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Fear of litigation ‘major barrier’ to communications with patients

The Organisation says the enactment of the Civil Liability (Amendment) Bill 2017 must ensure that doctors are “sufficiently protected from civil proceedings and from fitness to practise hearings when disclosing adverse events”.

According to the IMO submission, there is also “insufficient information, guidance and support” available to patients and their relatives wishing to make a complaint.

“For many patients lengthy and expensive court proceedings are often the only recourse available to them in order to receive an explanation and compensation for what happened and to ensure appropriate long-term care and support. Much needs to be done to address the culture of litigation and blame following an adverse event,” outlines the IMO document.

The under-resourcing and under-staffing in the health services creates “untold pressures on physicians”, leading to high levels of stress and burnout “making them more prone to error”, according to the IMO submission. “A study from Germany found a tipping point (estimated at 92.5 per cent bed occupancy), whereby clinical staff become more prone to error due to rationing of resources and elevated stress levels. Under resourcing, poor working conditions, insufficient supervision, fear of litigation are major factors contributing to the difficulties the HSE faces in recruiting and retaining doctors in the Irish health system.”

The Organisation says a “large” number of complaints are unnecessarily brought to the Medical Council. One-in-ten complaints received by the Council are forwarded to the Fitness to Practise (FTP) Committee for inquiry. In a review of complaints received by the Medical Council between 2008 and 2012, 86 per cent of complaints received were from the general public, while just 7 per cent of the complaints referred on to the FTP Committee came from the general public.

The Council’s complaints process “can be extremely stressful for individual doctors with severe consequences on their health, reputation and livelihood and can lead them to practice defensively”. The submission further states: “The current system is in need of urgent reform to encourage legitimate complaints and discourage frivolous matters which are costly and time wasting for both the Medical Council and the medical professional against whom the complaint is made.”

The IMO is recommending that the health complaints system be “streamlined” and made transparent for patients.

“In so far as possible complaints should be handled locally within the hospital or the local practice. In line with HIQA standards complaints and concerns should be responded to promptly, openly and effectively with clear communication and support provided throughout this process…Patients should have access to independent advocacy services.”

Where patients are dissatisfied with the outcome of a complaint in relation to clinical judgement, they “should be referred to other alternative dispute resolution mechanisms such as local independent mediation services, arbitration of collaborative practice before recourse to the courts”.

Consideration should be given to a “no-fault complaints system” for certain adverse events, while the Medical Practitioners Act 2007 should be amended to allow for changes to Medical Council practices, including investigation processes that protect the identity of doctor during the investigation pending any adverse finding (upon which the identity and sanction will be made public), and FTP hearings being held ‘in camera’.

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