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Callan Tansey in the Community
At Callan Tansey we believe that our success is linked to the success of our community. We are committed to integrating our social and environmental responsibilities in our business operations. It is important to us to support the local communities close to our six offices, as well as the wider community through fundraising events and environmental initiatives. Our Corporate Social Responsibility Programme (CSR) focuses on supporting cultural events and community organisations as well as fundraising for charities and voluntary organisations. Partners, Solicitors and our Professional Support Staff drive this activity. Some of the support we have given in recent years is listed below and you will find the link to apply for support here
Sponsorship to support ASD students at Summerhill College
Our firm’s links with Summerhill College stretch from the early years of the last century to the present day, with generations of Callan Tansey Solicitors and their families educated there. We are therefore delighted to support the new Practical Living Demonstration Room for ASD students.
In the course of our work we meet children and families navigating life with different abilities. We see the challenges they often face, and the need for educational support, recognition of their ability and the importance of integrating students with their peers for social development. The work done by the Summerhill College Additional Educational Needs Team in providing support to all students is considered to be the best in the country.
The Practical Living Demonstration Room supported by Callan Tansey will be a key element for the students in the school’s Autism classes as they learn day-to-day life skills. Here they will experience diverse scenarios, enabling them to acquire a range of skills – from basic ones such as self-care and cooking to money management and travel. In repeatedly doing these daily tasks, the students grow in confidence and most importantly independence. Building on what is learned in Summerhill, they can then practice these routines at home and in the community. This room is one of a few across the country. Callan Tansey is proud to be associated with such a progressive programme.
Our Brian Gill, Partner Commercial and Employment Law was a keynote speaker at the inaugural conference on Autism, hosted by Summerhill College in Autumn 2022. He highlighted that while it was just 25 years since legislation to protect the rights of people with autism had been introduced there was a lot still to do. Legislators need to consider positive discrimination to ensure employers with “a narrow mindset” cannot continue to keep people with disabilities our of the workplace. “A workplace that keeps people with disabilities out and keeps them on the margins is all the poorer. It’s like watching black-and-white television in a coloured world.” Click here to read the report of the conference published in The Irish Times.
The second CIC Summerhill Autism Conference takes place on Saturday November 25th. The conterence title is What Next? Pathways into further studies and employemnt. The conference is for autistic young people and their familes and will be addressed by leading Adam Harris, Stefanie Preissner, Temple Grandin and Yasmeen Multani.
Sligo Grammar School Senior Rugby
Callan Tansey Solicitors is delighted to continue sponsor the Sligo Grammar School Senior Rugby team this season. Last season Sligo Grammar School Senior Rugby team achieved an unprecedented ‘double-double’, winning back to back Connacht Schools Senior League and Senior Cup titles
Sligo Grammar School is renowned in Connacht for producing talented players and successful teams over a number of years. Many students have been capped for Connacht Rugby at underage level over the years, including several of the current Senior Rugby Team. While a further six players have been capped for Ireland. Brian Gill, Partner at Callan Tansey Solicitors is pictured here with members of the Senior Team who were presented with a set of jerseys and kitbags at the start of the season.
Christmas Charity Donations
Every December the team at Callan Tansey Solicitors LLP makes a particular effort to support both local and National charities. This year we supported three different charities
The Society of St. Vincent de Paul provides a wide range of services for vulnerable people though its local offices. These services include personal visiting, education grants, family support services, social housing projects, child and youth services as well as Adult and older peoples services. We made donations to local offices in Boyle, Galway and Sligo to help support the great work done by the organisation and voluteers in our local communities.
Once again Callan Tansey Sollicitors LLP supported Focus Ireland by sponsoring a star on the Focus Ireland Christmas Tree. We share the Focus Ireland belief that everyone has the right to a place they can call home and that no child should have to face Christmas without a safe and secure home. The organisation provides advice, information, advocacy and help with finding a home. Since opening at its initial location in Dublin in 1985, Focus Ireland has expanded its role and activity and now provides services and housing projects across Ireland including in Sligo and Limerick.
Our team was delighted to bring some festive cheer to the offices recently by wearing their Christmas Jumpers to raise vital funds for The Children’s Health Foundation. Many of our clients are families and young children with catastropic injuries and complex health needs. We see at first hand the important work done by our Children’s Hospitals and the urgent need for funding to support their efforts. The funds we raised went towards the purchse of essential equipment at CHI hospitals and urgent care centres.
