A medical law expert and a patient safety advocate have both urged a rethink of provisions in the Patient Safety Bill that would criminalise medical practitioners for failure to disclose information in relation to serious mistakes.
Simon Mills, a barrister and former doctor, and Bernie O’Reilly of the Patients for Patient Safety initiative — who lost her husband to medical misadventure — said the aim should be to foster a culture of willing open disclosure instead of threatening medics with jail.
Mr Mills said the open disclosure provisions of the Civil Liability Amendment Act 2017, which come into effect today, should be given time to bed in. Instead there was a “rush to criminalise”.
The 2017 Act was designed to encourage open disclosure by enabling an apology to be made without it invalidating a practitioner’s insurance or being taken as an admission of liability in court.
It was also intended to give the medical regulatory bodies stronger grounds on which to commence fitness to practice proceedings and/or sanction a practitioner.
The proposed Patient Safety Bill goes a step further by making open disclosure a legal duty under threat of criminal prosecution, fines of up to €7,000 and/or six months in prison.
Mr Mills said there may be an argument for institutions to be made criminally liable but targetting individuals was a rushed response to the CervicalCheck scandal.
“Politicians need to be seen to do something,” he said.
“We have two parallel systems in train. One is creating space for open disclosure to take place and the other is, without waiting to see whether that fixes the problem, raising the idea of criminalising individuals or systems and it seems to me for the two of those to be proceeding in parallel rather than sequentially may well turn out to be a mistake.”
Ms O’Reilly spent years trying to get the truth behind her husband Tony’s death after bowel surgery in 2006 and still has unanswered questions which she said might have been answered if there had been automatic preservation of all materials relating to his case and timely disclosure of the events that went wrong.
However, she added: “I don’t think anybody should be criminalised. I think when something awful like that happens, you should learn from it and involve the family in that learning.”
Mr Mills and Ms O’Reilly were addressing a conference hosted by the State Claims Agency which heard the agency was currently handling 3,342 medical negligence claims and 7,579 general personal injury claims with a total estimated liability of €3.2bn, of which the medical negligence claims made up €2.32bn.
Former doctor Adam Kay, now comedian and author of This Is Going To Hurt, his diaries from his time as a physician, said health services also needed to review the way they treated staff involved in serious incidents.
Mr Kay said it was not until he was published that those close to him realised he had left the profession in devastation over a tragic case which he only attended when it had already become an emergency but which still had a profound effect on him.
“I didn’t tell anyone,” he said. “There’s a stiff upper lip approach.”
He said he asked if he could work part-time for a while but the response was akin to: “Why? “Are you pregnant?”
“We don’t like to think of our doctors as human because when someone is looking at an MRI of your brain, you want them to be God or Google or something equally infallible,” said Mr Kay.
“Medical schools are not honest about what the job is. If you are going to be a train driver, they will do a psychological test on you.
“If you’re going on Big Brother they will check you’re not going to crack. But if you want to be a doctor all they will check is whether you have enough As in your grade.”