Monday 20 May 2019

When victims sue, the bullying has to end

Fixing medical mistakes is a complex problem, but stopping legal bullying is something we can do now, writes Gene Kerrigan

There are two parts to the cervical cancer scandal. One is medical. The other is what we can call policy or politics - very broadly speaking.

Most of us aren't terribly confident about expressing views on the medical part. With the best will in the world, a couple of weeks is a bit short a time to develop an expertise in cancer treatment.

(Happily, Twitter has a regiment of folks who, at a moment's notice, are experts on just about anything.)

While the medical evidence is yet to be fully, credibly established, the broadly political aspect to the scandal is all too clear. We've seen it happen again and again and it's past time we did something about it.

This time the hammer fell on Vicky Phelan. It's horrendous for anyone to have to deal with the medical consequences that ensue from the scandal - to be bullied by forces anxious to cover their asses is unforgivable.

We'll come to that in a moment.

To deal, briefly, with the medical aspect: it appears someone made a mistake in Vicky Phelan's case. There were similar mistakes made in other medical assessments.

After that, there were policy mistakes - including not telling hundreds of patients about the results of the audits of their smear tests.

What can we take from what we know of the medical facts?

Medics have made astonishing advances against cancer. Some of those advances take the expertise out of a procedure: you put information into a machine and it rings a bell or it doesn't.

Medics end up with a piece of paper with facts and figures that indicate what's probably best to do next.

Often, though, the medic has to look at the facts - perhaps through a microscope - and make a judgment based on knowledge and experience.

In such circumstances, any one of two or more choices may be valid. Medics make such choices every single day. They make one decision and it works, another and it doesn't. Will I open this door, or that door?

Negligence, arrogance or carelessness, that's another matter. But a valid choice that turns out to be wrong is still a valid choice.

It's medicine, not magic.

A medic looking through a microscope and making a choice in good faith must have the right to make the wrong decision, or we've no right to ask them to look through that microscope.

The precise nature of the medical mistakes made in this case, reasonable or otherwise, is not clear yet - at least, not clear to most of us. The inquiry may establish that thousands of valid choices were made in good faith - most of which were correct, some of which were mistaken.

The inquiry may reach a different conclusion. This may or may not involve outsourcing, or costs or procedures, individual performance or methods of assessment.

When something goes wrong, it's probably the case that some among the medics act pretty much like the rest of us. They look for explanations that let them off the hook. They downplay aspects that indicate they might have made a mistake - or even did something some would regard as just plain wrong.

Often in human affairs, once someone starts down a particular road they find it hard to go back. There are examples outside medicine of people becoming obsessed with vindicating their own view of a case, despite the rising tide of evidence.

Two come to mind.

1) The Kerry Babies case, where some repeatedly remained unconvinced even when scientific tests didn't produce the results they believed they would get.

2) The du Plantier murder, where some don't seem to care who actually killed Sophie Toscan du Plantier: because they've invested so much credibility in "nailing" Ian Bailey, despite the lack of credible evidence against him, and the blatant misbehaviour of gardai.

Hopefully, we'll be wiser when the cervical cancer inquiry has been held. Being wiser doesn't necessarily mean we'll do things differently in the future. The legal hammering they gave Vicky Phelan was pretty much like the legal hammering they gave Brigid McCole - albeit, this time a private lab was working for the State.

Had Phelan taken the settlement offered, complete with gagging order, and walked away to deal with the medical consequences, none could blame her for a single instant. Doing what's best for the public good, in such extreme circumstances, takes courage that most of us don't possess.

Fair play to Phelan.

To be honest, though, it's been a bit nauseating to watch politicians queuing up to pat her on the back. For some, it's a way of associating themselves with Phelan's courage, without having to actually do anything courageous.

The Brigid McCole case happened more than 20 years ago. Some of the politicians praising Phelan have been in office since then, and did nothing to change how these things are handled.

They are handled brutally.

The State or its agents is sued. It sets out to batter the litigant into submission - regardless of the justice of the matter. The State may know it's in the wrong, to hell with that. We will not admit liability. Screw you.

This is justified in the name of "the taxpayer" (thumps chest three times). The sacred "taxpayer", thereby implicating the rest of us in their brutality.

If the State or its agent is in the wrong, there must be an admission of wrong.

If that leads to others suing, so be it. If the State is liable, so be it, the State is liable.

The same people who brutalise citizens in the name of "the taxpayer" bow the knee immediately to more powerful forces - bankers, bondholders, billionaires and builders.

In the 1990s, Brigid McCole wanted to preserve her privacy - she was entitled to that, but the State brutally tore it away, forcing her to go public, as a way of trying to bully her. She fought on.

They threatened her with enormous costs - a woman poisoned by the State, the State knowing it was liable - on her deathbed they threatened to sink her family in debt.

Michael Noonan, then Minister for Health, paid a political price for that. For lots of reasons, some of us have no high regard for Noonan - but some find it irresistible to stack the entire blame on him. He played a part in that case, holding the state's coat while it went about its business.

The hard-nosed bruisers within the state apparatus did the tough stuff.

Again and again, it's they who hammer the victims, with the politicians acquiescing in the name of the sacred taxpayer.

Louise O'Keeffe fought for 15 years to make the State liable for the abuse she suffered as a schoolgirl - by a teacher. The State simply denied it employs school teachers - and it's still hard to believe they did that. Technically, it's the school manager, they said, so the state's not liable.

It didn't matter whether Fianna Fail or Fine Gael was in office, the hammering of Louise O'Keeffe continued for 15 years - including threats of massive costs. And she stuck it out, wouldn't back down, ended up being vindicated by the European Court.

And the politicians, who'd sat idly by, rushed to pat her on the back and laud her courage.

We simply don't know how many others have backed down, and retreated in obscurity, in the face of that brutality.

Today, politicians claim to speak on behalf of "the women of Ireland", as they stand by Vicky Phelan. Easy to do.

There's a lot we've got to find out. But one thing we know - right now. The State has been, and still is, relentless in seeking to crush individuals who claim they've had wrong done to them.

We can and should change that.

Sunday Independent

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