Legislation — as promised — is the only way for open disclosure

Legal change wouldn’t ever have come in time for Vicky Phelan, but its implementation, when promised, may have influenced the handling of her case, writes Gerard Howlin

Legislation — as promised — is the only way for open disclosure

BRIAN Cowen called the Department of Health “Angola” not because of landmines underfoot, but because the health system is run by warlords.

Nineteen years after he left Hawkins House they still do. Many of them seek a specific good as they see it. But none are prepared to subject their sectoral interest to a greater good as set out for them politically. There is ingrained contempt for, and attrition with, anything resembling management. Management is itself a silo, motivated mainly by self-protection. Politicians are passing trade, useful to suck up to for resources, but pointless as policymakers because they utterly lack effective powers of compunction.

At the permanent centre, but only nominally in charge, is the Department of Health. It is not regarded with respect or fear outside its own front door. Its remit as policy maker does not reach into the Health Service Executive.

It is worth spelling out the title of the acronym HSE. It is the body which, in 2004, was set up to unify disparate health boards and services. Under a chairman and a board, it was intended to lift responsibility for day-to-day running of the system off a department which thereafter would focus on policy, budgeting, and legislation. This is not background to the CervicalCheck issue, it is the front and centre of it.

The CervicalCheck scandal is ostensibly about a failure to inform patients of essential information, to which there should be an unquestioned entitlement. In fact, neither that issue nor the management of CervicalCheck itself are at the core. What is core, and CervicalCheck a symptom, is the failure, indeed the refusal, of the policy-making department and minister to introduce legislation as promised to provide for mandatory reporting or a duty of candour.

That is not to speak of a secondary issue which is who knew what and when in the department itself.

Professor John Sheppard, an expert witness for Vicky Phelan, the woman whose successful case is at the centre of the CervicalCheck issue, spoke to Mary Wilson on RTÉ’s Drivetime on Monday.

He pointed out that that there is a legal requirement to deliver on a duty of candour in Britain. He went onto say that he regards it as a “moral, ethical and medical requirement” too. It wasn’t delivered on by CervicalCheck for Vicky Phelan because, on the face of it, her doctor and that organisation rowed about who had the responsibility for telling her. More importantly, whatever the ethics of the issue, there was no legal requirement. That was neither an accident nor a historical overhang. It is a bang-up-to-date policy decision, reflected in the Civil Liability (Amendment) Act 2017.

To fanfare that prefaced a future career in strategic communications, then health minister, Leo Varadkar, announced in November 2015 a major package of patient safety reforms. This included a specific commitment to “make it mandatory to report to report events which result in death or serious harm”.

In a note included with the press release, it stated that the Government “has given its approval to the drafting of provisions to support Open Disclosure of patient safety incidents. This will be included in the Department of Justice and Equality’s draft Bill on periodic payment orders which is well advanced”.

So far so good, and thence the aforementioned civil liability legislation. By the following January, that promise was abandoned. Santa had arrived for doctors with Leo’s U-turn. The minister said he had “adjusted” his thinking on advice from the department’s chief medical officer, Dr Tony Holohan. Holohan is unquestionably one of the good guys in a fundamentally rotten system and he is entitled to his view.

Implementing a duty of candour in a litigious environment is easier said than done. But it is done successfully elsewhere. Prof Shepard was able to testify to that on behalf of Vicky Phelan. For now, the warlords’ reign continues.

The Act, as passed, was diluted with vinegar. The critical stipulation requiring an onus on the healthcare provider to “shall make” a disclosure to a patient became “may make”. “May make” is our law now, contrary to what was originally promised by Leo Varadkar who was very much in “shall” mode in 2015.

On Monday in Dundalk the now Taoiseach spoke of “appalling communications failures” in relation to Vicky Phelan. That’s ex-post facto exculpation of appalling policy failure on his part.

Yesterday afternoon in the Dáil he admitted as much when he said that Simon Harris would do what he originally said he’d do, but then didn’t.

Legal change wouldn’t ever have come in time for Vicky Phelan, but its implementation, when promised, would at least have promised cultural change. That may have influenced the handling of her case. It would certainly be a building block already in place for the future. Now, that brick’s in the wall it is still mud and straw.

And there is more ex-post facto exculpation coming. Minister Simon Harris is setting Hiqa off as a calvary charge towards CervicalCheck. Hiqa, of course, can indeed take on that State body.

But Brendan Howlin cut to the core of the issue questioning the Taoiseach yesterday when he asked where the department, in terms of Hiqa’s interrogation stands.

How will an agency of the department hold its own superior body to account? There was a promise from the Taoiseach of co-operation. Let’s see. I can hear the mutterings in the mess already. The secondary issue, aside from the primary one of policy and legislation, is who knew what and when. If a memo was given to Minister Simon Harris three days before the Phelan case went to court, this was percolating somewhere and for some time.

The political fact of government, is the requirement to always smile at a system that absolutely controls the editing of and flow of information to you. Sitting as an office holder in the minister’s office is analogous being a patient in the doctor’s surgery. You only know what you are told. And, seemingly, you are not told the half of it. You can’t fall out with the professionals because there are lots more patients — and lots more politicians where you came from. You have to learn how to smile, and how to be very insistent simultaneously.

You also have to redress the odds for survival. Vicky Phelan did that in an important way.

The State system so-called isn’t really a system at all. In critical respects, especially in Health, it’s the absence of one.

Dysfunction is masked by ministers’ compromising tactically for survival which is what Varadkar did, or periodically throwing them overboard, which happened to his predecessor, James Reilly. But have no doubt, the genesis of this scandal is the incapacity, incoherence and frequently base incompetence of the Department of Health to coordinate policy or deliver on legislative priorities, the mission it set for itself in 2004.

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