McStay v The Minister for Health and Children & Ors, [2006] IEHC 238 (2006)

Docket Number:2003 6450P
Judge:Smyth J.



A preliminary issue arises between the parties by

virtue of proceedings brought by the Applicant by way

of Plenary Summons. The Order of White J. directed

that a preliminary issue of law arose as to whether the

substantive proceedings between the parties gave rise

to a justiciable issue, whereby the Plaintiff may

impugn the legality and/or seek damages in respect of

the manner of establishment and/or operation of the

Post Mortem Inquiry as established by the Respondents.

It is agreed that the issue is to be tried on the facts

as agreed set out in paragraphs 5, 6 and 7 of the

Statement of Claim, to wit:- "5. At all material times the Plaintiff was a member of the

organisation of Parents for Justice and

is the mother of the deceased infant,

Ann Marie McStay, who was born on 3rd

February 1981 and who died on

21st February 1981.

6. On or about the 3rd day of February

1981, the Plaintiff gave birth to her

daughter, Ann Marie McStay, at the

Rotunda Hospital, Dublin. The said

child died at Our Lady's Hospital for

Sick Children, Crumlin,

Co. Dublin, on the 21st day of February


7. In or around the month of February

1999, the Plaintiff, following

publicity surrounding the issue of the

retention of organs by various

hospitals in the State, contacted Our

Lady's Hospital, Crumlin, to enquire as

to whether or not the said Hospital had

retained any of the deceased infant

daughter's organs. In and around the

18th December 1999, the Plaintiff was informed by way of telephone call that

the brain, heart, lungs and liver of

the deceased infant daughter had been

retained by the Hospital upon her death

in 1981."

The foregoing, together with the representations

recorded in a stenographer's recording of a public

meeting held on 3rd May 2000, the minutes of the

meeting with Minister Cowan of 22nd December 1999, the

minutes of the meeting of the Department of Health on

13th January 2000, the minutes of the meetings with

Minister Martin of 9th and 23rd February 2000, 9th and

28th March 2000 and 3rd April 2000, and particularly

the letter to Charlotte Yeates of 27th September 2000

from the Department of Health and Children gave rise,

on the Applicants's submissions, to a duty of care

and/or a claim for misrepresentation of the nature at

paragraph (13) of the Statement of Claim vis: "The

Defendants, and each of them, in breach of the

Plaintiff's constitutional and statutory rights,

including the Plaintiff's legitimate expectation that a

proper, effective and lawful Inquiry would take place

into the unlawful retainer of the organs of her

deceased daughter, have negligently and/or by way of

misrepresentation, and by way of breach of duty, failed

to discharge their undertaking that an effective and

lawful Inquiry would take place and failed to protect

the Plaintiff's constitutional rights and those of her

infant daughter, Ann Marie McStay (Deceased)" - such

as to entitle the Applicant to require the Respondents

to conduct an Inquiry conferred with powers to compel

the production of documents and the attendance of

witnesses, and/or any of the declaratory orders set out

in the prayer for relief in the Statement of Claim,

and/or damages. The contention of the Applicant was

that on the assumption that the statements at the

meetings and in the letter of 27th September 2000 were

made on behalf of the First Named Respondent ('The

Minister') were so made and do such (construed as fact)

give rise to a legitimate exception to the entitlements


The contentions of the Respondents (inter alia) were

set out in paragraph 20 of the Defence, to wit that:-

"1. The Applicant enjoys no constitutional or common

law entitlement to the establishment of any or any

particular form of Inquiry in connection with the

matters set forth in the Statement of Claim.

2. The decision whether to establish such an inquiry

is a matter for the Executive (and/or in particular

insofar as same is to be provided with powers of

compulsion of any particular kind) for the Houses of

the Oireachtas and/or the Oireachtas.

3. That the proceedings do not present any justiciable

basis on which the Respondents (or any of them) can be

compelled to establish any particular form of inquiry,

nor on which the Applicant can seek to impugn the

legality of, nor seek damages in respect of, the manner

of establishment or operation of any inquiry


4. The Applicant has and can have no legitimate

expectation enforceable in the manner suggested in the

proceedings or otherwise, such as to confer a right to

any particular form of inquiry."

