Legislation allowing for voluntary disclosure has not been brought into operation
The Government amended legislation which would have forced doctors to tell patients about their mistakes last November, changing a key section to make the requirement voluntary, rather than mandatory.
The Civil Liability (Amendment) Bill was passed by the Dáil last November. The text initially passed by the Seanad stipulated that health authorities would have to admit to mistakes that endangered patient safety. However, the Government entered a late amendment in the Dáil to make this requirement voluntary.
The amendment was proposed by Minister for Justice Charlie Flanagan, though he recognised “input of my colleague, the Minister for Health” when it was introduced.
The amendments were requested by the Department of Health, it is understood.
Mr Flanagan said it was necessary to promote a “climate for cultural buy-in”.
The amendment was opposed by independents and Sinn Féin, while Fianna Fáil abstained on the vote, enabling the Government to win the vote.
As a result, the section of the Act now says: “Where a patient safety incident occurs in the course of the provision by a health services provider of a health service to a patient, the health services provider may make, in accordance with this Part, an open disclosure of the patient safety incident . . .”
The original text of the Bill before the amendment said that the health service provider “shall make . . . an open disclosure” – but this was changed to “may make” after the Dáil voted the amendment through.
However, the legislation allowing for voluntary disclosure – though it has been passed by the Oireachtas and signed by the President – has not been brought into operation. Last week, the Department of Health said it would be commenced in the coming weeks.
Separately, the department said it would introduce legislation to make the disclosure mandatory – despite voting it down last year.
The department said on Friday the measure would form part of a new Patient Safety Bill on which it was currently working.
The department’s comments come following the case of Vicky Phelan and subsequent news that more than 200 women diagnosed with cervical cancer should have received notification that earlier tests they were given should have been followed up.
Legislation to compel doctors and hospitals to own up to mistakes was first mooted by Leo Varadkar when he was minister for health. However, he resiled from the proposal on the recommendation of officials, he said.