If Tánaiste Mary Harney follows one particular recommendation of the inquiry report on Michael Neary and the Lourdes hospital, we will end up with more secrecy within the health system rather than less, writes Mary Raftery
Buried among Judge Maureen Harding Clark's almost 150 recommendations is the following: "The Department of Health and Children should introduce legislation to protect clinical governance records and risk-management clinical-incident report forms from the application of the Freedom of Information Act. Unless these documents are protected from FOI or discovery, they are unlikely to be created and opportunities for learning from mistakes will be lost."
There is an assumption underlying this recommendation that if the process of dealing with medical error and damage to patients is to be open to public inspection, then doctors and hospitals will respond by simply not keeping records. In other words, they will be less than honest about their mistakes. They will be prepared to allow their own self-protection take precedence over the safety of patients.
This is certainly a somewhat bleak view of the willingness of the medical profession to reform and come clean about its errors.
However, it was most likely informed by the opinions of the legions of medical personnel who gave evidence to the Neary inquiry.
There is undoubtedly a dilemma here. If professionals tell you that should they not be protected from public scrutiny when they make mistakes, then they simply won't record their errors, you have essentially two options.
Both are motivated, as Judge Harding Clark unquestionably is, by concern for the public good. One is conservative and the other radical.
The judge has chosen the conservative path. She has concluded that the public interest lies in allowing medical practitioners to maintain secrecy concerning their errors, and further, that the denial of information to either patients or the general public should be enshrined in law. She has decided that a culture of secrecy is a necessary prerequisite to enable the medical profession learn from its mistakes.
There is, however, one major problem with this approach. If we, the public, are not allowed to know what happens behind closed hospital doors when an error is made and a patient injured, how then can we have any confidence that there will be no repeat of the extraordinary climate of endemic negligence that facilitated such disastrous injury and mutilation of so many women in Drogheda? The loss of public trust is a catastrophe for a profession dedicated to the motto of "first, do no harm".
The response of so many of Neary's obstetrician colleagues to either exonerate him, or merely deliver the mildest slap on the wrist, is profoundly disturbing.
This was clear from the investigations carried out by three of his Dublin-based colleagues and by the Institute of Obstetricians and Gynaecologists.These reviews of Neary's practice were undertaken in private and their reports were marked confidential. The public was never supposed to know their contents. And, were it not for the diligence of the North Eastern Health Board, they would have probably remained secret. Equally, had Judge Harding Clark's recommendation been in force, that secrecy would have been protected by an unbreakable legal shield.
It is difficult to comprehend how this would in any way have served the public interest.
The judge's secrecy recommendation also extends to prevent the release of documentation on medical error even to the individual patient injured. By indicating that records should be protected from discovery (the legal process to order release of documents), she is suggesting that even those directly damaged by the actions of doctors should be denied recourse to the courts to seek the release of all information pertaining to their injury.
However, these are not minor issues to do with, say, clerical error or lack of punctuality.
They are matters literally of life and death for patients. It is utterly unacceptable to even contemplate a climate in which the only way errors will be reported and investigated is through the creation of a culture of legally protected secrecy.
The only means of restoring vital public trust in doctors, so badly shaken by the Neary revelations, is to blow away forever the cobwebs of silence that have long cocooned the medical profession in this country.
If doctors and hospitals do not openly disclose and investigate their mistakes, then severe sanctions should apply and be enforced.
Health Minister Mary Harney has committed to ensuring transparency in the investigation of adverse medical incidents. She has also promised to implement the recommendations of the Harding Clark report. In this one area, these two commitments are not compatible.
It would be a travesty if one of the outcomes of the otherwise thorough and commendable investigation into the greatest medical scandal this country has ever experienced was to enshrine into legislation an even greater layer of protective secrecy for doctors.