A CHANGE in the law should be considered which would allow doctors to apologise to patients when things go wrong without this being construed as an admission of liability on their part, according to the president of the Law Reform Commission.
Mrs Justice Catherine McGuinness said yesterday it was "very important that our legal system should leave room for an honest and open apology where that is appropriate and that that should not mean that if you apologise you're going to be automatically held to be negligent".
She said the Law Reform Commission had been looking at this issue in the context of providing a report on alternative dispute resolution mechanisms. It looked at the situation in the US, England and in Australia where an Apologies Act has been developed.
"I think . . . this statutory change is something we should be looking at in this country," she said.
The commission, she added, would publish its report early next year and send it to the Government with draft legislation attached which it wished to see implemented. She hoped things would move swiftly after that.
Mrs Justice McGuinness was speaking at a seminar in Dublin hosted by the State Claims Agency's Clinical Indemnity Scheme on the importance of open communication when things go wrong in healthcare.
She also said very often medical negligence cases can go on for years and take a lot out of the patient and defendant, be it a doctor or hospital. "Everybody suffers and everyone is exposed to excessive cost," she said, adding that cases can end up with nobody satisfied and make for a continuation of anger and bitterness.
But she said she felt mediation could, as an alternative, play a role in resolving at least some such cases quickly where families wanted to find out what went wrong, receive an apology and an assurance that things changed so no other patient would suffer in the same way. Mediation would also help families ventilate their feelings, rather than having to wait to do so years afterwards on the steps of the Four Courts after their case ended.
Meanwhile, Dr Ailis Quinlan, head of the clinical indemnity scheme at the State Claims Agency (which now insures healthcare staff), said doctors were being told by the agency that an apology did not constitute an admission of liability. "And furthermore if a clinician does make an apology and then if the patient does go on to litigate, the consultant or the clinician will still be covered by the clinical indemnity scheme," she said.