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Making the case for legal reform

The claims environment in Ireland has deteriorated in recent years; significantly so in some areas of practice. Gareth Gillespie looks at what MPS has been doing about it
11 May 2015

  
The deterioration in the claims experience of MPS members in Ireland has been a growing problem over the past few years, with some areas of practice worse affected. Private hospital consultants, for example, have seen large increases in both the rate they are being sued and the average size of those claims. 

For many this has meant unavoidable and large increases in MPS subscription rates. The impact on the healthcare profession is far-ranging, which is why we – spearheaded by Chief Executive Simon Kayll, who appeared before the Joint Committee on Health and Children in January – have taken our calls for reform directly to the Irish government. 

Our concerns

The increased cost of professional protection risks the sustainability of private practice, affecting both the profession and patient care. According to Dr Alan Corbett, one of the organisers of the National Intern Conference and Social (NICS), 60% of the 2013/2014 cohort of interns have left, or are in the process of leaving, Ireland.1 If practising in Ireland, particularly in the private sector, continues to become a less attractive option, this trend may continue. 

If services can no longer be offered in the private sector they will inevitably be sought in the public sector where, in addition to the cost of clinical care, the liability for any claims for clinical negligence would lie with the State Claims Agency in their entirety. While this is a concern for the public purse, a larger concern is the added pressure this could put on public hospitals and services.

Our recommendations

Detailed information on our recommendations has been well-publicised and is available in more detail on our website.2

 

The joint committee on health and children

Our call on the government to take action led to an invitation to present at the Joint Committee on Health and Children, in January. MPS Chief Executive Simon Kayll appeared before the committee, where he presented MPS’s recommendations for tort and procedural reform to the committee’s deputies and senators. Also called to give evidence were the State Claims Agency, the Irish Hospital Consultants Association and the Irish Medical Organisation.

As well as talking through our proposals for legal reform, Mr Kayll spoke at length about open disclosure, a topic that MPS has campaigned extensively on in the past. Mr Kayll said: “It was a great opportunity for us to be seen by members to be influencing the debate around clinical negligence. It was very gratifying that the four doctors present, three giving evidence and one on the committee, all took the opportunity to praise the support and education that MPS provides to its members. 

“At MPS we strongly believe that those harmed through clinical negligence should receive fair compensation, but that such compensation must be affordable for society. We believe that the extent of compensation currently paid in Ireland is no longer affordable by society and something needs to change. 

“MPS significantly increased its subscriptions for private consultants in mid-2014 in response to a deteriorating claims experience and we are acutely aware that this has been very painful for some of our members. We have done what we believe is necessary to ensure the financial security of MPS, so that we will be in a position to support our members long in to the future when they need assistance. 

“Recognising the deep concern that our subscriptions are causing for our members and the implications this has for the delivery of healthcare in Ireland, we have taken the step to launch a campaign to raise awareness of the situation and to stimulate debate and have also suggested some solutions around tort law and procedural reform. We will continue to promote these ideas, stimulate debate and seek changes to make clinical negligence indemnity in Ireland more affordable for our members.” 

A call for openness

As an organisation we are committed to open and early resolution in the interest of all parties. Our part of this commitment is to deliver the skills to frontline healthcare professionals. Our advice to all members is to have full and open communication with the patient once sufficient facts have been established about any adverse incident, as soon as possible. An explanation may be all that is needed to reassure a service user and avoid unnecessary escalation. Above all, this is the ethical thing to do. 

When organisations embrace open disclosure it benefits all involved. It results in safer doctors and greater levels of patient satisfaction; we have seen many complaints and claims arise from poor communication following an adverse outcome. We were pleased to see that our ASSIST framework model, utilised in our educational workshops,3 is now part of the HSE’s Open Disclosure guidelines.4

Although there is consensus that openness should be encouraged in healthcare, there is debate about what measures are needed to achieve this. Some support a statutory duty of candour, which exists in England and Wales. This duty means that healthcare organisations (not individuals) are under an obligation to be open with patients when something goes wrong. This is regulated by the Care Quality Commission.

However, we strongly believe that a change in culture would be far more effective. Healthcare organisations need to facilitate and promote a culture of candour, where healthcare professionals willingly give patients an open and honest explanation when something has gone wrong, as well as an apology where appropriate. For a cultural shift to be effective and far-reaching, the government and healthcare managers need to encourage organisations to support open communication and the notification of adverse events and near misses. 

This should include ongoing support, training, mentorship and investment in leadership by example. This will enable staff to effectively participate in open discussions and fulfil their existing professional obligations. 

The campaign continues

MPS met Health Minister Leo Varadkar in April to reiterate our calls for change. It was a productive meeting where we were able to outline our proposals in full. In the meantime, we are continuing to work with key stakeholders to identify and address important issues that could affect our members.

References

  1. Corbett A, Working abroad, New Doctor Ireland 4(1), October 2014
  2. The full MPS report as presented to the government is included on this page in PDF format
  3. MPS workshop, Mastering Adverse Outcomes 
  4. HSE, Open disclosure
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