A look back at 2023-Developments and Progress in Healthcare in Ireland

With a busy first few weeks of 2024 for the Healthcare sector in Ireland, we look back at developments and progress in 2023 to give an overview of the year that was. The following are our highlights:

• The Assisted Decision-Making (Capacity) (Amendment) Act 2022 was signed into law by the President of Ireland, Michael D. Higgins at the end of 2022. This would allow the Decision Support Service (“DSS”) to become fully operational by providing a modernised system to support decision-making by adults with capacity difficulties. The full commencement of the Act took place on the 26^th April 2023, with the launch of the DSS ensuring that Ireland was compliant with its obligations under the United Nations Convention on the Rights of Persons with Disabilities.
• In the pre-trial judgment of Egan v Castlerea Co-Operative Livestock Mart Limited, reviewed here, the Court held that post-accident discovery was appropriate as medical records retain the best evidence concerning the medical condition of the Plaintiff post-accident, as well as detailing the key issues in many personal injury cases. In October 2023, the Court of Appeal upheld the decision of the High Court noting that there is no distinction in principle between pre and post-accident medical records unless and until the records overlap with legally privileged medical material. The standard principles for determining whether documents should be subject to discovery, namely relevance, necessity and proportionality were applied. This decision was a positive development for defence practitioners in the management of personal injury and clinical negligence proceedings.
• In March 2023, the Court of Appeal delivered their decision (in O'Keeffe & Anor v Governor and Guardians of the Hospital for the Relief of the Poor Lying in Women Dublin) on the disclosure of statements provided as part of a Hospital Risk Management Inquiry. The decision, considered further here, overturned the High Court decision of Mr Justice Twomey. The case concerned the question of disclosure of statements made by hospital staff which they considered were made in confidence. Mr Justice Allen said that confidentiality and public interest privilege are “separate and distinct”. He held that confidentiality was not a right, but “something that can be taken into consideration in deciding a discovery application”. It was also found that there was no evidence to support the hospital’s main argument that the statements were given in confidence. This decision clarifies that all statements given as part of a hospital risk management inquiry are potentially disclosable.
• The Patient Safety (Notifiable Incidents and Open Disclosure) Bill 2019 was signed into law by the President in May 2023. The Act, considered here, provides a framework for mandatory open disclosure of a list of specified serious patient safety incidents that must be disclosed to patients and/or their families. This means hospitals and other health care providers will be required to inform patients of certain adverse incidents, or patient safety incidents, that occur during their care. It is likely to be commenced in 2024.
• The Human Tissue (Transplantation, Post-Mortem, Anatomical Examination and Public Display) Bill 2022 was passed by the Dáil on 8 November 2023, and moved to the Seanad later that month. It is currently in the Report Stage and is expected to move to the Final Stage shortly, with enactment expected in 2024. The legislation, which we considered here, includes provision for an opt-out system of consent for organ donation. This means that there will be a presumption that the person is an organ donor unless they have opted out of the scheme of organ donation. The Bill also introduces safeguards to protect the human body after death.
• The case of Colin Lannon v Council of the Pharmaceutical Society of Ireland, considered here, underscores the delicate balance that sometimes must be reached in regulatory proceedings between defending allegations raised and an early demonstration of insight. While it can be difficult for a registrant who maintains their innocence to argue they have demonstrated appropriate insight, it will often be possible to present a case on the basis that the registrant acknowledges the seriousness of the conduct concerns raised and the impact such conduct may have on the public’s trust and confidence in the profession.
• Following the establishment of a Taskforce by Minister for Health Stephen Donnelly to expand the role of pharmacy, from 1^st March 2024, pharmacists will have a power to extend prescriptions up to a maximum of 12 months for patients, if they feel it is appropriate. The new powers, which we have reviewed further here, include measures to provide patients with more flexibility and to reduce the burden on GPs in terms of issuing repeat prescriptions.
• Finally, we considered the State Claims Agency’s five-year review of concluded claims relating to catastrophic injuries to babies in maternity services in detail here. The report discussed 80 catastrophic claims concluded between 2015 and 2019. Key insights included the age and BMI of the women involved, how they presented (i.e. in labour, planned, or due to concerns), weight of the babies and the percentage delivered by caesarean section. The aim of the report was to present key findings and learnings from the review and to provide advice for maternity units and healthcare staff to help mitigate the risk of similar claims in the future.

We have also captured the below highlights in the first few weeks of 2024 as we look forward to the year ahead.

• The 9th Edition of the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners came into effect. The updated Guide contains new and revised guidance for doctors and has regard to recent legislative changes affecting medical practice in Ireland. Amongst other updates which we have reviewed in detail here, there are changes to guidance in relation to Open Disclosure, the reporting of alleged historic abuse, consent (having regard to the advent of the Assisted Decision-Making (Capacity) Act 2015) and continuity of care, with a particular focus on conscientious objection.
• Meanwhile, and considered in further detail here, in contrast with the Irish position, the UK Supreme Court, in Paul v Wolverhamptom NHS Trust, Polmear and another v Royal Cornwall Hospitals NHS Trust & Purchase v Ahmed, has drawn a distinction between secondary victims who sustain an illness as a result of an “accident”, namely witnessing a death or injury of a family member by an external traumatic event and as a result of a “medical crisis”, namely the death or injury of a family member from illness or disease. The Court also found that while doctors owe a duty of care to their patients, this does not “extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative”.
• The exercise of quantifying multiple injuries by the Courts in Ireland is discussed here following the recent High Court decision of Mr Justice Coffey in Dean Keogh v Maria Byrne. Difficulties can arise when applying the Personal Injuries Guidelines (‘the Guidelines’) to cases with multiple injuries, given that each individual injury is valued separately. In this case Judge Coffey highlighted the need to consider the ‘overlap’ of temporal injuries, finding that it would be appropriate to apply a discount to the award of damages to reflect the fact that the multiple injuries arose from the same event, involving treatment and recovery at the one time.

Written by Sinéad Keavey with thanks to Jen Levis, Solicitor and Alicia Miranda, Law Student, Trinity College, Dublin. If you would like any further information or advice, please contact Sinéad Keavey, Partner and Head of Dublin Office.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice.