Last month the HSE reached a high-value undisclosed settlement with Catherine Duggan whose young husband, Liam, died as a result of deficits of care at University Hospital Kerry. The HSE also apologised over the death of the 37-year-old father of two, from a rare form of colitis after he had attended the hospital in Tralee in 2017. Reaching a settlement took a four-year legal battle during which no admissions of liability had been made at the inquest or during court proceedings.
This tragic case brings home the very real need for the enactment of the Patient Safety Bill which would make open disclosure of serious patient safety issues – such as the events surrounding Mr Duggan’s death – mandatory.
When the Bill was published in December 2019, it was seen as a very welcome legislative development in the area of medical negligence. The then minister for health, Simon Harris, said the Bill would legislate for several important patient safety measures. “I want us to have a culture of open disclosure, where health practitioners are supported and where patients’ voices are heard,” he said.
Not only did the Bill list specific patient safety incidents that would be subject to mandatory open disclosure, but it also included a new process to designate other patient safety incidents for which open disclosure would be mandatory.
Disclosure
What does open disclosure mean? Canada’s disclosure guidelines describe it as a “process of open communication and information sharing rather than a single conversation”. Open communication and open disclosure have the same meaning.
The Australian Commission on Safety and Quality in Healthcare describes open disclosure as “an open discussion of incidents that result in harm to a service user while receiving healthcare. This includes expressing regret for what has happened, keeping the service user informed, providing feedback on investigations and the steps taken to manage the event and prevent a recurrence.”
Disclosure is not about blame. Indeed, not all mistakes amount to medical negligence. It is about integrity, accepting responsibility and embracing accountability
A second major aim of the Bill was to ensure that disclosure of these serious patient safety incidents would enable national learning. The Bill requires external notification by health services providers of serious patient safety incidents to the Health Information and Quality Authority, the chief inspector of Social Services, and the Mental Health Commission. This measure would contribute to national patient safety learning and improvement, and raise standards in the Irish healthcare system.
Importantly, mandatory open disclosure and the notification system for these serious patient safety incidents would not only apply to public services, but also to private healthcare services.
Learning from errors
At present, there is no mandatory requirement for a medical professional to be candid with his or her patients after a serious safety incident. This fosters a lack of openness to discuss what went wrong. As a consequence, it is difficult to learn from errors and, therefore, ensure that they do not happen again.
What would this proposed legislation mean for patients or relatives like Catherine Duggan who had to persevere for four long years to get the truth as to why her husband died?
Disclosure is not about blame. Indeed, not all mistakes amount to medical negligence. It is about integrity, accepting responsibility and embracing accountability; being truly professional. Such a culture not only assists patients but also staff in the aftermath of an adverse event to cope and achieve closure.
Avoiding communication with patients when things go wrong often leads to patients taking a legal route to get answers to their questions. Indeed, this is what Catherine Duggan had to do.
It is my sincere hope that positive steps will be taken to enact the necessary legislation for better patient care for all
A fear of litigation, damage to reputation and even fear of the media are considered barriers to open disclosure. I would anticipate that most medical professionals agree with the principles of open disclosure, but perhaps the biggest concern about embracing it is the fear of litigation. Studies have found that patients who have been given a full explanation and an apology could have been persuaded not to take legal action.
In 2015 the then minister for health, Leo Varadkar, said it was the equivalent of a motoring “hit and run” for doctors and health professionals to fail to make disclosures and live up to their duty of candour. He also said if doctors adhered to their duty of candour and open disclosure, then “a lot fewer people would sue”.
Over a year and a half since the Bill has been published it is most regrettable that nothing further has been done. It is my sincere hope that positive steps will be taken to enact the necessary legislation for better patient care for all.
This is most especially relevant when a patient dies as a result of an adverse event. It is vital that communication with the family is initiated early on and maintained in an open, sensitive and empathetic manner.
I know Mrs Duggan does not want any other family to suffer what she has suffered.
Rachael O’Shaughnessy represented Catherine Duggan. She is a solicitor at Holmes O’Malley Sexton