Boyle Arts Festival
Boyle Arts Festival is an award winning festival which takes place in July each year. Callan Tansey Solicitors has been delighted to support this highly regarded Festival for many years. It attracts well-respected artists and performers as well as audiences from across Ireland and overseas. During the 10 days of the festival audiences enjoy a great mix of visual arts, literature, drama, workshops and a variety of musical events and performance to suit all tastes, including clasical, traditional, jazz, and popular music.. Many events are free and tickets for other events can be bought online or at the Festival Office in Boyle.
Ballina Salmon Festival
Festivals could not happen without the hard work and support of local communities. They represent the best elements of a community, encourage local participation and prompt visitors to travel to enjoy various events.
This year we are delighted to sponsor the Ballina Salmon Festival Busking Competition. After a difficult few years for everyone it is lovely to once again have the opportunity to gather as communities and attend events. It is also important that we all support the creative and artistic community who were particularly hard hit by Covid lockdowns and closures.
The busking competition has run all week across Ballina, giving talented performers a chance to showcase their talent as well as significantly contributing to the festival atmosphere. Thank you to all the wonderful performers who entered and we hope you see your audiences grow.
Darkness Into Light 2022
On a foggy and misty morning members of the Callan Tansey team from across our offices rose before dawn to participate with family and friends in the Darkness into Light walk in aid of Pieta. They were among the almost 120,000 supporters walking to raise almost €4million in much needed funds to support people affected by suicide and self-harm.
March Into March 2022
We were delighted to support our neighbours Sligo Cancer Support Centre in their recent March into March Fundraiser and present them with much needed funds. Pictured are some of our team who participated in the fundraiser and members of the Sligo Cancer Suppert Centre. Aoife Bromley, Majella Lynch, Annamaria Toolan, Attracta Higgins, Caroline McLaughlin, Loretta Coyne (Sligo Cancer Support Centre), Bridget Kerrigan (Sligo Cancer Support Centre)
Pocket Forest at Callan Tansey Ballina
We were delighted to work with Pocket Forests recently at our Ballina office. First the team from Pocket Forests helped us rejuvenate some ground behind our office building then we planted a diverse range of native trees and shrubs. The goal is promote biodiversity in this urban location which will support pollinators and the wider environment in the community.
What to do if you are in a car accident
Dealing with the unexpected scenario of any accident is difficult. In the moment it can be hard to know what to do. Caroline McLaughlin is a Partner in our Personal Injuries Department. Here she outlines some key points to consider if you are involved in a car accident.
What to do at the scene of a road traffic accident
- The first thing to do if you are involved in a car accident is to safely stop the car as soon as possible.
- You should notify Garda of any accident that you are involved in. They will either attend at the scene or may investigate afterwards.
- Find out how everyone is following the accident. Asking someone if they are ok is not an admission of Liability. So often when taking instructions regarding the circumstances of an accident a client will state “they didn’t even ask if I was ok.” While there is no doubt that people are uncertain as to what to do human nature should dictate that the main concern after any accident should be to enquire as to the wellbeing of those involved. Such enquiries are not an admission of Liability.
- You should never leave the scene of an accident. If you do you may face a criminal prosecution.
- If no Gardai can attend exchange insurance particulars and details. Take note of key details; time, location, weather conditions, the number of passengers in the various cars involved as you will need to notify your insurance company of such details. If Gardai are not present you should document these details as soon as possible as an aide memoir.
- Take photographs where possible of any vehicle damage, registration plates, skid marks on road.
What to do after you have been involved in or witness a car accident
- Retain any dash camera footage.
- Notify your insurance company immediately regardless as to whether you feel blames rests with you or not. You are obliged to notify your insurance company regardless and it will protect your interests in the event that a claim is brought against you.
LISTEN BACK: Caroline McLaughlin interviewed on The Pat Kenny Show on Newstalk. Interview starts at 2 hours 45 minutes.
Car accident clams and compensation
- If you receive a Letter of Claim/ Letter of demand in the days following an accident you should immediately notify your insurance company. They will deal with such correspondence for you. Do not reply to the letter yourself. Furthermore, you do not need to reply via Solicitor. Simply notify your insurance company and send them a copy of the letter. This is the purpose of your insurance cover.
- If your vehicle is damaged and is brought to a garage you should note that you will only recover reasonable storage charges and accordingly, efforts should be made to either resolve matters with the other insurance company or claim through your own comprehensive cover. Your own insurance company will then seek to recover their outlays through the relevant party.
- If your vehicle is deemed to be a write off, you will only recover the net book value of the car not what you feel that you would be able to sell it for or the value is has to you.
