SOCIAL WELFARE APPEAL AND THE HABITUAL RESIDENCE CONDITION - BLOG UPDATE

We recently received a positive outcome in a social welfare appeal taken on behalf of a Roma client. Our client was refused supplementary welfare allowance on the basis that she did not satisfy habitual residence condition. Our client had been in the State since 2010 and we submitted that there was clear evidence of her continuity of residence in the State, of the fact that the State was her main centre of interest and of her intention to continue to reside in the State, therefore substantiating her habitual residence in the State. The Social Welfare Appeals Officer upheld our appeal and quashed the original decision to refuse our client the entitlement. Our client has been living in extremely difficult circumstances while this matter has been pending resolution and she is relieved that her social welfare claim will now be processed in the proper manner.

The habitual residence condition is a qualifying condition for social welfare payments that was introduced in 2004. It applies with respect of means tested social welfare benefits. The habitual residence condition essentially assesses an applicant’s ties and connections to the State and whether or not their future intention is to remain in the State, so as to qualify them to any benefit. It is seen as a preventative measure to ensure individuals do not come to the State simply to avail of social welfare without having any meaningful ties here. It applies to Irish national applicants and non-national applicants alike.

The Department of Social Protection apply five criteria when assessing habitual residence and these include in summary:- the length and continuity of living in the State or in another country, length and reasons for any absence from the State, nature and pattern of employment, the applicant’s main centre of interest and the future intentions of the applicant applying for the social welfare scheme.

In our particular case the criteria were not properly applied and there was no assessment of the particular facts and circumstances of the case. As a Romanian national of Roma ethnicity, our client did not have a bank account in her own name and did not retain extensive documents to substantiate her length of residence and connections in the State. She did however have evidence of her continue residence and her intention to reside in the State but her full circumstances were not properly assessed or interrogated by the deciding officer.

While it is a positive development that she has now been found eligible to claim her supplementary welfare allowance, she has experienced considerable hardship during the lengthy delay in having this matter resolved. There was a delay of almost six months between the appeal being lodged and the appeal being heard and it is likely that it was only heard at that stage because we pressed the matter and threatened litigation unless the deciding officer provided the required documentation for the appeal to proceed. The case indicates that the positive outcome can be reached in the end, but only after lengthy delays and considerable effort on behalf of the applicant.

Rebecca Keatinge,

Brophy Solicitors

IS THERE A RIGHT TO BE FORGOTTEN?

The Court of Justice of the European Union (CJEU) recently handed down a long awaited judgement in the case of Google Spain C131/12. This case involved a challenge brought by Spanish man, Mario Costeja Gonzalez, against Google Spain and Google Inc (amongst others) and sought to oblige Google to remove links to web pages published by a newspaper, La Vanguardia, that came up when an internet user entered Mr Gonzales name into the Google search engine. 

The legal challenge and the Court’s determination focused on the provisions of the Data Protection Directive 95/46 that provide for a right of a data subject, such as Mr Gonzales, to object to data processing and a right to erasure of personal data. 

The Spanish Court referred three questions to the CJEU relating to the territorial scope of the Directive, the material and personal scope of the Directive and thirdly and most significantly, the question of whether or not data subjects have the right to object to data processing and seek erasure when it comes to search engine displays and results. 

With regard to the first question, the Court held that the search engine was within the territorial scope of the Directive. In relation to the second question, the Court determined that the operator of a search engine “processes” data for the purposes of the Directive. A search engine collects, retrieves, records, organises, stores and makes available data and the Court held that such acts constitute processing personal data bringing the actions within the material scope of the Directive. 

The third question hinged on the so-called right to be forgotten and this is the most significant area of the Court’s judgement. Here, the Court held that in certain circumstances, the operator of a search engine is obliged to remove links to web pages that are published by third parties and that contain information relating to a person in the list of results displayed following a search of that person’s name. It noted that such search results potentially concern a vast number of aspects of an individual’s private life and without the search engine the information could not have been interconnected or could have been accessed only with great difficulty. The Court also noted however that an internet user, that is the person searching, may have a legitimate interest in the search results and that a fair balance must be sought between that legitimate interest and the data subject’s fundamental rights, in particular the right to privacy and the right to protection of personal data. The Court went on to comment that the processing of data may become incompatible with the Directive when the data is inadequate, irrelevant, no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed. 

