CASE OF HEALY v. IRELAND
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)
Nona Tsotsoria;Síofra O’Leary
4. The applicant was born in 1946 and lives in Cork. 5. She has been receiving treatment for a pituitary brain tumour since 1982. In that year, she underwent surgery to remove as much of the tumour as possible. In the following years she received a variety of treatments for her condition. In 1995 she became the patient of Dr B, a consultant endocrinologist. He referred her for an MRI scan of the tumour, performed that same year, and monitored her condition in the following years. In August 2000, at the request of Dr B, the applicant underwent another MRI scan. This indicated that there had in fact been no significant change since 1995, but the tumour remained large. The applicant also underwent two types of test to determine her level of growth hormone. 6. Dr B received the result of the first test on 5 September 2000. He spoke by phone with the applicant, telling her that the tumour was very unsatisfactory. Prior to that conversation, the applicant was under the belief that the operation in 1982 had removed almost the entire tumour. She therefore understood the information given to her by Dr B about the tumour to mean that it was growing rapidly, gravely endangering her health. 7. The applicant was prescribed a newly-available drug to treat her condition, to be injected by her general practitioner on a monthly basis from September 2000. As the drug led to severe gastrointestinal side effects within a short time, Dr B reduced the dosage by half. It appears there were no side effects following the injections of October and November 2000. At the end of the year the applicant was unwell, and was hospitalised in early January 2001 suffering from vomiting, diarrhoea, severe exhaustion, headaches, cramps and muscular spasms in her arms and legs. A blood test indicated that she was also severely hypothyroid. It was later established that this was a side-effect of the drug, not known at the time. 8. The applicant had further discussions with Dr B about her condition and treatment. Dr B proposed to defer the next injection until the following month. The applicant received two more injections, in February and March 2001. From February 2001 she became the patient of another endocrinologist. 9. In May 2004 the applicant commenced civil proceedings in the High Court against Dr B and the hospital. Her case in negligence was that Dr B had failed in his duty of care towards her in the prescribing of the drug and the monitoring of its administration to her. She further argued that her consent to the treatment was vitiated for lack of sufficient information, or for misinformation, about her condition and the appropriateness of the medication proposed to her. 10. The applicant’s statement of claim was served on the defendants in October 2004. Dr B entered his defence in February 2005, seeking further and better particulars from the applicant, which the applicant’s solicitor provided in June 2005. The hospital entered its defence in June 2005, and also sought further and better particulars. 11. According to the Government, between February 2005 and September 2008 eleven motions seeking various forms of interim relief were brought before the High Court and decided in relation to the case. 12. In October 2009, the case was included in a procedure before a judge of the High Court known as a “positive callover”. The purpose of this was to assign hearing dates to cases that had already been waiting for a considerable period of time. A hearing date in April 2010 was set for the case. 13. In January 2010 the applicant’s solicitor replied to the request for further and better particulars made by the second defendant in June 2005. The hearing commenced on 13 April 2010 and took place over twelve days. Two expert witnesses appeared for the applicant and two for the defence. The hearing concluded on 7 May 2010. Judgment was given on 20 May 2010. 14. The High Court ruled against the applicant on all grounds. The judge preferred the evidence given by the witnesses appearing on behalf of the defence, deeming their qualifications to be more relevant to this specialised area than those of the experts retained by the applicant. He found that Dr B had complied with the therapeutic indications on the data sheet of the drug. The doctor’s decision to place the applicant directly on the long-acting form of the drug was supported by the expert opinion given on his behalf. The judge did not accept that Dr B had failed to monitor adequately the effects of the drug on the applicant during the months that she received it. Likewise, he rejected the claim that the doctor had failed in his duty of care in the manner in which he had explained the proposed course of treatment to the applicant and the possible side effects. 15. On the question of consent, the judge considered that while the applicant had misunderstood the exact state of her tumour, this was not to be blamed upon Dr B, who had fulfilled his legal duty by giving her accurate and appropriate information about her condition. The applicant’s mistaken impression was neither caused nor contributed to by the doctor’s explanations. He found that Dr B had not been aware of the applicant’s misunderstanding and could not be blamed for the deficiencies in her knowledge of her condition. Moreover, he had given sufficient warning to the applicant regarding the gastro-intestinal side effects of the drug. Other potential side-effects (gallstones, hepatic dysfunction) had not been raised, but as they had not in fact materialised there were no grounds for complaint. The judge concluded that the applicant had given her valid, informed consent to the treatment. 16. The applicant appealed against the judgment, advancing numerous grounds. The appeal was filed on 1 July 2010. It remained pending before the Supreme Court until it was transferred to the newly-established Court of Appeal on 29 October 2014. The hearing of the appeal took place on 30 July 2015. 17. In a judgment of 17 November 2015 the Court of Appeal dismissed the appeal. The Court of Appeal addressed two issues. First, regarding the treatment of the applicant with the particular drug, it saw no basis to criticise the findings of the trial judge. His preference for the evidence of the defendants’ experts was rationally grounded, and his rejection of the applicant’s criticisms of Dr B was based on careful consideration of the evidence. 18. Second, on the issue of consent, the Court of Appeal reviewed the evidence about what Dr B knew of the applicant’s understanding of her condition. It rejected her claim that the High Court had made a clear error on this point. It considered that Dr B’s actions had been in keeping with the relevant domestic legal principles. It noted that Dr B’s opinion at the time was that the applicant had a serious condition that required treatment. As surgery was not possible, the only alternative was medication. It was, the Court of Appeal held, reasonably open to him to hold that view. He had explained to the applicant the expected benefits of the drug prescribed, as well as the unpleasant side effects. As for the argument that the doctor should have also presented a “do nothing” option, the Court of Appeal described this as “somewhat unreal”. Where a person seeks referral from a general practitioner to a specialist, it could be reasonably assumed that they wished to receive treatment, and that they had excluded the non-treatment option. 19. The applicant sought leave to appeal. On 8 March 2016 the Supreme Court refused.