- If you are injured, you should seek legal advice as soon as possible.
- By Law you must issue a Letter of Claim within 1 month of the accident date. If you fail to do so a Judge shall draw inferences as appear proper and either refuse legal costs or reduced legal costs accordingly where the interests of justice require.
If you have questions about any of the issues raised in this article you can contact Caroline McLaughlin, Partner in the Personal Injury Practice Area of Callan Tansey Solicitors, on 071 916 2032.
*In contentious business, a solicitor may not calculate fees or charges as a percentage or proportion of any award or settlement
Conference on Neurological Injury and the Law a Huge Success
Our 2023 Pathways to Progress Conference was held recently at Mount Falcon Estate in Ballina. The theme this year was Neurological Injury and the Law. Attendees at the event, which was sold out, heard a range of expert speakers and panelists from Ireland and overseas address four key topics related to Neurological Injury and the Law. The event opened with Joint Managing Partner Niamh Ní Mhurchú welcoming attendees before introducing Ingrid Miley BL who was Moderator for the conference.
Neurological Injury at Birth
The first Module considered Neurological Injury at Birth and the keynote speaker was Mike Monroe, Consultant Neonatologist at Aberdeen Maternity Hospital. His presentation addressed the four main causes of Neurological Injury at Birth:
- Toxic metabolic factors
Inborn errors of metabolism (IEM) constitute a huge group of rare diseases affecting 1 in every 1000 newborns. Whilst appearing normal at birth, problems arise due to the accumulation of substances that are toxic and infants can present with significant non-specific signs and symptoms common to other serious medical conditions.
- Birth Trauma
Birth trauma is differentiated into Spontaneous (arising during childbirth) and Obstetrical (caused by obstetric interventions). It involves various mechanical injuries including fractures of the skull bones, rupture of the tentorium of cerebellum, falx, veins, and sinuses. It can also involve crushing, compression, and impaction of the brain along with various disorders of cerebral circulation.
- Infection
Including congenital infection, chorioamnionitis, and neonatal infection
- Asphyxia
Perinatal asphyxia is a lack of blood flow or gas exchange to or from the fetus in the period immediately before, during, or after the birth process
For the panel discussion that followed this presentation, Mike Munroe was joined by David O’Malley, Joint Managing Partner at Callan Tansey Solicitors LLP, Doireann O’Mahony BL, and Johan Vergruggen, Associate Solicitor at Callan Tansey Solicitors LLP.
Neurological Emergencies
The keynote speaker for the second Module was Roger Murray SC, Partner at Callan Tansey Solicitors LLP. His presentation addressed Neurological Emergencies, specifically
- Stroke – studies show that stroke accounts for 59% of neurological diseases in patients attending at Emergency departments and that the most common reason for litigation in the context of stroke is a failure to identify or diagnose a stroke and these failures account for 67% of cases brought.
- Subarachnoid Haemorrhage – The majority of Brain haemorrhages are of the result of bleeding from a ruptured aneurysm. Very often the initial headache, if there are successive headaches, is less severe and this can constitute a sentinel or warning bleed. It is the failure to react to this window of opportunity that most likely gives rise to litigation.
- Spinal Cord Compression – Spinal cord compression can cause quadriplegia or tetraplegia. The most likely medico-legal circumstances giving rise to potential litigation is a delay in diagnosing the presence of impending or incipient neurological damage.
After his presentation, Roger Murray was joined by Donald Campbell, Consultant Neurosurgeon and Spinal Surgeon, Dr Kevin Power, Partner and Head of the Health Care Department at Mason Hayes Curran LLP, and Noreen Roche, Nursing Consultant, Ergonomist, Safety Adviser, and Expert Witness for a panel discussion on Neurological emergencies.
Medical Negligence Litigation
Following a break for lunch the conference reconvened to hear a presentation on Medical Negligence Litigation – The Need for Reform from keynote speaker Satinder Hunjan K.C. His presentation addressed Adversarial vs. Inquisitorial systems of resolution as well as Alternative Dispute Resolutions. He explored the advantages and disadvantages of a Court system compared to Alternative Dispute Resolution. Other issues considered included whether the ultimate goal was to achieve justice, or if the goal was to achieve the best justice that could be achieved expeditiously and at a reasonable cost.
The panellists who joined Satinder Hunjan after his presentation for the panel discussion were Niamh Ní Mhurchú, Joint Managing Partner at Callan Tansey Solicitors LLP, Tadhg Dorgan BL and Kathleen Byrne, Partner at Carson McDowell Solicitors.
