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Leading Barrister Calls for Legal Duty of Candour in Ireland

Leading barrister Doireann O’Mahony has called for a legal duty of candour in Ireland to prevent unnecessary delays resolving medical negligence claims.

Writing in the Irish Examiner, Ms O´Mahony claims that the practice of keeping quiet when mistakes have been made has become a culture within the Health Service, and that this culture has resulted in the failure of the Health Service to admit when it was wrong and learn from its mistakes.

According to Ms O´Mahony, the culture has developed despite a national policy on open disclosure being launched by the Health Service Executive and State Claims Agency two years ago. Unfortunately, the barrister alleges, the policy is not working and what is needed is a legal duty of candour in Ireland.

Ms O´Mahony continues by explaining that a legal candour of duty was introduced in England and Wales last year which makes it a criminal offence not to advise a patient when – for example – a procedure has gone wrong or a medication has caused an adverse effect.

She also repeats comments made by health minister Leo Varadkar last year that it was the equivalent of a motoring hit and run for doctors and healthcare professionals to fail to make such disclosures and to live up to their duty of candour.

With a legal duty of candour in Ireland – and proper risk management thereafter – Ms O´Mahony suggests that lessons would be learned when mistakes are made so that they will not be repeated over and over again. She highlights recent scandals in Portlaoise, in Cavan and in Portiuncula as examples of when lessons should have been learned, but weren´t.

The barrister explains that, in many cases, the motive behind a claim for medical negligence compensation in Ireland is for patients and their families to get an explanation of what went wrong. Only when long-term care for a child has to be paid for is the amount of any compensation settlement of significance.

A legal duty of candour in Ireland, Ms O´Mahony claims, would prevent the need for victims of medical negligence and their families to endure protracted and often hostile litigation just to receive an apology they are entitled to. When mistakes are admitted and properly assessed afterwards, patients would not need assurances that “lessons have been learned” and “changes have been made” so that what happened to them will not happen to anybody else.

Litigation can be a force for good and provide the impetus for improvement – Ms O´Mahony claims in the conclusion of her article – provided there is a proper risk management feedback loop. She hopes that, through the introduction of long-overdue procedural reform in medical negligence cases and a legal duty of candour in Ireland, a culture of more openness and honesty will develop.