Why can't the State be honest with us about patient safety?

Opinion: the need for legislation on patient safety shows the lack of an open approach to how the State deals with people seeking healthcare

By Angela Flynn and Eluska Fernandez, UCC

Last month, President Michael D Higgins signed the Patient Safety (Notifiable Patient Safety Incidents) Bill 2019 into law. The new bill requires clinicians to fully inform patients of serious patient safety incidents. Government ministers have proudly claimed that this bill demonstrates their "commitment to building patient-centred, integrated health services".

But it could be argued that the very need for such legislation is illustrative of a problematic lack of an entirely open and honest approach to the state's dealings with members of the public - in particular with the more vulnerable people in need of healthcare. Why would we need a new law to make sure the state and the health service is open and honest with us? Aren’t they supposed to act in our best interests?

Closer scrutiny suggests that the best interests of the state and the public interest might not always be the same thing. Historical and recent events suggest that those who have sufficient means and agency to legally challenge the state achieve better outcomes than those who are unable to do so. As a rule, the creation of precedence is avoided at all costs. To achieve this, discretion, secrecy, and obfuscation are critical.

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From RTÉ Radio 1's Today with Claire Byrne, Dr Gabriel Scally on the Patient Safety Bill and the next steps for medical transparency

Historically, Irish people have been subjected to deliberate cover-up of damning facts. We can recall such examples such as the Hepatitis C scandal, the cervical cancer screening debacle, symphysiotomy procedures and the withholding of Disabled Persons' maintenance allowance payments. Many of these cases could have been avoided, or pain reduced, had the State chosen to be entirely honest with us.

More recently, Irish media have broken stories, such as the nursing homes fees scandal where families of elderly people who had medical cards, may have been inappropriately charged nursing home fees. We were told a memo existed advising successive governments that settlements should be sought should a legal case seem imminent, and the litigants capable of supporting such a case.

An extract from a 2011 memorandum, presented by former Minister of Health James Reilly, warned that the strategy "would spark a large number of claims" if it was made public and "the liability to which the State could, potentially, be exposed if a case were to be lost and set an adverse precedent would be very substantial indeed". As Fintan O’Toole commented recently in the Irish Times, they "hammered only those who were too poor to hire a lawyer or too ill or isolated to be able to act".

From RTÉ Radio 1's News At One, survivors dismiss report on symphysiotomy (broadcast 2016)

In the face of such media attention, brought about only because of a whistle-blower at the Department of Health, the Government sought legal advice. The Attorney General was asked to look into the advice that was given in relation to both the nursing home charges and the disability maintenance payments. His report concluded that the legal advice on which the government was relying was "sound, accurate and appropriate." He goes on to reference the public interest stating that "there is, literally, no other interest that the State can have regard to".

Since this report seemed to have put an end to questions previously raised by the media, it's worth analysing how both the 'interest of the public’ and ‘State interest’ was framed. This appears to reflect some divergence between the public interest (citizens) and the best interests of the state (government). There is clearly a gulf between legally sound action and a morally correct course of action.

In the Attorney General's report, there is a clear attempt to de-politicise intent on utilitarian grounds, repeatedly making references to the interest of the public purse to support the government’s strategy to settle cases outside of court. Legal theorists say that a right that can be overridden from a concern for utility or policy is not a right at all. Citizens are portrayed in the report as 'disappointed' people who failed to receive services that they thought were entitled to, while the State is repeatedly portrayed as a moral and rational actor concerned with the public.

From RTÉ News, Attorney General says legal advice on nursing home fees was 'appropriate'

This kind of action by the Government that just barely keeps its head above the murky water of legally defendable is not new. In 1996, Brigid McCole sought to take a case against the state, the Blood Transfusion Services Board (BTSB), the Attorney General, and the National Drugs Advisory Board (NDAB) in relation to contracting Hepatitis C from a contaminated blood product.

When she finally received a letter from the BTSB conceding liability, it threatened that it would seek damages if she proceeded with the case and were to be unsuccessful. It later emerged in the Finlay Tribunal report that then Minister for Health, Michael Noonan, had seen this letter before it was sent.

Such cases illustrate a consistent employment by the State of a "politics of secrets" in its dealings with vulnerable people in need of care. We see the State’s failure to be open and honest with its weakest citizens and its tendency to rely on a minimal legal threshold instead of a high moral standard in its litigiousness.

Dr Angela Flynn is a lecturer in the School of Nursing and Midwifery at UCC. She is Vice-Chair of the National Executive of the Social Democrats. Dr Eluska Fernandez is a lecturer in the School of Applied Social Studies at UCC. She is an Irish Research Council awardee.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ

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