Augustus Cullen Law warns against ‘premature’ medical negligence overhaul



Joice Carthy
Joice Carthy

Augustus Cullen Law has warned that a complete overhaul of the medical negligence system would be “premature” and “unnecessary”.

The medical negligence specialists have responded to the Government’s appointment of Mr Justice Charles Meenan to chair an expert group to consider alternatives to court for resolving claims.

Augustus Cullen Joice Carthy said the Government should consider immediately introducing mechanisms such as open disclosure, mediation and pre-action protocols before a full overhaul.

Pre-action protocols in medical negligence cases are provided for under section 219 of the Legal Services Regulation Act 2015, which has not yet been commenced pending secondary legislation.

Commenting today, Ms Carthy said: “Most recently, the 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.”

Ms Carthy added: “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 act now if it has the courage to match its ideals. It should look at mechanisms available to them already in the public domain.”

Medical negligence lawyer Michael Boylan also recently urged the Government to implement the recommendations of an earlier working group on medical negligence chaired by Ms Justice Mary Irvine.