attending meetings of the HSE's regional health forum, south. When I tabled motions and asked questions, HSE officials showed themselves to be masters of not answering the question I asked or addressing the motion I tabled. This is not fair to elected representatives and the people we represent who ask that we provide a health service. As far as I can see, there is no accountability among senior managers in the HSE.

Open disclosure by doctors and HSE managers must be introduced. Many patients have lost confidence in the HSE and I wonder if they will ever regain confidence in the HSE after what has happened. This is a serious matter and I recognise the Minister understands that is the case. However, as Minister, he has power and he must act to sort out the problem. He also has four Ministers of State. Now is the time to act.

The deliberate hiding of information from patients was a criminal act and those responsible should be held accountable because they were the cause of many people dying.

Photo of Catherine MartinCatherine Martin (Dublin Rathdown, Green Party)
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Tá an Comhaontas Glas sásta tacaíocht a thabhairt don rún seo. Today, the people of Ireland do not have trust in the most essential and basic of State services, the health service. The stories we have heard in the past two weeks are beyond shocking. It is a harrowing and frightening fact that women have been treated in such a way. The heartbreaking stories of Vicky Phelan and of Emma Mhic Mhathúna have shaken the nation to its core and we are indebted to their courage and honesty in the face of unimaginably difficult circumstances.

Stephen Teap learned last week that his late wife, Irene, was one of the women who received false negative test results in 2010 and 2013. She passed away last year without ever knowing. When Stephen was told of his wife's false negative tests, the news was followed only by a goodbye, with no meaningful support provided to him in his time of greatest need. Has nothing been learned? Where is the support and compassion? All of the women concerned and their families deserve full and transparent answers on everything that happened in respect of CervicalCheck. They need justice because Vicky and Emma and their families, all of whom have shown great courage and their honesty, deserve nothing less.

It is now a matter for each and every Member of the House to ensure the health service is held accountable. To achieve trust, we need an absolute priority to be placed on creating better and prompt communication to women about what their results mean in all cases. The mistrust created by these events needs to be quickly counteracted in order that the damage caused by the CervicalCheck scandal does not dissuade women from coming forward for check-ups. To achieve real trust, the State must stop deciding what is best for women without consulting, asking or empowering them in any meaningful decision and policy-making process. The Government and State as a whole must guarantee that nothing like this ever happens again. The Government must also learn from this scandal. It cannot continue to stumble from crisis to crisis but must commit, as must all Deputies, to real and substantial patient-centred health service reform. We need reform of the current legal resolution process in medicine to move it away from an adversarial legal system that has the potential to cause further trauma for patients and their families. We need to reform the system to ensure it becomes patient-centred and is not dependent on legal recourse.

The Green Party welcomes the motion and agrees that the Government must legislate for mandatory open disclosure of all information when errors occur that affect patient care. We need to place a statutory duty on all officials in the Department of Health and Health Service Executive to provide full information to a health care regulator, statutory agency and Minister in cases of systemic failure in health care. We also need to ensure a statutory duty is imposed on all officials in the Department and HSE, including the Minister for Health and director general of the HSE, to be truthful in any information given to the Health Information and Quality Authority or any relevant statutory agency. The Green Party agrees that these requirements are needed and we will support the motion.

We also need to ensure the goals of all audits conducted are fully realised. We need assurance that when problems and discrepancies are encountered, practices will be improved so as to tackle and resolve them. The State owes it to the women of Ireland never again to let this happen. In the midst of these heartbreaking cases, it is important to remember that the objective evidence is that the national cervical screening programme is reducing the incidence of cervical cancer and the best way to reduce the risk of cervical cancer is to stay within the national programme and vaccinate our daughters.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
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Hear, hear.

Photo of Catherine MartinCatherine Martin (Dublin Rathdown, Green Party)
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The Minister must restore confidence in the programme.

It is critically important that confidence in such a vital service is restored as a matter of urgent priority.

