Rachael O’Shaughnessy: A painful four-year fight for answers
Last month the team at HOMS Assist secured a high value undisclosed settlement and an apology from the HSE for our client, a widow whose young husband died as a result of deficits of care at the University Hospital Kerry, which tragically resulted in his untimely death.
However, it took a four-year legal battle where no admissions of liability had been made at the inquest or during court proceedings to achieve this result. This brought home to me the very real need for the enactment of the Patient Safety (Notifiable Patient Safety Incidents) Bill 2019.
When the bill was published in December 2019, I considered it a very welcome legislative development in the area of medical negligence. On 5th December 2019, the then minister for health Simon Harris, TD, published the bill, which was said to legislate for several important patient safety measures.
Commenting on the bill, Minister Harris said, “I want us to have a culture of open disclosure, where health practitioners are supported and where patients’ voices are heard.”
I considered why this was good news. Not only did the bill list specific patient safety incidents that would be subject to mandatory open disclosure, but it also included a new process to designate other patient safety incidents for which open disclosure would be mandatory.
In 2015 the then minister for health, Leo Varadkar, said it was the equivalent of a motoring “hit and run” for doctors and health professionals to fail to make disclosures and live up to their duty of candour. He also said if doctors adhered to their duty of candour and open disclosure then “a lot fewer people would sue”.
This is ironic given that a fear of litigation, damage to reputation and even fear of the media are considered barriers to open disclosure. I would anticipate that most medical professionals agree with the principles of open disclosure, but perhaps the biggest concern about embracing it is the fear of litigation. Interestingly, studies have found that patients who have been given a full explanation and an apology could have been persuaded not to take legal action.
The Canadian disclosure guidelines describe disclosure as a “process of open communication and information sharing rather than a single conversation”. Open communication and open disclosure have the same meaning.
The Australian Commission on Safety and Quality in Healthcare describes open disclosure as “an open discussion of incidents that result in harm to a service user while receiving healthcare. This includes expressing regret for what has happened, keeping the service user informed, providing feedback on investigations and the steps taken to manage the event and prevent a recurrence.”
Sir Liam Donaldson, the UK’s chief medical officer, said in 2000: “To err is human, to cover up is unforgivable but to fail to learn is inexcusable.”
A second major aim of the bill was to ensure that these serious patient safety incidents would enable national learning. It also supported improvements across the health service to prevent harm to other patients.
The bill requires notification of these serious patient safety incidents externally to the Health Information and Quality Authority, the Chief Inspector of Social Services, and the Mental Health Commission to contribute to national patient safety learning and improvement. This measure would improve standards in the Irish healthcare system.
Importantly, mandatory open disclosure and the notification system for these serious patient safety incidents would not only apply to public services, but also to private health care services.
At present, there is no mandatory requirement for a medical professional to be candid with his/her patients. This fosters a lack of openness to discuss what went wrong. As a consequence, it is difficult to learn from errors, and therefore ensure that they do not happen again.
What would this proposed legislation mean for patients or families like our client who had to persevere for four long years to get the truth as to why her husband died? The bill appears to build on the voluntary open disclosure procedures introduced in 2018 under the Civil Liability (Amendment) Act 2017.
Disclosure is not about blame. Indeed, not all mistakes amount to medical negligence. It is about integrity, accepting responsibility and embracing accountability; being truly professional. Such a culture not only assists patients but also staff in the aftermath of an adverse event to cope and achieve closure.
Personally, I find that avoiding communication with patients when things go wrong often leads to patients taking a legal route to get answers to their questions. Indeed, this is what our client, who we recently represented at mediation against the HSE, had to do.
Over a year-and-a-half since the bill has been published it is most regrettable that nothing further has been done. I know my client does not want any other family to suffer what she has suffered. The bill needs to be brought before the legislative stages in the Houses of the Oireachtas. If it passes through the Houses, the bill must then be signed into law by the President.
It is my sincere hope that positive steps will be taken to enact the necessary legislation for better patient care for all. This is most especially relevant when a patient dies as a result of an adverse event. It is vital that communication with the family is initiated early on and maintained in an open, sensitive and empathetic manner.