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Our 2023 healthcare law review examines a number of notable developments and significant changes to occur in the sector throughout the year.
Key topics examined in our review include as follows:
Open Disclosure Changes
The Impact of the Personal Injuries Guidelines
The Impact of Inordinate and Inexcusable Delay
The Abolition of Wardship
New Ethical Guidance for Medical Practitioners
The Impact of New Legislation on the Healthcare Sector
Open Disclosure Changes
The Patient Safety (Notifiable Incidents and Open Disclosure) Act was enacted in 2023. This new landmark legislation implements mandatory open disclosure in Irish law, which prior to now has been on a voluntary basis. The Act introduces mandatory open disclosure of a list of specified serious patient safety incidents that must be disclosed to the patient and / or their family. Such incidents must also be disclosed to the Health Information and Quality Authority, Chief Inspector of Social Services and the Mental Health Commission.
Examples of notifiable incidents are set out in Schedule 1 of the Act and include patient death associated with a medication error and an unanticipated or unintended stillborn child or perinatal death. While the Act has yet to be commenced, this legislation is a significant step in terms of prioritising patient safety and promoting transparency within healthcare organisations.
For more information in relation to this Act, please see our prior article Open Disclosure Requirement in New Patient Safety Act 2023.
The Impact of the Personal Injuries Guidelines
According to its latest annual report, average awards by the Personal Injuries Assessment Board (“PIAB”) were down by more than a third in the first full year since the introduction of the Personal Injuries Guidelines.
In September 2023, the Court of Appeal delivered a judgment in Zaganczyk v John Pettit Wexford Unlimited Company & anor [2023] IECA 223. The defendants appealed the award made by the High Court in favour of a chef in a supermarket kitchen who was injured in a gas explosion, claiming the level of damages awarded were excessive, disproportionate and not in line with High Court guidelines on personal injuries awards.
The three judge Court of Appeal, comprised of Mr Justice Seamus Noonan, Mr Justice Robert Haughton and Mr Justice Senan Allen, were in agreement and reduced the award from €93,000 to €63,000. The Court stated that “the overall award of damages made in a case involving multiple injuries should be proportionate and just when considered in light of the severity of other injuries which attract an equivalent award under the guidelines”.
It is evident that the Court will endeavour to ensure that the plaintiff is compensated for all suffering endured, but it is useful to compare the overall award compared with other individual categories in the guidelines, to ensure that proportionality is achieved.
The Impact of Inordinate and Inexcusable Delay
In 2023, a number of High Court cases saw the High Court dismissing medical negligence claims on grounds of inordinate delay. One noteworthy case was O’Neill v Birthisle [2023] IEHC 515 where Heslin J was satisfied that inordinate and inexcusable delay had been established.
Proceedings issued in December 2015 against a hospital regarding childhood surgery. The plaintiff, who was now in her thirties, claimed she had suffered pain and swelling since November 2011. Proceedings were not served for another 11 months. The plaintiff then delayed a further 16 months before correcting the defendant’s name in the title of proceedings. The Court noted that an expert report was never obtained. Further, the information provided by the defendant was very general, meaning the hospital could not investigate the claim.
Heslin J was entirely satisfied that the defendant had met the burden of proof with respect to all three elements of the Primor test (Primor plc v Stokes Kennedy Crowley (1996) 2 IR 459). He held that the balance of justice, without doubt in his view, favoured dismissal.
The Court was cognisant of the fact that memories fade over time which would negatively impact the effectiveness of any witnesses, which would clearly prejudice the hospital’s defence of the claim. Heslin J had been unable to find any consideration or factor, still less anything weighty to place in the scales in favour of the proceedings being permitted to continue. This decision highlights the importance for plaintiffs to include sufficient specific detail within pleadings. Furthermore, it makes it clear that plaintiffs must progress matters without delay.
The Abolition of Wardship
The Assisted Decision-Making (Capacity) (Amendment) Act 2022 commenced in April 2023 and amends the Assisted Decision-Making (Capacity) Act 2015. It sets out a system of supports for adults who have difficulties with decision-making capacity. The Act provides the legal basis for the abolition of wardship.
This is a positive development as it repeals an archaic system and replaces it with a rights-based system that allows vulnerable people more control and autonomy over decisions affecting their own lives. There are over 2,000 wards of Court in Ireland who will exit wardship on a phased basis over the next three years following a review by the wardship Court.
