Call McGarr Solicitors on: 01 6351580

The Medical Council’s Guidance on Abortion

The Medical Council is the professional governing body for doctors in Ireland.

It describes its role as being “responsible for protecting the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence among doctors. Doctors must always be guided by their primary responsibility to act in the best interests of their patients.”

To aid Doctors in meeting those responsibilities in difficult situations, the Medical Council has produced The Guide to Professional Conduct and Ethics for Registered Medical Practitioners.

It deals with the expected norms of professional conduct and practice and aims to help guide its member doctors to making good decisions.

Section 21 deals with the issue of Abortion.

Section 21.1 reads

21.1 Abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother. Under current legal precedent, this exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide. You should undertake a full assessment of any such risk in light of the clinical research on this issue.

Section 21.2 deals with information about abortions.

Section 21.3 deals with the duty to provide care and support for women who have had abortions abroad.

Section 21.4 states

21.4 In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.

This is the standard by which medical professionals should be judged, by their own regulatory body and by the rest of us.

RTE Digital and the value of the licence fee

Last Saturday I spoke at the National Media Conference. It was an excellently organised day. I was embarrassed to be sent out with the quality of experts they had assembled. After all, unlike all the people speaking who make their living in the media, I have no more expertise than any other reader in their industry.

Nonetheless, having participated in a refreshingly sane and reasonable discussion about the meaning and impact of Leveson to the media here, I went next door where Brian Dobson from the telly was moderating a discussion about the future of television.

“Soon, live events will be all that we watch on TV”

The panel consisted of Independent Producer Trisha Canning, PJ Moloney from the Trinity Film Society, and Múirne Laffan the Managing Director of RTÉ Digital.

It was Ms. Laffan’s contributions which interested me most. She denied that RTE Digital was the beneficiary of any of the licence fee money.

The problem with that, as any other online venture in the country will tell you, is that it is obviously not accurate. RTÉ Digital may not get cash from the licence fee. But it surely gets enormous value from it.

Leave aside all the videos and audio recordings RTE.ie has access to from the broadcaster’s output. Consider only the online part of its efforts. If I started a web company with identical content to RTÉ.ie called MyLovelySite.ie I would not have anything like the RTÉ Digital visitor rate. The RTÉ brand is surely the strongest in Irish media. Its place in the hearts, hearths and minds of Ireland was built over decades of dual-funded (ad revenue and licence fee) activity. Prior to TV3’s appearance, Ireland’s visual memory of itself came solely from and through RTÉ. Of course RTE.ie has benefited from those decades of public money.

This is not an original thought. It was precisely to deal with this state-incumbent advantage that the ESB consumer facing section was forced to rebrand as Electric Ireland. If I can see it and the Energy Regulator can see it, surely Ms. Laffan, formerly of McCann, can see it too.

What caught my imagination was how old fashioned that form of assertion felt.

There we were, the audience. And there was RTÉ in front of us. Telling us things at least one of us didn’t believe to be true.

If RTÉ Digital is truly to become a stand-alone commercial entity it will have to follow ESB’s example and shed the skin of its priceless branding. It will also have to start paying the other parts of RTÉ (which are funded by public money) for their programming at commercial rates.

If I were a struggling newspaper publisher it is that- and not the fever dream of having access to the licence fee money directly- which I would be lobbying for.

Corrib Gas update

THE HIGH COURT
Record No: 840P/2005

BETWEEN:

SHELL E & P IRELAND LIMITED

Plaintiff

And

PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN

Defendants

And

THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

Defendants to the counterclaim of second and fifth defendants

Update (12th November 2012)

