by Mary Hough March-12-2019 in Healthcare Law, Litigation & Dispute Resolution
The Minister for Health and the Minister for Justice & Equality have published Mr Charles Meenan’s Interim Report of the Expert Group on Tort Reform and the Management of Clinical Claims, which sets out the progress of the expert group to date and confirms that the expert group will produce its final report in June 2019. The expert group, chaired by the High Court Judge, Mr Justice Charles Meenan, was established in June 2018 as part of a commitment in the Programme for Government.
The expert groups Terms of Reference are to:-
- review the law of torts from the perspective of the management of clinical negligence and personal injury claims in order to assess the effectiveness of the legal framework and to advise on and make recommendations on what further legal reforms or operational changes could be made to improve the current system;
- consider whether there may be an alternative mechanism to the court process for resolving clinical negligence claims, or particular categories of claims, particularly from the perspective of the person who has made the claim. To do this, the Group will examine whether a mechanism could be established which would deal more sensitively and in a more timely fashion with catastrophic birth injuries, certain vaccine damage claims, or with claims where there is no dispute about liability from the outset. It will also examine whether an alternative dispute resolution mechanism or a no fault system would be effective in some cases;
- examine the role of the HSE in addressing the problems encountered by persons involved in clinical negligence claims and addressing the health needs of persons affected by clinical negligence, with consideration given to whether particular care packages could be made available for persons with specific injuries, e.g. cerebral palsy following birth;
- examine the role of the State Claims Agency in managing clinical negligence claims on behalf of the HSE to determine whether improvements can be made to the current claims management process;
- consider the impact of current tort legislation on the overall patient safety culture, including reporting on open disclosure.
At this stage of its work the expert group has received submissions and has had regard to Modules 2 and 3 of the “Working Group on Medical Negligence and Periodic Payments”. The expert group is completing its work on “no fault liability” and, in this context, has received a direct account from a parent of a catastrophically injured child of his experiences of the legal system. It has also received and considered a report from the HSE on the services it provides to children with complex medical conditions.
The expert group has considered '”no-fault liability” with the benefit of a paper prepared and presented to the group which analysed the Constitutional right to access to the courts, provisions in the Constitution concerning the legal limits on non-court Tribunals and an account of “ no-fault liability” as it operates in other jurisdictions, in particular New Zealand. The expert group plans to further consider the issue of “no-fault liability”. It also received the “Report on an Alternative System for Dealing with Claims Arising from CervicalCheck”. The group has stated that it intends to consider this report in the wider context of clinical negligence claims and how they might be managed in the future.
The expert group plans to consider how best to deal with claims arising from vaccination programmes. It will look at issues of patient safety and open disclosure and will then look at alternative mechanisms for resolving clinical negligence claims with due regard to the constitutional rights of the parties involved, including the possible establishment of a Medical Injuries Assessment Board, similar to the Personal Injuries Assessment Board (PIAB).
In its interim report the expert group agrees that the work in the area of pre-trial protocol and case management of clinical negligence claims have now effectively been compiled and what is required is their implementation. Hayes solicitors have been to the forefront in advocating for these important reforms to the way in which clinical negligence claims are dealt with for many years and we are pleased that these significant and important reforms have been endorsed by the expert group.
The expert group received a total of 41 submissions and has heard 3 oral submissions, The Interim Report contain a bullet point list of the key areas in relation to which the expert group noted the receipt of submissions and calls for reform. We are pleased that many of the areas in relation to which we have been calling for much needed reform, and in relation to which we made submissions to the expert group, have been identified by by the expert group as key areas.
We welcome the publication of the expert groups Interim Report and look forward to publication of the final report in June 2019.
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About the Author
Mary Hough
Mary is a partner and Head of the Healthcare team at Hayes solicitors. She specialises in professional indemnity defence litigation and in particular dealing with high value clinical negligence claims. Mary has extensive experience in civil litigation, acting for insurance companies, indemnifiers and plaintiffs.