'State’s approach to litigation must change': Cork professor on RTÉ investigation into information collected on autistic children

'State’s approach to litigation must change': Cork professor on RTÉ investigation into information collected on autistic children

THE Cork-based Special Rapporteur on Child Protection has said that the State’s approach to litigation needs to change, following last week’s RTÉ Investigates programme which showed that dossiers of information were held on children with autism who had taken dormant claims against the State.

THE Cork-based Special Rapporteur on Child Protection has said that the State’s approach to litigation needs to change, following last week’s RTÉ Investigates programme which showed that dossiers of information were held on children with autism who had taken dormant claims against the State.

Professor Conor O’Mahony of UCC said that there must be no more platitudes.

He said: “The entire State approach to litigation needs to change, and strong and courageous leadership is needed to make it happen.”

He also said the whistleblower in the programme, Shane Corr, deserves thanks for putting himself in a very difficult position for the benefit of others and doing the right thing.

After the airing of the programme, the Department of Health said sharing of such information was “normal practice” when State agencies were joined in litigation, adding that an external review found its procedures to be lawful and appropriate.

But Professor O’Mahony said: “For me, the most concerning thing about the story about the dossiers compiled on children with autism is that the Depts of Health and Education have firmly stood over their actions.”

He said that even if such measures were lawful, “that doesn’t make them right”.

He acknowledged that Government departments do have a duty to manage litigation but he said that duty “does not include defending legitimate claims to the end of the earth”.

He added: “They also have a legal duty to vindicate rights. What seems clear is that they often place higher priority on defending claims.”

Professor Conor O'Mahony, UCC
Professor Conor O'Mahony, UCC

He continued: “This issue is not isolated or confined to children with special needs.

“The same pattern of defending legitimate claims at any cost to the plaintiff is ongoing in cases involving sexual abuse in schools, medical negligence and other areas. It’s an endemic culture.”

He concluded: “We need senior politicians and civil servants to come out and say: We accept that this is wrong, and we will do things differently in future. No ifs or buts.”

He was speaking as World Autism Month gets underway on Thursday.

This week, Minister for Disability, Anne Rabbitte, told the Seanad that a Senior Counsel report into the protected disclosure made by Shane Corr leading to last Thursday night’s Primetime will be published, after legal advice has first been provided.

She described the gathering of information as a betrayal of trust.

Cork-based solicitor Ernest Cantillon said he would welcome the publication of the report.

But he said it is time too for the State to resolve any claims brought by parents of children with autism – or other intellectual needs – by accepting liability and do “what they should have done in the first places by providing the children with access to education.”

He said he has received calls from parents of children with autism as well as children with other intellectual needs since the programme aired last Thursday night, who are concerned their children’s health history was also held in dossiers by the State.

Johan Verbruggen of Callan Tansey Solicitors, who is based in Galway, told The Echo that he has received calls in recent days from people with concerns arising from the programme, fearful that their information has been taken by the State without their knowledge.

These include people based in the Cork area.

He also said: “When we receive telephone calls from people who believe they may have been injured as a result of medical negligence or are seeking access to services, they are by and large not medically qualified, and they do not have ready access to their medical records.

“Even if they had, they would not easily understand the content. On the other hand, the HSE and Department of Health will have the doctors and personnel who know what is and is not acceptable; they have immediate access to the records and have in many instances in fact created those records.

“As such there is a very obvious information deficit from the outset in favour of the HSE and Department, and now we are hearing that there may have been tactical, deceptive steps taken to make the playing field even more unfair for parents who are simply fighting to gain access for their child to services to make life easier.

“These revelations add insult to injury and the sooner we are told what breaches there have been, if any, not only in the context of these cases but in the defence of medical court cases entirely, the sooner a proper assessment and judgement of the conduct can be fairly made.”

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