11:25 pm

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Deputy Pat Buckley is sharing with Deputies Quinlivan, Crowe and Stanley.

Photo of Pat BuckleyPat Buckley (Cork East, Sinn Fein)
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Correct.

When it comes to any form of healthcare, at any stage, quite clearly, the patient must take priority. The patient must be informed, involved and consulted in all aspects of his or her care and treatment. Without this, healthcare will always fall short of what it could be and results will be less positive. Truth, openness and honesty have to be the cornerstone of how the health service engages both with patients and the public, and internally.

The CervicalCheck scandal reveals the damage of a system which is not open and honest. Of course, things can go wrong, but when they do, covering up and circling the wagons is not a solution to any problem. That will only compound that problem. It can potentially have serious health implications for patients, including the most tragic results of all, and in the longer term it damages public confidence in the systems on which the public relies.

A big part of public health is to encourage the population to attend to their health, not only with more healthy lifestyle practices on a daily basis but by seeking out care and consulting with professionals when needed, and trust is the key.

CervicalCheck is something we should be proud of. It is a good initiative which has saved lives, but openness and honesty are essential to ensuring its continued success in this regard and to in whatever way possible right some of the wrongs which we have had exposed to us recently. Of course, some of those failings cannot be corrected, and this should be a watershed moment where we say, "Never again will we allow the system to come before the patient."

Where a problem arises, the structure and culture must be in place to identify it, to raise the alarm and to investigate it. Information, when accurate and shared appropriately, will also benefit the provision of services and the improvement of those services. Above all, the patient has a right to know about their health, their treatment and their options, and in the case where something goes wrong, to know about those failings and to be able to seek redress and remedy.

Real mandatory open disclosure, as set down in this motion, must extend to doctors, nurses and healthcare professionals at all levels, but it should apply across the whole health service, from the ward right up to the very top of the HSE, the Department and the Government. Real mandatory open disclosure can help to build a better service but also ensure that it is one that is trusted by the public because when the people who need that service can trust it then they can fully and confidently engage with it and seek the best care.

I commend Deputy Louise O'Reilly for bringing this motion forward tonight and I ask the House to support it.

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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The motion originally tabled for tonight, as the Minister for Health will be aware, called on him to sack the director general of the HSE, Mr. Tony O'Brien. Such a motion such never have had to be tabled by Opposition Members as the Government should have acted correctly and relieved him of his position when the extent of the scandal started to unfold over the past number of weeks. Mr. O'Brien let the Government off the hook by resigning last week after those shocking memos surfaced but this by no means draws a line under it.

Tonight's motion calls on the Government to legislate for mandatory open disclosure of all information where an error occurred that has affected a patient's care, and to do so before the Dáil summer recess. People were astonished to think that such vital information could be kept from them in the most serious of circumstances and this has done serious, possibly fatal, damage to the already fragile reputation of the Health Service Executive. Those who orchestrated this concealment must be held fully to account and my party intends to do that.

As has been mentioned already, Sinn Féin called for mandatory disclosure through part of the Civil Liability (Amendment) Bill last year. Unfortunately, Fianna Fáil abstained at that time and Fine Gael opted for a voluntary system which clearly does not work. I am glad to see both parties on the side of mandatory disclosure but, unfortunately, their change of attitude has come far too late for many.

This motion also proposes that it be made a criminal offence for a health service worker of any grade, any HSE official or any Department of Health official to withhold information about a patient's medical diagnosis or misdiagnosis, provide information to a patient or nearest relative intending to mislead them about such an incident or dishonestly make an untruthful statement to HIQA and-or any relevant statutory agency knowing or believing that such agency or agencies are likely to rely on the statement in the performance of their duties. This is an incredibly important proposal that aims to ensure such concealment and wrongdoing is not repeated in the health service ever again.

I sincerely thank Ms Vicky Phelan for the service she has provided to the State by bringing the scandal to light and commend other women and the families of some who have passed who have come forward to tell their own stories.