The Court has therefore not identified an absolute right to be forgotten. Rather, it has stated that there may be a legitimate interest in accessing the data about a data subject. It has highlighted the limitations imposed by the Directive in relation to data processing. A data controller, which in this case was the search engine, may not be permitted to display personal data via search engine results, where the data displayed is inadequate, irrelevant or excessive. The judgment clearly imposed great restrictions on search engines in relation to the results that it may lawfully display and there are likely to be a wide array of situations where individuals have strong grounds to request search engines to remove offending links. 

The full press release from the European Court of Justice that summarises the judgment can be read here.

Rebecca Keatinge

Brophy Solicitors

JUDICIAL REVIEW IN RELATION TO REFUSAL OF ROAD HAULAGE LICENCE

Last week, we were granted leave by Mr Justice Peart last week to institute judicial review proceedings against the Minister for Transport, Tourism and Sport. We are seeking to challenge a decision to refuse our client a road haulage licence on the basis that he does not satisfy the good repute requirement. 

An application for judicial review is warranted in circumstances where a public body has not properly exercised their powers or exceeded their powers. It is open to an individual to challenge the decision-making process and to seek a variety of reliefs, including interim relief, from the Court. 

It is essential to note that judicial review is concerned not with the outcome of the decision but with the decision-making process itself. Generally, a right of appeal will be available in circumstances where an individual is unhappy with the outcome of the decision. If however, the decision-making process is flawed, then judicial review may be the appropriate remedy. 

For further details in relation to judicial review applications and remedies available in judicial review proceedings, see here.

Rebecca Keatinge

Brophy Solicitors

ENFORCEMENT OF DECISIONS OF THE PRTB

We were interested to read this week of an application to the Circuit Court by the Private Residential Tenancies Board to enforce one of its orders. 

The application was brought on behalf of a landlord in relation to arrears of rent. The PRTB were seeking enforcement of their order for rent arrears and possession of the property. The Court heard that the tenant had not paid rent since 2011 and remained in possession of the property, building up very substantial arrears of almost €42,000. Judge Linnane directed that the tenant vacate the property within seven days of being served with the court order and granted judgment against the tenant for €41,809 and costs.

This situation is any landlord’s worst nightmare. It well illustrates the lengthy delays that landlords can face in securing final resolution of a dispute with their tenant. Furthermore, it is unlikely that the landlord in that case will be able to recover all the monies he is owed despite obtaining a judgment and an order for his costs. 

We recently represented a client before the Tenancy Tribunal of the PRTB. The other side put a proposal to us to settle the case prior to the hearing and we advised our client as to whether or not we would recommend the proposal to him. One factor in our advice to our client during settlement negotiations was that in circumstances where the other side did not comply with any order made by the Tribunal, enforcement of the order would add further costs and delay. The client ultimately decided that he was happy to accept the proposal and the case settled with our client receiving a favourable sum by way of damages. 

It is unfortunate that a potential difficulty with enforcement must be taken into account in such cases. However, it has to be an important consideration where such enforcement could take a considerable time and be ultimately unrewarded.

Rebecca Keatinge

Brophy Solicitors

What rights do I have under Data Protection legislation?

The Data Protection Acts (1988 and 2003) constitute very useful legislation that we frequently rely on in order to obtain full records on behalf of our clients particularly from private bodies where the Freedom of Information legislation may not apply. It is particularly useful in employment disputes. 

When personal details of an individual are given to an organisation, company or an individual, it is their duty to keep those details private and safe. This process is known as data protection. Organisations, companies or individuals who control these contents are known as ‘data controllers’.

The right to data protection applies when your details are held on a computer, in paper records or any other manual form as part of a filing system or is made up of photographs or video recordings of your image or recordings of your voice. Data protection requires that the information stored about an individual by a person or organisation be factually correct, only available to those who should have it and used only for stated purposes.

