THE COURT OF Appeal has ruled that a couple who have sued a Dublin maternity hospital over the death of their new-born child must be given documentation concerning an internal inquiry into the incident.

In what is believed to be an important decision regarding claims of confidentiality over internal inquiries into medical events the CoA found that Cliona O’Keeffe and Alan Doran are entitled to materials generated following a probe undertaken following the death of their baby Fiadh  at the Rotunda Hospital on 12 January 2019.

The couple claims that material, including statements taken by staff as part of the internal probe, is relevant to their action, and that the hospital should have provided them with the documents.

The hospital had rejected this and said on grounds including that the material was confidential and should not be provided to them.

In a written judgement a three judge CoA comprised of Mr Justice Senan Allen, Mr Justice Seamus Noonan and Ms Justice Mary Faherty, overturned an earlier High Court decision that the parents were not entitled to the material sought.

In its ruling CoA expressed its surprise that given recent legislation and policy the hospital had sought to argue statements given by hospital staff as part of the inquiry undertaken following the baby’s death should not be provided to the parents because they were given in confidence.

The appeal arises from the couple’s personal injuries claim against the Governors and Guardians of the Hospital for the Relief of the Poor Lying in Woman, Dublin for alleged negligence leading to the infant’s wrongful death, the day after his birth at the Rotunda Hospital on 11 January 2019.

The parent’s claims are denied, and the hospital says in its defence that the care provided to Fiadh was at an acceptable level.

In a pre-trial application heard by the High Court last year, the couple, from Lusk in North Co Dublin, sought discovery of certain documents from the defendant which they claim are relevant to their action.

They were provided with documents concerning the care provided to Fiadh and his mother and in relation to protocols and guidelines in place in January 2019 for the management of identified complications in labour and delivery.

They were not provided with materials concerning the hospital’s ‘risk management enquiry,’ subsequently described as being a ‘comprehensive systems analysis report’, into the event, resulting in a contested hearing before Mr Justice Michael Twomey.

The hospital argued that the material should not be discovered on grounds including that it was confidential, and those who had participated in it had been assured it would be confidential.

It was not in the public interest to provide this material; it was submitted.

In his decision Mr Justice Twomey ruled against the parents, who are represented in their action by Jeremy Maher SC instructed by solicitor Michael Boylan, and accepted the hospital’s arguments.

The High Court found that the internal inquiry was conducted into the death in order to benefit future patients at the hospital, and to ensure that those who participated in the inquiry were as open as possible.

That decision was appealed to the CoA on grounds including that the High Court had erred in finding that a public interest exited without any evidence before the High Court to support that contention.

The hospital contested the appeal.

Giving the CoA’s unanimous decision to overturn the High Court’s findings Mr Justice Allen said that confidentiality and public interest privilege are “separate and distinct.”

While a ground of privilege can be generally invoked as a right, confidentiality was “not a right, but something that can be taken into consideration in deciding a discovery application, he said.

The judge said that in this matter there was “simply no evidence” to support the hospital’s “core proposition” that the statements given when the internal inquiry was being conducted were obtained in confidence, with a view to safeguarding against a repeat of anything that might have gone wrong.

Mr Justice Allen said that there was no evidence before the court that the inquiry was clinician led as claimed, nor any evidence about the purpose of the probe.

There was no evidence that the terms of reference were agreed or what those terms were, or that it was based on a certain model contemplated by the HSE’s Incident Management Framework.

“And most of all there is no evidence that those who engaged with the inquiry were given an assurance of confidentiality” he said.

The claim by the hospital about confidentiality, was the foundation of the High Court’s consideration of the legal arguments regarding discovery.

The High Court, Mr Justice Allen added had “entertained arguments” from the hospital without any factual basis to support its claims.

The CoA he said was “not persuaded” by the hospital that the matter should be remitted back to the High Court so it could produce evidence to support its claim.

The parent’s appeal regarding the discovery of documents should be allowed, he said.

Mr Justice Noonan said in his decision that he was “somewhat surprised” to see a hospital actively arguing that full and frank statements given by those who treated Fiadh should not be made available on the basis they were given in confidence.

The hospital’s stance he said was “a somewhat retrograde step to adopt”.

It proceeds on the assumption that the healthcare professionals involved would be unwilling to comply with their own governing bodies ethical policies and standards under guidance of secrecy.

Such a stance he added seems to be contrary to the direction of travel of open medical disclosure currently in existence.

The judge said that “we live in an era where it is virtually impossible to read the news without seeing headlines about the latest medical catastrophe, be it systemic of individual.”

Many of the episodes have been characterised by a culture of cover up, which has hopefully been consigned to history.”

The duty of open disclosure has resulted in legislation and policies to ensure that when things go wrong patients have the fullest possible access to information from those entrusted with their care.

In this case he said the documents sought were relevant to the claim, and that he disagreed with the High Court’s assessment that the public interest in this case lay in preserving the confidentiality of the statements in issue.

Ms Justice Mary Faherty also agreed that there had been a manifest error in principle by the High Court in finding that those participating in the inquiry were entitled to confidentiality.

The full hearing of the couple’s claim against the hospital will be considered by the High Court at a later date.