Photo of Brian StanleyBrian Stanley (Laois, Sinn Fein)
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I welcome the opportunity to speak on this motion here tonight. It is an important motion.

We have to fix our sick health system. Despite the best efforts of many staff right across the health services, parts of the system are totally dysfunctional and in need of radical reform. They suffer from political neglect and little direction over the years.

We now need to build a national health system as outlined in the Sláintecare report that all parties in the House have bought into. Whatever we create of the health services, we must put patients first. This is something that we must not argue over.

The Sinn Féin motion demands that the Government legislate for mandatory open disclosure of information, in particular, where an error has occurred affecting a patient’s care. Whether the news is good or bad, whether it is that an error has occurred or whether the diagnosis has been correct, it is essential that that happens.

The consequences of the current cervical smear scandal are horrific. It is part of an unfortunate bundle of scandals. In scale and extent, it is surely the worst yet.

I pay tribute to Emma Mhic Mhathúna and Vicky Phelan for their bravery in coming out and bringing all of this to light, and wish them both well. Our thoughts are with them and their families.

People have not forgotten the deaths of babies in Portlaoise and Portiuncula hospitals. Certainly, those bereaved parents have not. Babies died between 2006 and 2013 in similar circumstances. They developed normally up to the time of the maternity treatment and reaching the maternity unit. Where was the patient access to information preceding this tragedy? It is important to put this in context. Leading to it also was the shortage of staff and substantial cuts in budget. In the case of Portlaoise, there was a considerable slash in the budgets at that time and a significant shortage of staff. These issues were well flagged over many years by staff at different levels in the hospitals. I welcome the fact that to a large extent these have now been addressed, the budgets have been restored and increased, and the staff levels in the case of the maternity unit doubled which shows that they were operating completely under strength.

I also pay tribute to Mark and Róisín Molloy and others who have called for open disclosure and accountability. We support that call here tonight. They came out strongly on that.

However, long investigations, long legal battles and long years of waiting and trying to squeeze the answer out of the top brass of the HSE is not the answer for patients and does not suit anyone. It is not the way to treat the public and it is not the way to treat patients.

Many staff throughout the HSE are doing sterling work, both in the hospitals and at administration and community levels. We all meet and come across them in our work every day. I pay tribute to them despite the fact that the system, as it is structured, cannot function due to its two-tier nature. We need to agree it is dysfunctional and move on.

In terms of transparency, it is important that the results of medical tests are given to patients and their GPs immediately. This is very simple. Why can that not happen? I saw a doctor dictating a letter into a dictaphone in front of a patient in a hospital the other day so that the patient knew exactly what was going back to his GP. The GP will have received that, if not that day then the next day, and the patient knew the contents of the outcome of the particular test. That is the way it should be. With this motion, we can create an environment of transparency and empowerment for patients and for staff.

In regard to overall reform, I again ask that action be taken on the all-party Sláintecare plan. Let open disclosure and accountability be at the heart of that and let us create the public healthcare system that we need.

We cannot undo some of the damage that has been done but what we can do at this point is make sure this type of thing never happens again. While we are Members of the Thirty-second Dáil, we should not lose a minute in improving things for the better.

11:35 pm

Photo of Catherine ByrneCatherine Byrne (Dublin South Central, Fine Gael)
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I will respond to the debate on behalf of the Minister, Deputy Harris. I echo the Minister, Deputy Harris’s gratitude to Vicky Phelan for speaking out. It cannot have been easy for her or her family to have chosen to take on this task. She has done a great service to the women of Ireland and to the people. The Minister, Deputy Harris, is intent on ensuring her actions will ultimately lead to improvements for all.