A person has a range of rights in relation to their information including:

• The right to have your details used in line with data protection regulations

• The right to information about your personal details

• The right to access your personal details

• The right to know if your personal details are being held

• The right to change or remove your details

• The right to prevent use of your personal details

• The right to remove your details from a direct marketing list

• The right to object

• The right to freedom from automated decision making

• The right to refuse direct marketing calls and mail

The right on which we most frequently rely is the right of an individual to obtain a copy of all personal information held on them by a ‘data controller’. Such a request must be made in writing and the ‘data controller’ is obliged to reply within 40 days. 

We recommend that any request made is clear and concise and makes clear that you require all information held, be it in paper or electronic form. It is also advisable to request the way in which the data is accessed when processing your request be explained to you, and that the data be returned to you in an indexed format, so each document is clearly identifiable. 

If the ‘data controller’ fails to comply with the legislation, a complaint can be made to the Office of the Data Protection Commissioner. The Office of the Data Protection Commissioner has extensive guidance and information on their website. 

Rebecca Keatinge, 

Brophy Solicitors

EARLY SETTLEMENT OF PERSONAL INJURY CASE BENEFITS EVERYONE

We settled a very substantial personal injury claim last week. Our case was in the very early stages and we had only very recently submitted an application to the Injuries Board on behalf of our client. The Injuries Board had not yet commenced their assessment of the claim and we were a long way off issuing any formal legal proceedings. The insurance company however proposed a settlement meeting and we attended with our client. We negotiated a substantial settlement for our client to compensate him for the damage arising from the incident.

People often believe that it is in a solicitor’s interest to allow cases proceed to full hearing for costs reasons. That is not our approach. In our view, the best way for personal injury cases to settle is for them to settle quickly, provided the client’s injuries have settled, the sum on offer is reasonable and the client is happy with the sum. Early resolution is good for the client because it means that this legal issue is resolved without lengthy delays and considerable uncertainty. Early resolution is good for the solicitor because it means that a solicitor gets a fair fee for the work completed in a relatively short period. 

Our client is very pleased to have this matter behind him and is also relieved to be able to move on with his life having been substantially compensated for the injury he suffered.

Rebecca Keatinge

Brophy Solicitors

CIVIL LITIGATION UPDATE

This week we learnt of two important changes in relation to the jurisdiction of the Civil Courts. 

The first change relates to the coming into effect of provisions of the Courts & Civil Law (Miscellaneous Provisions) Act 2013 that will take effect on the 3rd of February 2014. 

This significant change will increase the monetary jurisdictions of the Civil Courts. The jurisdiction of the District Court in civil proceedings will be increased to €15,000, up from €6,384. The jurisdiction of the Circuit Court will increase from €28,092 to €75,000 except in personal injury cases where a new monetary jurisdiction of €60,000 will apply. 

These changes are significant as they are likely to reduce the cost of litigation. For example, a case that would previously have been initiated in the High Court may fall within the monetary jurisdiction of the Circuit Court, reducing the cost of stamp duty and legal fees. It remains to be seen however if the courts will be adequately resourced to deal with the possible increase in the volume of cases being initiated in the Circuit or District Court. 

The second development comes through an amendment to the Civil Liability Act, 1961. The maximum amount that a dependant of a deceased person could claim in a case of wrongful death stood at €25,394.76. This limit has been increased to €35,000 applicable from the 11th of January 2014. This sum of damages is called the solatium and is claimable in fatal injury cases. It is important to bear in mind however that the solatium available is a collective amount that must be shared by all affected dependents. It is the role of a judge to assess what level of compensation for mental distress is appropriate but in circumstances where the total for all dependents exceeds the statutory limit then it must be reduced to the new statutory limit of €35,000.

Rebecca Keatinge

Brophy Solicitors

CONSTITUTIONAL CHALLENGE TO THE REFERENDUM CHALLENGE

We were back in the High Court this week representing Ms Joanna Jordan in her challenge in relation to the Children Referendum.

Readers may recall that a related challenge was heard in the High Court in May 2013. Mr Justice McDermott determined that matter in late October and declined to grant our client’s petition to annul the provisional referendum certificate. We subsequently lodged a Supreme Court appeal and it is expected that the appeal will be heard in the Spring. 

We returned to the High Court this week to make arguments in relation to our challenge to the constitutionality of the Referendum Act 1994. These arguments were not fully argued in the petition proceedings in May and by necessity were initiated by way of plenary proceedings. The plenary proceedings are distinct from the petition proceedings which challenged the provisional referendum certificate itself. 

