Court of Appeal clarifies position on disclosure of statements provided as part of a Hospital Risk Management Inquiry in subsequent proceedings

In a decision delivered on 30^th March 2023, the Court of Appeal overturned a decision of Mr Justice Twomey in the High Court which dealt with the disclosure of statements made during risk management inquiries to patients.

The Court of Appeal found that there was a “manifest error” in principle in the decision of the High Court and held that there was no evidence to support the hospital's argument regarding statements being made in confidence. [1]

BACKGROUND

In this case, the Plaintiffs’ daughter died shortly after birth in the Rotunda hospital, following which the Defendant hospital conducted a Risk Management Inquiry. As part of the inquiry, staff gave statements on the adverse event, and a report was compiled.

The report was provided to the parents. However, the statements to the inquiry given by staff were not disclosed.

HIGH COURT

The Plaintiff sought discovery of the statements. They contended that the administration of justice and discovery of truth is of greater importance than the principle of confidentiality.

The Defendants argued that it is in the public interest that clinicians and other staff who make statements to risk management inquiries must be assured that their statements are given in confidence so that they can be as “candid as possible so that future patients at that Hospital (and at other hospitals in the State) will learn from any changes in practice which could arise from the frankest possible statements made to that inquiry”.

The Defendants relied on Leech v. Independent Newspapers (Ireland) Ltd. [2009] IEHC 259, where it was determined that confidentiality was a public interest where it underpinned the effectiveness of ad hoc tribunals.

Following the decision in Leech, Mr Justice Twomey ultimately found in favour of the Defendants and refused to order discovery of the statements. The High Court emphasised the importance of encouraging hospital staff to make candid statements as part of risk assessments by assuring them that the statements are confidential and will not be disclosed.

COURT OF APPEAL

Mr Justice Twomey’s decision was appealed by the Plaintiff to the Court of Appeal and the hospital strongly contested the appeal.

The Court of Appeal delivered its judgment on 30^th March 2023. In its ruling the Court expressed its surprise at the arguments made by Defendant hospital in refusing to disclose statements given by those who treated the deceased simply because they were obtained 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”.

Mr Justice Allen expressed that there was no evidence to support the hospital's main argument that the statements given as part of the inquiry, were given in confidence.

Mr Justice Noonan, in his decision, stated that the documents sought were relevant to the claim regardless of whether they were given in confidence and therefore should be disclosed to the Plaintiffs.

Ms Justice Mary Faherty opined that there had been a “manifest error” in principle in the decision of the High Court regarding the hospital’s argument of confidentiality.

The three Judge Court of Appeal unanimously overturned the High Court decision and granted an Order compelling discovery of the statements.

COMMENTARY

This decision by the Court of Appeal has now clarified the position that all statements given as part of a hospital risk management inquiry are potentially disclosable as well as the report compiled should they be requested on discovery in the context of subsequent clinical negligence proceedings. Significantly, the Court found that even if there had been evidence of assurances of confidentiality given by the hospital to staff, this would not have been sufficient to succeed in this appeal.

This unanimous decision found that the statements given by staff to the inquiry, were relevant to the discovery request, confidentiality therefore, while considered, was not sufficient to prevent disclosure.

[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

Written by Sinéad Keavey (Partner) and Eoighan McNicholas (Solicitor).

If you would like any further information or advice on these issues, please contact Sinéad Keavey from 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 that is tailored to your circumstances.