Wrong for State to use vulnerable group’s medical data against them

The recent RTÉ Primetime Investigates programme raises serious issues about practices within the Department of Health in its handling of litigation. Specifically, the litigation here concerns the alleged failure of the State to provide appropriate services for people with autism. And the implication of the programme is that, for the purposes of maximising its defence in these cases, the department has been accessing medical records (including wider family information) without the knowledge or consent of the people concerned and of their families.

A further implication is that the department makes use of this sensitive information in deciding on the most advantageous time for it to propose a settlement or to seek to have a claim withdrawn.

It remains to be seen whether any laws were broken in accessing these records or whether individual medical professionals may have breached the basic ethical principle of patient confidentiality. But for seasoned Department of Health watchers this appears to be just a further illustration of a long-established approach by the department in how it responds to legal actions involving claims for services made by vulnerable individuals and groups.

Entitled to behave

It seems to be the position of the department that, like any respondent, it is entitled to mount a vigorous, adversarial defence to litigation. Indeed, the argument is that it is required to do so in order to protect the public finances from unjustified claims. Thus, the department is entitled to behave as would any private sector, commercial body in defending its interests.

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While this approach may be acceptable in dealing with corporate litigants, it has to be unacceptable where the litigation is initiated by or on behalf of vulnerable groups or individuals.

Ultimately, the actions of the department should serve the public interest which may sometimes require it to accept that it is in the wrong. As the master of the High Court put it some years ago, in public law litigation “the State should not be so insistent on proving that it is never wrong”.

In 2010 the then ombudsman, Emily O’Reilly, dealt with this issue in some detail in her investigation report Who Cares? which concerned the right to nursing home care. At the time, the department was facing several hundred High Court challenges from (mostly) elderly people seeking compensation for costs incurred in private nursing homes in circumstances where the State had failed to provide such care.

The then ombudsman was very unimpressed with the department’s handling of these cases. The department’s approach was to delay cases for as long as possible and, at the point when it seemed the case would come to hearing, to buy off the applicant with a financial settlement made subject to a confidentiality clause. Above all, the approach was to ensure that the courts would not give a judgment on the legal issues involved which, as the ombudsman saw it, would vindicate the applicants.

‘Vulnerable members of society’

O’Reilly wrote in 2010: “In the normal course, any State body is entitled to defend itself in court when it has an action taken against it. However, there is something quite unsettling about litigation initiated by or on behalf of vulnerable members of society in a context where the objective is to clarify the rights of the plaintiff and the obligations on the defendant State body. One thinks . . . of cases taken in recent years by parents of children with special needs who were seeking to clarify the extent of their children’s entitlement to special education provision.”

O’Reilly went on: “Where the defendant is the State, and the plaintiff is a member of the public drawn from a vulnerable group within society, the manner in which the litigation is conducted can be quite unsettling. . . The issue becomes one of winning or losing and all of the many weapons available in the [department’s] legal armoury are likely to be deployed in an effort to win the case. This can include tactical delay, the threat of costs being awarded against the plaintiff, obfuscation, introduction of irrelevant arguments, misrepresentation and much more besides . . . In a case taken by a citizen against his or her own State, and on a matter of genuine public interest, it should not become a matter of winning or losing. The real issue has to do with serving the public interest. Nevertheless, it does seem on occasion that the response of State bodies to litigation may be based more on protecting the interests of the body itself than on serving the wider public interest.”

Highly critical report

In 1997, following a highly critical report into the department’s conduct of litigation by the late Mrs Bridget McCole – who had contracted Hepatitis C from contaminated blood products – the then minister for health, Brian Cowen, lambasted his predecessor:

“The Hepatitis C/Anti-D issue is the biggest health scandal in the history of the State. Yet, despite the gravity of the crisis and the fact that over 1,000 people were directly impacted by it, [the] Minister . . . chose to adopt a strategy which was more concerned with the pure legal principles and technical obligations, than effecting a fair, just and humane solution to Mrs McCole’s plight. The approach adopted was bereft of compassion or sensitivity to Mrs McCole or to the interests of others who were infected through the negligence of a State institution.

Even allowing for the fact that court proceedings are adversarial by nature, the fact that the State was aware, at an early stage, that the BTSB had a case to answer . . . the adversarial approach should have been tempered and the contentious tactics dropped. “The lack of desire to seek a solution which recognised that a fundamental wrong was done to a citizen of the State is the biggest indictment of the State’s legal approach and strategy in Bridget McCole’s case.”

The sad fact is that, more than 20 years later, the department’s response to legal actions by or on behalf of vulnerable groups or individuals seems not to have changed. While the department could and should adopt a less adversarial style, reliance on an adversarial court system, as a tool for dealing with matters of fundamental importance to vulnerable groups in society, is not appropriate. There are alternative approaches which are more compassionate and sensitive and it’s now time that one was tried.

Fintan Butler was senior Investigator in the Office of the Ombudsman from 1998-2013 and adviser to the European Ombudsman in Strasbourg from 2013 until retirement in October 2018.