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When Telling the Truth is Optional and Protected

Posted in [Blog Medical Negligence New Legal Developments ] on Monday, April 3rd, 2017

It is disappointing news (in my view) that the Minister for Health, Simon Harris, plans to introduce a voluntary Open Disclosure Scheme which will give medical professionals legal protection for any information given following a patient safety incident.

Minister Harris has been reported as saying “Saying sorry and expressing regret when something goes wrong should not be a last resort in our health service. It is important that where any apology is warranted it is made when the facts of the incident are known and not years later in the High Court. ”

I agree entirely with Minister Harris. The honourable thing is to tell the truth. Now it appears that the doctors and nurses will only tell the truth if it is protected. This is the only situation where such bizarre protection is given. It happens in no other professional relationship and if there was any relationship where candidness was necessary, it must surely be one where one party (the patient) puts his/ her life in the hand of the other (the doctor/nurse).

Even more incredibly (again in my view), the decision not to make it a statutory requirement to tell truth was based on advice given to the Minister by Dr. Tony Holohan, Chief Medical Officer and who is also a medical doctor. He is reported as having said that the legal requirements compelling disclosure make doctors and nurses more fearful of adverse legal consequences and therefore, less likely to disclose openly and honestly.

That has not in fact been the international experience. Pioneering work has been undertaken by Dr. Tim McDonald at the University of Michigan Health Service.  Dr. McDonald was a Professor of Anaesthesiology and Paediatrics at the University of Illinois.  He was also their Chief Safety & Risk Officer for Health and in addition, a lawyer.
He has long advocated for a duty of candour to be imposed on healthcare professionals. He believes it is good for the patient, healthcare professionals and society.

When Dr. McDonald introduced a duty of candour in Michigan, the number of notifications of adverse incidents shot from about 1,500 to 9,000 per annum.   One would expect that the cost to the hospital would have risen significantly.  It is counter-intuitive to think that admitting one’s mistake could save money, but their experience has been to that effect.  Damages payments per case were reduced by 47% and the average settlement time reduced from 20 to 6 months.  Many patients decided not to sue at all, once they received a frank admission.  Insurance costs tumbled.

Indeed, here in Ireland, under the existing Medical Council Guidelines, where there has been an adverse event, doctors are obliged to acknowledge that the event happened; explain how it happened; apologise if appropriate and give an assurance as to how lessons have been learned to minimise the chance of this event happening again in the future.

It has been my experience, and the experience of my colleagues in the Medical Negligence Department here in Cantillons, that doctors are not complying with their obligations under these Guidelines.

Furthermore, the HSE has had a National Open Disclosure Policy since November 2013. It is merely a policy, a guideline. Again, my colleagues and I have seen it ignored time and time again.

It is an indictment of our system that the most obvious approach, namely to tell the truth has to be legislated for. However, it is a missed opportunity not to make the obligation to tell the truth mandatory.

Karen Kearney, Medical Negligence Solicitor, Cantillons Solicitors

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or if you would like more information.

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