McStay v The Minister for Health and Children and Others
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 15 June 2006 |
| Neutral Citation | [2006] IEHC 238 |
| Docket Number | Record no. 2003/6450P |
| Date | 15 June 2006 |
[2006] IEHC 238
THE HIGH COURT
DUBLIN
CONSTITUTIONAL LAW:
Separation of powers
Legitimate expectation - Duty of care - Misrepresentation - Statutory inquiry -Whether plaintiff having enforceable legitimate expectation that tribunal of inquiry would be established - Whether Executive obliged to establish tribunal of inquiry -Whether duty of care owed to plaintiff by defendant - Whether justiciable issue between parties - Daly v Minster for the Marine [2001] 3 IR 513 and Glencar Explorations plc v Mayo County Council (No2) [2002] 1 IR 84 considered - Held that no justiciable issue between parties (2003/6450P- Smyth J - 15/6/2006) [2006] IEHC 238 McStay v Minister for Health and Children
The plaintiff was the mother of a deceased infant whose organs were retained by the hospital upon her death. She impugned the legality of the manner of establishment and/ or operation of the Post Mortem Inquiry as established by the respondents and sought damages. The High Court directed that a preliminary issue arose between the parties as to whether the substantive proceedings between the parties gave rise to a justifiable issue.
Held by Smyth J. in ruling that no justifiable issue arose that there was no right in the plaintiff or anyone else to have an inquiry or an inquiry of a particular form established by the Executive. The defendants did not owe any duty of care to the plaintiff. The plaintiff fell short of establishing any legitimate expectation.
Reporter: R.W.
MADDEN REPORT ON POST MORTEM PROCEDURES 21.12.2005
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TIERNEY-QUIRKE v SOUTHERN HEALTH BOARD UNREP LAVAN 21.12.2005 (TRANSCRIPT UNAVAILABLE)
AB v LEEDS TEACHING HOSPITAL NHS TRUST 2004 EWHC 644 (QB)
APPROVED JUDGEMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON THURSDAY 15TH JUNE 2006
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:-
2 "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 1981.
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 aforesaid.
The contentions of the Respondents (inter alia) were set out in paragraph 20 of the Defence, to wit that:-
2 "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 established.
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...
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Fox v Minister for Justice and Equality
...of statutory discretionary powers in the setting up of inquiries expressly fell to be considered in McStay v. Minister for Health [2006] IEHC 238. In that case, the plaintiff pleaded a breach of a legitimate expectation that a proper, effective and lawful inquiry would take place into the ......
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Thomas Fox v The Minister for Justice and Equality, Ireland and The Attorney General
...the question of legitimate expectation, the High Court found assistance in the decision of Smyth J. in McStay v. The Minister for Health [2006] IEHC 238, a case that related to demands for an inquiry into unlawful organ retention. In the course of his judgment in that case, Smyth J had com......