Medical Negligence & Open Disclosure

Medical Negligence & Open Disclosure

The Minister of Justice announced recently that he and the Minister for Health have begun preparatory work for the purpose of legislating for Open Disclosure in relation to medical care and treatment in Ireland. 

The effect of this legislation would mean that hospitals would have to tell a patient or the family of a patient when a mistake has occurred while in care. If medical staff made a mistake, they would have to disclose and admit it.

The introduction of this legislation can only benefit a patient where harm has been caused by a member of the hospital staff. This legislation will help a patient to find the answers they’re looking for. It will help to clear patient confusion, drastically improve communication and it should foster a culture of transparency which will help a mother, for example, to stop blaming herself if harm was caused through medical negligence.

The Minister for Justice stated recently:

‘’The distress caused to families through lapses in medical care should not be magnified by the conduct of hospitals and state authorities subsequently engaging in an unnecessarily contentious and defensive handling of such unfortunate events. Families should not face further and ongoing hardship caused by hospitals and state bureaucracies refusing to engage and acknowledge fault where it properly and obviously rests with them. I believe that if hospitals were to investigate an incident and to admit liability quickly once medical negligence had been established, such reform would be much more beneficial to families.

Before we get into legal terms such as liability, it is our view that Open Disclosure legislation can only help people get the truth, the answers they are looking for and an explanation.

In a recent medical negligence case which came before the Court, Justice Irvine stated the HSE’s five year delay in admitting liability was “highly regrettable”. During this time the family of the child had to provide for the child’s needs on their own.

A New Landscape

In June of 2012, the Health Information & Quality Authority published a report concerning health care improvement, but part of this report concerns a Regulation on Open Disclosure.

The purpose of this Regulation is to promote a culture of quality and safety which includes open disclosure with service users and where appropriate their family and carers following an adverse event.

Then in November 2013, the HSE published the new Open Disclosure National Policy. It is stated in this policy ‘’that incidents are identified, managed, disclosed and reported and that learning is derived from them. The service user must be informed in a timely manner of the facts relating to the incident and an apology provided, where appropriate’’. ‘’The service user should also be informed if an adverse event is suspected but not yet confirmed’’.

Legislation

We, like others who watched the RTE Investigations Unit programme, Fatal Failures, which aired in January see the need for Legislation.

New regulations, policies, guidelines are all to be welcomed but if a patient has the right to rely on legislation they are in a whole different position regarding disclosure after a medical mistake has occurred.