Accountability in the HSE

In the wake of the cervical smear crisis that are continuing to emerge, only now is a mandatory legal requirement for doctors to be more open after such an adverse health care event. Now, the Civil Liability (Amendment) Act 2017 which has not even commenced, supposedly introduces a VOLUNTARY requirement for health service providers to be open with patients who are involved in such horrendous incidents as the cervical smear crisis. How can a patient develop an environment of trust if the proposed legislation is to facilitate an apology if in the correct form cannot be used as evidence in any subsequent legal or professional proceedings ?

The supposed rationale behind this legislation is to normalise “saying sorry” and to build trust between the doctor and patient, and reduce litigation. The real problem is that the HSE at present are hugely more accountable to the High Court than to a patient, who could be any one of us.

Accountability is what is searingly lacking.

The concept of open disclosure has been bandied about in Ireland before.

The Medical Council ethical guidelines states that patients are entitled to honest, open and prompt communication about adverse incidents that have caused harm and that doctors “should” acknowledge the event, explain how it happened, apologise if appropriate, and assure the patient and family that the cause should be investigated. These are only guide lines and use the word “should” instead of “must”. Which means that open disclosure is not an absolute professional duty and doctors who have already misdiagnosed or have played a part in an adverse incident can now use their own judgement in relation to communication of about misdiagnosis or anything else that went wrong during treatment. Self regulation, again I fear. The HSE also introduced guidelines on open disclosure in 2013. This Act defines an apology as an “expression of sympathy or regret”. Apologies in a prescribed format will be considered as inadmissible in any proceedings. The form of the apology is not set out in the legislation. This I fear could facilitate doctors who confident of the legal status of their apology offer the “I'm sorry you feel that way” non apology.

The UK statutory Duty of Candour makes the disclosure of a patient safety incident and the requirement to offer an apology a MANDATORY legal obligation and a failure to comply is a criminal offence and is punishable by a fine for the relevant organisation.

Ireland should introduce a mandatory duty of candour but also greater openness by engendering a cultural shift by way of education, training, focused support for the overworked doctors and nurses who are dedicated and committed but under resourced to manage a a highly overloaded health care system.

Any legislation must provide clarity of process for mandatory disclosure.

This must elucidate what is required by patients and practitioners.

Also, there must be a willingness to at a political and organisational level to ensure that any process of disclosure is not treated as a box ticking exercise to simply meet the legislative requirements. This can only be accomplished if the relevant support is provided for medical practitioners through continuous education and training on open disclosure.

It is in all our interest to have a more accountable health service in Ireland. Doctors differ unfortunately.