State’s opposition to action seeking public inquiry over Covid-19 deaths in nursing homes contrasts with Ministers’ statements, High Court told

Relatives want court to direct full inquiry into circumstances of deaths and State’s response

The State’s opposition to a legal action aimed at securing a public inquiry into the circumstances of Covid-19 deaths in nursing homes contrasts with public statements by senior Government Ministers, the High Court has been told.

Ronan Lavery QC, for 18 applicants seeking orders directing an inquiry over the deaths of their relatives from Covid-19 in nursing or care homes, said his side had understood from various public statements there would be a full public inquiry and was surprised at the State’s opposition documents.

He said the respondents — the Taoiseach, Minister for Health, Minister for Finance, the Attorney General and Ireland — had outlined a two-fold opposition to the effect that there will not be such an inquiry and indicated that the State “had not really done anything wrong during the pandemic”.

The State has provided detailed affidavits from various specialist officials and the plaintiffs will need time to engage specialists to reply to those, counsel said when the case was mentioned on Tuesday before Mr Justice Robert Barr. Mr Lavery said his concern was that the case was turning into the inquiry it is aimed at procuring and that he wanted to secure an early hearing.

The judge said the case raises very substantial issues and was akin to a “quasi-medical negligence” case. He queried whether the matters raised could be decided on paper without examination of expert witnesses and agreed with the State they were not ready for a hearing date to be fixed. Covid-19, he observed, was “an emerging picture, not a static one”, from the time it arrived here.

He put the case back to October 18th for mention, which he said would allow time for the applicants to file replying affidavits.

State resistance

Bairbre O’Neill, for the State, had earlier said it would be premature to fix a hearing date because this was a very substantial case essentially seeking a review of the State’s entire response to the Covid-19 situation in nursing homes. The State had filed detailed affidavits in reply to some 20 affidavits from the applicants, she said.

The parties previously agreed there would be a “telescoped” hearing involving the court deciding, in a single hearing, whether the applicants have met the necessary “arguable case” threshold entitling them to leave for judicial review and determining the review itself.

The applicants, represented by Dublin-based law firm PA Duffy, contend that provisions of the Constitution and of the European Convention on Human Rights require an investigation to be held into the circumstances of Covid-19 deaths in care homes in the State. They contend that the failure to set up an investigation is a breach of the relevant provisions and want the court to make declarations and orders effectively requiring an investigation be established.

The applicants say they are deeply concerned about the circumstances of their relatives’ deaths, including the preparedness of the relevant care homes and the State in a wider sense and that a broader public investigation is necessary to vindicate their rights and to meet the State’s constitutional and international human rights obligations.

In opposing the proceedings, the respondents contend the applicants have made out no arguable case for judicial review and have advanced general claims without identifying the necessary grounds or facts. While denying the State is obliged to carry out an investigation of the nature sought, the respondents argue any such obligation is being, or has already been, met as a result of several reports and investigations.

It says there has been significant and ongoing consideration of the impact of Covid-19 in nursing homes as well as the ongoing monitoring and review of the situation in nursing homes during the pandemic. Among several references, it cites the work of the National Public Health Emergency Team and the recently established Public Health Reform Advisory Group and notes State supports provided to nursing homes during the pandemic.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times