A look back at 2024 Developments and Progress in Healthcare law in Ireland

We look back at developments and progress in 2024 to reflect on the key changes in healthcare law in Ireland. We also consider changes on the horizon. The following are our highlights:

• On 1st January 2024, the ninth edition of the Guide to Professional Conduct & Ethics for Registered Medical Practitioners came into effect. The updated edition of the Guide, contains new and revised guidance for doctors on areas including:
  • Communicating with the public.
  • Managing situations with patients including honesty, integrity, putting patients first, treating patients with dignity and respect.
  • Responsible use of health resources and advocating for patients and services.
  • Acting as expert witnesses.
  • Professional conduct and professional ethics.

Please see here to learn more.

• In Dean Keogh v Maria Byrne [2024] IEHC 19, reviewed here, Mr Justice Coffey considered the application of the Personal Injuries Guidelines in cases involving multiple injuries. The Guidelines provide that in cases involving multiple injuries, the appropriate approach for the trial Judge to adopt, is to identify the injury and the bracket of damages which relates to the most significant injury and to uplift the value of this injury, to ensure that the Plaintiff is compensated appropriately for the additional pain arising from the lesser injuries.
• In this case, the Plaintiff claimed for damages following a road traffic accident, in which the Defendant accepted liability. Judge Coffey considered that the Plaintiff’s injuries must be considered holistically and highlighted that consideration must be given to the ‘overlap’ of temporal injuries and advised 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. Judge Coffey assigned a value to the General Damages of €100,000, with a €15,000 deduction to be applied to the value of the Plaintiff’s lesser injuries, therefore reducing the total to €85,000.
• In Monaghan v Molony [2024] IEHC 287, reviewed here, the Plaintiff issued proceedings against a defendant outside of the limitation period of 2 years. He attempted to rely on the date of receipt of expert reports as his “date of knowledge” for the purposes of the Statute of Limitations which essentially allows an extension of the limitation period where a prospective plaintiff does not have the requisite knowledge inside of the 2-year limitation period to issue proceedings. However, through discovery, the Plaintiff’s date of knowledge was ascertained as being October 2015, when he had attended an orthopaedic surgeon in relation to the injury the subject matter of the proceedings. As a result, the High Court found that the claim was statute barred as the Plaintiff was on notice of the potential claim long before he had taken up expert evidence.
• This case reinforces the point that, when assessing the issue of limitation of a claim, one cannot simply equate the date of receipt of an expert opinion (sufficient to ground their claim) as the requisite date of knowledge for the purposes of limitation – it is a fact-specific analysis, emphasising the necessity of a detailed examination of the relevant medical records, not only to investigate liability, but also to assess limitation.
• The case of Health Service Executive v H.H. [2024] IEHC 564 concerned a young person with a severe eating disorder who was involuntarily detained under section 23 of the Mental Health Act 2001. The individual was being treated on an out-patient basis, however wanted to discharge herself from the relevant treatment. The medical professionals treating the patient felt she lacked capacity and did not recognise that she was at high risk. Subsequently, the HSE sought an Order granting detention for the purposes of providing the necessary care. The HSE further sought to administer nasogastric feeding, and permission to sedate or restrain the patient to administer same if necessary. The Court considered three key legal questions:-

• whether nasogastric feeding qualifies as a form of medical treatment;
• if nasogastric feeding is a form of medical treatment, does it fall within the definition of “treatment” under section 2 of the 2001 Act; and
• if nasogastric feeding is considered “treatment” under section 2, whether it can be administered involuntarily pursuant to section 57 of the Act.

The Court ruled that nasogastric feeding does fall within the definition of treatment but that it could not be administered under restraint. This ruling cements the Court’s commitment to safeguarding the rights of vulnerable adult patients.