As the Minister, Deputy Harris outlined earlier, these matters have raised key issues of trust between patients and clinicians. The Minister is committed to taking any steps available to him that will assist in restoring that trust. I know the officials of the Department of Health share that conviction. In recent years, the Department has brought its commitment to a number of very serious patient safety matters in Portlaoise, Portiuncula and elsewhere in our health service. I emphasise it has been recognised for a number of years that there is a need to improve the safety of our health service. This field of patient safety is a relatively new one to healthcare as a whole. However, in Ireland there have been significant steps taken. A strategy developed a number of years ago to deliver improvements is now being delivered. I note, for example, the creation of the national patient safety office in the Department of Health, which was established in 2016, following the approval by Cabinet of a memo on patient safety in November 2015. The office is charged with delivering a programme of policy and legislative changes to improve the ability of the health service to anticipate, identify, respond to and manage patient safety issues.

Some of the progress which has been made to date includes the general scheme of the patient safety (licensing) Bill which was approved by Government in December 2017 and referred to the Oireachtas. The Bill will ensure the need for all hospitals to have strong clinical governance and patient safety operating frameworks in place in order to be granted and maintain a licence to provide health services. Other progress includes overseeing the commencement of the publication of monthly patient safety statements by all maternity hospitals and maternity units in the State, and hospital patient safety activity reports by public acute hospitals; an annual national healthcare quality reporting system which presents data across a number of quality and safety domains, the fourth report of which will be released in the coming months; progression of the development of a new national patient safety complaints advocacy service, which is expected to commence later this year; quality assurance by the national clinical effectiveness committee of 16 clinical guidelines and one audit, including those on sepsis management and early warning systems for both adults and children; in collaboration with the Department of Agriculture, Food and the Marine, the development of Ireland’s national action plan on antimicrobial resistance 2017 to 2020 which was approved by Government in July 2017; and the establishment in 2017 of the annual national patient experience survey that is administered by HIQA on behalf of the Department of Health, the HSE and HIQA. The second iteration of the survey is under way. Progress also includes the establishment of a patient safety surveillance system, which has also commenced. It will involve interrogation of health data and information from multiple datasets through a health analytic function, in order to produce national patient safety profiles. This will then provide indications of where both challenges and good practice are emerging within the health system in order to direct and inform healthcare quality improvement.

The office is also progressing the new patient safety Bill, which, as noted earlier, will provide for mandatory external notification of serious patient safety incidents to the appropriate regulatory body such as HIQA or the Mental Health Commission. The Minister for Health will designate those incidents which would be included in this measure. It will also provide for mandatory open disclosure of these serious incidents to the patients affected by them; ministerial guidelines for clinical audit; and the extension of the Health Information and Quality Authority’s remit to private hospitals.

In addition, as the House is aware, on Friday last the Government agreed a comprehensive package of health and social care measures to support the 209 women and their families who have been diagnosed with cervical cancer and whose audit result differed from their original smear test. The Government is absolutely committed to ensuring these women and their families receive all of the supports they require. I will not go through the supports because the Minister has already addressed them in his opening statement.

As the House is aware, regulations arising from the Civil Liability (Amendment) Act 2017 will be brought forward shortly. While this will provide the necessary legal protections for health service staff engaging in open disclosure, I emphasise the expectation of all of us that, regardless of whether open disclosure is described as voluntary or mandatory patients should and need to be told about all aspects of their care, including where an error has occurred or harm has been caused. This is entirely in line with the HSE’s national policy on open disclosure and the requirements of Medical Council for doctors. As acknowledged earlier, there is a need now to bring forward legislation to provide for mandatory open disclosure. These provisions will be incorporated into the forthcoming patient safety Bill, which will also provide for mandatory reporting of serious patient safety incidents. The Government has agreed to progress this as a matter of priority. Health services can be made much safer but it is inevitable that things will sometimes go wrong. There have been tremendous advances in health services but we are not always sufficiently clear that a degree of inexactitude and risk continues to be a feature of many areas. Nonetheless, the important action when things go wrong is to be honest and open with patients, to ensure patient and their families are looked after and to examine what improvements need to be implemented. This is the standard which as a health service we must live up to.