The constitutional challenge was before Mr Justice McDermott over three days this week and consisted of legal arguments by counsel representing the petitioner and the State. Our client’s core argument is that specific provisions of the 1994 Referendum Act are unconstitutional as they do not provide her with an effective remedy against the breach by the State of the McKenna principals in relation to the Children Referendum, as established in the McCrystal case. We are saying that it is impossible for our client to win her case because the standard of proof required by the Act means that unless we can show that the “Yes” vote would have been a “No” vote had the Government acted legally, we are bound to lose. Given that the ballot was a secret ballot, we say it was impossible to prove that people would have voted in a particular manner if the Government acted within the law. 

Mr Justice McDermott reserved judgment today and we anticipate that a decision will be handed down in the new year.

Rebecca Keatinge

Brophy Solicitors

13 YEARS IS TOO LONG TO WAIT FOR A HOME

We are acting for a client who has been waiting for a decision on her application for social housing for over 13 years. She first applied for social housing in April 2000 and was assessed as eligible as early as August 2000. Average waiting times are stated to be between three and five years but despite extensive correspondence from our client to the relevant council in relation to her outstanding application, no formal offer of accommodation has ever been made to our client. 

It may come as no surprise that our client is from the Travelling community. We note that hundreds of people gathered in Dublin earlier this week to protest at what was called the “total failure” of the 15-year-old Traveller accommodation strategy. The appalling facts of our client’s case appear to confirm this failure. Calls have been made for control of housing allocation to the Travelling community to be taken away from city and county councils and for an independent Traveller accommodation agency to be established. The National Traveller Accommodation Consultative Committee estimates that there are more than 1,200 Traveller families of an estimated total of 9,911 families effectively homeless in the State, more than in 1999.

Our own experience is that the current system is failing to meet Traveller accommodation needs. It is completely unacceptable that one individual could wait 13 years for an offer of accommodation. We intend to issue proceedings very shortly on the basis that the failure of the relevant council to allocate our client social housing amounts to a decision to a refusal of her application. We will also be claiming that our client has been treated differently to other applicants for social housing on account of her membership of the Travelling community.

Rebecca Keatinge

Brophy Solicitors

MEDICAL NEGLIGENCE CLAIMS & FREEDOM OF INFORMATION REQUESTS

Requests for information under the Freedom of Information Acts are often a very valuable source of information when preparing a claim against a doctor or a hospital. It is possible to obtain copies of policies, protocols, guidelines and approved practices in relation to a wide variety of aspects of medical care and these can give a helpful indication of whether there was a deviation from the accepted standard of care.

We recently made two such requests and received two quite different responses. In one request, we sought a number of documents in relation to the management of labour at a particular maternity hospital. We received a prompt reply from the hospital and copies of over 20 documents. These cover a wide range of standard procedures and guidelines that apply when a complication in labour arises. These guidelines originate from a number of different sources including the hospital itself but also from An Bord Altranais and the Royal College of Obstetricians & Gynaecologists. The documents will assist us in assessing where the standard of care our client and her baby received may have deviated from the norm and this is an essential element to a successful claim. 

Simultaneously, we made a similar request to a Dublin hospital requesting information in relation to procedures and guidelines in their emergency department. We were taken aback when we received a letter saying that our request had been refused relying on section 21(1)(b) of the Freedom of Information Act. The hospital said that our request was refused because disclosure of the records concerned could reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions in relation to management. Needless to say, we do not understand what adverse impact disclosure of the records could have on the public body and intend to appeal this refusal. 

The Freedom of Information Acts ensure transparency and accountability of public bodies. For our purposes, they provide a convenient way of obtaining documents that are valuable in our assessment of whether or not a doctor met the accepted standard of care when treating our client, as this standard is often reflected in relevant protocols or guidelines.

Rebecca Keatinge

Brophy Solicitors

DECISION IN CHILDREN REFERENDUM CHALLENGE DUE THIS FRIDAY

We act for petitioner Ms Joanna Jordan, from Dún Laoghaire, Co Dublin, in her challenge to the outcome of the Children Referendum. This case concluded on 17th May 2013 after a 14 day hearing in the High Court. Mr Justice McDermott reserved his judgment on that date. We have now been informed that a decision will be handed down in this important case this Friday, 18th October 2013. We will provide a full update on the decision next week. 

