O’Keeffe and Doran v Governor and Guardians of the Hospital for the Relief of the Poor Lying In Women Dublin [2022] IEHC 463

The High Court considered the discoverability of documents created for a risk management inquiry following the incident the subject matter of the proceedings. The intention of the inquiry was to learn from the incident, in order to improve patient care. The Court noted that the question arose as to whether statements made by hospital staff to that enquiry were discoverable by a patient, who was suing the hospital. In the alternative, the Court queried whether improving patient outcomes in the future should take precedent by encouraging hospital staff to be as frank or critical as possible to the risk management enquiry, safe in the knowledge that they will not be discoverable.

In the circumstances of the hearing, the Plaintiffs sought discovery of copies of all reports, memos and statements concerning the First Named Plaintiff’s labour and delivery in respect of their infant daughter, who died shortly after her birth, in the power or procurement of the Defendant hospital, their servants or agents, medical consultants, midwives or third parties acting on the hospital’s behalf as a consequence of the hospital’s risk management inquiry to the incident, the subject matter of the proceedings.

The Court noted that the question that arose was whether the public interest in the truth finding function of the Courts was outweighed by the interests of the common good in improving patient outcomes by ensuring that a clinician was as candid as possible to a risk management inquiry including being justifiable or unjustifiably critical of his or her own actions or other clinician’s actions, just as he or she would be to his or her own lawyer. The Court noted that, in this case, staff who made statements to the hospital inquiry were assured that those statements would be confidential.

The Court concluded that a risk management inquiry would fail as an effective method of improving patient safety, which was not in the interests of the public at large, if it were to transpire that hospital staff who were assured of confidentiality were to discover that their statements were not in fact confidential and that they would be disclosed to the parties in litigation and, indeed, that they might, as a result, end up being pulled as witnesses to that litigation. If this were to be the legal position, the Court held that staff in hospitals might be reluctant to participate in risk management inquiries designed to improve future patient outcomes and might be very circumspect in what they say to them, which was not in the public interest. The Court held that it was in the interests of the common good that there should be no obstacle or disincentive to hospital staff agreeing to participate in an inquiry whose primary, if not sole, aim was to improve the outcome for patients in the future.

The Court noted that there was clearly a tension between the public interest of improving patient care in the future on the one hand and the public interest in the administration of justice and the personal interests of the Plaintiffs pursuing a damages claim on the other hand. The Court held that the balance was struck in favour of taking every step possible to ensure that there was no obstacle or disincentive to there being full and frank disclosure to a risk management inquiry in a hospital (erring if necessary, on the side of overly critical observations) for the greater good of improvements in patient care for the benefit of the public at large who attend hospitals. The Court stated that to grant the disclosure of the statements of staff to risk management inquiry in a hospital would be a dilution of the confidentiality, which was essential to the proper discharge of a risk management inquiry into an incident such as occurred in this case. Accordingly, the discovery of the statements made for the purposes of the inquiry was refused.