It is ab­so­lutely shock­ing in 2018 that we have another case where in­for­ma­tion was not given to pa­tients

Irish Independent - Weekend Review - - FRONT PAGE - GAG­GING CLAUSE

BTSB was warned of the pos­si­bil­ity of con­tam­i­nated blood in cir­cu­la­tion on at least two oc­ca­sions, it failed to raise the alarm and warn those who had been in­jected. They were kept in the dark.

Orla O’Con­nor, chief ex­ec­u­tive of the Na­tional Women’s Coun­cil, says: “It is ab­so­lutely shock­ing in 2018 that we have another case where in­for­ma­tion was not given to pa­tients.

“It is in­cred­i­ble that once again women were not told of the con­se­quences of mis­takes.”

The cul­ture of se­crecy was un­der­scored when an attempt at me­di­a­tion was made in the case of Vicky Phe­lan. She said she was asked to sign a con­fi­den­tial­ity agree­ment.

She was adamant that she would not sign any gag­ging clause, be­cause she wanted what hap­pened to her to be ex­posed.

The State Claims Agency, which han­dles neg­li­gence cases for the HSE, said the re­quest for con­fi­den­tial­ity came from the US lab­o­ra­tory that had been sub­con­tracted to as­sess tests.

How­ever, fol­low­ing the Phe­lan case and that of the many other women who were kept in the dark about their tests, it is hard avoid the con­clu­sion that some of those in au­thor­ity would rather de­fend the State es­tab­lish­ment — rather than the pub­lic in­ter­est, and in par­tic­u­lar the women af­fected.

There seemed to be a re­luc­tance to pass on the test re­sults, and clin­i­cians were even told that in some cases, dis­cus­sion of the re­sults with pa­tients “could do more harm than good”. And if a pa­tient died, the de­tails could just be recorded on the file.

The State Claims Agency — which is deal­ing with 10 ac­tive cases con­nected to the con­tro­versy — is­sued a state­ment this week stat­ing that it does not in­tend to fully de­fend sim­i­lar cases to that of Vicky Phe­lan, where the State is sub­stan­tially re­spon­si­ble. How­ever, those words will ring hol­low to the many women who have had to take le­gal ac­tion over HSE blun­ders, and have had their claims con­tested.

Caoimhe Haughey, a solic­i­tor who han­dles med­i­cal neg­li­gence cases in­volv­ing the HSE, tells Re­view: “My ex­pe­ri­ence of deal­ing with these cases is that it is a night­mare. Ev­ery­thing is fought tooth and nail. Clients are al­ways very ner­vous about how much it is go­ing to cost to take ac­tion and how long it is go­ing to take.

“The sys­tem is set up in or­der to frighten peo­ple from tak­ing ac­tion,” says the Dublin solic­i­tor.

The State Claims Agency in­sisted this week that in cases of med­i­cal neg­li­gence, its pol­icy was to ad­mit li­a­bil­ity as soon as med­i­cal ev­i­dence in­di­cates that there has been a breach of duty.

But Caoimhe Haughey dis­puted this, and de­scribes the agency’s claim as “disin­gen­u­ous” and “ut­terly un­true”.

“Even if I have a med­i­cal re­port that states that there is a clear med­i­cal case, if they have a med­i­cal re­port that says there isn’t a case, they fight on.”

The solic­i­tor says it can be dif­fi­cult to gain

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