Blog: Statutory duty of candour is crucial
Karen Kearney, partner and medical negligence solicitor at Cantillons Solicitors in Cork, writes on the need for a statutory duty of candour in Ireland.
I listened with sadness (and a distinct sense of déjà vu) to Ronan Dunnes’ statement last week outside the High Court in Dublin. Ronan Dunne is the father of Eoghan Dunne who received an award of €2.4 million in damages following failures of care at Portiuncula Hospital in County Galway which left him severely disabled. Mr Dunne described the family’s four year battle in their pursuit of justice and the truth for their little boy Eoghan. Yes, they received an admission and an apology, but they were given at the 11th hour and I suspect were largely for the benefit of the Court and media and not for the Dunne family.
Unfortunately, the Dunne family’s experience is typical of the long, cruel and unnecessary delays brought about by the HSE and its indemnifiers, the State Claims Agency, in refusing to accept liability, when they have clearly been at fault and we see this time and time again with our clients.
The system does not seem to see patients and their loved ones as people. When mistakes are made, all too often the instinct is to close ranks and not admit errors and they fear – wrongly as it happens – that admitting mistakes and apologising early, might in some increase the amount of damages that will have to be paid to victims or their surviving loved ones. It’s a group-think reaction that treats the patient and their loved ones as “clients”, rather than people. And ultimately, it is costing the HSE and taxpayers more money than otherwise would be the case.
The only solution is to have a Statutory Duty of Candour.
A Duty of Candour is simply a responsibility on hospital, medical and nursing staff to tell the truth to patients, when there has been a mistake, which has adversely affected the patient. So if a Radiologist misses a cancer reading on a CT scan, or if a patient contracts sepsis after surgery, the onus is on the medical staff to admit that to patients or their families as soon as they realise their error.
It is a sad indictment of our system that the most obvious approach, namely to tell the truth, needs to be legislated for but that is the reality.
The present system is clearly not working. That is borne out by Mr Justice Kevin Cross’ comments when approving the interim settlement in the Dunne case yesterday, when he observed that litigation was the only way that families like the Dunnes could achieve justice.
In February 2015, the then Minister for Health, Leo Varadkar promised to make it mandatory for medical and nursing staff to admit errors that have caused harm to patients. Instead, he did a U-turn and the proposals in the Civil Liability (Amendment) Bill appear to be more concerned with protecting Doctors and Nurses who do make open disclosure than with giving patients and their families the right to open disclosure.
The proposed new legislation merely supports a National Policy of Open Disclosure which has been in place since November 2013. Unfortunately, it has been my experience and that of my colleagues here in Cantillons that this policy of open disclosure has not been complied with.
Tony O’ Brien, HSE Director General, has himself criticised the adversarial framework used to resolve litigation. Yet the solution to the problem is within the gift of Mr O’Brien and his organisation. Tell the patient what happened and admit liability. Stop this war of attrition. The patient, the tax payer and society in general, will be better served.
- Karen Kearney is a partner and medical negligence solicitor at Cantillons Solicitors. You can view her profile here.