Hospital investigations & discovery: Where is the line drawn?

The High Court in Dublin in the case of Cliona O’Keeffe And Alan Doran And Governor And Guardians Of The Hospital For The Relief Of The Poor Lying In Women Dublin 2022 [IEHC] 463 dealt with the issue of non-disclosure of statements made during risk management enquiries.


The Judgment arises from a tragic set of facts whereby the Plaintiffs lost their baby girl shortly after birth. A Risk Management Enquiry (the “Enquiry”) took place after the incident, where hospital staff were encouraged to recognise and disclose errors to establish learning outcomes for the future. The resulting report was shared with the Plaintiffs, however the documents and statements behind the report remained confidential and the Defendant Hospital declined to disclose them.

In the course of the Plaintiffs’ case in negligence against the Defendant arising from the management of the birth, they sought discovery of statements made by medical staff to the Enquiry, citing the administration of justice and discovery of truth as being of greater importance than the principle of confidentiality.


In order to decide whether the statements should be made discoverable to the Plaintiffs, the Court needed to decide whether the evidence was covered by one of the exceptions applying to discovery.

In making its decision, the High Court took the time to analyse the exception of the clinician/lawyer relationship, and why such a relationship gives way to non-disclosure in legal proceedings.

Citing Finlay C.J. in Smurfit Paribas Bank Ltd v. AAB Export Finance Ltd [1990] 1 I.R 469, The Court outlined that the clinician/lawyer confidentiality was in the interests of the common good: it is in the interests of the common good that a clinician can be as candid as possible to their lawyer, and this takes precedence over the principle over the truth-finding function of the Courts.


Position of the parties 
The Defendants sought to justify the non-disclosure on the basis that it is in the Public Interest that clinicians can be as candid as possible in any Risk Management Enquiry, to allow for learning outcomes to be applied in future cases; their position was that the very nature of the enquiry would be undermined if clinicians felt obligated to police their disclosure in an enquiry, in anticipation of future litigation.

The Plaintiffs sought to rely on Miggin (A Minor) v. Health Service Executive (HSE) & Gannon [2010] 4 I.R 338, pointing out that in this case, the Courts resolved the conflict between the public interest in confidentiality of information, and the public interest in the administration of justice, finding in favour of the latter.

Mr Justice Twomey pointed out that the question still remained whether the statements made to the enquiry in this case were necessary for the administration of justice. The Court also outlined the differences between Miggin and the current case, noting the relevance that in the Miggin case the clinician was legally represented, whilst the nature of the Enquiry in this case was that it was a clinician-led ad hoc enquiry wherein information was voluntarily offered in the interest of improving future care.

The Plaintiffs also relied on Gallagher v. Stanley [1998] 2 I.R. 267. The Court said this was not directly applicable, as in Gallagher the Defendants had sought to rely on legal professional privilege as justification for non-disclosure; in the current case the hospital were not relying on legal professional privilege, but instead the assured confidentiality of the statements, and the purpose of the enquiry to improve patient care as the basis for non-disclosure.

Instead, the Court observed the two-part balancing test in O’Callaghan v Mahon [2006] 2 I.R 32 for the disclosure of confidential statements.


Public Interest Test
First, it must be considered whether the information is indeed confidential. This was not in dispute, as staff were assured of confidentiality.

Secondly, the Court considered whether it was in the public interest to disclose the confidential information. In order to do this, the Court balanced the public interest in the administration of justice, and the public interest of confidentiality to ensure that staff are as candid as possible in the interest of improving future patient care. The Defendants had relied in their submissions on O’Neill v. An Taoiseach [2009] IEHC 119, in which case the Court had allowed non-disclosure of statements where confidentiality was central to the function of the enquiry. The Defendants claimed that confidentiality was central to the function of the Risk Disclosure Enquiry, and thus the Court should follow the O’Neill judgment in allowing the non-disclosure. The Defendants also relied on Leech v. Independent Newspapers (Ireland) Ltd. [2009] IEHC 259, where it was determined that confidentiality was a public interest where it underpinned the effectiveness of ad hoc tribunals, such as the Risk Management Enquiry in this case. O’Neill J. in the case of Leech was satisfied with the conclusion that confidentiality would be vital to the effectiveness of ad hoc enquiries, which lack legal powers to compel witnesses; without such assurance, clinicians would be unlikely to co-operate and disclose information necessary to improve future care, thus defeating the viability of ad hoc public tribunals.


Mr Justice Twomey concurred with the Defendants that the facts of the present case were comparable to the facts of Leech. The Court’s view was that the Risk management enquiry would fail as a method of improving future patient care if statements made in assurance of confidentiality were to be disclosed. There would be no legal obligation for clinicians to attend such enquiries, and if they did, they would certainly be guarded with what information they disclosed.


Ultimately, the Court’s view found in favour of the Defendants: confidentiality was central in accommodating the purpose of the enquiry of improving future patient care. Accordingly, discovery of the statements was refused.

Comparisons can be drawn between Risk Management Enquiries that were the subject of this case and Serious Adverse Incident investigations performed by NHS Trusts in the Northern Ireland. The decision provides some useful indication of how such a case might be approached in NI.