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Earlier this month, Senator Michael McDowell SC gave the keynote address at the 2017 Graduating Ceremony of University College Dublin’s Forensic and Legal Medicine Graduate Diploma in Healthcare (risk management and quality). His speech was heavily critical of the use of the courts to decide on certain medico-legal cases, which he claimed was an attempt by doctors and administrators to “be relieved of moral or legal blame in making professional ethical decisions”.
Senator McDowell made reference to a number of high-profile international medico-legal cases, including to the recent baby Charlie Gard case in the UK, which he said arose from a genuine dispute between the infant’s parents and the hospital professionals treating him as to what, if any, steps could or should be taken to sustain his life.
“Closer to home, we have seen controversial cases where, for example, the HSE attempted unsuccessfully to have the High Court order a pregnant woman to undergo a Caesarean birth or where a health board unsuccessfully attempted to force unwilling parents to permit a routine PKU test on their baby.
“Such cases are extremely harrowing for the patients and families involved and for the medical professionals.
“But at least in most of these cases, there were genuinely opposing medical views which were suitable for adjudication,” he told the ceremony.
Senator Michael McDowell SC
Senator McDowell went on to say, however, that a “wholly different set of circumstances arises where medical professionals and health service administrators confront a difficult medico-legal ethical situation and decide to resolve their difficulty by bringing about litigation in which their ethical options and duties are effectively transferred to the judiciary for advisory judgment”.
He claimed this “situation can arise where the dominant motive of the practitioners or administrators is to be relieved of moral or legal blame in making professional ethical decisions — in short, a form of defensive medicine on ethical issues. Concerns about the legal issue of the rights of the unborn played a part in the poor treatment of Savita Halappanavar”.
Continuing, Senator McDowell was very critical of the PP v HSE  IEHC 622 case. In the 2014 case, the High Court examined the issue of whether or not a pregnant patient who was pronounced brain dead would have to be maintained by medical support for the purposes of sustaining the life of her unborn child. Her partner and her family wanted her life support system to be turned off, but some of the medical professionals treating the woman professed concern about the ethical and legal implications of withdrawing life support from her unborn foetus in the early second trimester. Her father was forced to go to the High Court to have life support withdrawn.
“The only medico-legal outcome was an entirely redundant reassurance for persons who lacked the courage to make obvious professional ethical decisions on their own.
“The only other predictable human outcome was to subject decent, suffering people to a harrowing legal experience, even if, as was the case, the High Court tried to deal with the matter in a compassionate way,” Senator McDowell stated.
The constitutional “right to life” of the unborn does not normally require medical practitioners or health service administrators to engage the courts in relation to DNR cases, he pointed out.
“So it is hard to see how the Eighth Amendment requires routine recourse to the courts in ethical medical decision-making regarding the unborn whose right to life is declared to be equal to the right of the born.”
He said that if medicine is to vindicate “its justified claim to be regarded as a profession, its practitioners, I think, should not attempt to unload their difficult professional ethical decisions on the courts and on the legal process”.
The Senator added that he did not believe there was any real risk of professional or legal sanction for practitioners who make reasonable ethical decisions in good faith in difficult cases, such as the PP v HSE case.
“Patients and their loved ones deserve better than to be forced into the legal process by those who would shirk the ethical obligations and responsibilities of the profession they practise or administer,” he concluded.
Mr Ciaran Breen, Director of the State Claims Agency (SCA), also addressed the ceremony, outlining the status quo of clinical negligence claims and the Agency’s progress to date. He said the SCA welcomes the prospect of pre-action protocols and periodic payment orders (PPOs) legislation coming into force. The “combination of the two will transform the current Tort landscape”, he said.
Pre-action protocols are expected to be brought into force by the end of the year, and “will be very beneficial by considerably shortening the length of time between making a claim and the resolution of the claim — so plaintiffs will get compensation sooner”, Mr Breen told the ceremony.
Mr Ciaran Breen
The SCA is currently engaged in a voluntary pre-action protocol pilot, alongside the Medical Protection Society, with a number of solicitors, and the pilot is expected to start in October, he revealed.
Since 2010, the SCA has agreed interim payments in approximately 80 catastrophic injury cases as a precursor to PPOs.
Legislation to underpin PPOs would allow courts to award PPOs, which would transfer mortality and investment risk to the defendant, so families would no longer have the worry associated with lump-sum compensation that it would run out or be insufficient to pay for future care, Mr Breen explained.
He also said that the SCA fully supports the concept of open disclosure as a necessary step in the doctor/patient relationship.
Open disclosure “needs to become embedded in our healthcare system so doctors and other practitioners are encouraged to have meaningful discussions with patients following adverse outcomes,” Mr Breen stated.
Minister for Health Simon Harris was also scheduled to address the ceremony but was forced to change his plans at the last minute. However, his speech on the issues of patient safety policy, legislation and upcoming reforms was read to attendees.
Minister Harris’s speech made reference to his Department’s package of reforms aimed at improving the experience of those who are affected by adverse events.
This includes the National Patient Safety Office, established in December 2016, which he said is “bringing forward an ambitious programme of legislation”.
“In November 2015, the Government gave its approval to the drafting of provisions to support open disclosure of patient safety incidents. These provisions have now been included in the Civil Liability (Amendment) Bill, which is currently making its way through the Oireachtas,” Minister Harris wrote.
In addition, to provide for the regulation of all hospitals, he confirmed a Patient Safety Licensing Bill is currently being developed, while legislation in relation to the mandatory reporting of serious incidents is also being progressed.
“I have also recently approved National Standards for the Conduct of Reviews of Patient Safety Incidents, which have been developed by the Health Information and Quality Authority and the Mental Health Commission.”
The standards were commissioned by the Department and are underpinned by recommendations from the Chief Medical Officer (CMO). They are designed to overcome a number of identified problems, including:
Confusion regarding incident classification and the method of review required;
Inconsistency in the time taken to conduct and complete reviews;
Variable quality of reviews; and
Individual anonymised procedures.
The new standards aim to promote a framework for best practice in the conduct of reviews of patient safety incidents and to set a standard for cohesive, person-centred reviews of such incidents, according to Minister Harris. They have also been designed to complement the HSE’s Open Disclosure Policy, which has been in operation since November 2013.
Minister Harris also acknowledged the work of the interdepartmental Antimicrobial Resistance Consultative Committee, jointly chaired by his Department’s CMO and the Chief Veterinary Officer of the Department of Agriculture, Food and the Marine, which has overseen and guided the development of Ireland’s first National Action Plan on Antimicrobial Resistance. This plan was approved by the Government in June and it is planned to formally launch it in the very near future, the Minister stated.
During the ceremony on 5 September, UCD Dean of Medicine and Head of School, Prof Patrick Murray, presented diplomas to a total of 16 students who completed their Graduate Diploma in Healthcare (risk management and quality), which is now in its 22nd year.
A total of 407 students have completed UCD’s Clinical Risk Management and Quality programme since its inception in 1995.
Leading the graduation ceremony was academic Programmes Director Mr Asim A Sheikh, Barrister-at-Law and UCD Assistant Professor, whose legal practice and work specialises in clinical negligence and medical/healthcare law. He congratulated the assembled graduands and commended the group for their dedication, commitment and persistence.
Mr Asim A Sheikh
Mr Sheikh pointed to the considerable and ongoing demand for the course, which he said was indicative of the continued focus on patient safety and managing risk and quality in healthcare systems and the importance of the graduates in being effective agents of change in practice. He also stated that the near future would see an evolution in the courses.