Rebecca Keatinge

Brophy Solicitors

MEDICAL NEGLIGENCE CLAIMS & THE STATUTE OF LIMITATIONS

We were contacted by a new client during the week in relation to a medical negligence claim she wishes to take against her former chiropractor. The lady who contacted us is now being treated by a neurologist because the treatment from the chiropractor aggravated a pre-existing back condition and ruptured veins and nerves such that she can no longer work.

We have investigated the claim and unfortunately, because of the very strict time limits that apply to medical negligence claims, it appears that this person may be statute barred from bringing a claim against her chiropractor. 

Recent changes to the Civil Liability and Courts Act 2004 reduced the time limit for issuing such claims from three years to two years from the date of accrual of the cause of action. Medical negligence actions fall into the same category as personal injury claims for the purposes of the time limits that apply. This is in many respects unfair and illogical because medical negligence claims are usually considerably more complex and difficult to investigate when compared to personal injury claims. A further complication is the natural reluctance of a patient to explore a claim against their doctor which can delay matters further and cause serious difficulties for many plaintiffs who ultimately decide to bring a claim as they may come to this decision too late. 

It is however important to bear in mind that Section 2 of the State of Limitations (Amendment) Act 1991 includes a “date of knowledge” provision or saver. This means that a plaintiff may rely on that fact that the two year time limit does not start until they had “knowledge” of the injury. The question then becomes what constitutes “knowledge” for the purposes of the Act. 

The date of knowledge saver has been the subject of three recent Supreme Court decisions. Two of these Supreme Court cases arose out of claims against Mr Michael Neary, the gynaecologist/obstetrician who performed an inordinate number of caesarean hysterectomies at Our Lady of Lourdes Hospital in Drogheda over a 25 year period. What these decisions establish is that even a limited knowledge or strong suspicion of an injury being caused by negligence of a doctor may be sufficient to constitute knowledge and commence the two year limitation period. In one of the cases, the Court in effect held that the statue had begun to run from the moment the plaintiff wrote a letter of complaint to the Medical Council, notwithstanding the fact that she did not have a supportive medical expert report confirming negligence at that point. 

It is therefore absolutely vital that where a prospective plaintiff has a suspicion that an injury may have arisen because of negligence they seek legal advice and obtain a medical report at the earliest opportunity, and well before the two year deadline. Where claims are investigated or litigated too late and the limitation period has expired, a plaintiff whatever the severity of their injury may have no recourse to compensation or relief.

Rebecca Keatinge

Brophy Solicitors

High Court Challenge to Home Birth Refusal is Unsuccessful

The High Court last week rejected a case taken by University lecturer Aja Teehan who sought to secure orders compelling the HSE to grant her application for a home birth. 

Ms Teehan is due to give birth to her second baby on 13th October and wants to have her baby at home, assisted by an independent midwife. The HSE however refused her request, relying on a policy of refusing to cover home births for women who previously had Caesarean section births. Ms Teehan has a six year old daughter born by Caesarean section and was therefore ineligible for a home birth under the policy. 

Ms Justice Iseult O’Malley issued a 21-page written judgment in which she concluded that there was no statutory obligation on the HSE to provide for a home birth service. She also stated that it was not the role of the Courts to change the criteria for women who wanted to have a home birth as this would be a clinical decision based on assessment of the risks involved. 

It was interesting that Justice Iseult O’Malley found indemnity insurance to be “at the heart of the problem”. The HSE has an agreed memorandum of understanding (MOU) with independent midwives who assist with home births. This does not indemnify independent midwives for potentially risky births including vaginal birth after Caesarean section (Vbac), which applies to Ms Teejan. Justice O’Malley acknowledged that it is not possible for obstetricians and midwives to practice without insurance and she recognised the absolute need to have in place liability insurance for claims of obstetric negligence. 

The decision of Justice O’Malley may be disappointing but it is not surprising. The Court will always be extremely reluctant to intervene in clinical assessments of risk or to compel any party to perform a specific act. The decision does serve to highlight the predominance of obstetric-led maternity services in Ireland. It also acknowledges that claims in relation to births account for a very high proportion of medical negligence claims. We can perhaps take from the decision that the availability of indemnity insurance may an underlying factor in determining the type of maternity care available to women, in some instances eclipsing their informed decision of the type of maternity care they would choose to receive. 

