The State uses money to play the courts within an inch of a judge’s patience, writes Michael Clifford
The plight of Philomena Canning is a story of human tragedy but it also highlights some shocking aspects of public life.
As reported in the Irish Examiner on Thursday, Ms Canning, an independent midwife of considerable repute, has a terminal illness. She is suing the HSE for wrongfully suspending her from her practice, where she was the leading practitioner of homebirth midwifery.
She was suspended in September 2014 on foot of two alleged cases of safety violations. By the following February, three separate expert reports had cleared her of any wrongdoing. The HSE backed down and reinstated her.
She sued over the impact on her livelihood, the slur on her vocational reputation and, crucially, what she believes was the covering up of a safety violation within a hospital setting.
The HSE offered a generous settlement in 2015. She refused on the basis that she believed that the best interests of midwifery demanded a public airing in court of what had occurred.
Ms Canning has not practiced since then because her trust in the HSE has been drained. Now she believes the only hope of prolonging her life is to access the drug Pembro, and she wants an expedient settlement so she can pay for the drug and ensure her legal team is reimbursed. Pembro costs around €6,000 per treatment which must be administered once every three weeks.
“I simply don’t have the money,” she told the Irish Examiner. “I want it settled. I want my legal people’s fees paid and whatever money there is to access the treatment.” It’s a terribly sad human story in which a person who dedicated her life to the care of mothers and babies is faced with such stress and worry as her health declines.
Two aspects of her story are particularly disturbing. On January 23 the Minister for Health Simon Harris announced that Pembro would be available on the public health system to those suffering from cervical cancer. He said this would be on an “exceptional” or “case by case” basis, but it was a welcome move.
Ms Canning is suffering from ovarian cancer so she can’t avail of this new offer. Neither can those afflicted with lung cancer, the condition for which Pembro was initially developed.
The minister’s move was largely in response to the trojan and selfless advocacy of Vicky Phelan and others who were caught up in the cervical cancer scandal.
That scandal was a political disaster. In the nature of these things, the response has been to put out fires. Ms Phelan’s high profile — and the esteem in which she is held by the public — meant that any positive response to her advocacy would reap a political dividend.
So the minister could find the money to treat those suffering from cervical cancer but couldn’t extend the offer to those afflicted with other forms of the disease. The money involved is thus spent in a politically astute manner.
It’s cynical, inequitable and, in the long term, unsustainable. In the short term, Philomena Canning, and others who share her predicament must come up with the money themselves in an attempt to prolong life.
The other disturbing aspect of Ms Canning’s case involves the law and how it can be used as a weapon.
Following Ms Canning’s refusal of a settlement offer in 2015 the case ground slowly towards a court hearing. For the last four years it has been in that never-never land of the pre-trial process.
Much of the delay was down to the discovery of documents on behalf of the HSE, a well-worn tactic of prevarication in the system.
The dragging out of the pre-trial process by the HSE is not unique to this case.
Last week, Catherine Shanahan reported in these pages about the case of Alan O’Leary, an intellectually disabled man whose mother had issued proceedings on his behalf in 2002 in a case about the measles vaccine. The case was ultimately dealt with by the European Court of Human Rights, but domestically it took 13 years to advance through the High, Supreme and Appeal Courts.
One crucial element was the slow pace of discovery. According to the ECHR ruling, the High Court had initially set out a time limit of eight weeks for discovery, but it wasn’t complied with until 2008. “That is to say a delay of over four and a half years,” the ECHR ruled. In 2007, Mr O’Leary’s mother, a crucial witness in the case, died.
Examples of similar delay are multitude. But what does that say about the health body, and, by extension, the State? Litigants have generally been dealt a blow in life for which a State body may or may not be responsible. Yet the State, nominally representing all citizens, treats the afflicted person as an enemy against whom the vast array of resources at its disposal can be deployed.
So the State uses money and know-how to hire the most expensive guns and play the courts within an inch of a judge’s patience. Discovery, in particular, is dragged out over as long a period as possible.
In the meantime, some litigants might give up in the face of prevarication and potentially mounting costs. Witnesses die or become incapacitated. Litigants die. Pressure mounts to settle. The bad stuff, the malpractice or negligence, doesn’t get an airing. Nobody is accountable for anything.
It’s no way to treat citizens but that’s how it goes. Apart from anything else, the judiciary must accept some responsibility for tolerating it.
The battle to navigate the law in an alleged republic is largely behind Philomena Canning at this stage. She won’t have her day in court. There won’t be a public airing of the matters that ended her career, her vocation. She won’t get to see the facts hauled out into the open where, she believes, shortcomings in maternity care would be exposed.
Ms Canning is something of a pioneer. Her advocacy of homebirths is yet to chime with mainstream attitudes to maternity care. In some quarters, that for which she had a calling is regarded with hostility.
The medical profession, with its own interests at heart, has usually been sniffy about homebirths. Safety is cited as a primary concern yet, ironically, any issues around safety in maternity care in recent years have occurred in hospitals.
In time, there must be little doubt but that the business of being born will drift home from its current favoured clinical setting. Nature and the evolution of medicine and science will see to that.
And somewhere down the line somebody will unearth the story of Philomena Canning, her career, how it ended, and how she was treated.
As is so often the case, people will look back in puzzlement and not a little anger at what went on years and decades previously, and reflect on how far everything has moved on.