Luke Miggin (an infant) –v- The Health Service Executive and Dr Michael Gannon (20 March 2010 Hanna J)

Augustus Cullen Law successfully appealed to the High Court on behalf of an infant with Cerebral Palsy to secure release of a transcript of evidence given before the Fitness To Practice Committee of the Medical Council. This vital new factual evidence, concerning the Plaintiff’s labour and delivery (from midwives and doctors who were present), thus became available to the Plaintiff and was crucial to the issue of the Defendant’s negligence.

On the 26 March 2010 in a written Judgment, Mr Justice Hanna, Judge of the High Court ordered that the Defendants release to the Plaintiff’s legal advisors a complete copy of the transcript of the fitness to practice committee of the Medical Council’s hearing into the allegations of misconduct against the Second Named Defendant. Although the Second Named Defendant had been cleared of any misconduct it was nevertheless held that the transcript of the evidence held before the Medical Council should be made available to the Plaintiff.

The background facts of the case were that the infant Plaintiff was born at Mullingar General Hospital on 28 February 2006 under the care of the HSE and the Second Named Defendant. The Plaintiff brought an application before the Master of the High Court seeking Discovery of the transcript. The Master refused to grant Discovery of the transcript and the Plaintiff Appealed that refusal to the High Court. Counsel for the Plaintiff argued that Discovery of the transcript was essential for the proper conduct of the Plaintiff’s case and to create an “equality of arms” between the parties. Counsel for the Defendants argued that an Order for Discovery should not be made against the Second Named Defendant, firstly on the basis that the transcript was covered by statutory privilege and secondly although the transcript of evidence might be relevant it was not actually necessary. The Defendant’s principal Defence was to rely on Section 45 of the Medical Practitioner’s Act, 1978 which held that Fitness To Practice Committee of the Medical Council could decide to hold its enquiry in camera (private).

The Defendant in particular relied on Section 45 (5) of the said Act which states:

"The findings of the Fitness To Practice Committee on any matter referred to it and the decision of the Council on any report made to it by the Fitness To Practice Committee shall not be made public without the consent of the person who has been the subject of the enquiry before the Fitness To Practice Committee unless such person has been found as a result of such enquiry to be guilty of professional misconduct."

The Defendant also relied heavily on the decision of the Supreme Court in the case of Barry –v– The Medical Council and another (1998) 3IR 368.

As an aside, it is noteworthy that had the provisions of the Medical Practitioner’s Act, 2007 been in force at the time of the Medical Council enquiry it would not have been necessary to seek Discovery of the transcript because the new provisions under the 2007 Act permit publication of the transcript of proceedings if the Medical Council is of the opinion that publication is in the public interest. However, at the time of this Medical Council enquiry, it was governed by the provisions of the Medical Practitioner’s Act, 1978 which provided for enquiries in private.

When the Plaintiff’s mother attended before the Medical Council enquiry to give her evidence she was accompanied by her solicitor Michael Boylan, Partner of Augustus Cullen Law. Having completed her evidence, she and her solicitor were requested by the Committee to leave the Hearing. An application by Mr Boylan to remain on by way of holding a watching brief was refused. Therefore the Plaintiff’s mother and her solicitor were in a state of complete unawareness as to what transpired before the Committee and/or the evidence given by other witnesses before the Committee.

In his Judgment Hanna J held:

"In considering a conflict between the public interest or the interest of person seeking Disclosure on the one hand and the interests of an individual in retaining the full benefit of the in camera Rule on the other hand the Court is bound by the concept that the paramount considering is to do justice"

Hanna J went on to state:

"The guiding consideration in evaluating the necessity for discovery is the overriding interest in the administration of Justice. Discovery must of course be relevant and necessary. Necessary does not connote absolute necessity. The party seeking Discovery should show for example that he is at a disadvantage in litigating the case by not having sight of documents in possession of the other side (See Kelly J in Ryanair plc v. Aer Rianta). In this case it is beyond question but that the Defendants, and specifically, the Second Defendant have in their possession documents which could be of considerable forensic assistance to the Plaintiff. The transcript of the disciplinary proceedings could reveal matters of great assistance to the Plaintiff, for example, in cross examination. The Second Defendant must gain an advantage by knowing everything that transpired at the said hearing. At the same time that Defendant has in his possession the Plaintiff’s mother’s own notes of what transpired during that period of time which no doubt will be submitted to intense scrutiny at the substantive hearing of this case. The foregoing circumstances can only confer a litigious advantage on the Defendants."

Further Hanna J held:

"I must apply a test of proportionality (see Independent Newspapers –v- Joseph Murphy Junior (2006) 3 IR 566 Clarke J). In my view the discovery of the transcript in question in circumstances where it can only be used in the context of a Trial where serious allegations of negligence are going to be levelled against the Second Defendant in any event is not disproportionate to the Second Defendant’s right to confidentiality. It does not, in my opinion, abrogate in any way the right of the Committee to conduct its proceedings according to its legally and constitutionally informed discretion. Balancing justice in the specific circumstances of this case, I am of the view that the Discovery of the transcript of the proceedings is warranted, limited in use as I’ve indicated above and in circumstances where the Court can exercise it inherent jurisdiction to police such Discovery. I allow the appeal and direct that the Order of the Master of the High Court be amended accordingly."

This is an important decision which has significant implications for Court practice and procedure generally and in particular in medical negligence litigation. It now means that the Plaintiff and their advisors have the ability to peruse all of the sworn testimony given before the Medical Council from all of the medical and midwifery witnesses. This means that the Plaintiff has access to a significant amount of additional factual information which may not be contained in the medical records. In this case the availability of the transcript has proved invaluable to the Plaintiff’s advisors for a proper and complete assessment of the issues of fault and negligence that arise in the circumstances surround the Plaintiffs birth.

29 July 2010

    Gillian and all at Augustus Cullen Law, A million thanks for a great job done. Justice for our son at last!!

    Catherine, Liam & William

    Dear Michael, A great result was achieved because of your efforts and we were truly blessed to have you on our side.

    Kathleen, Medical Negligence Client

    Dear Joice…you are and have been very professional, sympathetic and dignified in all of your dealings with us and I put that down to one simple fact. You listened.

    James, Medical Negligence Client

    Geraldine, Thank you most sincerely for all your hard work and commitment to these children.

    Freda McKittrick, Head of Barnardos Beacon Guardian Ad Litem service

    Neil is an absolute gentleman to deal with – kind, tactful and very efficient. We could not praise him highly enough. He brought us through a horrible time.

    Sean, Medical Negligence Client

    Many thanks again for a job well done. We really appreciate all your hard work and practical advice.

    Corporate client in a commercial litigation matter

    Dear Jamie, You and your team in ACL were so professional, diligent and prompt. I have recommended you and the firm, and will continue to do so

    Lorraine McCarthy

    Gus Cullen and the firm’s approach to addressing the key issues was professional, yet personal, efficient yet attentive.

    BB

    The process is a difficult one and when you deal with people who are so professional and yet genuine/real people, it makes it so much easier... so thanks a million.

    Julie

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