Rebecca Keatinge

Brophy Solicitors

SAME-SEX MARRIAGE AND EQUALITY OF RIGHTS

We are currently working on a Constitutional challenge to the Civil Registration Act 2004. Our clients, Dr. Anne Louise Gilligan and Senator Katherine Zappone are seeking to have their right to marry recognised in this State as a Constitutional right. One of the core arguments in this case for same sex marriage is that every person should enjoy an equal right to marry and that same sex couples should not be discriminated against on the basis of their sexuality. 

Our challenge is being brought against a backdrop of increasingly progressive legal developments in Europe. However, outside Europe, there has been a notable increase in discrimination and discriminatory legislation curbing the rights of LGBT people. 

A new law recently introduced in Russia will punish anybody disseminating information about homosexuality to anyone under 18. This new law has been accompanied by a wave of disturbing violence targeting LGBT people. Furthermore, Russia has failed to comply with a 2010 judgement at the European Court of Human Rights that requires it to allow gay pride events.

The developments in Russia have provoked widespread criticism and an angry response across Europe. There are now strong calls being made for Russia to be stripped of holding the Winter Olympics, due to be held in Sochi in 2014.

Russia is not alone in implementing harsh laws in violation of international human rights obligations. In Iran, homosexuality is punishable by death. In Cameroon, there is ongoing prosecution and harassment of anyone who is openly gay and of LGBT rights activists. In Nigeria, anti-gay laws are becoming increasingly draconian and a bill was recently passed outlawing same sex marriage making it is punishable with a 14 year prison sentence. Meanwhile in Uganda and Zimbabwe regressive legislation also seems likely. 

These regressive developments are however in sharp contrast to progressive developments in Europe and the Americans. 

The number of European countries legalising same-sex marriage continues to grow. England is the most recent country to have introduced such legislation: the Marriage (Same Sex Couples) Bill became law on 17th July 2013. Meanwhile, the US Supreme Court ruled in June 2013 that married same-sex couples are to be entitled to federal benefits although the court declined to say whether there was a constitutional right to such unions. 

These developments are to be strongly welcomed and it is hoped that Ireland will soon welcome in legislation in favour of same-sex marriage in line with their European counterparts.

Rebecca Keatinge

Brophy Solicitors

Magdalene Compensation Scheme

In a blog post back in February, we considered the Taoiseach’s apology to girls and women who spent time in these Magdalene laundries and we made reference to the Government’s proposal to establish a fund to assist the women. This scheme is now being implemented on the basis of the recommendations of the report by Justice Quirke, published on 26th June 2013. We are currently assessing the scheme in order to advise a woman, now based in the US, on what redress is available to her for the time she spent in a Magdalene Laundry. 

The most significant recommendation being implemented is for the provision of ex-gratia lump sum payments to the women. These are stated to express the “sincere nature of the State’s reconciliatory intent” and to recognise the work undertaken without pay in the Laundries. 

The level of payment varies according to the length of time a woman has spent in a Magdalene Laundry. A woman who spent three months or less in a Laundry is entitled to a one-off cash payment of €11,500. For anyone who spent more than three months in a Laundry, the lump sums increases in proportion to the number of months spent there. For example, a woman who spent five years in a Laundry will be entitled to a payment in the region of €68,500. 

It is noteworthy that no eligible woman will get above the maximum lump sum payment of €100,000, irrespective of the number of years or nature of the experiences in a Laundry. In addition, where a payment of over €50,000 is made, the first €50,000 will be paid as a lump sum and the remaining money will be paid on a weekly basis as “weekly life income”. These weekly life income payments will not continue after the death of any woman. 

The scheme proposes several further payments and benefits in kind to eligible women including: 

• Provision of an enhanced medical card;
• Provision of a State contributory pension for women who have reached pensionable age or a payment of €100 per week to women who have not reached pensionable age;
• Tax exemptions in relation to the cash payments made; 
• Establishment of a dedicated unit to provide advice and support; 
• An extension of the Nursing Homes Support Scheme Act 2009; 
• Payments made to women under the Residential Redress Scheme will not be taken into account. 