1. On 18th and 19th November 2008, Judge Laffoy heard the application, on motion, of the State to determine as a preliminary issue whether the 2nd and 5th Defendants are precluded from raising “public law issues”.
2. McGarr Solicitors act for Brendan Philbin and Brid McGarry, the 2nd and 5th Defendants. Their counsel are Lord Dan Brennan QC and Genevieve Burke BL. The Chief State Solicitor acts for the Minister, Ireland and the AG. Their Counsel are James Connolly SC and Charles Meenan SC. Eugene F Collins act for SEPIL. Its counsel are Patrick Hanratty SC and Declan McGrath BL.
3. The court has decided (judgment delivered on 4th March 2010) that the 2nd and 5th defendants are NOT precluded from raising “public law issues”.
4. The proceedings commenced in April 2005, when Shell E & P Ireland Ltd. (”SEPIL”), issued plenary summons proceedings against the defendants. Mr. Philbin was committed to prison for 3 months, effectively, on the application of SEPIL on the grounds that he had breached an injunction restraining him from preventing SEPIL from entering his land.
5. In the events that have happened, SEPIL applied for and received the leave of the court to discontinue its claims against the defendants. This happened after SEPIL had received the defences of the defendants and the 2nd and 5th Defendants had counterclaimed against SEPIL and successfully joined the Minister and Ireland and the AG as further defendants to the counterclaim. SEPIL’s discontinuance did not end the counterclaim. The counterclaim is substantial. As against the Minister, Ireland and the AG it claims that certain Compulsory Acquisition Orders made by the Minister regarding the land of the defendants are invalid. It also claims that a consent allegedly made by the Minister in favour of SEPIL, to construct a pipeline over the defendants’ land is invalid.
6. The Minister, Ireland and the AG asserted that these are “public law issues”. They asserted that issues like these can be challenged only under the procedure set out in Order 84 of the Rules of the Superior Courts. They asserted that, that being so, those claims of the defendants are late. They asserted that the claims, to be admissible, should have been made within the time limits of 3 or 6 months (at most) after the making of the CAOs and the consent.
7. SEPIL supported the State parties in their submissions and position.
8. The defendants denied they are confined by the provisions of Order 84 and/or its “time limits”. They said that Order 84 is not an exclusive procedure; that it cannot be used to shut out the hearing of claims against the State where the State has wronged citizens, particularly with regard to the private property of the citizen. They said, consequently, that the counterclaim should proceed to a full hearing on its merits.
9. The State parties appealed the judgment of Laffoy J. to the Supreme Court. The appeal came on for hearing before the Supreme Court on 24th October 2012 and finished that day. Judgment has been reserved.

The Children’s Referendum and Other Trust Issues

During the campaign for the Children’s Rights Referendum every person with any claim to credibility on the issue was in agreement. Children’s lives were going to be made potentially (and, in some cases, actually) better if the country voted Yes.

This morning, as the boxes are opened and the tallies are incomplete, it appears that, as a result of the campaign, the support from the electorate for the Yes side dropped from over 70% to about 55-65%. In addition, very few people turned out to vote and the less affluent an electoral area was, the higher the No vote.

I’m not surprised at this outcome. The explanation for it is simple, I think. Ireland has suffered a complete breakdown in trust. Anyone who appears to be part of the establishment- Journalists, politicians, campaigners, senators, solicitors, barristers- will not be taken at their word. The other side of that is that people who are completely outside the mainstream are given a hearing frequently unwarranted by the merits or lunacy of their arguments.

This is the damage done to the polity by the Bertie Ahern model of government by obfuscation and misdirection, and by the abject failure of the media establishment (or the opposition) to successfully alert the voters what was being done to them.

The politicians who have inherited that mess have never acknowledged that just because they weren’t in government it doesn’t mean they aren’t seen are having been implicated in the Great Failure.

The journalists who report on what the politicians are doing apparently don’t see that they are perceived simply as the other side of the politician coin. Their worldview is identical to that of the political class they write about.

Lawyers should be under no illusions by now as to how their class is perceived. They are seen as the most establishment branch of the establishment- and the least trustworthy to boot.

Campaigners have the greatest claim to being unfairly tainted as members of the political-commentariat establishment. After all, they have devoted much time and effort to actively fighting against the status quo. But nonetheless, there they are, on the telly or the radio, talking in the same sorts of tones and on the same programmes as the rest of them.

I am not saying these feelings are correct, or justified by fact. But I am saying that constantly failing to recognise their reality means that they cannot be addressed.

