When a person brings a medical negligence claim, they accept that some of their private medical information will need to be examined so that the case can be decided fairly. What happens, though, when a hospital wants a claimant to undergo further testing, and the claimant does not wish to do so? A recent High Court judgment has looked closely at this question for the first time.
The Law Society Gazette has published an interesting piece on the judgment titled “Bad medicine“. It highlights the importance of the decision in C (A Minor) v HSE and will likely shape how some medical negligence and personal injury cases are managed in the years ahead, so we wanted to set out what the case decided and why it matters for patients.
What the case was about
The claim was taken by a young child, suing through her father, who alleged that failures in her assessment, investigation, diagnosis, and management at St Luke’s General Hospital, Kilkenny, in February 2020 had caused her a permanent neurological injury. The HSE admitted that certain breaches of its duty of care had occurred, but it did not accept that those failures had caused the child’s injuries and disability.
During its investigation, the HSE obtained a report from a consultant geneticist, who suspected that an underlying genetic factor had affected how the child’s condition presented. The HSE asked the child and both of her parents to attend for genetic testing. The family declined, raising concerns about privacy, the handling of the genetic material, and what might be done with any incidental findings.
Rather than trying to force the family to undergo testing, the HSE asked the court to pause, or “stay”, the proceedings until the family agreed to attend. In other words, the case could not progress until the testing took place.
The test the court applied
Mr Justice Simons confirmed that the High Court has an inherent power to stay personal injury proceedings where the justice of the case requires it. The reasoning behind this power is that a person who sues for personal injuries gives up some of the privacy they would otherwise have over their medical condition, and they must not act unfairly or unreasonably in a way that prevents the other side from preparing its defence.
The judge set out a two-part test to decide whether a stay should be granted:
- First, the court must decide whether the requested examination is relevant and material to an issue genuinely in dispute between the parties.
- Second, the court must weigh that relevance against the interference with the claimant’s rights to privacy, confidentiality, and bodily integrity.
How the court decided
On the facts, the only expert medical evidence before the court came from the HSE’s geneticist, as the claimant had not put forward any expert evidence of her own. On that basis, the court found that the child’s presentation likely had a genetic cause, that earlier testing had been incomplete, and that the results of the proposed testing would genuinely help to resolve the dispute about what had caused her injuries. The first part of the test was therefore satisfied.
Turning to the balancing exercise, the judge was satisfied that adequate safeguards were in place. These included pre-test counselling, informed consent, a non-invasive swab rather than a more intrusive procedure, the option of a different geneticist, results being shared only with the legal teams, and secure handling of the data. He also rejected the argument that the parents were mere third parties, noting that they were actively involved in pursuing the claim, particularly as the father was bringing the case on his daughter’s behalf.
Balancing everything, the court decided that the interests of justice favoured staying the proceedings until the examination could take place.
Why this is significant for patients
This is an interesting development that we will be following closely, because it is the first Irish decision of its kind. It gives useful guidance on a situation that can arise in serious medical negligence claims, particularly those involving complex questions about the cause of an injury.
A few points are worth keeping in mind:
- A stay of this kind does not force a person to undergo testing. It does, however, mean that the case cannot move forward until they do.
- The strength of the medical evidence matters a great deal. Here, the claimant had not filed her own expert evidence, which shaped the outcome.
- Courts will take genuine privacy and safeguarding concerns seriously, but those concerns must be balanced against the other side’s right to a fair defence.
For families bringing a claim on behalf of a child, or in any case where the cause of an injury is disputed, early and careful legal advice is essential. Understanding what evidence may be requested, and why, can help you make informed decisions and avoid unnecessary delay.
Speak to our medical negligence team
If you or a loved one has been affected by suspected medical negligence, and you would like to understand how issues like this might affect your case, our team is here to help. To discuss your situation in confidence, contact our medical negligence team using our quick and confidential online form.
0 Comments