Niamh Ní Mhurchú
Only a change of culture can put an end to the cycle of health service scandals
THIS has been another terrible year for Irish healthcare. The Scally report made for particularly grim reading. As a lawyer who has represented thousands of families harmed by the health service over the years, I often wonder what it will take to drive real and meaningful change.
Does the nature of the human condition mean these scandals are a natural by-product of human fallibility? Despite the advances in medicine – and there have been many – it would appear so.
The names of those affected by these scandals jump out at us and haunt the national psyche for a period of time and then fade away. Reminders of our shortcomings. Remember Brigid McCole?
As a country we are still trying to come to terms with the fall-out from the cervical cancer scandal and the devastating effect it has had on hundreds of Irish women and their families. Many questions remain unanswered and perhaps never will be answered. Dr Gabriel Scally has made it clear that, were it not for the bravery of Vicky Phelan and her refusal to be silenced, “a system that was doomed to fail” would have trundled along leaving even more victims in its wake. If that doesn’t shock us, nothing will.
The Irish medical profession is in the dock – again. The cornerstone of the profession, the doctor-patient relationship, has taken a battering. Dr Scally found that the manner in which women and their families were eventually told of their situation in many cases varied from “unsatisfactory and inappropriate to damaging, hurtful and offensive”. For far too long the Irish medical profession has been overly paternalistic and patriarchal in nature – ‘doctor knows best’ – with the patient at the bottom of the pyramid, the iconic consultant at the top and a host of healthcare personnel in between. Dr Scally’s expert opinion was that the treatment of some of the women “bordered on misogyny”.
As a lawyer I can of course advocate for new laws, for stronger laws and for a new approach to the prosecution of medical negligence cases. My own profession has also fallen far short in the way it has contributed to a medico-legal system which has added to, rather than eased, the pain and suffering of victims of medical negligence. We must take our share of responsibility for a system that is utterly dysfunctional.
Lawyers and doctors need to work together more than ever. Lives depend on it. Whether it’s open disclosure or developing clinical risk protocols and strategies, collaboration between the two professions is critical if there is ever going to be real, lasting change for the better.
Steps can be taken to minimise medical mistakes, but they will always happen. The law should be there to minimise the risk of clinical mistakes and then, when that fails, to assist patients seeking redress in a caring, compassionate way.
Studies repeatedly confirm patients take legal cases for a small number of reasons: a desire to prevent something similar happening again; a need for an explanation as to how and why their injury occurred; a desire for financial compensation; and a desire to hold doctors to account.
A 1997 US study into the doctor-patient relationship and the prevalence of lawsuits found that doctors who had no claims were those who had established better rapport with their patients. It’s not that hard. Given that their journey is often a frightening one, patients need their doctors more than ever to communicate with them in an open, honest manner. This is a win-win for doctors as studies have repeatedly shown patients do not sue doctors they like and trust.
Dr Scally has, perhaps controversially, reached the view that a commission of investigation would not be the best way to proceed. Instead, he has asked the minister to consider commissioning a progress review which would involve an independent review, within three months of the report’s publication, of the plans to be implemented by the State bodies involved. He also asked that there should be a further review of progress reported to the minister at six-monthly intervals and these would be published.
We have a love/hate relationship with tribunals and commissions. While some have done the State a great service, they can drag on for so long that, by the time the report is published, we, the citizens, have moved on, with millions having been spent, or wasted, depending on your point of view.
But beyond more laws and more reports and more commissions of investigation, we need a change of culture. The attitude of the deny-and-delay mindset of the State when engaged in medical negligence litigation and the long-established adversarial mindset of lawyers need to be abandoned and we need to rebuild our medico-legal system with patient safety as the cornerstone.
Failing this, it is more likely there will be no new beginning and the old cycle will keep turning. New scandals will keep coming followed by the usual outcry followed by... nothing, until the next scandal. The cycle has to break. At an international conference of doctors and lawyers in Sligo this week, we will hear from leading voices internationally on how to keep more medical cases out of the adversarial courts process and how families damaged by the health service can be treated more compassionately.
Lawyers and doctors need to work together more than ever. Lives depend on it