Assisted Decision Making – a Clients Perspective
The fourth and final Module was titled Assisted Decision Making – A Client Perspective. Hilda-Clare O’Shea, Partner at St. John Solicitors was the keynote speaker. She has a special interest in Mental Health and Capacity law. Her presentation looked at the objectives of the Assisted Decision-Making (Capacity) Act, 2015 and the changes to existing processes and procedures that it would introduce. She outlined the 8 guiding principles of the new Act as well as the key changes that could be expected in practice.
Following her detailed presentation Hilda-Clare was joined by Christopher Callan, Partner at Callan Tansey Solicitors LLP, Rory Murphy Director of Financial Planning at Davy, and Olivia Harte, mother of Jane Harte. Ms. Harte spoke about what life has been like for the past 27 years as the mother of a daughter with Cerebral Palsy. She spoke of the impact not only on Jane’s life but also on that of her parents and the wider family, the long and difficult journey to achieve the High Court settlement of €12 million, that will now enable the family to provide Jane with the quality of life she deserves.
In closing remarks David O’Malley, Joint Managing Partner, thanked everyone for attending and for the care and attention speakers had put into preparing their presentations, the attention given by the attendees and the way they engaged with the subject matter posing so many thought-provoking questions. He stated that in starting the Pathways Conferences in 2017 Callan Tansey Solicitors LLP had wanted to establish a non-adversarial forum where medical professionals, defence and plaintiff lawyers, and other stakeholders could meet and address and discuss the issues that impacted all of them. He particularly thanked Olivia Harte for traveling to attend the conference and for the very open and frank way she spoke about the experience of Jane’s birth, diagnosis, and subsequent care. He reminded all attendees that these are the people they all do their work for, the patients and their families, and to never lose sight of the people at the heart of the legal case.
Inappropriate Medical Devices Used in Children’s Spinal Surgeries
Medical devices play a critical role in modern healthcare, however patient safety should always remain the top priority in their use. It is one thing when a medical device malfunctions or does not have the desired effect on the patient, but the use of inappropriate devices for purposes outside their design, in surgery on a child, is another far more serious matter altogether. Here Johan Verbruggen, from our Galway Office, addresses revelations about surgical procedures in one of Ireland’s leading paediatric hospitals.
Recent media reports have raised concerns about spinal surgeries performed on children at Temple Street Children’s Hospital (latterly called Children’s Health Ireland at Temple Street) It was revealed that some spina bifida-related surgeries have been suspended for almost a year in circumstances where it is alleged that unlicensed medical devices made with non-medical parts were implanted in children’s spines. The nature and extent of the misuse of devices are yet to be clarified and it is important for the families of those affected and the general public, that a comprehensive investigation is undertaken and detailed findings
It has been reported by The Irish Times that an external review of spinal surgeries is to be carried out by an unnamed consultant after an internal review identified “serious spinal surgical incidents” in the service. The findings of the internal review are not yet made public. Once again, families and patients, in this case children, who have been operated on at this hospital remain in the dark about whether or not their child has been affected. Tragically, it has been reported that one of the children who underwent spinal surgery has died.
These reports are deeply concerning. A surgeon with doubts over their competency being allowed to continue to operate, and the use of non-surgical, untested, and unapproved medical devices in a child’s spinal surgery, represent egregious breaches of trust and confidence. It is not just the duty of the operating surgeon, but also those in charge at the hospital to make sure that competent staff and correct, appropriate devices are available and used.
This unfortunately is not the first time that patients were not informed of internal hospital management concerns about a surgeon’s competence before surgery was performed, and the consequences have been tragic. We have seen more than once, the tremendous hurt wrought by revelations that dangerous practices that have injured or killed patients, were known to hospital management months or even years earlier, but nothing was done to remove the danger. In the Shane Banks case in Galway serious concerns about a surgeon were known to hospital management months or even years earlier, but not everything was done to protect patients.
Almost 107,000 Adverse Incidents reported to HSE last year
New figures released by the HSE state that there were almost 107,000 adverse incidents reported to them last year. The figures also show that in the past five years, almost 500 people suffered an adverse incident that resulted in long-term or permanent disability and that in the same period, there had been over 3,140 deaths due to adverse incidents. The figures are for HSE hospitals and services but do not include voluntary hospitals.
In 2022 there were 550 deaths associated with an adverse event. Of the cases reported last year, just over 9% were categorised as a near miss, with over 45% resulting in no injury. Just under 10% of cases resulted in an injury requiring medical treatment.
