A recent decision[1]
of the Court of Appeal (COA) overturned a High Court judgment which held that in the interests of improving patient care, it was essential to protect the confidentiality of hospital staff statements made to a risk management enquiry. Our previous article explored the High Court judgement. The COA was satisfied there was a clear error in principle in this High Court decision as it was based on assumed facts, which were not supported by evidence.
Factual background
The plaintiffs, in this case, were the parents of a child who sadly died shortly after birth. The parents sued the hospital for the treatment provided during the birth. The hospital had conducted a risk management enquiry into the circumstances of the birth. While the parents were provided with the enquiry’s report, they were not provided with the statements made to the enquiry. The parents sought discovery of these statements. They argued that the administration of justice and, in particular, getting to the truth of what happened during the birth, should take precedence over the confidentiality of any statements made to the enquiry. The hospital argued that if staff cannot be assured that their statements will not be disclosed in any future litigation, then risk management enquiries aimed at improving future patient care will be completely undermined.
High Court decision
In the High Court[2], Judge Twomey found that the balance of justice lay in favour of improving patient care and ensuring the proper discharge of a risk management enquiry. He held that in order to achieve this, staff should be encouraged to make statements, even if they are self-critical or critical of colleagues, in the knowledge that these statements will not be disclosed. In the circumstances, disclosure of staff statements was not granted.
Court of Appeal decision
This High Court decision was appealed by the parents and the COA delivered a unanimous decision overturning the High Court’s judgment.
The COA held that there was no evidence the enquiry was clinician-led; based on a model contemplated by the HSE Incident Management Framework or, most importantly, that confidentiality was assured to those who participated. The COA noted that confidentiality and public interest privilege, ie where the balance of public interest favours non disclosure, are separate and distinct. It also noted that while a ground of privilege can generally be invoked as a right, confidentiality is not a right but is something that can be taken into consideration in deciding whether to direct discovery of documents.
It was held that having established the relevance of the statements, the parents were presumptively entitled to these documents. The hospital then failed to produce evidence to support the confidentiality of the statements. In the absence of evidence of confidentiality, which the hospital had characterised as fundamental to the nature of its enquiry, the COA reversed the High Court decision.
Notably, Mr Justice Noonan commented, that even if it were established that the statements were given in confidence, this would not necessarily shield them from disclosure. The evidence would have to go very considerably further to rebut the presumption of discoverability.
Essentially, the Court would have to decide whether the fact that the statement was made in confidence outweighed the interests favouring disclosure. Mr Justice Noonan also expressed surprise to see a hospital arguing that full and frank statements made by those who treated the baby should not be made available on the basis they were given in confidence. He described this as a ‘somewhat retrograde’ position to adopt, which seems contrary to ‘the direction of travel of medical open disclosure’.
Comment
The COA was unanimous in its decision that there was no evidence that confidentiality was assured to participants in this particular hospital risk management enquiry. In the circumstances, the COA allowed the appeal and ordered discovery of the hospital statements.
A question remains whether confidentiality might apply to a different enquiry conducted with more explicit confidentiality provisions, and future cases will turn on their own facts. That said, Judge Noonan’s obiter comments suggest that even if evidence of an assurance of confidentiality had been provided by the hospital, this would not necessarily have been sufficient to rebut the presumption of discoverability, which is in line with the current climate of open disclosure in healthcare settings.
For more information regarding this case and matters relating to any future enquiries, please contact a member of our Medical Law team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] O'Keeffe & Anor v Governor and Guardians of the Hospital for the Relief of the Poor Lying in Women Dublin, Court of Appeal, 30 March 2023, Appeal Number: 2022/250; Neutral Citation Number [2023] IEHC 78
[2] O'Keeffe & Anor v Governor and Guardians of the Hospital for the Relief of the Poor Lying in Women Dublin, High Court, Twomey J, 26 July 2022, [2022] IEHC 463
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