• The Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023 has been in effect since 26^th September 2024. The Act outlines a process for open disclosure, ensuring that patients and their families receive truthful and timely information in any healthcare setting when a notifiable incident occurs. A notifiable incident includes, but is not limited to, very serious, primarily death related incidents. The Act requires mandatory notification of the notifiable incidents to the appropriate regulatory body and includes guidance around the timing of the disclosure and the information to be provided. The HSE have also provided guidance for all medical practitioners to ensure that they are in compliance with the Act. See here to learn more.
• In October 2024, the Court of Appeal delivered judgment in Catriona Crumlish v Health Service Executive [2024] IECA 244. The claim related to an alleged delayed diagnosis of breast cancer. It was alleged that had the Plaintiff’s breast cancer been diagnosed and treated when she was referred to Letterkenny University Hospital by her GP in May 2017 for investigation of two lumps, she would have required less extensive treatment. The Plaintiff argued that a lump found in May 2017 was the same cancerous lump found later in October 2017, which was supported by her expert’s claim that the rate of growth, a 45-day doubling time, was in line with the expected growth rate of this type of cancer. Ms Justice Gearty rejected this evidence, on the basis that no convincing reason for this growth rate was given, and it was considered that this view was based on confirmation bias. The claim was dismissed.

The Court of Appeal dismissed the Plaintiff’s appeal on the basis that there was no suggestion that the trial Judge overlooked the Plaintiff’s oncology evidence, to render their conclusion unsound. The Plaintiff’s claim that the HSE’s case was not properly or fairly conducted was also dismissed and the Court of Appeal noted that the defence position was clear, that there was no abnormality on the imaging performed on 4^th May 2017. See here to learn more.

Changes on the horizon.

The Health (Assisted Human Reproduction) Act 2024 was signed into law on 2nd July 2024. The Act provides a clear legal framework for surrogacy arrangements where one parent has a genetic link to the child. The framework applies to domestic and international surrogacy arrangements. It sets out the rights and obligations for all parties involved, including surrogate mothers, intended parents from birth, and children born through surrogacy. There is a commitment by Fianna Fáil and Fine Gael to ensure the commencement of this legislation, and to establish the Assisted Human Reproduction Regulatory Authority. The Authority will be responsible for regulating surrogacy by issuing licences, overseeing surrogacy agreements, and maintaining a National Surrogacy Register. This Register will record all children born through assisted human reproduction (AHR) treatments and surrogacy agreements, ensuring transparency and proper regulatory oversight. The Authority is expected to be established during 2025.

• Following the publication of the Joint Oireachtas Committee on Assisted Dying Report in March 2024, the Voluntary Assisted Dying Bill 2024 (a private member’s bill), was introduced to An Dáil Éireann on 25^th June 2024. The recommendations of the Committee were debated by the members of An Dáil Éireann on 17^th October 2024, with the need for improvement of palliative care, irrespective of legal changes, being noted. An Dáil Éireann voted on and passed the motion that “Dáil Éireann shall take note of the Report of the Joint Committee on Assisted Dying”. However, legislation will be required to be passed by the Oireachtas and then signed by the President before the law will change. Since the dissolution of An Dáil Éireann on 8th November 2024 and the subsequent general election, there has been no action, and we will report further should there be any developments in this area.
• The Draft Personal Injuries Guidelines (2^nd Edition) was published in December 2024 and submitted to the Board of the Judicial Council for review. It is a requirement that the Personal Injuries Guidelines be reviewed every 3 years. The Judicial Council met at the end of January 2025 to consider a proposal by the council’s board to send the draft guidelines to the Minister for Justice to be laid before the Houses of the Oireachtas. No dissent was noted. If approved, judges will be required to have regard to the guidelines when awarding damages and must give reasons for any departure from them.
• Finally, the 2025 Programme for Government has established its mission as “Universal Health Care”. The Government intends to implement Sláintecare. The Government intends to provide more health services in the community, increase capacity, including bed, ICU and critical care capacity, and promote good public health policy, with a firm emphasis on a “patient-centred” approach. The Government also intends to promote women’s health, tackle mental health, drug misuse and provide greater support for the elderly. Of particular interest, the Programme includes several key commitments aimed at improving the legal framework surrounding clinical negligence cases. They include aims to prioritise a court-supervised mediation process for handling neonatal brain injury claims, with the goal of faster and less adversarial resolutions for affected families. A further notable measure includes exploring the establishment of a dedicated medical negligence court to streamline complex litigation, improve case management, and ensure expertise in handling such sensitive cases.

If you would like any further information or advice, please contact Sinéad Keavey, Redmond McNamee or another member of the Healthcare team.

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