Clodagh Finn: State morphs from Jekyll to Hyde when opposed

Shane Corr, a senior civil servant at the Department of Health, went public with details of the secret dossiers. Picture: RTÉ Investigates/RTÉ

When you think about the Department of Health, Jekyll and Hyde might not be the first image that comes to mind and yet, the fictional moment when the good doctor turns into a malevolent force is a fitting representation of what happens when a citizen takes legal action against the Irish State.

Just look at what happened when the parents of children with autism felt they needed to take legal action to secure services for their children; the State morphed from benign — if not always effective — service-provider into formidable adversary.

As we saw in last week’s Prime Time Investigates special, the Department of Health bared its metaphorical legal teeth when threatened. And it did so in the most cynical of ways by gathering sensitive personal information about children with autism, not to help them but to oppose their parents who took last-resort legal action simply because they were looking for educational, clinical and therapeutic supports for their children.

We know the level of personal detail contained in the department’s legal dossiers thanks to the courage of one of its own senior civil servants Shane Corr. It made uncomfortable viewing to watch him tell journalist Conor Ryan that his own department saw nothing wrong in collecting children’s school reports, confidential medical reports, details of parents’ relationships and, in one case, details of a parent’s possible addiction for legal cases that were not even live.

Distressing revelations

The most distressing revelation was the existence of a video of a distressed child having what Shane Corr described as a ‘meltdown’. Filming, we might assume, was permitted by parents anxious to seek the best help for their child. There are no words to describe the sense of betrayal they must feel to see a therapeutic practice used for adversarial legal ends.

So here we are, during World Autism Awareness Week, discussing not what we can do to make our society more autism-friendly but whether or not it was legal for our government departments to gather sensitive information about children with autism with a view to using it in court.

The contrast between the stated aims of Autism Awareness Week and the practices revealed by a civil servant whistleblower last week could not be more pronounced.

There has, at least, been a quick response from the government. Taoiseach Micheál Martin has promised to conduct an inter-departmental policy review which will be published. On Monday, Minister of State for Disability Anne Rabbitte said she could not believe that such a policy had been in place in the Department for more than a decade, although it is nothing new for the State to fight tooth and nail against those who take legal action against it.

She also said she was “alarmed and outraged”, but the real cause for alarm and outrage is that the families affected by this case felt they had to take legal action to force the Department of Health to provide basic services for their children.

The policy review needs to go far beyond the practice of gathering and sharing personal information for court cases. 

It might ask why the department did not provide those services in the first place and, when challenged, why it fought so robustly to defend the indefensible

Yes, the State has to be able to defend itself. We hear that, again and again, from legal representatives who, rightly, point out that it has a duty to protect taxpayers’ money. As a taxpayer, though, I would like to see the figures that compare the cost of providing a service to help a child with autism fulfil their potential to the cost of preparing and taking a legal case against the parents of that child.

History of scandals

But this is not just about the financial cost. It is also about the human cost. Consider the experiences of those affected by the CervicalCheck scandal. The first scandal was compounded by a second when the State forced dying women to take their battle to court.

Lawyers for Joan Lucey, a retired nurse terminally ill with cervical cancer, had gone to court twice pleading for mediation but her opponents, the HSE and two laboratories, did not agree to that request until hours before her death.

Her solicitor Ernest Cantillon said at the time: “Is that the proper way to treat someone? The HSE is publicly saying ‘We recognise these women have been wronged and their cases should be settled’, but that’s not what they are doing in private, that’s not what they are doing in this case — they were dragging it out.”

Ruth Morrissey spent the last two years of her life fighting for a settlement.

We could ask the same questions of the Ruth Morrissey case, another woman with terminal cancer who spent the last two years of her life fighting for a settlement even though the then-Taoiseach Leo Varadkar had promised in the Dáil that no woman would have to go to trial.

As her fellow campaigner Lorraine Walsh put it: “The State battled with her every day of her life for the last few years.” Again, it would be interesting to see a cost breakdown of this case and measure the cost of dragging this woman through the courts against finally settling her case.

Mind you, there is no way to include in that a calculation of the cost of having to sit on a hard bench in the High Court on the day of your daughter Libby’s seventh birthday. Ruth was fighting the State for justice when she should have been spending time with her husband, Paul, and their daughter, Libby.

While there is outrage now about the Department of Health’s secret dossiers, the State’s forceful defence of cases seems to be an established policy. We have seen that across all departments as the gloves came off to fight the victims of sexual abuse, parents fighting for services for their children and terminally ill cancer patients looking for redress.

There needs to be another review to look at the State’s entrenched policy of defending legitimate claims no matter what

 If they need an adviser on the issues that need to be addressed, look no further than Louise O’Keeffe. Her decades-long fight for justice after she was sexually abused at primary school in West Cork brought her on a tortuous journey through the Irish courts system and on to the European Court of Human Rights which ruled in her favour in 2014.

But that was not the end of it as our own government interpreted that court’s ruling very narrowly until it was challenged in 2019. At the time, then Taoiseach Leo Varadkar again made promises, saying the victims had been failed at the time, then later by the State but they would not be failed a third time.

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Seven years on from the European Court of Human Rights judgment, the State has yet to deliver on its promises to compensate children sexually abused while at school.

Little wonder that those who take legal action to secure their rights often say the original wrong is not just compounded but made worse by the State. Any policy review needs to start there.