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Healthcare law updates in 2021

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Over the last year, we have seen many changes in the world of healthcare law, not least the many updates related to the Covid-19 pandemic.

But aside from pandemic-related changes, throughout 2021 we detailed legislative updates like the new personal injury guidelines and their likely effect on claims. Here, Medical Negligence Solicitor, Nicholas Moore, details some of the more pertinent updates of the last 12 months.

Unless Orders

In November 2021, new High Court rules were introduced to deal with applications for court orders where pleadings such as defences and appearances have not been delivered within the appropriate time limits. Where the court grants an extension of time, the court shall now make an Unless Order, meaning that judgment will be ordered in favour of the plaintiff unless the defendant delivers the defence within the extended period.

The first obvious benefit of this new rule is that it expedites the litigation process and improves the efficiency of the court. These new rules will also provide an advantage on the side of the plaintiff in medical negligence claims.

Previously, the defendants in these claims have been slow to provide defences, where they are awaiting expert reports to deliver their defence. The threat of an Unless Order will put defendants under significant time pressure to obtain all necessary medical expert reports within a very short timeframe.

HSE’s statutory obligation to provide disability services and mental health services

In the recent decision of Y and X -v- The Health Service Executive (HSE), the High Court confirmed that the statutory obligation to provide disability services and mental health services rests with the HSE. The decision arose in the context of judicial review proceedings related to failings in the care of a disabled child.

The case concerned an ongoing failing to provide care to an adolescent child with a disability over the course of several years. The child’s health continued to deteriorate until the child was admitted to hospital in the Summer of 2021 where she was contained in a hospital room off a busy emergency department ward and remained at the time of the delivery of the judgment. The child’s treatment prompted her representatives to take an action against the HSE seeking declaratory relief that her continued placement in the hospital was not in her best interests and/or detrimental to her welfare and breached her constitutional and human rights. A declaration was also sought that the HSE had failed to discharge its statutory obligations.

The Court criticised failings by the HSE to discharge its statutory obligations, which culminated in her containment in an unsuitable environment that did not address her needs. The Court found that the HSE has a statutory duty to vindicate the child’s personal rights within the Constitution insofar as is practicable.

PIAB Authorisation for defective Medical Products

It was confirmed in Creedon -v- De Puy in November 2021 that claims in relation to a defective hip implant did not require a PIAB authorisation prior to the Plaintiff issuing proceedings. This clarity is welcomed, but solicitors should be aware that if they decide to apply for authorisation in any event, the statute of limitations clock will continue to tick!

Personal Injuries Guidelines

In April 2021, new personal injury guidelines were introduced, which reduced the level of awards for certain injuries. As a result, a number of claims will now come into the remit of the District Court. Issues have been raised that claimants will not be able to obtain solicitors to litigate on their behalf as the legal fees at District Court level are so low. A number of claims have been lodged in the High Court, challenging the constitutionality of the new guidelines.