It was common case that on the hearing of the

preliminary issue, both parties reserved to themselves

the entitlement to make submissions as to the effect of

any change of circumstances (since the order of 27th

July 2005) as to the existence or the nature of any

legitimate expectation. It was in this context that I

permitted Counsel to refer and open to the Court the

report of Dr. Deirdre Madden on Post Mortem Practice

and Procedures (presented to the Minister on 21st

December 2005 (the Madden Report) and which was in the

public domain for some time prior to the hearing on the

24th and 28th March 2006: Without the necessity of

adding to the papers by a supplemental affidavit. A

justice system that becomes bogged down in procedural

detail for its own sake or indulges litigants with

unnecessary adjournments that confer no real benefit to

litigants who are genuinely interested in having their

dispute(s) determined is no more ideal than it is fair.

Before addressing the legal issues requiring

determination, a brief review of the facts disclosed in

the principle documents relied upon by the

Plaintiff/Applicant is necessary. However, they must

be considered in the context that a resolution of the

Dáil had been passed on 4th April 2000.

The minutes of the meeting of 3rd May 2000 was

concerned to note the purpose of the Inquiry. I am

satisfied that the purpose of the Inquiry as expressed

in its Terms of Reference was to review all past Post

Mortem examination policy, practice and procedures to

date since 1970, and in particular in relation to organ

removal, retention, storage and disposal by reference

to prevailing standards both within and without the

State and to examine the application of those policies

and practices and procedures in hospitals generally and

in particular their application to certain stated

hospitals. The remit and practices of coroners was to

be considered. At the meeting some persons

were concerned to name, shame and claim in respect of

alleged past wrongdoing (P.1 l.25; P.3 l.3, 8-9; 12-21,

29. P.11, l.20, P.15, l.2, 6, 11. P.15 - the Minister

said he could not pre-empt an independent Inquiry

(l.26). P. 23 l.16; P.24 l.29-11; P.29 l.2. P.35,

l.10; P.39/40. l.28-30/1- 5; p.52 l.10-11; P.56,

l.22/23; P.69 l.16-19). By far the greatest debate

centered on the nature of the Inquiry be to held.

In the 83-page transcript record of the meeting (P.77

to 83 deal with matters dealt with in closed session)

of 3rd May 2000 it is possible to discern certain

themes and positions:-

1. The Parents For Justice ('The Group') wished to

receive an assurance from the Minister that there would

be a two-phased or two-tiered inquiry and that if such

failed there would be a statutory inquiry (P.1 l.19-22;

p.2, l.23- 25).

2. The Minister made it clear 'that the 1921 (an

Inquiry established under the Tribunals of Inquiry Act

1921) form of public inquiry was not the best route for

dealing with the type of situation, and what we did

come up with was a two-tier inquiry, which is a

statutory inquiry (p.7 l.11-15). The Minister had an

appreciation that the issues of Discovery of documents

and compellability were central to the concerns of the

Group and stated: "We decided to respond to those two

issues addressed to us by the Committee, and we did so

via a statutory inquiry, but a different type of one

from the '21 Inquiry which was, in essence, an

Oireachtas Committee on Health and Children, will have

full powers of compellability and discoverability in

relation to this Inquiry. So you are looking at a

two-phase inquiry where the Senior Counsel, Anne Dunne,

will conduct the Inquiry, in the first instance, which

has the opportunity to get all the documentation

possible, interview people, so on like that, and arrive

at findings and conclusions. Then it will

automatically go, by resolution of Dáil Eireann, to the

Oireachtas Committee on Health and Children, which will

have powers under the Compellability Act to call on

people to public hearings and to discover all

documentation. Now I think that is our most effective

route to go." (P.7/8 l.24- 29/1-10).

While the Minister was of the view that the Inquiry set

up would achieve the purpose, he nonetheless stated

that: "If it didn't work we will have another form of

statutory inquiry." (P.13, l.28- 30) I am satisfied

that in speaking of a two-phased inquiry or statutory

inquiry, the Minister did not intend or convey that it

would take the form of one set up under the 1921 Act or

legislation following on it, but rather if it became

necessary an inquiry conducted by the Oireachtas

Committee on Health and Children would be held

(P.17/18). Again, at P.53 l.14-19, the Minister

stated: "I am not convinced, and I remain to be

convinced, that the 1921 form of inquiry is the best

and most sensitive route to find out the truth.

I think the form of statutory inquiry that I proposed

will unearth the truth; it will do it far more

effectively and efficiently and sensitively. That is

my opinion." The Minister was quite clear in

expressing himself: "Now again, our second stage of

full public hearings will be heard in the Oireachtas."

(P.54 l.12/13). The Minister repeated this again at

p.70 l.10:- "There will be a statutory inquiry.... a

statutory inquiry full stop. It is a different type of

statutory inquiry to the '21 statutory inquiry but it

is a...

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