Posted in New Legal Developments on 07 February 2014

Our client Louise O’Keeffe finally had her rights vindicated on the 28th January 2014 when the European Court of Human Rights found in her favour in a landmark case against the State. 

Ms. O’Keeffe has been inundated with good wishes from every strata of society.  The underlying sentiment that is expressed is that this is a “victory for the little people”.  Ms. O’Keeffe showed unbelievable courage, determination and conviction in taking on the might of the State.  The State brought its full power to bear on Ms. O’Keeffe for 15 years, yet it could at any stage in those 15 years acted humanely and done the right thing.  Ms. O’Keeffe was fought by the State through the High Court, the Supreme Court and, ultimately, in the European Court of Human Rights.   

The practice of the State in defending the indefensible and delaying admitting liability has been commented on adversely by members of the judiciary, including Ms. Justice Irvine in the case of Dylan Gaffney (a minor) – v – The HSE. Louise O’Keeffe’s case has been commented upon extensively in Ireland and indeed abroad, in particular in an editorial in the New York Times and in Australian newspapers. The thrust of the commentary is to the effect that people cannot understand how this case was fought with such vigour by the State.  There was an obvious failure to do the “right thing”.  Clearly a wrong had occurred for which the State were liable. There was a “defend and deny” policy adopted.  There was a failure to be candid.

We at Cantillons Solicitors have been strong supporters of the Duty of Candour in conjunction with organisations like AvMA and MIA. In November 2013 Guidelines were issued by the HSE entitled Open Disclosure National Guidelines Communicating with service users and their families following adverse events in healthcare.” One questions, however, whether these Guidelines are being implemented.  A Prime Time documentary, broadcast in January 2014 on RTE television exposed that in Portlaoise General Hospital there was a high incidence of peri-natal mortality.  The common thread appeared to be a failure to recognise the need for medical intervention (such as caesarean section) when there was grossly abnormal CTG tracings and/or the over-use of Syntocinon.  Amongst the disturbing features of the case was the failure to learn from lessons in the past.  Insofar as candidness was concerned, it appears that there had been investigations into two infant deaths, which had apparently concluded that there was culpability on the part of the hospital yet, for reasons that are not understood, the parents of those children had not (many years later) been informed of the investigation, let alone the outcome. 

We regret to say that we have seen numerous examples where the State has sought to defend the indefensible.  There appears to be no recognition that victims of State wrongs are further damaged by the manner in which they are dealt with by the State in litigation.  This approach is being adopted by the State in the name of all of the people of Ireland.  One has little doubt that if the people of Ireland were asked, as to whether or not they were content for this approach to be adopted, the response would be a resounding no. 

The State needs to “do the right thing” when it has done the “wrong thing”. The State should provide vindication of rights and provide some level of satisfaction for those who have been grievously wronged.  Adopting such an approach will also importantly recognise that errors have occurred and, thus, enable mechanisms to be put in place which prevent them re-occurring in the future. The present position of denying the wrong is, apart from being hurtful and damaging to those that have been wronged, a policy that is likely to result in further similar errors occurring in the future.   It is time to call a halt.  It is a pity that the Irish State did not have the decency to recognise the wrongs it was doing to its citizens, and that this had to be pointed out by the European Court. This occurred, however, because of the tenacity and bravery of one of the “little people”, namely Louise O’Keeffe.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.


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