HSE Response to Adverse Incidents Report
Responding to the figures the HSE said that the increase in the number of reports is more likely to reflect an improvement in reporting culture than an increase in the number of incidents. It also said that the health service is treating significantly more patients, with the most recent figures available showing 3.5 million outpatient and 1.8 million inpatient or day cases attendances over a 12-month period.
The HSE further explained that staff are encouraged to report all near misses and incidents, even those that do not result in harm. Every incident is identified, reported, and reviewed so that there can be learning from events and this can then be shared to improve the overall quality and safety of HSE services.
How Can We Improve Outcomes?
According to David O’Malley, Joint Managing Partner, it was important to identify the causes of these events and to ensure that appropriate measures are put in place to improve patient safety. “The numbers are stark and show that the amount of people seeking justice for wrongs occasioned against them or loved ones is still minimal compared too the amount of potential medical negligence incidents. The only true way to reform healthcare law is to learn from the mistakes instead of the recent culture of blaming victims and lawyers. It is encouraging that medical practitioners are reporting incidents but the next step is to cut out the systemic causes and openly advise patients of the errors. In my experience so many clients are not even advised that an error occurred and it takes years of litigation to uncover the facts. The fatal incidents from adverse events are also worryingly high in a population of our size”
If you, or someone you know has been affected by and adverse incident in a healthcare setting you are welcome to contact David O’Malley and our Medical Negligence team at our offices across the country.
Investigation into babies born with head injuries at Galway University Hospital
| According to a report in The Irish Times on 24th August 2023, Galway University Hospital commissioned a review of head injuries to newborn babies during delivery. The review is into what it terms a “small number of cases where newborn babies suffered head injuries as they were being delivered last year.”
The decision to review these cases suggests that there is an abnormally high number of babies being born in Galway University Hospital with these head injuries. Time will tell whether or not there is any human cause for the injury occurring more often than would be expected, and whether or not actions are necessary to bring that number down.
What is a subgaleal haematoma or subgaleal haemorrhage?
Subgaleal hematomas and haemorrhage, though relatively rare, are medical conditions that can have serious consequences if not promptly diagnosed and treated. It involves the accumulation of blood in the subgaleal space, which is the potential space between the galea aponeurotica (the tough, fibrous tissue covering the skull) and the periosteum (the membrane covering the bones of the skull). Subgaleal hematomas often result from trauma to the head can occur during difficult or traumatic births involving prolonged labour, large babies or improper use of delivery tools (both vacuum-assisted deliveries, and those involving the use of forceps.) Recognising the symptoms of subgaleal hematomas is essential for early intervention. In infants, signs may include a soft, puffy, or swollen area on the baby’s head, irritability, pallor, or a noticeable increase in head circumference.
Diagnosis and Treatment of Subgaleal Hematomas
Diagnosing subgaleal hematomas typically involves a physical examination and imaging studies, such as ultrasound or CT scans. The condition can sometimes be mistaken for caput succedaneum, a benign swelling of the baby’s soft tissues. Treatment depends on the size and severity of the hematoma. Small hematomas may resolve on their own, but larger ones may require surgical intervention to remove the accumulated blood and prevent complications like anaemia or increased intracranial pressure.
Are subgaleal haematomas or haemorrhage serious?
If left untreated, subgaleal hematomas can lead to serious complications. In infants, excessive bleeding can result in anaemia and may necessitate blood transfusions. There can also be a risk of increased intracranial pressure due to the expanding hematoma, potentially causing neurological issues. However, with prompt diagnosis and appropriate treatment, the prognosis for subgaleal hematomas is generally favourable. According to the Irish Times report, the babies the subject of the review were all discharged in a healthy condition. Naturally however, people may have concerns that these head injuries will continue to occur at Galway University Hospital and the consequences of a serious haematoma or haemorrhage being missed could be devastating.
Can subgaleal haematoma or haemorrhage be caused by negligence?
Improper use of delivery instruments, or a decision to delay Caesarean section inappropriately can lead to sustaining a subgaleal haematoma or haemorrhage.
If you have concerns about your child’s birth and its relationship to any traumatic injury, you can speak to Johan Verbruggen or one of our other medical negligence solicitors on 091-865000 or by email to info@callantansey.ie |
HSE Admits Liability After Young Mother Dies Following Brain Injury
David O’Malley, Partner in our Medical Negligence department has represented Amanda Murphy and her family for a number of years. Amanda, a former school principal was placed on a ventilator in 2020, following a brain injury sustained in 2016. Sadly she died on 21st May 2022. Her dependants’ action against the HSE was settled this week, with the HSE admitting full liability. However, an anomaly in the law has added to this family’s tragedy.
