Case Law Update

1. Case Law Update Anne Conlon LLM MSc MA Barrister-at-Law

2. INTRODUCTION

3. O’Sullivan v. Ireland, The Attorney General, The Minister for Health and Children, The Health Services Executive, The Bon Secours Health System Limited Trading as Bon Secours Hospital [2018] IECA 8.

4. O’Sullivan v. Ireland & Ors. 20th September 2005 Abdominal surgery 4th October 2005 Told he has contracted MRSA in hospital March 2006 Plaintiff’s mother watches TV programme (D) 17th July 2006 Solicitor receives Plaintiff’s medical records of 800 pages (D) 22nd February 2007 Preliminary report from a GP

5. O’Sullivan v. Ireland & Ors. • 16th May 2008 Report from consultant surgeon and microbiologist (P) • 19th August 2008 Personal Injury Summons issued • In the High Court Date of knowledge determined to be date of Dr Cummin’s report - 22nd February 2007

6. O’Sullivan v. Ireland & Ors. • Ryan P. disagreed with finding of High Court re date of knowledge and the interpretation of section 2(1)(c) and held: “…that it was the receipt of Professor Scurr’s report that provided the last piece or pieces of the jigsaw of required information. When did Mr O’Sullivan know that the injury he sustained was the MRSA infection, not a defective operation or some other issue, and that the injury was attributable to the acts or omission of the Bon Secours Hospital?” In my opinion it was the 16th May 2008” (when expert report received).

7. O’Sullivan v. Ireland & Ors. • Ms Justice Irvine dissented – finding the date of receipt of the medical records as the date on which the Plaintiff had actual or constructive notice within the meaning of the 1991 Act.

8. The Child and Family Agency v. A (a minor represented by order by his solicitor and next friend Gina Cleary) and C[2018] IEHC 112

9. The Child and Family Agency v. A and C[2018] IEHC 112 • It was stated that the proceedings issued by the CFA sought: “lawfully to disclose the fact of the first Defendant's HIV condition and status to B in order to afford her the opportunity of availing of such medical and healthcare testing, treatment and counselling as may be indicated, notwithstanding the first Defendant's refusal to consent to such disclosure”. • Mr Justice Twomey – “unprecedented in the Irish courts”

10. The Child and Family Agency v. A and C[2018] IEHC 112 • …this Court determined that the appropriate test to apply to determine whether patient confidentiality should be breached is whether: “…on the balance of probabilities, the failure to breach patient confidentiality creates a significant risk of death or very serious harm to an innocent third party”. • Test taken from Z v Finland [1998] 25 EHRR 371

11. The Child and Family Agency v. A and C[2018] IEHC 112 • “Applying the test, this Court concludes that the plaintiff has failed to establish on the balance of probabilities that A is having sex with B, let alone that he is having unprotected sex with her”. • “…even if this Court is wrong on this factual dispute…this Court also concludes on the basis of the medical evidence that the contracting of HIV, although a significant condition, is no longer a terminal condition, but rather a chronic and lifelong condition that can be managed. Accordingly, it is not a “very serious harm” to justify the breach of patient confidentiality”.

12. O’Leary v. Mercy University Hospital Cork [2018] IECA 94

13. O’Leary v. Mercy University Hospital Cork [2018] IECA 94 • 2002 and 2006 surgeries • Alleged negligence and lack of informed consent • Failed in High Court • 7 grounds of appeal including: • Burden of proof was on Defendant to prove informed consent (Rejected) • New ground - Level of the Defendants’ experts fees

14. O’Leary v. Mercy University Hospital Cork [2018] IECA 94 • Fees of €28,7230 and €19,780 respectively • Daily transcripts • Defence strategy • Plaintiff - evidence not independent • Witnesses being ‘prepped’

15. O’Leary v. Mercy University Hospital Cork [2018] IECA 94 • Mr Justice Peart in the Court of Appeal held: “It demands at the very least that the issue is raised during the trial so that the accusation can be made to the expert concerned thereby giving him/her the opportunity to respond to it... The person so accused has no opportunity to address it in the appeal court”.

16. O’Leary v. Mercy University Hospital Cork [2018] IECA 94 • Supreme Court • Has allowed one point of appeal – the experts’ fees • “The issues arguably raise questions of general public importance as to fair procedures and trial of cases in due course of law”.

