HERE is a simple truth. Some children are born with unavoidable disabilities. That being so, why is this State almost pathological in its failure to ensure that disabled children and their families are given all possible assistance to make life bearable, without their taking the path of litigation first?
No one could possibly contemplate the Mark Duffy case last week without a deep sense of compassion and indignation for the boy and his family, in their vain attempt to seek compensation for the cerebral palsy that has devastated his life. Not merely did they fail in their bid for compensation: they are left with half the legal expenses of the National Maternity Hospital in its defence.
It could have been worse. The Duffys would have had to pay the entire costs of one million, had not the NMH raised an issue which delayed proceedings by five months, but then did not proceed with it.
Presumably, the defendant's legal costs came to around €2m, their own costs, presumably pro bono, around the same: is it possible to devise a more absurd and dysfunctional way of bringing about the natural justice that the Duffys deserve? For the primary issue here is not the cause of the catastrophic brain damage, but the consequence. What can we as a society do to mitigate the appalling disabilities that Mark has suffered?
Surely our obligation to protect vulnerable children is at least as great as is it to pay for a legal system, which anyway should have absolutely no role in deciding how much financial assistance such children's families might get. That should be the job of disability experts.
The Constitution proclaims that the Family -- which word, significantly, it spells with that opening capital letter -- has "inalienable and imprescriptible rights, antecedent to and superior to all positive law".
"Inalienable" means "cannot be transferred": "imprescriptible" means "cannot be taken away". That's pretty plain, isn't it? Indeed, so plain that since its constitutional genesis, we have managed to ignore that clause completely, thus obliging the parents of brain-damaged children to seek financial help through the punitive process of adversarial litigation, sometimes even for no-fault genetic defects. It's easy to blame lawyers, but that would be an irresponsible diversion from the primary culprit -- a Dail Eireann that responds almost solely to well organised interest groups, and almost never to abstract ideas of justice, rights, or the common good.
To be sure, amongst the most effective lobbyists have been the legal professions: but so too have their all-too frequent adversaries in the courts, the medical consultants, as have farmers, teachers and public service unions. Each has in turn wrestled from the Oireachtas the concessions that make their lives more comfortable. But the families of disabled children do not form such a lobby: their constitutional rights are honoured only in the breach.
Parents of disabled children must proceed through the courts, case by case and child by child, with all the resulting stresses, terrors and sleepless nights to add to the horrors they've already endured. The system is not broken: for in terms of political will, the welfare of disabled children was never a priority, no matter what the Constitution proclaimed.
Moreover, Ireland's judicial damages system, as an exasperated Ms Justice Mary Irvine observed last week, was "outdated, unjust and ineffective". She was dealing with a settlement offer to a young woman disabled in a car crash. Instead of being able to award phased payments for life, the judge was obliged to award a lump sum that might be exhausted if the victim outlives her life expectancy.
A comparable criticism applies to the families of disabled children. Who can possibly say what sum will supply the needs of a cerebral palsied baby in 80 years' time? Conversely, why should the parents of such a child then benefit from the award of a capital sum worth several million euro, if the child were to die soon after the award was made?
Now, proposing an efficient regulatory system within the HSE is probably comparable with urging Chad's navy to do something about the Arctic ice melt: but, in principle (ha!), the issue of sub-standard medical practice in our hospitals is one for rigorous interior policing, with certain -- and possibly ruinous -- consequences for doctors who blunder. So, clearly, there would a role for lawyers here, on both sides.
But there can be no possible role for lawyers in deciding how much money to give to the family of a brain-damaged child. Indeed, since their fees are directly related to the size of any final award, there's good reason to keep lawyers from the awards process.
No matter how children come to be brain damaged, they should all fall on the State's full and generous care. Who says so? Why, Bunreacht na hEireann. Game over.