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Open disclosure - in the pipeline for Ireland?

  • Ireland
  • General

31-03-2014

There has been much discussion around the issue of open disclosure in recent times. Given the very public debate relating to public state costs in defending medical negligence actions in this jurisdiction, this is likely to be seen as a necessary and pragmatic development for our health system and for patients. ‘Open disclosure’ is defined by the Australian Commission on Safety and Quality in Health Care as “an open, consistent approach to communicating with patients when things go wrong in healthcare”.

The Commission on Patient Safety and Quality Assurance, established by the Minister for Health and Children in 2007, published a report entitled “Building a Culture of Patient Safety” in August 2008. One of the key recommendations in the report is the development and support of a culture of open disclosure to patients and their next-of-kin, following an adverse event resulting in harm to a patient.

In November 2013, Minister James Reilly launched a range of Open Disclosure documents to include a National Policy, National Guidelines and a staff support booklet. Full details of this documentation is available at http://www.hse.ie/opendisclosure/. The National Policy and the related Open Disclosure guidelines set out six specific provisions. This includes the necessity to ensure that communication with service users and their families following an adverse event is undertaken in an empathetic, informed and timely
manner. It also provides that it is necessary to ensure that staff involved in an adverse event are identified, monitored and provided with adequate support in the aftermath of the adverse event and also throughout the open disclosure and incident review process.

While Ireland currently has no protective legislation to assist the open disclosure process, Minister for Justice Alan Shatter has recently announced that he and Minister for Health James Reilly have started preparatory work on such legislation. In addressing the Family Lawyers Association of Ireland following the revelations of the deaths of babies at the Midland Regional Hospital, Mr. Shatter stated: “I believe that if hospitals were to investigate an incident and to admit liability quickly once medical negligence has been established, such reform would be much more beneficial to families”.

Ann Duffy, National Lead for the State Claims Agency in Open Disclosure, has noted the successes of health systems in other jurisdictions who have adopted a culture and process of Open Disclosure. One of these is the University of Michigan Health System. In 2002 they moved from a “deny and defend” policy to “apologise and learn when we’re wrong, explain and vigorously defend when we’re right and view Court as a last resort”. Their statistics from August 2001-2007 reveal a significant reduction in litigation. Average litigation costs have more than halved and significant savings have been invested for patient afety initiatives. 

While it is clear that a culture and process of Open Disclosure is urgently required, when it is finally adopted in this jurisdiction it is likely to have an impact on insurance claims and how they are managed. Once legislation is finalised and the manner in which this new process will be implemented is clarified, a review of claims management processes are likely to be required in order to address the new process. Overall it should certainly assist in reducing the legal costs on both sides in defending medical negligence actions.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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