Striking A Balance In Discovery Applications: Confidentiality Of Statements

• Law Firm: RDJ LLP
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Court Procedure, Trials & Appeals & Compensation
• Author: Ms Louise Fitzpatrick and Ruth Finnerty
• Published date: 28 March 2023

In considering whether to grant discovery of statements made by hospital staff to a risk management enquiry, the High Court had to consider two competing public interests, namely the public interest in the truth-finding function of the Court and whether this was outweighed by the public interest in improving patient outcomes in the future.

Background

The case of Cliona O'Keeffe and Alan Doran -v- Governor and Guardians of the Hospital for the Relief of the Poor Lying in Women Dublin¹ arose from the management of the birth of the Plaintiffs' baby girl, who died shortly after she was born. Following the incident, hospital staff were encouraged to make statements to a risk management enquiry, for the purpose of establishing learning outcomes. While the Plaintiffs had been provided with a report of the outcome of the enquiry, the hospital declined to disclose the statements citing confidentially had been assured to the hospital staff. The Plaintiffs sought discovery of the statements as they believed they would assist them in establishing their case.

Analysis of the law

In considering the Plaintiffs' submission, that statements should be disclosed on the grounds that the administration of justice should take precedence over confidentially, Twomey J. also considered the context of legal professional privilege. He noted the judgment of Finlay C.J. in the case of Smurfit Paribas Bank Ltd. -v- AAB Export Finance Ltd² in which it was held that such privilege should only be granted by the Court when the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of the disclosure.

Plaintiffs' position

The Plaintiffs relied on the decision in the case of Miggin (A Minor) -v- Health Service Executive & Gannon³ where the Court held that the discovery of a transcript of the proceedings before the Fitness to Practice Committee of the Medical Council should be permitted. In that case, Hanna J. held that it was not disproportionate to the doctor's right to confidentiality, for the discovery to be ordered. Therefore, the Plaintiffs submitted that the administration of justice and establishing the truth, took precedence over confidentiality.

The Plaintiffs also relied on Gallagher v. Stanley⁴. In that case, nursing staff's statements were disclosed as the Supreme Court found that legal professional privilege did not apply, as the 'sole purpose' for providing the statements was not in...