Mr. Michael Boylan:

Many of the points have been covered. I apologise if I get the names of the Deputies and Senators wrong. Somebody asked what changes could be made now to improve the situation in the absence of a legal duty of candour.

The pre-action protocols have the potential to hugely transform and improve the situation. I was a member of the working group, which helped to devise these. There was a difference of opinion as to whether they could be introduced as rules of court - whether the rules making committee had the power to introduce them as rules of court or whether they needed legislation. The view which prevailed was that they needed legislation. It could have been put into a miscellaneous provisions Bill but I have been led to believe that the Department of Justice and Equality has decided it needs a whole new raft of primary legislation. If that is its attitude, then it will probably take a long period of time.

If it was introduced, it would set a seven-week limit for the HSE or the doctor to reply to a letter of claim. I wonder will they be able to comply with the seven weeks given that our experience has been that sometimes it can take seven months or seven years for the penny to drop. The idea is that following a letter of claim, the obligation will be that the HSE will the provide all of the relevant records by way of voluntary discovery. In fairness, the plaintiff would have to set out his or her stall in the letter of claim and itemise specifically the allegations of negligence. There would be a responsibility on the HSE to respond point-by-point. A mere denial of liability or breach of duty would not suffice. It will have to give specific responses and if it is going to rely on a defence, it will have to set out exactly what the defence is, what is its explanation is and what is its excuse. There is no question but that will be a challenge. However, that seven weeks has been set as the period of time. That would hugely transform the situation. This was all before proceedings are issued.

This has been copied from the UK and the reforms Lord Woolf drove more than a decade ago. The UK had the system that exists here. He described the ethos in his landmark report as mutual suspicion and hostility between practitioners. After those reforms were introduced, there was mutual co-operation and it helped hugely. That is what has to happen.