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Witness Statements for Risk Management Enquiries: Confidentiality Confirmed

In a recent High Court case, Mr. Justice Twomey considered whether staff witness statements which were taken as part of a hospital risk management enquiry should subsequently be disclosed to parties taking a legal action arising out of the incident. ¹

The Court ultimately refused the Plaintiffs’ request for discovery of these statements, holding that the public interest rests in there being “no obstacle or disincentive to hospital staff agreeing to participate in an enquiry” whose aim is to improve patient safety in the future. In this article, Yvonne Joyce, Healthcare Partner, Comyn Kelleher Tobin, gives an overview of the case.

Summary of Facts

These proceedings had been instituted by the parents of a baby who had sadly died shortly after birth.  The Hospital had conducted a risk management enquiry into the circumstances of the birth and a copy of the enquiry report had previously been provided to the Plaintiffs.

As part of a request for discovery, the Plaintiffs sought copies of all reports, memos and statements made as part of the Hospital’s risk management enquiry on the basis that the statements would assist in establishing negligence on the part of the Hospital staff.

The Hospital claimed it was in the public interest that the clinicians and other hospital staff who make statements should know that these statements would remain confidential and not be disclosed as part of any future litigation to ensure that staff were as candid and frank as possible when making such statements which was an essential component to the enquiry and improving patient care.

Is it in the public interest to disclose statements?

The Court noted that there were two aspects to public interest to be considered in this case:-

  • The public interest in the administration of justice and the interests of the Plaintiffs in pursuing their claim for damages, and
  • Whether there is a public interest in ensuring confidentiality to hospital staff to ensure that there is no disincentive to participating in an enquiry after an incident in a hospital, whose purpose is to improve patient safety for patients in the future.

The Court noted that the enquiry itself was a private ad hoc enquiry, clinician led and did not have lawyers involved and had no power to compel a clinician or other staff to make statements and relied on staff being willing to participate.   Any staff who agreed to make statements were assured of confidentiality and would not have expected that their statements would be disclosed to a party seeking to sue the Hospital subsequently.

The Court found that the balance was in favour of improving patient care and ensuring the proper discharge of a risk management enquiry.  In order to achieve this, staff should be encouraged to make statements, even if they are self-critical or critical of colleagues in relation to the incident, in the knowledge that these statements will not be disclosed.

The Court therefore did not grant disclosure of these statements.

Conclusion

In reaching this decision, the Court was cognisant of the tension which exists between the Plaintiffs’ interest in pursuing their claim for alleged negligence and the administration of justice and the public interest of improving patient safety care. Ultimately the Court concluded that a risk management enquiry would fail as an effective method of improving patient safety, if the Court “diluted” the confidentiality of witness statements and granted disclosure.

This judgment provides assurance to staff and healthcare providers that witness statements provided as part of a risk management enquiry will remain confidential.

If you have a question in relation to this article, please contact a solicitor in our Healthcare Team.

¹ O’Keeffe & ANOR v Governor and Guardians of the Hospital for the Relief of the Poor Lying in Women Dublin, High Court 2022 (IEHC) 463


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