There will be a Yes vote in this referendum. But we need to get to a point again where that can happen because of, and not despite of, the unanimity of people in authority urging people support a proposal. To do that, we will need an electorate who can assess the merits of an argument for themselves and an establishment that stops asking people to trust them before it has rebuilt that trust.

 

All Comms now working smoothly

All our phone, fax and email systems are back working again.

Thank you for your patience.

 

At the moment all Internet, phone and fax service to and from our office is broken.

Our Comms provider thinks that they will have the matter solved today.

We’ll update this post when service has been restored.

A Letter to Minister Shatter

Our Ref: EMcG            Your Ref;                                    8th October 2012

 

Alan Shatter TD

Minister for Justice and Law Reform

St. Stephen’s Green

Dublin 2

Re: Legal Services Regulation Bill 2011

Dear Minister,

I am writing this open letter to you about one element of your proposed legislation, the Legal Services Regulation Bill 2011. That element is the errors in the Bill, relating to legal costs.

What is wrong with your Bill, relating to legal costs? Well, it correctly assumes that some reform is needed in the area. Ever since early Victorian times, a solicitor has had obstacles put in his/her way to recover legal costs. You already know of those obstacles. Allied to that, the calculation of legal costs has been rendered so abstruse that even an expert like yourself has fallen foul of the rules applying to their calculation. See the judgment of the High Court in Gallagher, Shatter v De Valera (1983) HERE.

I do not think that your expertise has been improved with the passage of time since that judgment. You were wrong then and you are wrong now, for different reasons.

So, what IS wrong with your Bill?

1.   Litigation is expensive. Nothing in your Bill will change that. Of course, your Bill may reduce legal costs from a category of “very expensive” to “expensive”, but it will not make those costs “affordable”.

2.   Worse than that, the Bill ignores reality. It assumes that, in every litigation case, the solicitor’s client pays his or her legal costs. You and I know that that is not the norm.

3.   In Ireland, and the UK, the judiciary, generally, follow a practice of awarding costs of the action to the victor.

4.   This is a two edged sword. It makes litigation a very risky business; the costs, if you lose, are high. On the other hand, it encourages certain forms of litigation. It encourages victims of abuse of power to challenge their abuse. I am not just referring to abuse of power by office holders like yourself; I include abuses by people who have more money than the victim. It is easy to dominate people who lack the resources to fight back, particularly in a society like ours where, rightly, we insist that disputes are to be settled only in a court system and not by direct action.

5.   Encouragement is not sufficient to deliver justice; for that, a victim also needs help from a lawyer or lawyers. If that help is not forthcoming the encouragement is a disservice. The victim might become a litigant without representation (a “lay litigant”). (There are more and more lay litigants appearing in the court system nowadays. They represent a serious problem for the courts, not least because a case with such a litigant takes much longer than otherwise).

6.   A litigant, without representation by a lawyer, is gambling on winning and is increasing the chances of losing. At the same time the litigant is likely to suffer very high levels of stress.

7.   Your Bill, overall, is likely to increase the number of lay litigants.

8.   That fact alone is an indictment of you. It should be your primary duty to deliver justice to the citizens and residents of Ireland. The place where they get that justice is in court and you should facilitate that court justice. The major problem in this area is a lack of proper civil legal aid. A lay litigant is not a match for an opponent with legal representation. In short, the court system cannot run correctly without lawyers.

9.   You and your predecessors have had your work done for you by Ireland’s lawyers. By “work”, I mean discharging your primary duty. Because the courts will award costs to successful plaintiffs Ireland’s lawyers consistently act for indigent plaintiffs who are victims of abuse of power. The plaintiffs are the clients of the lawyers, but they are clients who, generally, do not pay their own lawyer. Those lawyers assess and filter the injustices in our society and advance claims in court for people who otherwise would suffer injustice without redress. This “system” is inefficient. Practising lawyers cannot undermine their livelihood by taking all such cases on a “deferred fees” basis. They inevitably select those with the best chance of success. (They are the “marginal” cases beloved of economists.)

10.   Your Bill fails to acknowledge this. Worse, it pretends that no such activity takes place. It pretends that you are the defender of those plaintiffs as they “pay” for those legal services.