As others have stated, I cannot find words that are adequate to address the heartbreak, torment and torture that families are going through. As a woman I am horrified that any person would conceal such crucial information about my health or any other woman's health that would lead to women being exposed to a death sentence. As everyone in the House and around the country in families, homes and communities, all I want is the truth. Under Dr. Gabriel Scally, who will lead the scoping inquiry, the truth will emerge. On behalf of the Minister, I thank everyone who has contributed to the debate this evening. The Government will not oppose the motion.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The events, circumstances and life changing results that have been uncovered over the past three weeks with regard to the cervical cancer screening tests scandal have shaken Ireland to the core. In November 1990, Ireland moved progressively forward by electing its first female President, Mary Robinson. In her acceptance speech, Mrs. Robinson specifically thanked the women of Ireland for electing her saying she had been elected by the people who "voted for a new Ireland, and above all by the women of Ireland, mná na hÉireann, who instead of rocking the cradle rocked the system". The events and exposé of the last three weeks and the failure of the Government to act appropriately have well and truly shocked. The bravery of Vicky Phelan, Emma Mhic Mhathúna and Paul Reck has rocked this country's system to the very core. I applaud the bravery of all these individuals in coming forward. I am also very conscious of the women and men who have not come forward. Many are sitting at home still wondering in deep anguish about what could have been and, unfortunately for some, what will be.

There is a short window of opportunity here to try to restore trust. If this window is broken, not only will the cradle and system be rocked but the establishment that has underpinned the State since its foundation will be rocked beyond its very core. Citizens will not tolerate this corrupt and uncaring system any longer.

I have spoken on the issue of mandatory disclosure or duty of candour over many years.

In January 2015, my opposite number in Fianna Fáil at that time, Deputy Billy Kelleher, called at the health committee for the HSE, the State Claims Agency and the legal profession to be encouraged to embrace a culture of open disclosure and duty of candour. At that point I immediately stated that, "Encouragement is not enough." The focus has to be on the patient and there needs to be a legal duty to inform the patient. I stated further that encouragement suggested a voluntary code. What is required to happen is a legal duty of candour to prevent the State contesting cases that are beyond question. The vision of Vicky Phelan on the steps of the Four Courts and her bravery in her refusing to sign a clause of confidentiality will be forever remembered as a selfless act of great service to our country.

In September 2016 the Minister, Deputy Harris, said he was going to introduce legislation to enforce the HSE's guidelines for open disclosure in medical cases. The Taoiseach, Deputy Varadkar, who was Minister for Health prior to Deputy Harris, sidestepped the opportunity to introduce appropriate legislation in the Civil Liberty (Amendment) Bill 2015. I put it to the Minister that there can be no more "encouragement" and no more "sidestepping". Trust needs to be restored and Vicky Phelan, Emma Mhic Mhathúna, Paul Reck and the women and families of Ireland all require a duty of candour, at the very least in order to see the return of some level of confidence.

The anger I have encountered in communities since this scandal surfaced is unprecedented and I believe that is something all Members can confirm. I reiterate that failure to comprehensively address this scandal that has brought the most grave consequences for so many, will rock the system and will rock the establishment to a place it has never been before. In such a failure, the Minister, Deputy Harris, and his Government will end up on the political floor.

11:45 pm

Photo of Donnchadh Ó LaoghaireDonnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Thar ceann Shinn Féin, ba mhaith liom buíochas a ghabháil le gach Teachta a ghlac páirt sa díospóireacht seo, ina measc iad siúd a léirigh a gcuid tacaíochta don rún. Ba mhaith liom comhghairdeas a ghabháil leis an Teachta O'Reilly, a chum an rún.

