Solicitor Argues that a Statutory Duty of Candour in Ireland is Necessary

A partner at Ernest J Cantillion Solicitors has written an Op-Ed for the Irish Examiner in which she argues a statutory duty of candour in Ireland in necessary.

Karen Kearney is a specialist medical negligence solicitor at the Cork-based solicitors who believes that Leo Varadkar´s plan to introduce a statutory duty of candour in Ireland in the Civil Liberty (Amendment) Bill 2015 does not go far enough to enforce a policy of open disclosure within the Health Service.

Writing in the Irish Examiner, Ms Kearney claims that the Health Minister is more concerned with protecting negligent medical professionals than giving patients and their families a right to genuine and open disclosure. Mr Varadkar´s plans – she writes – are not to enforce a statutory duty of candour in Ireland, but to support the two-year old national policy of open disclosure. A policy that – Ms Kearney alleges – is clearly not being applied.

To support her argument, Ms Kearney recounts the tragic events leading up to the death of Chris Sayer. Chris was diagnosed with colon cancer in March 2010 – five months after a radiologist in a different hospital had overlooked the signs of the disease on a CT scan. Chris underwent emergency surgery to remove the cancer, but developed an anastomotic leak – a known complication of colon surgery.

However, the leak was not identified by the medical team in a timely manner and Chris developed sepsis. By the time more surgery was organised, it was too late to save him. Chris never regained consciousness from the second operation and died on April 19th. If the mistakes that led to Chris´ death were not bad enough, the way in which his partner was treated are a cause for concern.

All the way through Chris´ final days, his partner – Geraldine Barry – was trying to get answers from the medical team about what was going on. None of the nursing or medical team listened to her concerns as Chris´ condition deteriorated and, when Geraldine was told that Chris might not survive the second operation, his belongings were dumped at her feet in green plastic bags.

Following an investigation into Chris´ death, the Health Service Executive was aware that the radiologist had overlooked the cancer on the original CT scan and also that the anastomotic leak was not identified or treated nearly quickly enough. Yet it took five years and five months for liability to be admitted – and only then twelve days prior to a High Court case to establish liability.

Had there been a statutory duty of candour in Ireland in place at the time of Chris´ death, Geraldine would have received the answers to her questions and the Health Service Executive would have saved several hundred thousand Euros of taxpayer´s money – money that is desperately needed in the Health Service following years of underinvestment.

Ms Kearney closes her Op-Ed with an attack on the Director General of the Health Service Executive, Tony O´Brien, who prior to Christmas told the Oireachtas health committee that the State Claims Agency had an “unrealistic” view about risk and safety in healthcare and was too eager to defend medical negligence claims for compensation.

She wrote that that the State Claims Agency has no part in determining clinical practice in Ireland and that the solution to Mr O´Brien´s problem is within his powers. Simply enforce good clinical practice by telling patients what has happened when mistakes have been made, admit liability when it is appropriate and pay medical negligence compensation in a timely manner. That would resolve any issues about introducing a statutory duty of candour in Ireland.