While the establishment of the redress scheme and its non-adversarial nature are to be welcomed, we have several concerns about the scheme. 

Fixed payment levels that are determined only on the basis of time spent in the Laundries fails to tailor compensation to each individual woman and to compensate each woman for her particular experience and treatment. We anticipate that in the vast majority of cases the sums proposed will fall far short of adequately recognising and compensating women for the emotional and physical impact of time spent in the institutions. 

We also note with concern the lack of clarity on how the scheme will operate. The application process and broad entitlements are clear. However, it is unclear for example how such entitlements will be calculated in all cases. It is also unclear how they will apply to women who are now living outside of Ireland. There does not appear to be clarity on how women who struggle to establish their eligibility due to incomplete or inaccessible records will be assessed. While there is a suggestion that an appeals mechanism will operate, it is unclear how. 

Our final and most serious concern is that women who decide to avail of the scheme will be required to sign a waiver to confirm they will not pursue any legal action against the State in relation to their time in the Magdalene Laundries. The State recognises the need for women to obtain independent legal advice before making any decision to avail of the scheme. We would see such independent legal advice as absolutely imperative to ensure the best interests of women who spent time in the Laundries are properly protected.

Rebecca Keatinge

Brophy Solicitors

CJD ALERT AT BEAUMONT HOSPITAL

We were contacted during the week by a very concerned former patient of Beaumont Hospital, who has been affected by the recent CJD alert.

On 19th July, Beaumont Hospital confirmed that one of their patients has been diagnosed with Cruetfeldt Jakob Disease (CJD). It appears that surgical instruments used in that patient’s operation were used in subsequent operations. The instruments were said to be sterilised but in the case of CJD, normal sterilisation techniques are not sufficient and special measures must be taken. It appears that those special measures were not taken and up to 20 people who had surgery subsequent to the infected patient could be at risk of developing the disease.

Cruetfeldt Jakob Disease is a degenerative neurological disorder that is incurable and invariably fatal. Although CJD is not related to BSG, it is commonly known as the human form equivalent of mad cow disease. Symptoms associated with CJD include progressive dementia, memory loss, personality changes and hallucinations. While those affected by the disease can live with symptoms for many years, unfortunately the majority of people affected die within a year of the symptoms starting, usually from an infection. This is because the immobility caused by the onset of CJD make patients vulnerable to infection. 

We understand that there is no single diagnostic test for CJD and neurological examinations and tests are usually undertaken to eliminate possible other causes of symptoms, such as dementia, which is treatable. There is currently no cure for CJD. Treatment can only be administered in order to relieve symptoms. 

The possible exposure to this very serious and life-threatening disease is obviously of extreme concern to those 20 patients affected. Beaumont Hospital have confirmed that they have contacted all of the affected individuals and have set up a help line to advise anybody concerned. The help line number is 1800302602. Certainly the individual we are in contact with is understandably extremely concerned and distressed to hear of this development and is taking our advice on the matter.

Rebecca Keatinge
Brophy Solicitors

INTERNATIONAL REFUGEE PROTECTION: AUSTRALIA’S DAY OF SHAME

Anyone following developments in international refugee protection will have been extremely alarmed to learn of an agreement signed on 19th July between Australia and Papua New Guinea that transfers all processing of Australian asylum applications to Papua New Guinea. Under this agreement, any unauthorised migrants arriving in Australia by boat will be sent to Papua New Guinea, some 2,500 kilometers away. Their asylum applications will then be processed in Papua New Guinea and those granted refugee status will be required to permanently settle in Papua New Guinea. Individuals whose applications are rejected will either be returned to their country of origin or held in a transit facility. 

UNHCR has criticised this agreement on the basis of woefully inadequate protection standards and safeguards for asylum seekers and refugees in Papua New Guinea. They conclude that serious protection questions remain unanswered by the arrangement as it stands. 

Serious concerns have also come to light in relation to the treatment of asylum seekers in one the existing Australian processing centre already operating in Papua New Guinea. A former worker has given an account of detainees being raped and abused in the full knowledge of staff. The Australia government, however remain undeterred and their Immigration Minister Tony Burke confirmed last week that despite credible allegations of mistreatment and abuse, the government will proceed with the transfer of asylum seekers to that facility in Papua New Guinea within weeks. 

