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Why courts should be a last resort

THE struggles faced by parents pursuing justice for their brain damaged children through the courts continue to be poignant and touching to witness.

But the agonising road they have to travel frequently contrasts with the promises of a change of culture in the health service which has been marked by an attitude of 'defy and defend' when things go wrong.

While more than 30 hospitals are now signed up to a policy of "open disclosure," the reality is that it will take years to make this routine practice.

Ideally, the injured patient or their relatives should be informed in a timely manner of the facts relating to an incident and an apology provided where appropriate.

But this is still not backed up by any legislation and many remain reluctant to disclose because of fear of litigation, worries about lack of promotion, concerns about reputation and lack of training and guidance.

Yet, if the policy is executed properly it can actually save the State money. The health system in Michigan in the United States is often cited for being a good example of where it works.

In 2002 it moved from the deny and defend mode to one where they "apologise and learn where we are wrong, explain and vigorously defend when we are right and view court as the last resort".

Between August 2001 and 2007 the ratio of litigated cases reduced from 65pc to 27pc. And average processing time for claims went down from 20.3 months to eight months.

Health Minister James Reilly is now promising to set up a Patient Safety Agency which will be established first on an administrative basis, which means it won't have the powers of legislation behind it.

Its remit is to act as an advocate for the patient. How-ever, how it will be managed remains unclear, particularly in cases where a legal action has been lodged against the State. But a clear objective must be to end delays for families seeking answers.

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