Potential benefits from dialogue with legal profession

Mr Dara Gantly, IHCA Deputy CEO, believes increasing the dialogue between the medical and legal professions has the potential to address a number of pressing issues

Attending a number of recent events hosted by the IHCA has led me to believe that increased dialogue and cooperation between the medical and legal professions can be a positive development for patient care. It could also have a potentially positive impact on how society deals with the highly adversarial nature of medical negligence claims, in the absence of meaningful action from the Government.

The Association recently hosted a psychiatry conference on the Assisted Decision-Making (Capacity) Act 2015, where consultants, the legal profession, and the judiciary discussed the many changes brought about by the 2015 Act, which commenced in April 2023.

Insights from Judge John O’Connor, Dublin Circuit Court, and Ms Áine Hynes SC, Founding Partner, St John Solicitors LLP, in particular, brought clarity on how doctors should assess decision-making capacity on an individual basis and, where a patient lacks capacity, give due regard to their will, preferences, beliefs, values, dignity, and autonomy.

Any intervention must be proportionate, in the patient’s best interests, and as least restrictive as practicable: All vitally important principles for ensuring appropriate care for some of our most vulnerable patients.

Expert witnesses

Last month also saw the continuation of the IHCA’s popular expert witness training courses, held in partnership with The Expert Witness Site. At one of these workshops, the President of the High Court, the Hon Mr Justice David Barniville, called in to welcome members to the session, and praise the course for being precisely the type of initiative envisaged by the 2024 Report of the Interdepartmental Working Group on the Rising Cost of Health-Related Claims, chaired by Consultant Obstetrician and former Master of Holles Street, Prof Rhona Mahony.

Report recommendations

To remind you, the 2024 Government-commissioned report recommended, among other things, the speedy introduction of pre-action protocols, earlier disclosure of medical records, greater use of mediation, early settlement where appropriate, and the creation of a panel of Irish consultant expert witnesses to help ensure higher standards of expert evidence coming before the Irish courts. All of this was required in order to tackle the unacceptable delays patients face during the legal process and the spiralling cost of medical negligence claims.

While these are all practical, patient-centred reforms in what is a very complex and sensitive area, the Government has yet to implement the majority of the report’s recommendations. This is despite the National Treasury Management Agency (NTMA) estimating that the total outstanding liability within the State Claims Agency’s claims portfolio has risen to €5.46 billion – an increase of €110 million in the past year alone.

Clinical negligence claims now account for 81 per cent of the scheme’s total estimated outstanding liability, underlining the growing financial burden they place on the health service.

These spiralling medical negligence costs are placing an unsustainable financial burden on Ireland’s health service. They divert significant resources away from frontline healthcare and therefore demand urgent Government action. As well as addressing escalating costs, reform would ensure patients and families receive early answers, early support, and fair compensation.

Granted, some in the legal profession may not see a need for such reforms. However, the judiciary does. In the absence of Government action, the High Court has moved to make mediation a condition for obtaining a trial date on its new clinical negligence list. While the move stops short of compelling mediation, it now firmly embeds it in the procedures. The High Court is to be commended for the leadership demonstrated in improving the system experience for patients.

Meanwhile, a separate High Court Practice Direction brought in by Mr Justice Barniville is facilitating earlier and more targeted case management where issues relating to liability or quantum may be capable of resolution without further extensive investigation. The amendment was prompted by some of the concerns raised by the IHCA following publication of the NTMA’s recent report.

Such moves from the courts are to be welcomed and reflect a growing recognition across the legal system and the health service that the courtroom is not always the best place to resolve what are, at their core, deeply personal and often tragic human situations. Mediation offers a less adversarial, more human pathway to resolution, and its greater use should be actively encouraged and resourced.

The shared objectives of the medical profession and their patients, with the constructive input of the legal profession, should be harnessed to create a system that is faster, fairer, and less adversarial for everyone involved.

Implementing the working group’s report would improve transparency, encourage earlier resolution where appropriate, reduce unnecessary legal costs, and help ensure more of our healthcare funding is invested in delivering better care for patients rather than prolonged and avoidable litigation. The IHCA would urge the Government not to delay any further on bringing in these urgent reforms.

Consultants are invited to attend this year’s IHCA Annual Conference in Kilkenny where these and many other issues of concern will be aired, as always, via insightful and constructive debate.