Mick Clifford: State's legal team more interested in protecting the coffers than the vulnerable

Legally, the strategy pursued by State representatives to delay court cases is sound. Morally, as people are denied the truth, it stinks to high Heaven

There is a long record of State bodies using the legal system to ensure individual citizens are fought tooth-and-nail when it comes to asserting their rights in the wake of being wronged, such was the case with former Health Minister Michael Noonan. Picture: RollingNews.ie

The chips have yet to fall into place in the nursing home charges story that emerged last weekend, but one aspect of it appears to be uncontested.

Successive Governments, over a period of decades, defended legal actions against elderly people and their families despite being aware that the litigants were entitled to a refund. 

Part of the legal strategy employed involved settling cases in order to avoid rulings in court that could publicise the issue.

Thus, the State’s representatives see their exclusive moral duty to protect the State’s coffers, irrespective of the wrong done to a patient or citizen. 

Could a state really treat its citizens, particularly those who are at the end stages of life, in such a manner? Sure it could, and has done for as long as the State’s been in existence. 

There is a long record of the State bodies using the legal system to ensure individual citizens are fought tooth-and-nail when it comes to asserting their rights in the wake of being wronged by the State in one guise or another.

There is a modus operandi in Government that is completely at odds with its duty to protect and serve. A citizen or patient can be wronged at the hands of the State, but that wrong must never be acknowledged. Once the individual seeks recourse through the courts, he or she is no longer regarded as a legitimate victim of some form of malfeasance, but is now an opponent, or even enemy, and is treated as such.

Passing blame 

Responsibility for the case is handed over to a legal team charged with pursuing the best outcome for a client. The barristers and solicitors are not told: “Listen, we want to win this, but because the other side has been grievously wronged and is up against us — a powerful State institution — would you go easy, and don’t too anything that might cause them too much stress.” 

Instead, the State agency, the HSE, the State Claims Agency, the Government department, just washes its hands of any moral obligations and leaves it to the lawyers to devise the best legal strategy.

Probably the most grievous example of this was the case of Brigid McCole in 1996. Ms McCole had been infected by Hepatitis C though negligence of the Blood Transfusion Service Board. She declined an award from a compensation tribunal because she wanted to know the truth of what exactly had happened, so she launched a High Court action. 

The State fought her all the way. She wanted to use a pseudonym to protect her family, but this was rejected by the State’s lawyers. Her health began ailing, and she applied to have an early court date. 

This was refused by the State and Ms McCole was then forced to accept a settlement on her deathbed or her family, after a torturous ordeal, would have been left penniless.

The Minister for health of the day, Michael Noonan, received plenty of flak when the full circumstances became known after Ms McCole’s death. He subsequently spoke of how it impacted hugely on his career. 

Like others before him, he had merely abrogated any responsibility to a citizen who had been poisoned by the State and handed it all over to the lawyers, who had no such responsibility.

At the time, there was much talk that a new approach was required. And then the time passed and everybody reverted to type with the possible caveat that ministerial advisors were kept tightly briefed in case any claim had the potential to explode in political flak.

Over the last 25 years, there has been little deviation from the strategy adopted by the Department of Health in the McCole case. 

Stall tactics

Frequently, in cases of medical negligence, the HSE and the state claims agency fight all the way to the hours before a hearing is about to commence. This process is drawn out and exhaustive, a reality often referenced by claimants in the wake of a settlement.

Sometimes the strategy looks particularly appalling. In 2019, homebirth midwife Philomena Canning gave an interview to this newspaper about her legal action against the HSE. 

Ms Canning was in the late stages of her terminal illness and was suing over a suspension from her practice, which the HSE admitted had been wrong. Ms Canning wanted the truth of the matter to be fully aired in open court so she refused to settle and pursued an action.

“I’ve run out of time,” she told the Irish Examiner.

 “The HSE strategy since I said I wouldn’t settle has been to prolong, to drag their heels, and this has been going on since 2014. I was diagnosed (with ovarian cancer) last year and the only thought on my mind since that day was ‘am I going to last till I get to court with this case?’. The idea of going to my grave without getting to the end is unbearable.”

She died soon after, having settled when she knew there was no more hope. Legally, the strategy pursued against her was sound. Morally it stank to high Heaven.

The legal approach routinely adopted is perfectly acceptable in commercial or even personal disputes. There is no concern for or duty to the other side. It’s all about winning. 

If you’re well resourced and don’t believe you have much chance in your case, and particularly if your opponent is a private citizen of modest means, the best strategy is to delay, prevaricate, keep the whole thing going all the way to the steps of the courthouse.

Anything can happen while the process is slowly wending its way through the system.

The opponent might fall under a bus and the action ends. The opponent might drop it because the stress of it all is too much. The opponent might die and the problem is thus solved, a strategy that has further attraction if the opponent is of advanced years and in real danger of dying in the short term. All of this grist to the mill of the prevailing mores of the legal system.

So when it comes to a case in which the State is attempting to offer a robust defence for a grievous wrong committed against a citizen, the lawyer can’t be blamed for pursuing the strategy in a professional manner. 

Equally, the civil and public servants who handle the cases and liaise with the lawyers are focused on protecting the public purse. But should the same cold, money focused approach apply to the political masters, who answer to voters and are ostensibly representing the public in the machine of Government? 

As pointed out above, politicians always have simply passed the parcel and washed their hands. All the indications are that the same strategy was applied in the nursing home charges issue.