Analysis: Dr Scally’s Final Review – ‘A duty of candour should be regarded as absolute for Irish health professionals’

Avril Scally

This is the concluding report, the 4th since the initial Scally Report in 2018, outlining the progress made to date by the healthcare system as well as areas where significant changes are still required.

Background: The Scally Report

The Scally Report was commissioned because of the revelations that the Health Service Executive’s (HSE) CervicalCheck programme had failed to disclose the results of a retrospective audit to a large group of women who had developed cervical cancer. Dr Scally himself said in the Report, “In particular, it emerged because of the extraordinary determination of Vicky Phelan not to be silenced.” It’s a sad irony that his Final Review should be published less than a week after Ms Phelan’s death.

The Scally Report found the CervicalCheck programme, and indeed, many more practices and procedures within the wider Irish healthcare system to be ‘unacceptable’, with Scally commenting that “there are many indications that this was a system that was doomed to fail at some point.”

Among the many recommendations, not least among them the urgent need for Irish-based cytology labs, patient access to their health reports and a more considered focus on women’s health generally, the requirement for a complete overhaul of in terms of open disclosure in Irish healthcare and a ‘culture of candour’ has come up again and again in both the initial Scally Report and subsequent reviews.

The Final Review

The Final Review does acknowledge that significant progress had been made – the opening of cytology labs in the Coombe for example, along with an overhauled CervicalCheck procedure.

However, it seems that open disclosure, and particularly the ‘slow pace of movement’ of the Government to create a framework that ‘fully supports telling patients the truth about possible errors in their care’, remains an issue. Scally laments the lack of a ‘fully formed plan to fundamentally change how patients are dealt with and regarded within the health services’.

He quotes patients who were told they could find out more about the CervicalCheck audit in the news and who say they were made to feel ‘like lepers’ when they questioned reports.

The Patient Safety Bill 2019

The Final Review states that The Patient Safety (Notifiable Patient Safety Incidents) Bill 2019, which remains before the Oireachtas, will not move the requirement for open disclosure forward, in its current guise.

In his 2018 Report, Scally recommended that the Medical Council ‘should put into effect its stated support for the concept of a duty and culture of candour (openness and honesty) by insisting that doctors ‘must’ be open and honest with patients rather than using the word ‘should’, which leaves it to the doctor’s judgement as to what, if anything, happens’.

This wording remains unchanged and Dr Scally emphasises in the Final Review, quoting the Houses of the Oireachtas Joint Committee on Health and Children in 2015, ‘A duty of candour should be regarded as absolute for Irish health professionals.’

The Health Act 2004

Dr Scally also notes the legal prohibition that exists in the Health Act 2004 (the Act). It prohibits anyone making a complaint to the HSE about the clinical judgement of a doctor or healthcare professional who is providing care on behalf of the HSE.

Open disclosure and a culture of candour must be a legal requirement in healthcare

Having dealt with many women who have felt let down by the Irish healthcare system over the years, not just the CervicalCheck scandal but in terms of duty of care and open disclosure in relation to a range of women’s health issues, the Final Review’s emphasis on the need for an set framework on open disclosure and an end to the ‘paternalistic approach’ to women’s health in Ireland echoes both my own sentiments, and those of the women I’ve represented.

A clear a framework would also reduce or hopefully eliminate what can be a lengthy and stressful litigation process.

The Patient Safety Bill 2019, in its current guise, does not provide for the level of clarity needed. I’ll watch with interest to see the Government’s response to the Final Review.

• Avril Scally is a partner at Lavelle Partners.