Open Disclosure and Periodic Payment Orders passed into law

The Civil Liability (Amendment) Bill, which provides for Open Disclosure of patient safety incidents and Periodic Payments Orders for claimants, has passed both houses of the Oireachtas and has been signed into law by the President.  Maureen Browne reports.

Periodic Payment Orders.

The Bill grants courts the power to award damages by way of periodic tax-free payment orders where appropriate, having regard to the best interests of the plaintiff and all the circumstances of the case.

These payments will be protected in the event of the claimant becoming bankrupt.

The Act sets out principles regarding the security of payments of PPOs, provides that PPOs shall be subject to annual indexation and amends the Insurance Act 1964 to provide that the limits on payments from the Insurance Compensation Fund where an insurance company becomes insolvent will not apply in cases involving PPOs.

The Act provides for open disclosure of patient safety incidents and sets out the detailed information to be given to the patient when things go wrong in the patient’s care.

It amends the Taxes Consolidation Act 1997 to provide an exemption from income tax in respect of payments made to persons under a PPO and it amends the Civil Liability and Courts Act 2004 to provide for formal offers of settlement and costs in personal injuries actions involving PPOs.

Open Disclosure

The Act provides for open disclosure of patient safety incidents and sets out the detailed information to be given to the patient when things go wrong in the patient’s care.  It also gives legal protection for the information and apology made to a patient when made in line with the legislation.

The Department of Health said, “The apology cannot be interpreted as an admission of liability and cannot be used in litigation against the provider. This approach is intended to create a positive voluntary climate for open disclosure and will support the National Policy on Open Disclosure which was developed jointly by the HSE and the State Claims Agency in November 2013.

“Open Disclosure can be viewed as an integral element of patient safety incident management and it is government policy that a system of open disclosure is in place and supported across the health system.
“Open Disclosure is important for building patient and public trust in the health system.  An open disclosure that represents a timely explanation when something goes wrong may also reduce litigation that might have been initiated by the patient out of frustration or the need for information.

“Open Disclosure is an open and consistent approach to communicating with patients and their families when things go wrong in healthcare. This includes expressing regret for what has happened, keeping the patient informed, providing feedback on investigations and the steps taken to prevent a recurrence of the adverse event.

The Department said the purposes of Open Disclosure overall were to:
• Ensure that patients were informed when adverse events happened.
• Assist in supporting appropriate patient care.
• Increase trust between patients and their clinicians.
• Support staff in managing adverse events, and
• Improve patient safety and quality of care through organisational learning.

The Department said that to date some 17,143 HSE staff had either been briefed on open disclosure (12,910) or attended a half day training (4,233). “Indeed, HIQA in its recent inspections has noted the knowledge and adherence to open disclosure provisions across hospitals.
“In the case of near misses, HSE policy is that near miss incidents should be assessed on a case by case basis, depending on the potential impact it could have had on the service user.  If, after consideration of the near miss incident, it is determined that there is a risk of/ potential for future harm from the incident then this should be discussed with the service user.”

The apology cannot be interpreted as an admission of liability and cannot be used in litigation against the provider.

Patient Safety Incidents

The Department of Health commissioned HIQA and the Mental Health Commission to jointly develop national standards for the management of patient safety incidents for acute hospitals. These new provisions, which will provide standards for conduct and type of reviews for patient safety incidents in addition to a set of standard definitions, are being launched at the National Patient Safety Conference. They will complement the National Standards for Safer Better Healthcare.

Hospital Licensing

The Minister also intends to shortly bring forward the general scheme of a new Patient Safety Licensing Bill, which will introduce a regulatory system through licensing for all hospitals in Ireland, as well as certain designated high risk activities that take place outside a hospital setting.

This new licensing system, where HIQA will be the licensing authority, will, he said, “promote the development of robust clinical governance frameworks throughout the health service and serve to aid in the effort to ensure a safe, responsive and accountable approach to the delivery of health care.”