Some two weeks ago, the Health Ministry's legal adviser, attorney Mira Huebner-Harel, announced that the ministry wished to initiate an amendment to the law that would prevent the disclosure of findings from inquiries into negligence, oversights and irregular medical occurences.
The Health Ministry's demand came out of the blue in the framework of an interministerial team - including representatives from the treasury and the Health and Justice ministries - set up by the government to discuss a treasury proposal to impose a ceiling on costs and compensation for victims of medical malpractice in Israel. Huebner-Harel said that the non-disclosure order would be to the benefit of the public as it would facilitate better cooperation on the part of doctors during investigations.
Public disclosure of investigative reports in the health system is one of the central bones of contention in the struggle between victims of the health system and the medical establishment. The gag order on such reports was lifted in the wake of an extended public struggle, a precedent-setting ruling by the president of the Supreme Court, Justice Aharon Barak, and the legislation of the Patient's Rights Law.
In light of all this, a number of the interministerial team's members were surprised by the demand of the Health Ministry, which appeared to be speaking for the Israel Medical Association (IMA), the physicians' guild in Israel, and for the public, which the ministry is supposed to represent.
The Health Ministry's proposal is likely to drag the relationship between doctors and patients in Israel back into the darkest periods of medical paternalism, and totally undermine the significant achievements made in the field of patient's and human rights. Thanks to the lifting of the gag order, the public now knows more about numerous medical and administrative oversights that caused harm to patients. According to numerous senior officials in the health system, in several instances, it was the disclosure of such oversights, more so than the investigations themselves, that caused a change in the behavioral patterns of doctors and health care administrators.
For years, the Health Ministry, the hospitals and the health maintenance organizations kept the investigative reports on cases of medical malpractice under wraps, concealing them even from the victims of the negligence. The concealment did not necessarily make for more thorough inquiries, and a number of the investigations that were conducted under the veil of confidentiality were superficial and even tainted with the sense of a cover-up.
The most important achievement in this field was the precedent set by the Supreme Court, which, in 1995, ordered that the family of a patient who had committed suicide at Hadassah University Hospital, Ein Kerem, be given the board of inquiry's report into the incident that found faults concerning the care provided to the patient. The justices rejected the arguments of the hospital, which contended that disclosure of the report would prejudice the investigative abilities of the health system, as doctors would be loathe to cooperate "frankly" with such inquiries.
The court ruled that the individual had the right to know of the oversights that had led to his condition, adding: "Internal review panels will also be conducted openly as is called for by the essence of the medical profession and the ethical and legal obligation an individual takes upon himself in being a doctor."
The Supreme Court justices erred in their assessment. In the wake of their ruling, doctors, under the guidance of the IMA, began boycotting boards of inquiry at hospitals. Health Ministry investigations into incidents of medical malpractice, including cases involving the deaths of women during childbirth, were paralyzed, until the ministry threatened to bring the doctors to the inquiries under police escort.
In 1996, the Knesset passed the Patient's Rights Law, which lifted the gag order on the investigative reports, but retained it regarding the protocols of the inquiries and the routine quality-control reports at health institutions.
Since the law was passed, the IMA, in conjunction with the upper echelons of the Health Ministry, has been trying to restore the lost veil of confidentiality. This cooperation, which came under heavy flak from the state comptroller, recently included an announcement by the Medical Union on the establishment of "national risk-management forum" that would review irregular medical occurences.
The announcement notes that the Health Ministry cannot busy itself with risk management as it has "understandable problems" of a lack of confidentiality, and in light of the fact that it is subject to the Freedom of Information Law. As far as they are concerned, it would be undesirable for the information on infected wards, inadequate surgeons or negligent doctors to reach the public. This information should remain with and under the control of the doctors' guild.
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