21st February 2024

It has long been a truism in this country that the ordinary citizen cannot seek justice because they cannot afford it, writes Terence Cosgrave

And now a new survey from the Medical Protection Society (MPS) has illustrated that even if you can afford it, medical justice is slow – mush slower than in other countries, and the delay and trauma of that is often devastating for both the patients and the doctors involved.

It is a ‘brutal process’ for both patient and doctor, as was pointed out in the report by Dr Rob Hendry, medical director at the MPS. For doctors, it puts their lives on hold as they must deal with the possible ramifications.

The threat of being struck off the register, or simply getting a bad reputation based on the a case simply being taken can be devastating. And patients – many of whom will be suffering potential life-changing injuries have to deal with a legal system that is ponderous and frustrating. Which is just about the last thing they need at that point.

A survey was conducted of 200 Irish doctors who almost unanimously agreed that legal reform was needed to speed up claims. Eighty-eight per cent of doctors worried about the time they would have to spend defending claims, while 91% were worried about their mental health as a result of a claim being made against them.

Forty-four per cent of doctors are thinking of leaving the profession due to the issue – particularly the length of time and mental trauma these cases cause here.

The MPS looked at data from the ten-year period leading up to December 2022. They found that a medical claim in Ireland costs almost twice what it does in the UK (€27,449 as opposed to €11,911), but the real kicker is that claims in Ireland take longer than they do anywhere else in the world.

The study was carried out by Dr Mary Elizabeth Tumelty – a senior lecturer in law at UCC. Patients told her they found the process ‘excruciating…painful, adding insult to injury’.

Literally.

Lawyers talked about clients being worn down by the system.

Meanwhile, the system itself paid out nearly €85 million on legal and expert costs in 2022, and still patients were waiting, as Dr Hendry put it: ‘an unnecessarily long time to receive compensation’. That €85 million could do a lot more good if it was put to use in the health service, rather than being spent to provide opinions in court that might be unnecessary if the case was resolved sooner.

This has long been a complaint about the Irish legal system – that it is overly adversarial and much too expensive. Some doctors have even described the legal system as ‘predatory’ in relation to medicine, but it is the long delays that have the most negative effect on doctors – with possible de-certification (a possibility in some cases) hanging over them for years and years.

That is an unhealthy situation to be in. Obviously, there has to be a system to compensate patients when mistakes are made, but the length of time that it takes to resolve these situations is far too long, and it’s too much of a burden for both doctors and patients to bear.

And the time is getting longer.

A report in 2022 from the Comptroller and Auditor General showed that case time had actually increased in the years up to 2022. The average time to finalise a clinical claim increased from 4.26 years to 4.97 years or 17 per cent. Some cases take as much as 5.4 years to process – with surgery claims taking 5.2 years to process, an increase of 59 per cent since 2012.

Given the seeming reluctance of a series of governments over the years to tackle the Irish legal system head-on, what can be done to improve or ameliorate the situation?

For several years we have been promised a ‘protocol’, which would involve legal teams being given the opportunity to share information, and potentially resolve disputes before they get to court.

These protocols have been with us since 2015 when the Legal Services (Regulation) Act was introduced, but the commencement of Section 219 of that Act – which is required for the final drafting of regulations to introduce and govern how those pre-action protocols might work has not been commenced. We are sitting on our hands waiting for the government to act.

And it’s not like there isn’t esteemed advice coming on a regular basis to government recommending this action. The publication Administration of Civil Justice Report (October 2020) which was chaired by Mr Peter Kelly, the former President of the High Court made over 90 recommendations on improving the justice system in Ireland. One of the key recommendations of the Review Group was that the Minister for Justice should give ‘early attention’ to the introduction of the regulations prescribing the pre-action protocols in clinical negligence cases.

There would be numerous benefits to this: early communication between the claimants and defendants leading to the early identification of issues and early and full disclosure of information and medical records. This would potentially create the ability to resolve the majority of cases at the pre-action stage, which, obviously, would be a lot less expensive.

Embarrassingly, we already know that such a system would work because in 1999 Pre-Action Protocols were introduced in England and Wales. This was a ‘system enables the parties to a dispute to embark on meaningful negotiation as soon as the possibility of litigation is identified and ensures that as early as possible they have the relevant information to define their claims and make realistic offers to settle’. That action came from proposals made by Lord Woolf’s ‘Access to Justice’ paper published in 1996.

It’s been a quarter century since the Woolf reforms were introduced in the UK and the benefits are easily apparent. In the NHS Resolution’s Annual Report of 2019/20, 71.5 per cent of cases were resolved prior to the issue of court proceedings. The remaining 27.9 were resolved post-proceedings and 0 .6 per cent went to trial.

By contrast, in its 2019 Annual Report the State Claims Agency records 53.7 per cent of clinical and non-clinical cases were resolved at the Pre-Action stage, 43.8 resolved post-proceedings and 2.5 per cent resolved at trial.

The contrast between Ireland and England is stark. And it doesn’t even seem to be kowtowing to the legal establishment that is causing this – just simply incompetence in the Ministry for Justice.

We have double to costs of medical claims in this country than England, and it would seem that this is simply because of our failure to introduce Pre-Action Protocols.

It’s either a level of incompetence, or slavish deference to the legal profession that is unacceptable in 2024.

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