ADVERSARIAL COURT system which we have in this country is often the subject of extensive criticism.
It can, many agree, lead to unnecessary costs and delay, the bringing of unsustainable cases, indefensible cases being defended and it often leads to a climate of suspicion and lack of cooperation between the parties.
Recently, the ordeals of the women who suffered at the hands of the cervical screening programme have brought these flaws into even sharper focus. The scandal has prompted the government to begin a review of how best to deal with these sorts of cases. And it’s not before time.
One of the reforms being examined is the adoption of a scheme of no-fault compensation for medical cases, similar to system that in place in New Zealand.
I don’t believe that the New Zealand model is the one that we should adopt in this country. Let me explain why.
An island nation with a population very close to ours, the scheme in New Zealand seems to have the most appeal. It too was a common law jurisdiction until no-fault compensation was introduced in the 1970s.
Its proponents point to its successes:
Compensation
The average award made under this scheme is in the region of €25,000.
A look at a cervical smear controversy in New Zealand provides greater clarity on the disparity in damages, however. In the mid-90s, it emerged that a Dr Bottrill misread dozens of cervical smears which led to a delayed diagnosis of cervical cancer for many women. In 2003, the New Zealand government’s response was to pay the women a minimum of €2,870, up to a maximum of €23,000. As a society, I don’t think we would be comfortable with compensation levels which are so low.
Patient safety
Critics of no-fault in New Zealand emphasise that after 30 years of such a scheme, they have seen no improvement in patient safety. New Zealand is still only mid-table internationally in terms of its patient safety record: right between Australia and the UK which still have traditional court-based systems.
No greater transparency
If the stigma and trauma of facing a court action were removed, the argument runs, doctors should be free to admit their mistakes: the evidence in New Zealand shows that this is not the case. Up to 93% of patient errors still go unreported in that country.
What system would work best in Ireland?
Forget the New Zealand model. What we need to introduce in Ireland are pre-action protocols for medical cases – a series of special rules that will help to stop cases entering the courts system.
In 2012, a working group chaired by Ms Justice Mary Irvine suggested the use of “pre-action protocols”. These rules would encourage both defence and claimant lawyers to exchange information early to settle cases before court papers are even lodged.
That report has been sitting on a shelf for the last six years. It is in fact a blueprint ready to go, but for whatever reason it has not been acted on.
On Monday 22 September, the government finally signed into law a part of the Civil Liability (Amendment) Act 2017 which had been dormant until then. This part of the act introduces a scheme of voluntary open disclosure meetings where a patient safety incident occurs in the course of the provision by a medic of a health service to a patient.
A patient safety incident is defined as an incident which has caused an unintended anticipated injury or harm to a patient. Any information disclosed or apologies given at such open disclosure meetings cannot be used, according to the act, as evidence in any subsequent legal case. Whilst this is a step in the right direction, it does not go far enough.
For starters, the scheme is entirely voluntary. Secondly, we now live in an era when there is due recognition that somebody’s data is there to do with as they wish; how can the government seek to put shackles on the use by a patient of that patient’s own personal information?
The government also announced during the summer the publication of a Patient Safety Bill which proposes to introduce a mandatory duty of disclosure, with criminal penalties for doctors who do not report.
However, the bill, like the 2017 law, also stops the patient from using information gained through such a disclosure. This bill is a positive step because studies show that disclosure only works when it is compulsory.
However, the language is all wrong, and out of date.
In the US and the UK, the experts speak of ‘candour’ or ‘openness’, instead of disclosure.
All the experts agree that ‘disclosure’ is over when the patient says it is over. We need to look at disclosure not as an event, but as a process.
We need to move away from the idea that the doctor is doing the patient a favour by uncovering what was previously covered up.
We need to avoid putting limits on the rights of patients as to how they utilise knowledge, however they acquire it, about their health and their bodies.
In my view, the establishment of a specially designated medical negligence list is necessary. In the same way in 2004 the commercial division of the High Court was set up, a specialist judge or judges could be appointed who could then become expert in medical cases.
Focus on the Medical Profession
The best change that we can and should adopt in this country is a mandatory duty of candour for medics, similar to the system in place in the UK.
Duty of candour is the ethical duty for doctors to be open and honest when things go wrong, something that would help the families of those damaged by the health system to avoid having to endure lengthy and often traumatic court cases.
It shouldn’t be made so difficult for families to get answers to their questions about what happened to their loved one. Compulsory duty of candour in this country would help to keep cases out of the court system.
In his recent report, Dr Gabriel Scally wrote that the problems that he uncovered were “redolent of whole system failure”.
Instead of blaming the legal system, the first area of focus should be on how doctors treat their patients to begin with. The Irish health system must ensure that patients are at its core. Hospitals who deny and deflect blame when failures occur must change how they operate. Patients and their families deserve better.
Roger Murray is a joint managing partner at Callan Tansey Solicitors.
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