Amanda sued the HSE over her treatment at Mayo University Hospital in Castlebar, and Sligo University Hospital. She claimed there was a failure to diagnose and treat her brain injury. However, before she died an anomaly in the law forced the abandonment of her personal injuries action to enable her children to take a separate action to provide for their future care after she died. This resulted in a loss to Amanda and also the uncertainty of not knowing if her children would be provided for when her family took a fatal injury action after she died.
A personal injury action may be brought by an injured person, or a wrongful death action may be brought, under section 48 of the Civil Liability Act 1961, by his or her dependents after his or her death, but it is not possible for both of these actions to be brought arising from the same wrongful act.
In the Morrissey v HSE case, the Supreme Court held that the dependents of a plaintiff who has brought an action for personal injury cannot, while the plaintiff is still alive, claim for the future loss of services which the plaintiff might have been expected to provide for his or her family. The Court stated that if the law in this area is to be changed, it would have to be done by way of legislation, rather than by an evolution in the case law.
When Amanda’s personal injury action came before the Court, in 2021 the Court heard that if that action was concluded before she died it would be for a limited amount and her children would not be able to bring a separate action to seek damages to provide for their future care.
In a statement released this morning, following the settlement of the action, Amanda’s family said, “ The HSE admitted full liability in this case. It was a catastrophic and ultimately fatal injury. Shockingly, however, in taking a case against the HSE, poor Amanda was left in the realm of Sophie’s choice – Herself or her children, as the law states that only one action for damages may be brought against the same person in respect of the death.
Her legal team pleaded with the State in November 2021 to use their power to do the right thing. Inexplicably over a year after Amanda’s death, nothing has changed. The law remains the same.
How many more terminally ill woman need to be treated the same way before our legislature intervene? For Amanda’s memory, we once again ask the Government to do the right thing. Too many women have died already not knowing how their loved ones would get on. A Simple bill would rectify the anomaly.”
David O’Malley is Joint Managing Partner at Callan Tansey Solicitors LLP, and specialies in Medical Negligence
MEDIA REPORTS
Assisted Decision-Making (Capacity) Act 2015
The Assisted Decision-Making (Capacity) Act was signed into law on 30 December 2015. However, a number of amendments to the Act were required and provided for in the Assisted Decision-Making (Capacity) (Amendment) Act which was signed into law on 17 December 2022 paving the way for Assisted Decision-Making in Ireland. Treasa Norrby, from our Ballina office, outlines the key elements of the new legislation.
The enactment of the Assisted Decision-Making (Capacity) Act 2015 has implemented a new legal process to assist a person in their decision-making. It is designed to support people as much as possible to make their own decisions and any action should be the least restrictive on a person’s rights and freedoms. It has abolished the previous Wards of Court system, made changes to the Enduring Power of Attorney, and introduced Healthcare Directives between an individual and their healthcare practitioner.
There will be a phased system of review for every adult within the Ward of Court system over the course of the next three years starting from the 26th of April 2023. Following the review, a declaration will be made as to whether a person has the capacity to make decisions, with or without the assistance of a co-decision maker. This review will occur automatically. A solicitor may also make an application for the review to occur sooner. The Act only applies to adults. All current Wards of Court under the age of eighteen will remain under the existing system.
Moving forward the Circuit Court will now have exclusive jurisdiction in capacity matters except for certain matters to be reserved for the High Court.
What is meant by the term Relevant Person?
A person who lacks capacity will no longer be referred to as a “person of unsound mind” or a “Ward of Court” and any person engaging with the decision-making supports under the Act will be referred to as a “relevant person”.
Decision-Making Arrangements
There are now five formal decision-making arrangements available. These arrangements allow for advance planning and for situations where a person’s capacity is in question or will shortly be in question.
Advance Planning
- Advance Healthcare Directive: This sets out an individual’s wishes in relation to healthcare treatment decisions to allow for a situation where they are unable to make these decisions for themselves in the future.
- Enduring Power of Attorney: This arrangement allows an individual to plan ahead for a situation where they are unable to make certain decisions for themselves. It sets out the types of decisions they may need someone to make and appoint someone they know and trust to make those decisions on their behalf.
Where Capacity is in Question/Soon to be in Question
- Decision-Making Assistance Agreement: If a relevant person believes they may have difficulty making certain decisions, they can make a decision-making assistance agreement and choose a person they know and trust to be their decision-making assistant. The decision-making assistant does not make decisions for them, they help them to make their own decisions by gathering the relevant information, explaining it to them, and help them weigh up their options.
