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The Nightmare That Is The HSE

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The HSE was in the news yesterday when a report prepared for the organisation itself last year became public which showed how money is spent and wasted within the HSE.

The HSE is a Frankenstein’s monster of former regional health boards that were cobbled together in the vain hope of achieving those illusive goals of so many mergers: you know, the good stuff like synergies and economies of scale. Of course, in fact what happened was an explosion in the ranks of middle management within the new organisation, out of all proportion to the front line staff actually required to deliver health care services to the public. And this middle management is for the most part completely anonymous and unaccountable.

The HSE’s attitude to court proceedings exemplifies this. There was a little reported incident in the Supreme Court back in April where an appeal by the HSE of a High Court decision came on for hearing.

The original case was a District Court case in which a mother had had her children taken from her by the HSE when it applied for an order ex-parte (that means without having given any notice to her or allowing her to be heard at the initial court application). After the order removing the children had been made ex-parte, the mother had an opportunity to put her side of the case (she engaged lawyers for the purpose) and her children were ultimately returned to her in proceedings that involved 9 court appearances.

The mother sought to have her lawyers’ costs paid by the HSE. The HSE objected.

The mother was poor and the HSE argued that she would have qualified for legal aid if she had applied for it. The HSE’s perverse reasoning was that if the mother would have qualified for legal aid but choose to retain lawyers privately, the HSE should not be obliged to have to pay her lawyers costs of the draconian proceedings to remove her children which had been brought unsuccessfully by the health service.
Think about this for a moment; if the woman had not been poor and had not qualified for legal aid, the HSE would have had no argument. She would have been entitled to chose whoever she liked as lawyers and would have been obliged to pay them. And the HSE would have been liable for their costs of the unsuccessful proceedings.

However, because she was poor the HSE felt she should not have had that choice and should have been obliged to pursue her case through legal aid. (In case you’ve never had to deal with legal aid, it is a system that is ridiculously under-resourced and over-worked and extraordinarily slow as a result. if your kids were taken from you, you might not wish to take your chances on however long it might take the legal aid system to get to you.)

Anyway, the High Court saw through all of this and found among other things that the HSE’s argument effectively meant persons of limited means would have to justify their choice of lawyer in a way wealthier people would not despite, or because of, the fact they were not seeking State assistance.

But that High Court decision was in April 2013; last year.

In April of THIS year, the appeal of that decision came before the Supreme Court. Yes, you read that correctly: the HSE appealed that decision to the Supreme Court.

In the meantime, the District Court had granted the mother her costs pursuant to the High Court decision and in any event there had never been any factual evidence provided to the District Court in the first place in relation to the mother’s means, it was simply taken for granted that she was of limited means.

On 29th April of this year the appeal opened before what must have been a quite puzzled 5 judge Supreme Court.

At the outset of the appeal, several of the Supreme Court judges made clear the issues before the court were confined to the particular facts of this case and there was no factual basis for the claims by the HSE concerning the mother’s entitlement to legal aid, including no evidence before the District Court the mother would have qualified for legal aid.

Mr Justice Adrian Hardiman remarked that this appeal was being run at public expense, but the issue the HSE wanted decided was not set out in the case stated from the District Court.

Before anybody said anything, before any legal arguments whatsoever were made in the appeal, the lawyers for the HSE asked for (and were given) a moment to take instructions from their client.

They returned to advise the Supreme Court that the appeal was being withdrawn.

But that is not the end of the story. In the meantime, there were 24 OTHER cases that the HSE had appealed from the District Court to the Circuit Court pending the outcome of the Supreme Court appeal in case above. All of which presumably fell away after this case was withdrawn, but not without considerable delay, uncertainty and considerable expense of each of the parties (and remember each of these cases concerned a family threatened with having children in care of the health service).  The full details are here.

This may seem like a tale, told by an idiot, full of sound and fury, but signifying nothing. However, it is but the merest glimpse into the bizarre reality that is litigation in the world of the HSE.

Citizens’ rights, lives and liberties are continually being put at stake by the decisions of people who are completely unaccountable to anyone and are very rarely the subject of scrutiny and it is all done at exorbitant cost with obscene waste while on the face of it (as was the case in this case) the justification for everything is the saving of money and reduction of cost.

Do not be surprised as the nightmare that is the HSE keeps on recurring.

Flor McCarthy

Flor McCarthy wears multiple hats, not only as the managing partner of one of Ireland’s leading law firms, but also as an author, speaker and an acknowledged expert in client service, innovation and marketing. Beginning his academic journey at UCC, Flor furthered his education with a master’s degree in law from UCD. After gaining valuable experience as a solicitor in Dublin, the allure of home and the family brought him back to West Cork to contribute his expertise to the family business.


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