Helen McEntee (Meath East, Fine Gael) | Oireachtas source

Amendments Nos. 1 to 20, inclusive, seek to insert a new Part 4 into the Civil Liability (Amendment) Bill 2017 to support the open disclosure of patient safety incidents. Senators will recall that in the course of her Second Stage speech the Tánaiste indicated that such amendments would be brought forward. Accordingly, I am very pleased to propose the amendments for consideration by the House. On behalf of the Minister for Health, I thank the Oireachtas Joint Committee on Health for undertaking pre-legislative scrutiny of the provisions which was very helpful in ensuring the legislation would be brought forward today as a positive measure that represents an important part of ongoing patient safety initiatives in the health service. There are 20 amendments in total, including a consequential amendment to the Long Title of the Bill. With the agreement of the House, it is my intention to take the amendments in thematic groups which will follow the narrative of Part 4.

The first group includes amendments Nos. 1 and 2.These introductory amendments seek to amend section 1 to include reference to Part 4 - the new provisions on open disclosure.

The second grouping is amendments Nos. 3 and 4, which address definitional matters relevant to the new Part 4. The third grouping consists of amendments Nos. 5 and 6. Those amendments detail what an open disclosure is, what its legal effect is and the statement to be prepared by the health service provider in regard to open disclosure. The fourth grouping is amendments Nos. 8 to 11, inclusive, 13 and 16, which provide for the steps involved in the open disclosure process, including what happens when a person does not wish to participate in the process or the health service provider cannot get in touch with the patient for the purposes of arranging an open disclosure meeting. The next grouping is amendments Nos. 12, 14 and 15. These amendments cover the requirements for the conduct of the open disclosure meeting and for the provision of further information and clarification of information provided. Amendments Nos. 17 to 19, inclusive, will be taken separately. They deal, respectively, with the records to be kept, the making of ministerial regulations, and saving and transitional arrangements when Part 4 is commenced. Amendment No. 20 involves a change to the Long Title of the Bill and is consequential to the other amendments being carried.

Before I deal with the amendments, I would like to take this opportunity to speak about the purpose of Part 4. The provisions to support open disclosure are part of a broader package of reforms aimed at improving the experience of those who are affected by adverse events within the health service. Last December, the Minister for Health launched a new national patient safety office, located in the Department of Health, to prioritise work in this area. He has directed this office to work on a range of initiatives, including new legislation, the establishment of a national patient advocacy service, the measurement of patient experience, the introduction of a patient safety surveillance system and extending the clinical effectiveness agenda. Within the programme of legislation, it is intended to progress the licensing of our public and private hospitals.

These reforms also include the provisions on periodic payment orders in the Civil Liability (Amendment) Bill. While the open disclosure provisions were originally to be included in the Health Information and Patient Safety Bill, it was thought that they would be a good fit with the Civil Liability (Amendment) Bill, which was more advanced than the Health Information and Patient Safety Bill. Patient safety is fundamental to the delivery of quality health care and to public confidence in the health system, and open disclosure is an integral element of patient safety incident management and learning. Open disclosure is about an open, honest and consistent approach to communicating with patients and families when things go wrong in health care. It includes keeping the patient informed, providing feedback on investigations and the steps taken to prevent a recurrence of the incident, and it may include, depending on the particular circumstances involved, an apology for what happened. For those reasons, open disclosure is important for building patient and public trust in the health system and it is therefore vital that it should be supported.

The report of the Commission on Patient Safety and Quality Assurance, chaired by Professor Deirdre Madden, recommended that legislation be enacted to provide legal protection for open disclosure of patient safety incidents to patients. It is envisaged that such legislation should ensure that open disclosure, which is undertaken in compliance with national standards, cannot be used in litigation against the person making the disclosure.

International experts' experience indicates that open disclosure will happen best by fostering the development of an honest and honest culture. In its consideration of these provisions the Oireachtas Joint Committee on Health recognised that the best chance of creating the conditions necessary for the success of open disclosure lies in taking a voluntary approach backed up by apology laws. In responding to the committee's observations and in order to properly take account of experience into the future, the Minister for Health has indicated that the structured evaluation of the success of voluntary open disclosure will be undertaken in the future once a suitable period of time has elapsed.

The open disclosure legislative provisions in Part 4 are therefore designed to give legal protections for the information disclosed and any apology made during the open disclosure process but only when the information provided and the apology made is in keeping with the requirements set out in the legislation. The section setting out protections is section 10, while the other sections of Part 4 stipulate requirements on the open disclosure process to ensure that it is an open and patient-centred process.

These protections address a situation in the health service at the moment where health practitioners could be reluctant to make a disclosure to a patient regarding a patient safety incident because of concerns they may have in regard to the potential consequences it could have for their career as well as the financial implications that may arise with regard to insurance. I wish to be clear, however, that there is no question that the protections being proposed will provide for protections for incompetent, negligent or other unprofessional patient care. Clinicians will still operate within the existing accountability framework, including through the bodies regulating their particular professions. The objective of the legislation is to create a safe place for open disclosure and to encourage the growth of a culture of openness and transparency within our health service, ensuring that patients are getting relevant information when an open disclosure is made. The protections provided will apply in both the public and private sides of the health service so as to support a uniformed system of open disclosure across the health system.

I will now deal with the specific amendments. Amendments Nos. 1 and 2, which are being taken together, amend section 1 of the Civil Liability (Amendment) Bill to insert references to the new Part 4 concerning open disclosure as that part of the Bill will be the responsibility of the Minister for Health rather than the Minister for Justice and Equality. The intention is that the commencement of Part 4 would be a matter for the Minister for Health. The Tánaiste has also asked me inform the House that she is considering tabling further amendments on Report Stage in regard to a number of issues related to the periodic payments part of the Bill.

Section 51O provides that the Part dealing with periodic payment orders will apply to proceedings which are brought on or after the commencement of the Part or in respect of which no final decision has been made on the date of such commencement. The Tánaiste is examining the issue with the Office of the Attorney General to ensure that the provisions on periodic payment orders can only apply to cases where a court has already made an internal award and, if necessary, the Tánaiste will bring forward an amendment on Report Stage to clarify this matter for Senators.

The Tánaiste also notes that discussions are under way between her Department, the Department Jobs, Enterprise and Innovation and the Office of the Attorney General on the possibility of giving the Personal Injuries Assessment Board the power to make periodic payment orders in catastrophic injury cases. Again, if required, the Tánaiste will bring forward any appropriate amendments and information on Report Stage.

My Department and the State Claims Agency are preparing comprehensive provisions dealing with recovery of costs, specified health and personal social care services in the cases of persons who are in receipt of periodic payment orders. This is to avoid a situation referred to as double recovery where a person in receipt of the periodic payment order for the purpose of his or her long-term health care need also receives health benefits under, for example, a medical card. It would also be necessary to avoid the situation where, for example, a defendant could seek to reduce the amount of damages payable because of a plaintiff's entitlement to a medical card. The intention is to table the required amendments on Report Stage.