- Co-Decision-Making Agreement: This agreement allows a relevant person to choose someone they know and trust to make certain decisions with These decisions must be made together, and a relevant person can choose what decisions they need help with.
Where a person lacks capacity
- Decision-Making Representative Order:This is the most extensive form of intervention under the new Act. The appointment of a decision-making representative is similar to the former role of a committee under the Ward of Court system. A decision-making representative’s role is to make certain decisions on the relevant person’s behalf. This may include decisions about property and finances, as well as decisions about personal welfare. A decision-making representative is someone who will be appointed by the Court as opposed to being appointed by a relevant person.
Decision-Making Assistant Agreements and Co-Decision Making Agreements must be registered with the Decision Support Service. An application must be made to the Circuit Court for a Decision-Making Representative Order.
Who can make an Application for a Decision-Making Representative Order?
Any person can make an application to the court in relation to a relevant person’s capacity to make certain decisions if they can show that they have a true interest in the welfare of the relevant person. The court decides whether an individual is suitable for the role. Certain individuals do not need the court’s consent which includes the relevant person themselves, the relevant persons spouse, civil partner or cohabitant, or the relevant person’s adult child.
What are the requirements to make an Application?
In order to make a capacity application, you need to complete the necessary paperwork and submit it to the court office. This can be done with the assistance of a solicitor. One of the most important documents will be a Capacity Report/Capacity Assessment.
Functional Capacity Assessment
All applications will rely on the report of a medical practitioner or healthcare practitioner on the capacity of the relevant person. The capacity assessment used is called a “Functional Test” for capacity. This essentially means that the assessment is about a specific decision that needs to be made at a specific time. The capacity assessment will consider whether the relevant person
- understands the information relevant to a decision,
- can retain that information long enough to make a decision and
- can use or weigh that information as part of the process of the decision-making process, and to communicate his or her decision.
The Assisted Decision-Making (Capacity) Act has only recently been enacted and consequently, it is practically still in a state of flux. There will be the inevitable teething problems therefore it is essential that any relevant person or their committee, seek legal advice as to the implications of the new legislation on their current wardship and the associated ramifications.
HSE apologies to family of man who died in hospital
Johan Verbruggen of our Galway office represented the family of the late Martin Best at an inquest into his death at Mayo General Hospital. Coroner for Mayo, Mr. Pat O’Connor, was asked to conduct the inquest by the Attorney General. This followed requests submitted by Johan Verbruggen on behalf of the Best family. At the inquest the HSE apologised to Geraldine Best, widow of Martin Best, for a deviation in procedure which triggered the deterioration in his condition.
The inquest heard that Mr Best was admitted to the hospital on January 1st, 2019. He was receiving treatment for advanced chronic obstructive airway disease (emphysema) and lower respiratory tract infection. The inquest heard policy procedures for the removal of a central venous catheter (CVC) line were not followed in his case.
It is stipulated that CVC lines should be removed with two people present but there was only one, Dr Muhammad Iqbal, medical registrar, in attendance when the procedure was carried out.
Furthermore the inquest heard that Mr Best was allowed to sit up from the procedure sooner than recommended. Patients are advised to remain in a lying, flat position for approximately five minutes following the removal of CVC lines.
The coroner said that in his view the removal of the CVC line on January 8th, 2019, was the trigger for the deterioration in Mr Best’s medical condition. He said the medical staff had been “confused, perplexed and puzzled” by Mr Best’s reaction to the removal of the CVC line.
“In my view, the trigger, the catalyst for the death was the removal of the CVC line”, the coroner continued. He then returned a verdict of misadventure.
Speaking after the verdict, Johan Verbruggen, said that due to the death not being accurately recorded the family were forced to write to the coroner and the Attorney General to demand an inquest.
“That should not have had to happen. It has prolonged the family suffering and the ordeal of getting answers and closure.”
MEDIA REPORTS
Making a Medical Negligence Claim in Ireland
Everyone interacts with doctors and medical professionals during their lifetime. International Studies show between 10%-12% of patients will experience avoidable adverse outcomes arising from their health treatment. Yet the same studies show that only 1% of those people who have adverse outcomes consult a lawyer to take a medical negligence case. Roger Murray SC, Head of Medical Negligence at Callan Tansey LLP spoke to Catherine Sanz and James McDermott on the Business Post podcast, Law on Trial, about Making a Medical Negligence Claim in Ireland. You can listen back here and read more about the issues discussed below.
What do we mean by Medical Negligence?
