Last year, in an article entitled “Patient Safety: A New Dawn?”, I discussed what was hoped, at the time, would be the introduction of a major package of patient-centred reforms. These reforms were to represent major changes for patient rights, safety and welfare in Ireland. Unfortunately, one year later, we are still awaiting the introduction of these new reforms. The new dawn that I sincerely hoped would materialise for patients and their families has unacceptably been delayed yet again.
The recent €17.8 million damages award by the President of the High Court, Mr. Justice Peter Kelly, to the family of a 10-year-old boy brain damaged at birth and, in particular, his comments that it was “shameful” that Government had failed to enact legislation brings this area back into stark focus. The award is one of the highest on record in Ireland and the monies will be held and managed by the High Court on the boy’s behalf for what will be complex medical and care needs for the rest of his life. In emotional testimony to the High Court, the boy’s mother said “all the millions in the world would not fix” what had happened to her son and they had “reached the limit of endurance” in the long legal proceedings.
In this article, I re-examine the main patient safety reforms that await enactment which seek to bring Ireland in line with international best practice, improve and safeguard patient safety, promote accountability and restore public confidence in our health service.
Periodical Payment Orders
Periodical Payment Orders (PPO’s) have been available to victims of serious and catastrophic injury in the UK since 2003. Such payments allow index linked lifetime periodic payments instead of a full and final lump sum award. As far back as 2010, the overwhelming verdict of the Working Group on Medical Negligence was that the lump sum award system was inadequate and inappropriate for both Plaintiffs and Defendants alike and they recommended the introduction of PPO’s into the Irish Court system. It is indeed shameful that Government has for too long sat on its hands on this matter but, once enacted, the Civil Liability (Amendment) Bill 2017, will give the courts the power to make index linked periodic payments instead of lump sum awards to victims of serious and catastrophic injury in medical negligence cases. This will come too late for Tadgh Costelloe and his family who endured a long and bitter battle with the HSE to secure a lifetime lump sum award. The introduction of PPO’s is, of course, much welcome and long overdue. Clarity and certainty will be required for Plaintiff victims in cases where a State entity is not the Defendant.
Open Disclosure -v- Duty of Candour
The HSE’s policy of ‘open disclosure’ (introduced in 2013) requires a hospital or healthcare provider to adopt an open, timely and consistent approach to communicating with service users and their families when things go wrong. Unfortunately, this has simply not worked; all too often we learn of another eleventh hour apology issued from the HSE to a family in the High Court after several years of denying responsibility. For example, in the UK, hospitals and healthcare providers have a professional duty of candour, requiring them to own up to medical mistakes so that patients do not have to investigate whether their injuries were caused by negligence or medical misadventure. A culture of openness and transparency is encouraged. Patients can expect to receive information and explanations of what may have went wrong. Apologies and expressions of regret can be made without fear or admission of legal responsibility which fosters a learning culture within the healthcare industry.
The Medical Injuries Alliance has long been calling for the introduction of similar duty of candour legislation in Ireland to eliminate unacceptable delays for patients and their families seeking justice. Research in the USA indicates that the introduction of a statutory policy of open disclosure of medical errors would lead to a decrease in medical negligence litigation. For example, in the U.S. State of Illinois, a duty of candour system was introduced and malpractice expenses dropped by $22m dollars over three years, with claims falling by up to 50%.
Mandatory Reporting & The Black Box
Mandatory reporting in healthcare has the potential to represent the black box of the aviation industry. The loss of the US United Airlines 173 flight in 1978 was arguably the most important in aviation history which prompted a cultural change. The industry used what can be described as a black box thinking approach to improve flight safety making it now one of the safest modes of transport in the western world. In simple terms, the aviation industry strives (by using the vital information contained in the black box) to learn from adverse events so that failures are not repeated. The same can be true with mandating reporting and our healthcare system.
When enacted, the Health Information & Patient Safety Bill will make it mandatory to report a prescribed set of events which result in serious harm or death to a patient. Mandatory reporting of adverse events would bring Ireland in line with international best practice for public reporting on patient safety and will enable the authorities to build up a reliable database whereby safety incidents are recorded, reviewed, investigated and lessons learned. The primary focus should be on encouraging and adopting a learning culture by healthcare professionals and providers to medical incidents so over time the HSE can safeguard and improve patient safety and welfare in the future.
In 2016, the HSE published a report on Serious Reportable Events (SRE’s) and noted that while there was a good history of reporting incidents across many healthcare services in Ireland, the level of national reporting of SRE’s varied considerably.
Pre-action protocols are to be introduced to encourage a full and early exchange of information between the parties and to reduce the length of time cases come before the courts. My view is that Commercial Court-style pre-action protocols and rigorous case management are required to eliminate unnecessary and unreasonable delays in medical negligence cases. Furthermore, cases involving serious or catastrophic injuries surely merit their own expedited court forum instead of forming part of the conventional personal injury High Court lists.
In conclusion, the vast majority of these new patient safety reforms are well received but long overdue. So far, they have been cautiously welcomed by medical organisations and unions. However, many groups continue to cite stretched resources and overcrowding as very serious threats to patient safety. Our healthcare system needs to adopt a professional duty of candour and use black box thinking to improve patient safety and welfare into the future. The provision of modern healthcare in Ireland will inevitably involve risk but modern risk management is different. There is an increasing acceptance that through mandatory reporting and honest evaluation we have genuine opportunities to learn from medical failures to ensure they are not repeated. Only time will tell whether these reforms will come to fruition. Our Government need to act now and stop procrastinating.
Ronan Hynes is a Patient Safety Advocate, Medical Negligence Expert and Partner at Keating Connolly Sellors. If you wish to obtain legal advice on patient rights, safety and welfare, contact Ronan at [email protected] or call +353 (0)61 414 355 or +353 (0)61 432 348.
The material contained in this article is for general information purposes only and does not constitute legal or other professional advice. We advise people to always seek specific expert advice for their individual circumstances.