The cases of Vicky Phelan, Emma Mhic Mhathúna, Irene Teap and others have seared the hearts of the nation over the past few weeks. The stories have played out in the media and we have all been touched by them. I concur with Deputy Ó Caoláin that the level of public anger and concern is extraordinary. It has left its mark on the nation. Anyone who heard Emma Mhic Mhathúna's interview on "Morning Ireland" last week will remember it as long as they live. When she said she worried about whether her son would remember her in years to come it stopped people in what they were doing. It was crushing and heartbreaking and there have been many moments like that in the course of this controversy.

On 26 April I took to my feet during Leaders' Questions, not knowing the true scale of what was being discussed that day. In the course of the debate I told the Tánaiste, Deputy Coveney, that it was my understanding that there is a contractual obligation to inform women within four weeks if a problem is identified with a smear test in the ordinary operation of the CervicalCheck programme. If a problem was found in a subsequent review, why did a similar contractual obligation not apply? I asked the Government this 18 days ago but it takes a Sinn Féin motion this evening to ensure that similar protections are in place.

Earlier, the Minister, Deputy Harris, referred to the Madden report, authored by Deirdre Madden in July 2008 and entitled the Report of the Commission on Patient Safety and Quality Assurance. The report contained a number of proposals with a mandatory system for reporting adverse events and open disclosure or a duty of candour were two elements of it which are relevant to this debate. The report highlighted that fear was a significant factor in cases of non-disclosure, whether it was fear of litigation or its repercussions. The reality is that we need to eradicate that fear and we must have a health system that holds patient safety and the right to information about one's treatment at its core, as its top priority.

This motion and any legislation flowing from it would not seek to punitively treat healthcare and medical professionals but would seek to help them, as well as patients. We firmly believe that mandatory disclosure could and would do that. It is vitally important that duty goes far beyond medical professionals. Indeed, it needs to go right to the top, to senior administrators and the corporate body of the HSE, the director general of the HSE, the Minister for Health and so on. It is some of those officials who have emerged with the greatest discredit in this sorry episode.

This issue was raised on a number of occasions and we moved the proposal for mandatory disclosure many years ago. Unfortunately, it was defeated by the Government and Fianna Fáil. I am glad they are supporting it this time and I hope it will be followed through on beyond this motion. The document that has come into the public domain in recent days has cast the HSE in a very poor light. It is a worrying catalogue of decisions to keep the women affected in the dark, so that they are the last ones to know, and fights over who should be responsible for telling them. Concern for the patient was not evident and not the top priority but was completely absent.

When I raised this on Leaders' Questions almost three weeks ago, I stated that the issue potentially related not only to information but also to the quality of testing. It was striking that Dr. David Gibbons, the head of quality assurance at the time resigned in protest at the decision to outsource the process to the US as decided by Mr. Tony O'Brien. I hope the Scally report will cast light on that but I retain significant concerns about the outsourcing and its implications.

There is no doubt but that the manner in which these cases have been handled has left a great deal to be desired. The State has a long and worrying history of dragging people, very often women, through the courts who are fighting for rights that should be self-evident. We need a re-evaluation of the way the State Claims Agency behaves and the way the State deals with mass harm generally. The attempt to force Vicky Phelan to sign a confidentiality agreement was a particular slight and without her bravery and determination we may never have learned of this. Her determinations, that some good would come of this, has been inspirational and I hope some good has come of this. It is a pity it has taken a scandal for attention to be brought back to this issue but let us work to right a wrong and make open disclosure a mandatory process.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Is é sin deireadh leis an díospóireacht. Is í an cinneadh atá le déanamh againn anois ná ar leasú Uimh. 1. The decision we must now make is on amendment No. 1 in the name of Solidarity, moved by Deputy Ruth Coppinger. The question is that the amendment be made. Are there proposals on amendment No. 1? Níl éinne anseo: there is no one here to do so. The question, therefore, is that the motion as proposed be agreed to.

Motion agreed to.

The Dáil adjourned at at 11 p.m. until 10.30 a.m. on Wednesday, 16 May 2018.