Medical negligence is when a patient suffers avoidable harm because they received care from a doctor or a hospital which was below a reasonable standard.
Examples include :
- Missed/late diagnosis
- Birth injuries
- Perineal tears
- Surgical errors
- Wrong Medication being given
- Late/Non-diagnosis of Cancer
Why do people make a Medical Negligence Claim?
Ask any person walking into a lawyer’s office as to why they felt they had to go to law and they will generally give the following answers in the following order:
- To get information and accountability
- To prevent the event happening again
- To get financial support to cope with the impact of the negligence.
In other words, compensation, whilst necessary and deserved, is generally down the list. In most cases people go to law because they do not know what has happened to them or why and they want to get answers;
What information is needed to make a Medical Negligence Claim in Ireland?
- A patient needs to get access to their medical records through Data Protection legislation or Freedom of Information. This can be done through a solicitor’s office. It is very important to do it through a solicitor’s office to ensure that all of the relevant material is provided including scan images, reports. etc.,
- Once those records have been studied and examined, an independent expert in the relevant field needs to be briefed by lawyers to give an opinion for the Court as to whether or not the care provided fell below a reasonable standard.
- It is very important that the exact comparator of the doctor whose conduct is being challenged is consulted: a Neurosurgeon will comment on a neurosurgical operation not the work of a GP, for example.
How to make a Medical Negligence Claim in Ireland?
- You cannot pursue a claim in medical negligence unless your solicitor is in receipt of a medical opinion from an independent expert confirming that harm has been caused as a consequence of medical care which fell below a reasonable standard.
- You must then instruct your solicitor to begin the process of issuing legal proceedings against the medical team and/or the hospital/HSE.
- It is important to note that the legal time limit to make a medical negligence claim is 2 years from the date of injury or knowledge of the injury.
- In the case of children, the time limit expires two years after they reach the age of 18.
- The Rules of the Court stipulate that an Affidavit of Verification must be sworn in relation to Court documents, so everything needs to stack up from the start.
What do we mean by a Medical Negligence Expert Witnesses?
A medical negligence expert witness prepares the report for the Court, not the party taking the case or firm of solicitors instructing them. They have to be fully independent and they can have no connection to anybody involved in the case. Because Ireland is such a comparatively small country with a small number of medical practitioners in some fields, it is necessary to go outside the jurisdiction to get a fully independent opinion e.g. the UK. That opinion will then be produced in the format of a report and if the case goes to Court the expert will have to give evidence.
What is meant by Open Disclosure?
Open Disclosure is the process through which Health Care Givers, without prompting, tell patients and/or the families as soon as possible after an adverse event what has happened and why. It is a process, not an event. International experts such as Dr. Timothy McDonald from the US say that “Disclosure is over when the patients says it is over” Full disclosure might require several meetings or conversations over time. Very often, access to a lawyer is required and legal advice is necessary so that the appropriate questions can be asked.
What is meant by Duty of Candour?
Duty of Candour is the legal concept whereby medical professionals are under a mandatory legal duty to disclose to patients and their families information about an adverse event. At the moment, there is no mandatory legal requirement for doctors to do so. There is an ethical obligation, however. It is hoped that the new Patient Safety Bill will make it obligatory for doctors and hospitals to front up about mistakes when they happen. Such a duty exists in other countries for example the jurisdiction of England and Wales and helps reduce both the incidence of claims and improves patient safety.
Are all Medical Negligence cases heard in the High Court?
Medical negligence cases are deemed to be Personal Injuries cases according to the current Rules of Court. All Personal Injuries cases worth more than €60,000 in terms of damages must be heard in the High Court. Increasingly, Mediation is used to settle or deal with cases before they go to Court. The vast majority of cases do not end up being fought in front of a Judge.
How long does it take to settle a Medical Negligence claim in Ireland?
It can take several weeks or months to get all the information necessary including the records and scans. then it can then take several weeks or months to source, identify and brief an appropriate expert and to get that expert’s report. Barristers then need to be consulted and legal papers drafted and lodged. The Defendant and their legal team need to be given time to investigate things at their end and lodge their Defence. On average the process of investigation can take between 6-9 months and it can take up to one and a half years from that point for cases to reach a situation where they either settle or go to Court.
Roger Murray SC is head of Medical Negligence at Callan Tansey Solicitors LLP. He is co-author of the book Medical Inquests and regularly represents bereaved families at Inquests across Ireland. If you have any questions about the issues raised in this article or on the issue of Medical Negligence you can contact Roger Murray here.
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