Striking a balance in discovery applications: confidentiality of statements

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 Dublin[1] 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 Ltd[2] 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 & Gannon[3] 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. Stanley[4]. 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 contemplation of litigation. However, Twomey J. noted that, as the Defendant in this case was not relying on legal professional privilege, this case was not directly applicable.

Defendant’s position

The Defendant submitted that there was no power to compel the staff to make statements to the risk management enquiry and, as such, the enquiry relied on staff being willing to participate. The staff were assured that the statements would be confidential. As the intention of the enquiry was to improve patient care by providing learning outcomes, such intention would be diminished if staff members could not be assured that their statements would be not disclosed to parties in litigation.

The Defendant also relied on the case of Leech v. Independent Newspapers (Ireland) Ltd.[5] In that case, O’Neill J. refused the Plaintiff’s application for discovery of documents generated by public enquiry ordered by Dáil Éireann, on the grounds that, although the confidentiality to the individuals who participated in the enquiry could not, of itself, outweigh the public interest in full disclosure being made, there are cases where confidentiality is in itself a public interest.

Conclusion

In giving his judgment, Twomey J. said that the Court would have to consider the balance between the public interest in the administration of justice and the interests of the Plaintiffs in pursing their claim, against the public interest in ensuring confidentiality to hospital staff so that they would participate and be completely open to a risk management enquiry after an incident in a hospital.

It was the Court’s view that the balance should be struck in favour of improving patient care in the future for the benefit of the public at large who attend hospitals by ensuring that there is no obstacle or disincentive to there being full and frank disclosure to a risk management enquiry. To grant disclosure of the statements of staff would be a dilution of the confidentiality, which, in the Court’s view, is essential to the proper discharge of such an enquiry. The Plaintiffs discovery was refused.

[1] [2022] [IEHC] 463

[2] [1990] 1 I.R. 469

[3] [2010] 4 I.R. 338

[4] [1998] 2 I.R. 267

[5] [2009] 3 I.R. 766