11.   The State has established, nominally, a system of civil legal aid. In practice that delivers, very slowly, legal services only to indigent family law litigants. Nobody knows this better than you; your livelihood, as a lawyer, has been derived from family law litigation representing persons who do not qualify for legal aid.

12.   Who, then are the beneficiaries of your Bill’s provisions relating to legal costs? The litigants who lose are the beneficiaries.

13.   Who are the litigants who lose? Ironically, lay litigants are, generally, losers, but the big losers are the companies in Ireland’s insurance industry, and, on occasion, the State. These are the most litigious parties in Ireland’s court system. It is inevitable, particularly in the case of the insurance companies, that they will lose. They are contractually obliged to indemnify their customers when claims are made against the customers. They, generally, cannot decline indemnity just because the customers’ actions are or were egregious and inflicted loss, injury and damage on innocent plaintiffs.

14.   So, they should settle those claims. But they do not. At least, they do not settle enough of them. There are reasons for this, but this is not the moment to canvass those, disparate, reasons.

15.   There is one reason worth mentioning; sometimes the insurance company or even its insured, calculate that the victim plaintiff is vulnerable to pressure. The available pressure to apply is the stress generated by litigation. Litigation and its oppressive costs are weapons in the contest between plaintiffs and defendants.

16.   Your Bill is a contribution to that contest. You have weighed in on the side of the defendants and, consequently, will drive more injured  victims beyond the “margin”.

Yours faithfully,

McGarr Solicitors

The InjuriesBoard has just unwittingly warned 605 DePuy hip victims that their claims are at risk

Every six months or so, the Injuries Board issues a press release. These follow a fairly standard formula. The board praises itself for saving notional sums of fantasy money. It castigates dastardly solicitors for representing clients, even though the Constitution guarantees clients that right. It darkly suggests- without providing any evidence- that only its constant vigilance prevents dishonest claims from running riot.

And then, because it probably knows that this sort of thing isn’t much of a hook on which to hang a news report, it lets drop one or two statistics.

But yesterday, without apparently understanding the significance of what it was saying, the Injuries Board let slip a number which suggests that hundreds of people who have been injured because they were fitted with faulty (and now recalled) hip implants made by DePuy are at risk of their claim going statute barred.

Year to date, Injuries Board has received 605 claims in respect of the De Puy hip replacement recall. As a total of 3,500 implants are understood to have been fitted, further claims are likely to arise.

The Press Release goes on to say

The average time taken by InjuriesBoard.ie to make an assessment is seven months.

The reason every one of those 605 people should be concerned is that the Injuries Board has no role in a claim for compensation arising from the DuPuy hip cases.

Section 3 (d) of the Personal Injuries Assessment Act 2004 is very clear that the Act is not applicable to civil claims;

arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person.

If somebody opens up your body, replaces one of your major joints and then sews you up again, we can be fairly confident future claims about what they put in there are going to fall under this exemption.

And, as these sorts of claims are exempted from the entire Act, the provisions of the Act that stop the clock from running against an injured person after they have made an application to the Injuries Board also do not apply.

That clock only lasts two years. After that, the injured recipients of these recalled hips will be prevented from suing those responsible for their injuries. They will be what is known as Statute Barred.

Here’s the description from the NHS of the sorts of injuries those people would be stuck with, without any right to redress:

  • pain in the groin, hip or leg
  • swelling at or near the hip joint
  • a limp or problems walking
  • tissue damage from Metal ions (Chrome and/or Cobalt)

The same document confirms a risk of secondary systemic poisoning by the build up of those metal ions

There has been no definitive link between ions from MoM implants and illness, although there has been a small number of cases in which high levels of metal ions in the bloodstream have been associated with symptoms or illnesses elsewhere in the body, including effects on the heart, nervous system and thyroid gland.

The first set of claims in the US settled in August for approximately $200,000 each. These are significant injuries which will result in claims estimated to cost the manufacturers around €1.5 billion, when all is said and done.

Given that DePuy are already (inaccurately) attempting to suggest that there was a deadline in August 2012, anything which further delays these cases from commencing is potentially disastrous.

