Law could force hospitals to admit errors in care

HOSPITALS AND other healthcare providers could soon find themselves facing stiff sanctions if they fail to adequately inform patients and their families of medical errors when they arise.

Minister for Health James Reilly is studying a series of proposals to ensure more effective reporting of adverse clinical events in hospitals and greater accountability within the healthcare system for patient safety.

The Minister is said to be concerned at the high cost of long-running medical negligence cases, which account for the bulk of payouts made each year by the State Claims Agency and which patient groups say could be reduced under a more transparent system.

To promote more accountability within the system, Reilly plans to establish a new patient-safety authority, which would subsume the Health Information Quality Authority (Hiqa) and act as a licensing authority for hospitals and other healthcare providers.

Under proposals drawn up by Hiqa, the new agency would be able to tie the awarding and renewal of licences to certain standards of care. One of the standards being proposed would force hospitals to "openly inform patients" when adverse events connected with their care occur, a spokesman for the Minister told The Irish Times.

The precise legal connection between the standards and the licence in terms of how they would be enforced remains to be decided. Nevertheless, the spokesman said the Minister is keen to ensure that the principle of disclosure informs the rules governing the system.

As part of the Health Information Bill, expected to be published early next year, the Minister is also considering a recommendation from the Commission on Patient Safety and Quality Assurance to afford legal protections to hospitals and doctors who make disclosures about medical errors to patients.

“The recommendation is intended to facilitate the greater flow of information between hospitals and patients who have been adversely affected,” Reilly’s spokesman said.

While admitting a medical error is in no way an admission of medical negligence, there has long been fear within the healthcare system that owning up to mistakes only attracts litigation.

The research, however, suggests patients are more concerned with finding out what went wrong and with what steps have been taken to rectify the situation than they are with pursuing legal cases, which are often protracted in the case of medical negligence claims.

A recent report by the Health Service Executive found that patients often forgive medical errors when the effects of medical mistakes are explained openly and honestly to them.

Figures from the HSE and the State Claims Agency, published last month, showed there were 83,483 hospital incidents recorded last year, which could have resulted in patients being harmed.

Despite the large number of incidents, only 450 claims of negligence were expected to be made on behalf of patients, the agencies said. Most of the total estimated liability of €786 million related to claims in obstetrics because of the “high settlement values” associated with cerebral palsy and other serious birth-related claims.

In an effort to increase transparency and reduce litigation, the British government recently announced plans to introduce a legal “duty of candour”, which would compel hospitals to tell patients when mistakes have been made with their care.

A provision in the UK’s health and social care bill will seek to impose contractual obligations on hospitals, as NHS healthcare providers, to be open and transparent in admitting mistakes.

Action Against Medical Accidents, a UK charity that promotes better patient safety, has long campaigned for a duty of candour to be enshrined into British law.

“While cover-ups are frowned upon and not considered good practice, there is, in fact, no statutory law saying healthcare providers have to be open and honest with patients or their families when something goes wrong,” the group’s chief executive, Peter Walsh, said.

“At the core of most people’s concerns when something goes wrong is getting full and open disclosure of what happened and why, and hopefully some undertaking the same thing won’t happen again,” he said.

“What, in our experience, people find most hurtful is not only when someone has been harmed as a result of some avoidable failure but when there’s been a lack of openness or honesty or, in some cases, a direct cover up.

“When people take legal action, the vast majority don’t want to go down this route, and many would have been satisfied if people put their hands up straight away and said there was an error and simply apologised,” he said.

While cover-ups continue to be tolerated, he said, hospitals will fail to learn from their mistakes, and this is less than optimal for patient safety.

Moves by the UK government to establish such a duty of candour has prompted calls for a similar mechanism to be introduced here.

“To ensure and foster a patient safety culture in our country we need to be open and transparent with patients when things go wrong, and legislation is needed to enforce this,” said Cathríona Molloy of Patient Focus.

“Introducing a duty of candour would mean that any organisation providing healthcare would be legally required to be open and honest with patients or their next of kin when any harm is caused to a patient.”

When asked about the possibility of establishing such a mechanism here, the State Claims Agency simply said it was “fully supportive of open disclosure”.

It added, however, that the Patients Safety Implementation Group, which oversees the implementation of the recommendations from the Commission on Patient Safety and Quality Assurance, was looking specifically at the issue.

In 2009, the Irish Medical Council published its revised guide to professional conduct and ethics for registered doctors. The guide makes clear that patients and their families are entitled to honest, open and prompt communication from doctors about medical errors that may have caused them harm.

It also states that doctors should acknowledge their mistakes and report them to the relevant authority, as well as give an assurance as to how lessons have been learned to minimise the chance of the event recurring.

“Unfortunately many doctors pay lip service to this principle and the guide has no legal effect,” says Kildare-based health-claims solicitor Liam Moloney.

He says the Government should force the HSE to make sure that all doctor and consultant contracts contain a mandatory legal duty to admit mistakes, similar to the legal duty of candour being considered for hospitals in the UK.

“They must make sure that the effects of their mistakes are minimised as far as possible, and if a patient needs further care, the doctor should make sure the patient is helped through the process.”