It’s time to ditch the dishonest ‘defend and deny’ policy

A system based on truthfulness is much better than dragging terminally ill patients like Vicky Phelan through the courts, writes Ernest Cantillon.

It’s time to ditch the dishonest ‘defend and deny’ policy

A system based on truthfulness is much better than dragging terminally ill patients like Vicky Phelan through the courts, writes Ernest Cantillon.

In light of the Vicky Phelan case, questions have been asked as to whether or not there is a better way than having to drag Ms Phelan through the courts.

It beggars belief that a terminally ill woman had to waste a moment of her precious time to fight this case, and

had to interrupt her trial to attend her daughter’s confirmation.

As someone who has been involved in medical negligence actions for in excess of 30 years, I think there is a better way.

When someone becomes ill, they place their trust in the hands of medical and health professionals. Such trust is always on the basis that the patient trusts the doctor to do the right thing and, if an adverse event occurs, the patient expects to be told about it.

If that fundamental trust is broken by either party, the damage to the health system is irreparable. Unfortunately, we have seen a system develop whereby since the involvement of the State Claims Agency in these cases, there appears to be advice given to health professionals to say nothing that might incriminate them.

I think this is an ill-advised stance, both for the State Claims Agency to adopt but also, more importantly, for the health professionals.

If a patient is told that an error has occurred, they are far more likely to continue to place trust in the health professional, than if the adverse event is covered up.

From our experience, once the State Claims Agency is notified of an adverse event, they, unfortunately, advise the health professionals to have no further communication, or certainly that there should be no admission of liability.

This results in the patient becoming a plaintiff. This results in the plaintiff having to instruct lawyers to communicate with their health professional.

The plaintiff has to prove what the health professional already knows happened. The State Claims Agency sits back and sees to what extent the plaintiff can prove what they know.

It is unfortunately the position that focus on resolution only occurs when the case comes before the courts. It is as if a light switch has only come on for the State Claims Agency when it reaches the courts.

This of course comes at the most traumatic time for the patient and is at the most expensive part of the process.

In fairness to the medical profession, they have brought in a duty of candour within their guidelines, although the extent to which it is obeyed is debatable.

That duty however remains a professional obligation. Health Minister Simon Harris needs to bring in a statutory duty of candour. This statutory duty would obligate medical professionals to do what is only common decency, namely to tell the truth.

Sanctions are needed if this duty of candour is breached. It is hard to see what possible objection there could be to obligating professional people to tell the truth.

The State Claims Agency needs to focus on the resolution of the cases at a far earlier stage. When an adverse event occurs, they need to investigate it and, if there is a liability, they need to come and tell the patient that there has been an error made, and that they accept responsibility.

How can we possibly countenance a situation whereby adverse events occur, people die, and we simply put a note on the person’s file. You may as well be throwing it out the window as putting it on the dead person’s file.

We need candidness in the doctor/ patient relationship from the outset, and we then need that candidness to be

reflected in the manner in which the cases are dealt with.

Rules of court need to be brought into place which require the HSE (and any other defendant for that matter) to candidly admit what the position is. At the present time, they submit full defences in which they deny everything.

Look at the Vicky Phelan defence. It denies everything, yet €2.5m was ultimately paid. How are they reconcilable?

If the defendants had to face up to their responsibilities long before the matter ever goes to court, a lot of the cases, and the trauma that is associated with them, would be removed.

The statutory duty of candour should extend not just to communications between doctor and patient but also to communications between the doctors’ agents (the HSE or the State Claims Agency), and the courts.

If, at the point of filing a defence (which is often a year or two before a case ever comes to court), a doctor/health professional had to tell the truth, under pain of sanction if they did not, then these cases would resolve a lot earlier.

At the present time, a ‘defend and deny’ policy is adopted. The ‘defend and deny’ policy is an untruthful and dishonest approach to litigation. We need to legislate to provide for truthfulness in both the doctor/patient relationship, and in the plaintiff (patient)/defendant (doctor) relationship.

Once both of these pieces are put into place, the trust in our health system will be enhanced.

Taoiseach Leo Varadkar, when he was minister for health, described the breach of duty of candour by the health professional as being akin to a hit-and-run.

The hit was the adverse event, and the run was the cover up. His description was apt.

We should not entertain this deceitful process any further.

Ernest Cantillon is managing partner with Cantillons Solicitors

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