A seven month delay (the Injuries Board’s self declared average) could be the difference between having a valid claim for personal injury compensation, and having none at all.

The Injuries Board have no part to play in claims for compensation for faulty DePuy hip implants. If claimants or their solicitors erroneously lodge an application with them, it is vital that the Injuries Board immediately reject it. Anything else puts injured people’s rights at risk.

Work Injury: Heat

Heat

Overheating or inadequate heating of the body are two aspects of the same problem. The body maintains a deep body temperature of about 36 – 39° C. The system for maintaining the equilibrium of body temperature is called the homeostatic mechanism. It is remarkably effective and over a period of one day, irrespective of the variations in temperature in the surroundings, the body temperature will remain very stable.

It is possible to throw a strain on the homeostatic mechanism, resulting in its breakdown. To understand how this happens, it is necessary to look at how the mechanism works. Its operation is a function of the interaction of;

• Metabolism ;

• Evaporation ;

• Convection ;

• Conduction ;

• Radiation ;

• Storage ;

Metabolic heat is generated by the digestive activity of the body, producing energy from food and, in fuelling the physical activity of the body, more heat is generated from the movement and exercise of the muscles in the course of that physical activity.

Perspiration is produced in the course of strenuous physical activity, thus wetting the skin. Wet skin gives off heat to the air much more efficiently than dry skin, which is the reason we feel chilly on stepping out of a shower and is also the reason we like to run in and out of the sea on a hot summer’s day. The loss of heat through perspiration is called evaporation.

The effectiveness of evaporation will depend on the temperature of the air immediately adjacent to our skin. If the transfer of heat to that air from the body raises its temperature relative to the rest of the body of air, of which it forms part, the heated air will rise or otherwise move, and be replaced by cooler air. This air movement is called convection.

Convection will not function in conditions where the temperature of the air is generally higher than the body.

The body can lose heat directly into solid or liquid surfaces in immediate contact with the body. This is known as conduction.

Radiation is analogous to metabolic heat in that it is a source of heat and increased temperature to the body as opposed to reducing agents like convection, conduction and evaporation. Radiation may have other effects than raising the deep body temperature and these will be referred to later.

Lastly, the body has a capacity to store heat and retain it. Body fat is particularly important in this regard. When it was in fashion, female swimmers of the English Channel tended to be chubby women, a valuable attribute when long periods immersed in cold water are in prospect.

The interaction of all these factors determines the deep body heat of the human person. Of course the need for clothing is clear. Clothing is used around the world to maintain proper body temperature. In the deserts of the Middle East and North Africa the people wear long loose fitting gowns. These protect against the radiant heat of the sun and permit access of air flows to the body to facilitate convection. In Ireland we rely on cosy clothing to protect against cold.

The Symptoms of  Heat Exposure

In the case of a temperature rise, sweating and dilation of the peripheral blood vessels, resulting in skin reddening and more rapid transportation of excess heat to the skin, through the blood circulation system, will occur. Thirst will be experienced with loss of fluid. If the temperature rise continues the worker may feel weak or dizzy.

The Effects of Heat Exposure

Efficiency of workers will begin to fall. Levels of confusion will increase accompanied by an increase in mistakes  in the work in hand. Any of these mistakes can result in injury to the worker or his/her companions or members of the public. Loss of time off work can be reasonably anticipated.

Heat cramps will very likely ensue caused by a loss of salt through perspiration. Continued lack of attention to the problem can lead to heat collapse . There are variations of tolerance between individuals but heat collapse will ensue in more than two thirds of cases where body heat reaches 40-43° C. The worker will abruptly lapse into a coma. He/she will require immediate hospitalisation and immediate attempts to lower the body temperature. If the worker is to survive, his/her deep body temperature must be reduced to at least 40° C.

Radiant heat, apart from raising deep body temperature will damage skin, with skin reddening as the symptom, resulting in soreness and dryness. Cataracts may form in the eyes leading to permanent loss of function.

Dermatitis can arise due to excess temperature or humidity.

