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Doctors say criminal sanctions in new open disclosure law will 'generate fear'

Healthcare providers will have a duty to disclose serious patient safety incidents and failure to comply could result in a fine or imprisonment.

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DOCTORS HAVE EXPRESSED concern that plans to introduce criminal sanctions in new legislation on open disclosure to patients will “generate fear” among the medical community.

The Patient Safety Bill will make open disclosure mandatory in serious cases, such as wrong site surgery, patient death or serious disability associated with medication or diagnostic error. It will also apply in the cases of serious errors that emerge in screening programmes and maternal deaths.

The legislation was introduced after the CervicalCheck scandal revealed more than 200 women diagnosed with cervical cancer were not told their smear tests had been incorrectly interpreted.

When it comes into effect, healthcare providers will have a legal duty to disclose serious patient safety incidents and failure to comply could result in a fine or imprisonment.

A survey by the Medical Protection Society (MPS) which supports 16,000 healthcare professionals in Ireland, found two in five are worried that apologising to a patient is seen as an admission of liability.

71% of doctors in the survey were not aware that the meaning of an apology has been legally protected in Ireland since 2018.

MPS said it believes mandating open disclosure will not tackle the real barriers to behavioural change such as lack of support from leaders or awareness of existing protections for doctors.

One doctor in the survey said mandatory open disclosure will be “very resource consuming and will further alienate clinicians with fear of sanctions/lack of support from management”.

“Far better to work on cultural change and support clinicians – they are the ones having to deal with displaced anger from grieving patients/relatives,” they added.

“Who decides what exactly constitutes a mistake, who in multidisciplinary care made the mistake and who is to take on the role of open disclosure in each situation?” one doctor asked.

These complex issues are far better managed through guidelines, training and culture change.

Several doctors in the survey said they support disclosure but they worry criminal sanctions will “generate fear”.

“I don’t believe criminal sanctions are the answer in any job if the person was genuinely trying to do their best,” one said. “It creates a sense of fear in an employment. This is not a good for anyone involved in the sector.”

Dr Rob Hendry, MPS medical director, said the threat of criminal prosecution could even lead to “a panicked ‘tick-box’ process when something goes wrong”.

“This could mean that patients do not get the sincere apology and explanation that doctors want to provide.”

He said a cultural shift is needed so that clinicians feel confident to admit errors, apologise and learn from mistakes.

This means no fear of blame or personal recrimination, genuine and visible support from leaders equally committed to the principles of open disclosure, and greater education on existing protections for doctors.

Hendry added: “If we are to achieve a truly open, learning culture which ultimately improves patient care, the government must acknowledge and address these barriers before or alongside its legislation. MPS also has a part to play – we stand ready to help the government and ensure these new duties on open disclosure can work for both patients and doctors.”

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