17. Mother gets €1.8m in first ever ‘wrongful birth’ case (Irish Times 20th June 2018)

18. Mother gets €1.8m in first ever ‘wrongful birth’ case • Carrier of rare genetic condition - pregnant • Genetic counselling – Our Lady’s Hospital - On notice • Special test – Rotunda • Phone call • Child born • Deprived of opportunity for informed consent and informed choice • Constitutional rights breached – own body and right to choose

19. Mother gets €1.8m in first ever ‘wrongful birth’ case • Received a letter a week before the hearing which stated that “in the particular circumstances of this case and in light of the outcome of the recent referendum repealing the Eighth Amendment to the Constitution” liability was conceded and the public policy defence was withdrawn. • Interim payment – for next four years

20. PL v The Clinic Director of St. Patrick's University Hospital and Dr O’Ceallaigh (Respondents) and the Attorney General (Notice Party) and the Irish Human Rights and Equality Commission (Amicus Curiae) [2018] IECA 29

21. PL v The Clinic Director of St. Patricks University Hospital & Ors. • 26th August 2011 Mr L became a voluntary patient following psychotic episode at home • 13th September 2011 Expressed desire to leave hospital – section 23 of the Mental Health Act 2001 invoked • Various orders made thereafter up to an order on 11th October 2011

22. PL v The Clinic Director of St. Patricks University Hospital & Ors. • 12th October 2011 Dr O’Ceallaigh revoked the renewal order • 21st October 2011 Coffee shop? • 11th November 2011 Sligo? • 21st November Violent and trying to jump over garden wall in hospital • Restrained and Sedated - even though voluntary

23. PL v The Clinic Director of St. Patricks University Hospital & Ors. • Frequently asked to leave but not permitted • Condition deteriorated • Section 23 order made for purposes of assessment under Section 24 • Brought judicial review proceedings – refusal unlawful • Peart J refused application in High Court • Question for Court of Appeal – was detention lawful?

24. PL v The Clinic Director of St. Patricks University Hospital & Ors. • Was the detention unlawful on the 21st November – trying to jump garden wall. Mr Justice Hogan in the Court of Appeal held (and departed from earlier judgment of Mr Justice Peart in McN v HSE [2009] IEHC 236): “I am of the view that a voluntary patient who expresses a desire to leave a secure unit at an approved centre remains free in principle to do so at any convenient time and may not be restrained by the hospital from leaving save in accordance with the provisions of s.23 of the Act”.

25. Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent) [2018] UKSC 50

26. Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent) • Plaintiff arrived to A & E Department following attack (May 2010) – • Receptionist • 4/5 hour wait but if he collapsed… • Left after 19 minutes and went home

27. Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent) • Two receptionists on duty told person taking over from them that Appellant had left. • Result……. • Two receptionists – 30 minutes –V- As soon as possible • High Court and Court of Appeal found against the Appellant • Lack of duty of care being owed • Break in the chain of causation because of decision to leave

28. Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent) • Supreme Court: • A duty of care was owed • The duty extended to not providing misleading information which may foreseeably cause physical injury • It was of no relevance that the receptionists were non-medical staff

29. Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent) • The Court found that the information provided was “incomplete and misleading” and as a result was negligent. • Regarding any break in the chain of causation the Court found that the Appellant’s decision to leave was reasonably foreseeable and was made on the basis of the misleading information which had been provided.

30. Vicarious Liability • “The law on vicarious liability is on the move” - Lord Philips in Catholic Child Welfare Society and Others v Various Claimants [2012] UKSC 56 • Cox v Ministry of Justice [2016] UKSC 10 • Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 • Armes v Nottinghamshire County Council [2017] UKSC 50 • Bellman v. Northampton Recruitment Limited [2018] EWCA Civ 2214

31. Vicarious Liability • Bolton v Blackrock Clinic [1995] WJSC-HC 236 – “Indeed at any rate as the Plaintiff was a private patient of the doctors in a private hospital, the question of vicarious liability may not arise” • Various Claimants v. Barclays [2017] EWHC 1929 – No MDU • Spire Healthcare settlement £27 million – Ian Paterson – 750 victims • John De Bono QC – applies the five part test from the English High Court decision Barclays to claims of uninsured doctors (e.g. No MDU)

32. Various Claimants v. Barclays - Applied • The Defendant is more likely to have the means to compensate the victim than the tortfeasor and can be expected to have insured against that liability. • The tort will have been committed as a result of activity being taken by the employee on behalf of the employer. • (John De Bono QC blog post – Claims against Uninsured Doctors)

33. Various Claimants v. Barclays - Applied 3. The tortfeasor’s activity is likely to be a part of the business activity of the Defendant. 4. The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee.

34. Various Claimants v. Barclays - Applied • 5. The employee will, to a greater or lesser degree, have been under the control of the employer. • In Barclays the English Court of Appeal has confirmed that vicarious liability can be established in relation to independent contractors [2018] EWCA Civ 1670 • Barclays decision is being appealed to UK Supreme Court

35. Other Cases • A.B. v The Clinical Director of St. Loman’s Hospital & Ors.[2018] IECA 123 – Deprivation of liberty • AC v Cork University Hospital, HSE and Ors. (unreported, High Court, 2nd July, 2018) – Deprivation of liberty • Green v. Hardiman [2018] IECA 205 – Date of knowledge

36. Conclusion Anne Conlon LLM MSc MA Barrister-at-Law