People at Risk

Workers at or in foundries or other hot working conditions generally are at obvious risk. Laundry workers  can be exposed to considerable temperatures although without the element of radiant heat from the hot metal of a foundry.

Protection

Shielding of the worker from radiant heat is an obvious remedy to be adopted. Protective clothing may suffice for this purpose although the eyes will need a face mask or goggles. Frequent periods of rest from physical effort will assist the worker in keeping down the generation of metabolic heat. Retreat from the source of the heat and exposure to cooler air will assist in heat reduction through convection. A supply of salt drink will replace the salt lost in perspiration and avoid the onset of heat cramps. Proper organisation of work with planned lowered work rates or lowered periods of work are a necessary step to be taken by the employer.

Accidents at Work: the Safety System (5)

The National Institute for Occupational Safety and Health

The National Institute for Occupational Safety and Health (NIOSH) is a US agency charged with doing research, assembling knowledge and literature on specific subjects in the field of occupational health and safety. Its twin US agency is the Occupational Safety and Health Administration (OSHA). OSHA is the law-making body for US occupational health and safety. It also enforces those laws.

The NIOSH website records the following:

“In 2007, a total of 5,488 U.S. workers died from occupational injuries (1). Another 49,000 annual deaths are attributed to work-related diseases each year (2). In 2007, an estimated 4.0 million private-sector workers had a nonfatal occupational injury or illness; approximately half of them were transferred, restricted, or took time away from work (3). An estimated 3.4 million workers were treated in emergency departments in 2004 (the most recent data available) because of occupational injuries, and approximately 80,000 were hospitalized (4).

Work-related injuries and illnesses are costly. In 2006, employers spent nearly $87.6 billion on workers’ compensation (5), but this represents only a portion of total work-related injury and illness costs borne by employers, workers, and society overall, including cost-shifting to other insurance systems and most costs of work-related illness.”

And also this:

“Musculoskeletal disorders (MSDs) were recognized as having occupational etiologic factors as early as the beginning of the 18th century. However, it was not until the 1970’s that occupational factors were examined using epidemiologic methods, and the work-relatedness of these conditions began appearing regularly in the international scientific literature. Since then the literature has increased dramatically; more than six thousand scientific articles addressing ergonomics in the workplace have been published. Yet, the relationship between MSDs and work-related factors remains the subject of considerable debate.

Musculoskeletal Disorders and Workplace Factors: A Critical Review of Epidemiologic Evidence for Work Related Musculoskeletal Disorders of the Neck, Upper Extremity, and Low Back will provide answers to many of the questions that have arisen on this topic over the last decade. This document is the most comprehensive compilation to date of the epidemiologic research on the relation between selected MSDs and exposure to physical factors at work. On the basis of our review of the literature, NIOSH concludes that a large body of credible epidemiologic research exists that shows a consistent relationship between MSDs and certain physical factors, especially at higher exposure levels.”

Accidents at Work: the Safety System (4)

EU-OSHA The European Agency for Health and Safety at Work

The European Agency for Safety and Health at Work (EU-OSHA) is an element of the European Union. Its purpose is that of an integrating and educational authority on questions of occupational safety and health for the EU and EFTA and EU membership candidate countries. It has, for example, produced an iPad App to assist employers in making occupational risk assessment. See it HERE. Its full range of publications on Occupational Safety and Health are available free HERE.

 

The World Health Organisation

The World Health Organisation (WHO) is a sub-agency of the United Nations. Its purpose is that of a directing and coordinating authority on questions of human health for the world.  It runs a considerable publishing programme on issues germane to its function in 7 periodicals and almost 80 new books every year. Its 2007 Global Plan of Action is HERE.

Occupational health is covered by WHO, often from a technical medical standpoint. It publishes an authoritative series of Health and Safety guides for workers handling industrial chemicals. Chemicals covered include:

• Acrylonitrile  1987

• Chlordane  1988

• Ethylene Oxide  1988

• Dichlorvos  1988

• Aldrin  and Dieldrin  1989

• Vinylidene Chloride  1989

1 … 16 17 18 19 20 21 22 23 24 25 26 … 95