Does Sorry Have To Be The Hardest Word?

Author:Mr Tom Hayes

The recent adverse publicity in relation to CervicalCheck and wide ranging recommendations contained within the Scally report acts as a useful reminder to health service providers and medical practitioners concerning the risk of not being open and communicating as early as possible with patients when errors occur. Some practitioners are unsure whether they are obliged to inform patients when an error has occurred in medical treatment and many are terrified that if they do, they will risk litigation or a complaint to the Medical Council. Presently the law leaves disclosure of adverse incidents to a health service provider's discretion1.

However, new proposed legislation contained in Patient Safety Bill 2018 (the "Bill”) provides for mandatory disclosure of serious patient safety incidents. Significantly, health service providers who fail to make a disclosure which is mandatory under the Bill could face up to a €7,000 fine and 6 months imprisonment2. However, in certain specific circumstances when a disclosure is made, it cannot be used as evidence of liability or fault during litigation or for the purposes of Medical Council complaints. This legal protection for medical practitioners is aimed to encourage a culture of open disclosure.

The Bill sets out the circumstances in which mandatory open disclosure is to be made to the patient, the State Claims Agency and HIQA / the Mental Health Authority3. Open disclosure must occur when a “serious patient safety incident” happens. While specific incidents are to be prescribed in further Regulations, the Bill gives an indication of the sort of patient safety incidents which will be considered “serious” enough to require disclosure. The Bill proposes that a “serious patient safety incident” should include incidents which lead to:

death loss of bodily or sensory function a change to a person's body structure shorter life expectancy 28 day impairment or pain, or treatment in order to prevent one of the previously listed outcomes4 The proposed legislation also provides a list of examples of reportable incidents5, which includes no harm events which could have been serious, but not “near misses”6. A final proposal worth noting is that the SCA is to publish anonymised information on reported incidents7.

Benefits of Open Disclosure

Advocates for a duty of candour believe that it improves several aspects of healthcare, for example:

Improved Quality of Healthcare - A system which allows for errors to...

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