In the Matter of KK [2023] IEHC 306, the Court deals with the effect of this new legislation. In this case, a doctor recommended that detention orders and orders restricting access to smartphones and social media be put in place for the ward, KK. By the time the matter was returned before the High Court, the Assisted Decision-Making (Capacity) Act had been commenced.
Under the old regime, section 9 of the 1961 Act provided a jurisdiction for detention orders for wards of Court. However, Ms Justice Niamh Hyland concluded that the Court did not have jurisdiction to make an order for the detention of KK pursuant to section 9 of the 1961 Act as it did not survive the enactment of the Assisted Decision-Making (Capacity) Act. It was held that the proper legal basis for a detention order relied on the inherent jurisdiction of the Court.
New Ethical Guidance for Medical Practitioners
The Medical Council provided guidance on the role and duties of an expert witness for the first time in their Guide to Professional Conduct & Ethics for Registered Medical Practitioners. It is operational as of 1 January 2024. The Guide is a welcome publication and makes it very clear that the first duty of an expert witness acting in legal proceedings is to be of assistance to the relevant Court in providing an independent expert opinion.
The Impact of New Legislation on the Healthcare Sector
The Health (Amendment) Bill 2023
The Health (Amendment) Bill was enacted in April 2023 and provides for the abolition of statutory charges for in-patient care and day services in all public hospitals. This is a positive development as it removes the financial burden in respect of accessing care in a public hospital.
The Courts and Civil Law (Miscellaneous Provisions) Act 2023
The Courts and Civil Law (Miscellaneous Provisions) Act 2023 was signed into law in July 2023 and introduces a number of important amendments as outlined below.
Pre-Action Protocols
The 2023 Act amends the Civil Liability and Courts Act 2004 and Part 15 of the Legal Services Regulation Act 2015 in relation to the proposed introduction of a pre-action protocol (“PAP”) relating to clinical negligence actions. The aim of introducing PAPs is to encourage the early resolution of clinical claims, thus reducing legal costs and ultimately reducing the number of clinical negligence actions which are brought.
Periodic Payment Orders
Periodic payment orders (“PPOs”) are a mechanism of compensation for those who have suffered catastrophic injuries by facilitating future payments for the cost of future care and medical treatment needs. In Hegarty (a minor) v HSE [2019] IEHC 788, the Court held that the current PPO legislation, which provides indexation of PPOs by reference to the Harmonised Index of Consumer Prices (“HICP”), will result in under-compensation of catastrophically injured plaintiffs.
Part 3 of the 2023 Act contains amendments to the Civil Liability Act 1961. It provides that in future, the indexation rate for PPOs in catastrophic injury cases will be set by regulations made by the Minister for Justice with the consent of the Minister for Finance.
The Act allows the Minister to have regard to a broad range of factors when making regulations to set an indexation rate. This indexation rate will then be reviewed within a five-year period to assess its suitability for PPOs. The amendments will allow greater flexibility in the setting of the indexation rate and set out the general rule that a periodic payment order will be adjusted, on an annual basis, by reference to an index specified under the section.
Coroners (Amendment) Bill 2023
In late October 2023, the drafting of the Coroners (Amendment) Bill 2023 was approved, which aims to ease pressure on the Coroner Service while plans for more fundamental reform are developed. The public consultation was open until 19 January 2024, after which proposals on a renewed coroner system, including a proposed plan as to how this will be achieved, will be brought to government. This is a welcome advancement given the backlog of cases in the Dublin district, with families now typically waiting two years for an inquest to be heard.
Conclusion
In conclusion, 2023 saw the introduction of numerous pieces of legislation that represent significant advancements in the area of Healthcare law. Looking into the year ahead of us, we are hopeful that these legislative developments will create positive change within the area. The Patient Safety Act, for example should greatly assist in terms of cultivating a culture of transparency and open communication in the Irish healthcare sector.
In terms of progressing claims, the Court has made it’s attitude towards delay very clear and litigants should continue to be careful to avoid delaying proceedings to an excessive or unnecessary degree. We await with anticipation the outcome of the public consultation in relation to the Coroner’s Court, which will hopefully result in a solution that will alleviate the pressures faced by this service.
Further Information
For further information or advice on any Medical Negligence or Personal Injury matter, please contact Avril Scally, Head of our award-winning Medical Negligence & Personal Injury Team.