THE continuing use of confidentiality clauses to settle healthcare legal disputes in Northern Ireland has been branded “disappointing and worrying” by a UK patient safety charity.
The chief executive of Action Against Medical Accidents - Peter Walsh - was responding to new figures obtained by The Detail that show there have been 15 confidentiality clauses contained in the settlements of medical negligence cases taken against health authorities here over the last three years.
Confidentiality clauses prevent those taking part in the legal action from publicly revealing any details about the case.
Commenting on The Detail’s findings, Mr Walsh said: “The fact that confidentiality clauses are still being used when settling medical negligence claims in Northern Ireland is very disappointing and worrying. This practice has been eradicated in England and Wales.”
The latest figures come despite a commitment from the Department of Health in Northern Ireland from 2002 that it would take “immediate action” to ensure that confidentiality clauses were not included in settlements.
A spokesperson for the Department of Health, Social Services and Public Safety (DHSSPS) said it fully supported the principle of transparency and that confidentiality clauses should only be used in exceptional circumstances.
He said: "Over the past 3 years, confidentiality clauses have been used in some 2% of all clinical negligence settlements. The Department has recently issued guidance reinforcing the principle that confidentiality agreements should not be used.”
In recent years a number of high profile hospital scandals in England have led to moves for greater transparency in health institutions with an introduction of a duty of candour.
The legislation introduced in England means that health organisations have a legal obligation to be open with families when mistakes are made.
DHSSPS said it is in the process of introducing a statutory duty of candour for Northern Ireland.
This would mean that hospitals and health trusts in Northern Ireland would be required to disclose information about incidents that caused harm to patients, and to provide an apology.
“CONFIDENTIALITY SEEMS INAPPROPRIATE”
In 2002 the Northern Ireland Audit Office examined the issue of clinical negligence and transparency. The report highlighted concerns about the use of confidentiality clauses.
It stated: “We consider the use of such clauses questionable. There may occasionally be exceptional circumstances, where a court might impose some restriction to protect a plaintiff’s identity for example if that plaintiff is a minor, but in the majority of cases, confidentiality seems inappropriate, when payments of public money are involved.”
Following the report, the Department of Health outlined its intention to take “immediate action” to ensure that confidentiality clauses were not included in settlements. The department also acknowledged the “inappropriateness” of confidentiality clauses as identified by the Audit Office.
However in response to a Freedom of Information request from The Detail, the Business Service Organisation (BSO) which oversees the Department of Health’s legal cases, confirmed that over the last three years 15 clinical negligence settlements contained confidentiality clauses.
In 14 of the cases the clauses were at the request of the plaintiff or co-defendant. In the remaining case the clause was inserted by counsel at the request of neither party.
The BSO did not say in how many of the cases the health authorities or individual doctors requested a confidentiality clause.
We asked for further details including a short description of why legal action was taken in each case and how much money was involved in the settlements. However in its response the BSO said it could not release any more information on the cases because of the existence of confidentiality clauses.
Peter Walsh said he is concerned about the continuing existence of confidentiality clauses in Northern Ireland.
“It runs contrary to the trend for more openness and transparency in the NHS and the spirit of the duty of candour. In order for there to be genuine learning there should be absolute transparency about what went wrong and why.”
In a statement to The Detail a spokesperson for DHSSPS said:
“The Department fully supports the principles of openness and transparency and does not condone the use of confidentiality clauses.
"The Department recognises that there may be occasions where such clauses are unavoidable but these should only be in exceptional circumstances, such as when the plaintiff or co-defendant has specifically requested them, rather than being at the request of the health and social care body."
A number of healthcare scandals in recent years have led to campaigns for greater transparency within the NHS.
A public inquiry in England found substandard care and staff failings at two hospitals in Mid Staffordshire between January 2005 and March 2009. It called on hospital staff to be open with patients about mistakes.
The Mid Staffordshire inquiry led to the implementation of a statutory duty of candour in England.
This means NHS and private healthcare organisations must admit their mistakes candidly, and as soon as possible. This has yet to be introduced in Northern Ireland.
Peter Walsh’s organisation, Action Against Medical Accidents (AVMA), was instrumental in the campaign to introduce a statutory duty of candour in England.
He said: “Northern Ireland should move swiftly to the introduction of a statutory duty of candour. Progress so far has been painfully slow.
“If the duty of candour was to be implemented properly, it would mean not only that patients and families get to know the truth, but that there would be much needed learning to improve patient safety. In our experience, it is those organisations that fail to live up to expectations of openness and transparency that are more likely to be unsafe.”
Individual doctors and nurses throughout the UK already operate under a duty of candour as part of the conditions of their professional registration but this has not yet been extended to healthcare institutions in Northern Ireland.
A spokesperson for the Department of Health said: “The DHSSPS has begun work on the introduction of a statutory duty of candour for Northern Ireland. As part of our considerations, we are looking closely at how these arrangements are being taken forward in England, Scotland and Wales.
“Once the policy is agreed, the relevant legislation will be put in place to set the duty on a statutory footing. The duty in Northern Ireland will, like other UK jurisdictions, apply at organisational level.”
The need for a duty of candour in Northern Ireland was a recurring theme in the public hearings of the Hyponatraemia Inquiry, which examined the link of fluid overload to the death of a number of children in Northern Ireland’s hospitals.
The inquiry was announced over ten years ago with public hearings ending in November 2013, but a final report has yet to be published.
Click here to view The Detail’s extensive coverage of the inquiry.