Recently, a conference took place where it was proposed, a ‘Duty of Candour’ should exist in Ireland in relation to health care provision.
This duty, if implemented, would benefit patients, doctors, health care professionals by creating a more open, transparent system which means, in practice, if an accident happened while under medical care, this accident would create a legal obligation on the healthcare professional to reveal at an early stage when the medical accident occurs.
There is an obligation on the healthcare professional already to do just that, report an accident, however there is no legislation in Ireland to back this up to create a legal duty of candour.
Would the introduction of this duty aid patients’ prior to any medical negligence action or even during it, we believe so.
Deny & Defend
Under our current system a medical accident may be admitted or denied, defended or not revealed as our system operates mostly on a ‘Deny & Defend’ policy.
It has been suggested there should be a new health care culture in relation to medical mishaps, one where transparency, openness and trust are all fostered.
A new system whereby medical staff would admit mistakes and victims could obtain answers early rather than later.
Duty of Candour
A duty of candour, if introduced by legislation would impose an obligation on all health care professionals and administrators to reveal at the earliest possible opportunity when a medical accident takes place. Patients who suffer a preventable injury in a hospital or other medical setting have a right to know what has happened.
Internationally, there has been a growing implementation of a duty of candour, sometimes called ‘open disclosure’ into the delivery of health care.
In America, a legal obligation for healthcare professionals operates in seven states to disclose serious unanticipated outcomes to patients.
In Michigan it has been reported the move away from a policy of ‘deny & defend’ towards a more open system has resulted in medical negligence litigation costs being halved, claims speed has increased and insurance reserves have reduced by two-thirds.
In Illinois after the new system was introduced it has been reported medical negligence claims fell by 50%.
In New Zealand, health care institutions have a legal duty to ensure systems are in place, whereby open disclosure, as it’s called there, is practiced by health care professionals. A patient must be informed about an adverse event, being unintended harm caused during health care delivery. It is thought open disclosure improves patient’s rights, fosters open and honest professional relationships and enables a system to change to improve service quality and safety.
In the UK there have been a number of calls to introduce a Duty of Candour into healthcare provision over the years. Cover-ups and scandals have moved the impetus to put this duty on a statutory basis. This is now looking likely for introduction in 2014.
In Ireland predominately we don’t have this policy as adopted in other countries. However, things may be changing. Currently, this duty of candour or open disclosure is being tried and tested in a couple of hospitals. It is estimated that 50% of Irish Hospitals haven’t any open disclosure guidelines, policies etc.
This could be about to change. Advocates for change suggest a culture of open disclosure would greatly benefit the patient and reduce medical negligence litigation across the board.
If a person was informed of what happened, provided with an acknowledgement of events, an explanation etc. this could benefit the person in question.
In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.