The Government recently announced proposals to establish a new Expert Group to consider alternative mechanism to the court process for resolving clinical negligence claims in a more sensitive and timely manner than the current court system.

The Group will be chaired by High Court Judge, Mr Justice Charles Meenan and will provide an interim report after three months and a final report within a six month timeframe from its establishment date.

However, from our expertise in the area of Medical Negligence we would suggest that a complete overhaul of the system is unnecessary and premature given the existing mechanisms which the government can introduce straight away, and without real cost to the state. These mechanisms include open disclosure, mediation and pre action protocols.

The recent cervical smear debacle and the ordeal which Vicky Phelan and other survivors were put through, pushed this issue front and centre. Clearly and understandably there is public anger and upset at the stance the HSE has taken in relation to how it handled these cases and, in particular, their policy of “deny and defend”.  It is likely that Government see this proposal as an opportunity to deflect from recent negative headlines.

There is nothing new in political kite flying and the issue of changing the system. The Department of Health established an advisory committee in 2004, which included specialists in the medical, legal, rehabilitation, and obstetrics fields.  The committee however failed to produce a final report.

At the moment we do have a model: the courts. With the introduction of key changes: a mandatory duty of candour, widespread use of mediation, and pre action protocols, the time it takes cases to be completed would be drastically reduced and the level of angst for caregivers and patients minimised to the maximum possible extent. Furthermore, any complete overhaul of the system which denies would-be litigants access to the courts would, in all likelihood, be unconstitutional and would infringe their basic Human Rights.

What any lawyer wants is a happy client. Clients want answers and to get to the truth of what has happened to them. The duty of candour is a significant part of this, however there are still going to be occasions where cases are taken forward. This is where you are looking at streamlining the litigation process.  We should use the legislation as it stands with the introduction of pre action protocols, provided for in the Legal Services Regulations Act 2015 and simply awaiting secondary legislation to flesh out the detail.  

Putting patients first has to be at the heart of any meaningful review.  Instead of spending months listening to experts, the government can take action now if it has the courage to match its ideals.  It should look at mechanisms available to them already in the public domain.

Joice Carthy

Managing Partner

09 July 2018

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