Australia’s decision to ignore its obligations under the 1951 Refugee Convention are extremely troubling. Already vulnerable individuals will be put at risk of potential further ill treatment in detention facilities in Papua New Guinea. There is clear evidence that the decision-making procedure itself will fall well short of international standards and this is likely to lead to yet more ill-treatment. Furthermore, any recognised refugees will be denied the opportunity of re-settling in the safety of Australia. The arrangements are in any event extremely impractical and inflexible. They only apply to those who arrive by boat. No arrangements are in place for the protection of the best interest of children and no consideration given to the implications for separated families. There are also no exemptions for particularly vulnerable categories of migrants such as children or pregnant woman. 

It is clear that this radical move by the Australian government is purely motivated by political gain. This decision by Australia unreasonably shifts responsibilities to an extremely poor neighbour that has no record of adequately protecting such of a vulnerable minority. It also sets an abysmal example to other countries in relation to standards of international refugee protection. It is an “out of sight, out of mind” approach to international human rights obligations. As James Hathaway, an expert on international refugee law and professorial fellow at Melbourne University, points out, the agreement is without international precedent: “This plan is without question the most bizarre overreaction I have seen in more than 30 years of working on refugee law, It makes no sense. The only mandatory deportation to PNG is going to be so-called boat arrivals. Does the prime minister think that every refugee should arrive with a Qantas first class ticket in order to be real?”

Rebecca Keatinge

Brophy Solicitors

HIGH RATE OF MEDICAL ACCIDENTS IN IRISH HOSPITALS / THE DIFFICULTY WITH MEDICAL NEGLIGENCE CLAIMS

We recently reviewed statistics on the number of medical accidents occurring in Irish public hospitals and found an alarmingly high rate. HIQA run a national web base database for the reporting of adverse clinical incidents and “near misses”. These figures show that in the year 2007, there were approximately 55,000 medical accidents reported by State hospitals to the State Claims Agency through this reporting system. Incredibly, this figure had increased to approximately 84,000 by the year 2010, with similar figures reported for 2011. This represents an increase of approximately 52% between 2007 and 2011. 

There is no detail provided on the nature of the medical accidents and whether or not any injury or death followed. Our own experience is that very serious consequences can arise from medical accident or “near miss” but clients face very serious challenges in pursuing their claims and this may explain the absence of a parallel rise in claims of medical negligence. 

A major obstacle in pursuing any claim against a hospital or doctor is financial. We are currently dealing with a difficult case where a client was left with a very serious disability following a mis-diagnosis. We received an initial medical report that identifies a plethora of shortcomings in the treatment she received. However, to progress this case further, we need at least three more medical reports to specifically address the issues of the standard of care and causation. Each of these reports are likely to cost in the region of £1,500 and we are expected to pay for the reports before even receiving them. This brings our client’s bill for medical reports alone, well before the claim is even close to a hearing to around £6000, which converts to in or around €7,000. 

Our client is currently receiving €218 per week on social welfare. Her injuries are such that it is extremely difficult for her to find suitable employment. She is not in a position to fund her action and it falls to us to do our best to subsidise the claim. 

We expect that this case is representative of many others, where patients who experience medical accident and where there possible claim for medical negligence cannot pursue their claim because of financial constraints. It is clear from the HIQA figures that there has been a worrying increase in the number of medical accidents occurring in our State hospitals. Yet anecdotally at least, we do not see a corresponding increase in the number of medical negligence claims and it may be these financial obstacles that are contributing to this in-balance. 

The disproportion financial fire-power between each of the parties is stark. On one side you have an insurance company defending a doctor against potentially very serious claims that may impinge very drastically on his or her professional livelihood. In our experience, resources are not constrained and medical reports are readily accessed in order to defend the claim. On the other hand you have applicants of often very limited means who in the first instance have a very poor understanding of how to bring such claims. 

As representatives in several medical negligence cases, we have to prepare cases as best we can and pursue all avenues to secure redress despite the limited financial means of our client. These cases are complex in many respects and the high costs of progressing them add a further layer of difficulty. 

Rebecca Keatinge
Brophy Solicitors