Open Disclosure – A New Dawn?

Author:Mr Kevin Power
Profession:Mason Hayes & Curran

The Irish Minister for Justice Charlie Flanagan recently announced the passage of the Civil Liability (Amendment) Act 2017. When commenced, the Act will, amongst other things, provide for a statutory process of open disclosure (OD) of patient safety incidents (PSIs). PSIs include incidents causing actual harm as well as 'near miss' and 'no harm' events. This long awaited legislation builds on national guidelines developed over recent years by the Health Service Executive (HSE), the State Claims Agency and other stakeholders. The key difference though, is that the statutory process finally implements a Law Reform Commission recommendation to "allow medical practitioners to make an apology and explanation without these being construed as an admission of liability in a medical negligence claim".

The statutory OD process is an entirely voluntary one. There is no obligation on a Healthcare Service Provider (HSP) to engage in this process whether requested to do so or not. Equally, there is no bar to disclosing patient safety incidents outside of this statutory process, under existing practices and policies. However, to avail of the legal protections, the detailed statutory process must be used.

What legal protection applies?

Information provided and any apology made during an "open disclosure meeting" (ODM):

shall not constitute an admission of, and shall not be admissible as evidence of, fault or liability in later proceedings shall not invalidate an insurance/indemnity shall not constitute or be admissible as evidence of fault, professional misconduct, poor professional performance in any disciplinary proceedings Procedural Requirements

If a HSP does choose to use the OD process, then a very detailed process must be followed, including:

The disclosure must be made at a specific ODM by the patient's principal healthcare practitioner to the patient The ODM must be a face-to-face meeting, or by telephone if a face-to-face meeting is not possible Generally, the ODM must be held as soon as is practicable after the patient safety incident. It is recognised, however, that an ODM may not happen immediately in instances where the likely consequences of the PSI are not clear or have not developed before the ODM Before the ODM, the HSP must consider a number of matters including: When the disclosure should be made and who should make it Whether an apology will be required Designation of a person to liaise between...

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