2021 AND STILL NO STATUTORY OBLIGATION ON DOCTORS AND HOSPITALS TO TELL THE TRUTH

I attended an Inquest recently on behalf of a family of a young woman who died in hospital.  They had concerns about the appropriateness of the care afforded to their family member and my brief was to endeavour to get answers to their many questions.  An Inquest is an official, public inquiry, led by a Coroner into the cause of a sudden, unexplained or violent death.  A Coroner is not permitted to consider civil or criminal liability; he/she must simply establish the facts.  One of the doctors giving evidence at the Inquest, during examination by me, admitted that he had made a mistake previously in the care of this young lady and was terrified that he would do so again and thus ordered a particular procedure to be performed which unfortunately had an adverse outcome on the young woman’s health.  He advised that he had since gone over and over it and that he would not have done the procedure unless he felt that he could do something with the result.  His honesty and candidness were impressive and you could tell that he had cared for his patient; had done his best for her and was hugely saddened by her death.

No doctor sets out to make a mistake but mistakes do happen. In order for a mistake to amount to medical negligence, it must be one that no other doctor, of like skill, expertise and experience, would have made, if faced with the same set of circumstances.  It is not enough to say that another doctor would have acted differently.  What must categorically be said is that no other doctor, acting reasonably, would have so acted.  You must then be able to prove that the mistake/negligence caused over and above injury.  This can be the most difficult hurdle to overcome in maintaining a successful medical negligence case.  The easiest way to explain over and above injury/“causation” is to refer to a UK case Barnett v Chelsea and Kensington Hospital Management Committee.  In this case, a Casualty Officer in a hospital was negligent in not treating a Night Watchman who complained of vomiting after drinking tea.  He later died of arsenic poisoning.  His widow’s claim failed on the ground that the workman would have died even if he had received all due care, because the Judge concluded on the evidence that there was no chance that the only effective antidote to the poison could have been administered in time.

The present system does not seem to see patients and their loved ones as people.  When mistakes are made, all too often the instinct is to close ranks and not admit errors and they fear – wrongly as it happens and as can be seen from above – that admitting mistakes and apologising early might in some way, increase the amount of damages that will have to be paid to victims or their surviving loved ones.

The current statutory provisions on Open Disclosure (the obligation on hospital, medical and nursing staff to tell the truth to patients when there has been a mistake which has adversely affected the patient) are set out in the Civil Liability (Amendment) Act 2017.  This legislation was designed to give legal protection for the information and apology made to a patient during Open Disclosure.  The apology cannot be used in litigation against the Provider.  Previously, if a disclosure was made it was admissible in subsequent litigation.  Now it is not.  So, the apology is now voluntary and protected.  This has been addressed in the Patient Safety (Notifiable Patient Safety Incidents) Bill 2019 which will provide for mandatory Open Disclosure for certain patient safety incidents.  According to the Houses of the Oireachtas website, which was last updated on the 28^th July 2020, the Bill is currently before Dáil Eireann, Third Stage (which incidentally was exactly where it was on the last time I blogged about this topic on the 15^th January 2020).  In its present format, and as I pointed out in that blog, the Bill provides that the apology, and indeed the information given to the patient, does not constitute an admission of liability or fault and is not admissible in litigation.  That is not an apology, in my view.

Furthermore, I note with interest, that one of the recommendations of the Expert Group[1] Report to review the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims dated the 17^th January 2020 and published on the 16^th December 2020 recommends that failure to make a disclosure, when required by law to do so, should be considered to be either professional misconduct or poor professional misconduct by the healthcare provider involved and should be the subject of an enquiry by the relevant body.  It also recommends that it should be a criminal offence for a healthcare provider to deliberately fail to make a disclosure of a serious reportable patient safety incident when required by law to do so and to alter medical records with the intent to mislead or deceive.

I sincerely hope that I will not be beating this drum again, in yet another blog, in yet another year’s time.  Unfortunately, I am not optimistic.  It has been three years since the Cervical Check scandal emerged thanks to the brave Vicky Phelan.  Why would I be optimistic?

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[1] This Group was expertly chaired by Mr Justice Charles Meenan and our managing partner, Mr Ernest Cantillon, was one of the members of this Expert Group.