Like so many others, I have read the news over recent months and followed closely developments in the tragic case arising from the death of Savita Halappanavar. In recent weeks we have seen a lot more information come into the public domain regarding this case at the inquest into her death in Galway. In this column, I have previously written about fatal injuries and inquests in Ireland (see the blog pages on our website www.tipplaw.com) but a number of particular issues arose from this case which I thought might be of interest to readers insofar as they apply to inquests in general.
The first point that occurrs to me is the importance of an inquest in both Irish law and Irish society. The practice of holding inquests goes back to medieval times in Ireland and they occur in situations where a death requires some investigation or explanation. As such, an inquest is an essential safeguard for all citizens and protects against the risk that deaths that occur in unusual or suspicious circumstances would go uninvestgated. Of particular importance here is the obligation that all deaths that occur in the course of State care must be subject to an inquest and of course the coroner has a general power to summon an inquest where he or she believes it is warranted. Imagine if this were not the case. Imagine living in a country where the family of a person who dies in police custody or prison or some other place of detention or even in a hospital would have no recourse to an inquiry. There are many such countries in the world today and they are often places where dissident political activists, lawyers and others who work social justice become ‘the disappeared’.
Following the death of Ms Halappanavar, there were repeated calls for a public inquiry or a tribunal and it was suggested that the State was obliged to provide one under the European Convention on Human Rights (ECHR). Such calls may have failed to have regard to the fact that It is established law that the State complies with its obligations to investigate a death in a timely manner open to public scrutiny under the ECHR through the mechanism of the inquest.
The second key issue that occurs to me is the legal prohibition on an inquest from making any finding of responsibility or wrong-doing against any party. For family and loved ones of a person who dies in the course of medical treatment and in particularly in circumstances where there is concern that that death was avoidable, that constraint becomes a very serious issue. Nevertheless, the law is clear and the inquest is only empowered to make a determination on four questions relating to the death and those can be summarised in the four words; ‘who’, ‘when’, ‘where’ and ‘how’. Usually the ‘how’ is the most important part of the coroner’s inquiry and in a case such as this one, it is entirely dependent on the expert medical evidence put before the inquest. It is not long since the view was generally taken by coroners that only one doctor could give evidence on the facts of a case at an inquest though that has since been expanded. What has not yet emerged however is a general rule that the family members of a deceased would be allowed to nominate medical or other experts to be called. This is because the inquest is an inquiry by a coroner and it is not an adversarial forum like a court where there are opposing sides. It is an investigation, an inquisitorial forum. On this very issue I had occasion in the past to bring judicial review proceedings against a coroner for refusing to call what my clients regarded as independent witnesses from outside the jurisdiction in a particular case. Those High Court proceedings were settled with an agreement and the independent witnesses would be called by the coroner and all costs of the proceedings were also paid by the coroner. How such a request in another case would be handled would depend of course on the individual coroner and the circumstances of the individual case but I think it is difficult to argue against the right to call what might be regarded as independent witnesses in more complex or controversial cases.
A third issue that emerged was the widespread misunderstanding of the verdict of medical misadventure. I was struck in talking to various people after the case that so many people thought that ‘medial misadventure’ in some way suggested that there had been a mistake on the part of the doctors or the medical staff. ‘Medical misadventure’ is a very common verdict in cases where people die in hospital. It means that there was an unintended consequence from an intended action. It does not suggest any wrong-doing or responsibility on the part of the HSE or any of the doctors involved and this is of course inkeeping with the overriding principal that the inquest is not allowed to make any attribution of blame.
So what then for relatives or family members of a deceased who wish to investigate who is responsible for a death? Such situations rely on the civil courts where civil proceedings are brought, typically in the High Court and it is then the job of the Plaintiff’s medical negligence solicitor to prepare and ultimately prove before the court that there was a failure in the care of the patient which caused or materially contributed to the patient’s death. Such cases can take a lot of time to progress through the courts to trial or settlement and many commentators on this particular case seem to have taken the view that this is an unreasonable burden for the deceased’s family to bear. The real question when considering if court proceedings are an adequate way of resolving this issue is to ask what the alternative is. Some had suggested that here should have been some form of public inquiry which could form a view on liability unlike an inquest. The difficulty with that is that such an inquiry, if held in public, would necessitate legal representation for any party called before the inquiry whose reputation might be called into question. This could become even more cumbersome and expensive than a court trial and it may not be any faster. Moreover, such a precedent if established from this case would be a precedent for a great many other cases right across the medical system. As a consequence the right to such a public inquiry would rapidly extend to hundreds if not thousands of deaths annually across the health service. Clearly such a situation would be completely unworkable and inappropriate where we have a court system designed and experienced in providing such a service. It is a fine example of the maxim that hard cases make bad laws.
One final and very significant lesson that I think comes from the case is that where a death occurs in the course of hospital or medical treatment and there is a concern about the circumstances of that death or the quality of the care that was being provided at the time, it is important that family members seek expert legal advice at the very earliest opportunity. While all hospital deaths must be reported to the coroner, many such deaths are quite readily explained and usually no Inquest is required. This however can present a risk that the coroner is not provided with all key information regarding the circumstances of the death as the system relies on a level of full and open disclosure from the hospitlal. For this reason, if the family is in some way unhappy with the circumstances of the death, they should not be afraid to ask for an Inquest and they should certainly never be swayed by the urgings of their doctors or other medical care providers not to proceed by way of inquest without independent advice.
If you have a query regarding this article you can contact Cian O’Carroll Solicitors on Freephone 1-800 60-70-80 or visit www.TIPPLAW.com
Cian O’Carroll Solicitors, A Medical Negligence & Personal Injury Law Firm