That the “Balance in the Criminal Law Review Group� was established following a speech by the Tanaiste and Minister for Justice, Equality and Law Reform undermines its credentials. We already have the Law Reform Commission whose publications do not generally exhibit the realpolitik which is the survival imperative of Government Ministers. Why, then, the need for the Group? The title of the Group implies there is an imbalance between the rights of suspects and the rights of society. It is difficult to know how such an imbalance came about, if it did. If there is such an imbalance the Law Reform Commission is the obvious body to look into it. Ruminations from the Tanaiste and Minister for Justice, Equality and Law Reform or any one else, about “change in society� are no substitute for real analysis.

The members of the Group are excellent people but not, to the writer’s knowledge, practitioners in the field of criminal law, either for the prosecution or the defence. The Group would be the stronger for some representative/s from such a background. It is possible that the dynamics of a criminal prosecution could be examined with such assistance. Zealots should not (and mostly are not) assigned the work of prosecution; for the unexpressed reason that a prosecution is to some degree a creative act, whether in its construction or its presentation or both. (more…)

Is defamation on the Web special?

No; except in the sense that there is no statutory provision applicable to publications on the Web similar to, for example, Section 24 of the Defamation Act 1961 conferring a qualified privilege on newspapers and broadcasting media disseminating fair and accurate reports of the matters set out in the 2nd Schedule to the Act.

Where does the Irish law of defamation come from?

Irish law of defamation comes from the common law, from the Constitution of Ireland and from the Defamation Act 1961.

What is Defamation?

Defamation may be a slander or a libel. Generally speaking, libel is the making of statements in permanent form that disparage the plaintiff or tend to bring him into ridicule or contempt. Slander is the making of statements in transitory form that disparage the plaintiff or tend to bring him into ridicule or contempt.

Are defamatory statements ever defensible?

Yes, sometimes. Mere abuse, for instance, is not actionable. The immediately useful defence is justification; proving that what has been said is true. True or not, statements made under privilege, absolute or qualified, can be defended. (more…)

Once again, McGarr solicitors have been criticised for a posting relating to Medical Defence Union (“MDU�).

Again, the critic is the Dublin solicitor to MDU.

The criticism now carries far less force than the first criticism, consisting as it does of assertion and a refusal to engage with questions we raised in correspondence after the first attack.

The solicitor instead confirms he is writing to our ISP.

He has done this despite the fact that we took down the first posting, pending hearing from him. On that occasion he also wrote to our ISP.

Well, it is now clear we will not be hearing from him in an acceptable way. So, it’s time to re-examine MDU:

1. MDU is the precedent for The Solicitors’ Mutual Defence Fund Limited.

2. MDU is a mutual society offering membership each year to its practitioner members. As the name suggests, the Medical Defence Union has as its declared purpose the defence of its medical members in controversies (typically claims of professional negligence) touching the practice of their profession.

3. In a High Court action the judge found; “The MDU claims that under Article 48 (which is set out in its material parts, in the Defence) an indemnity may be granted in whole or in part with regard to actions affecting the professional character or interests or conduct in a professional capacity of a member raising a question of professional principle but only on such terms and conditions as the Board of Management should think proper, the Board of Management (or other authorised person or committee) to have an absolute discretion to limit or restrict the grant of such indemnity or altogether to decline to grant the same or to determine any indemnity granted without giving any reason.�

4. The MDU is on record as claiming that “discretionary indemnity is ,,,unacceptable� [as opposed to, effectively, an insurance contract…].

With regard to our original posting, it was based on facts, and ended in a comment.

That comment was to the effect, that a doctor and his/her patient must have certainty, in the event of a claim of negligence, and given the very high legal costs in establishing the fault or otherwise of the doctor, it cannot be left in doubt that an indemnity will be forthcoming for the claim and the costs associated with it, [and questioning why the Department of Health, even yet, is treating membership of MDU (the “MDU Indemnity�) as equivalent to a policy of insurance].

In short, mutual societies like the MDU and the Solicitor’s Mutual Defence Fund Limited are not offering “insurance� when they offer “indemnity�. They can and do decline to furnish the indemnity.

Not only were the facts accurate, established, and in the public domain, and the comment fair [and on a matter of public interest], but, remarkably, the comment reflected the declared view of the MDU itself!

In these notable circumstances it is little wonder that the solicitor of MDU little relished answering any queries on the challenge to the original posting. He might have found himself referring to a painful occasion for the MDU in the High Court (See Link).
The real issue lies in the communication to our ISP that we had defamed MDU. That claim was used to try to persuade our ISP to to take down the posting, and possibly, the entire website.

That of course, raises issues in constitutional law. The Constitution declares the right to freely express opinions. In addition, the posting was privileged, being fair comment on a matter of public interest.

What of that context of the posting, the public interest? The MDU (as fully reported ) has been in disagreement with the Department of Health and Children on the cover to be given to its members for claims (in negligence) arising prior to the introduction by the Government of a new scheme to pay for those claims.

“Irishhealth.com� reported:

“But the MDU says it can not guarantee to pay for claims, principally for obstetric cases, prior to the new scheme – despite the fact that consultants had policies taken out at the time.

The MDU wants a deal with the Government, and has offered to pay the Department of Health 60 million euro to offload the responsibility for these ‘historical claims’. The Health Minister argues that the real cost of claims could be 400 million euro or more; that the policies which were in force should cover the claims and that the MDU should meet its liabilities. The Department of Health and the MDU are to hold further talks to try and resolve the issue. If unresolved, this could go to court and possibly in a British court.�

Clearly, for the MDU the use of pressure, legitimate or otherwise, in pursuit of its perceived interests (how can it have interests separate to those of its members?) is OK.

Which brings us back again to the Department of Health and Children. Why does the Department continue to recognise the MDU indemnity as a policy of insurance?

The Elephant of Forgetfulness extends its benign trunk to the Nuremberg trial in 1946. The public and, it appears, Mary Harney the Minister for Health and Children, have forgotten the trials (there was more than one) and especially have forgotten “The Doctors’ Trial�.

Many victims of the Holocaust had been the subject of medical experiments in the concentration camps.

Against the odds, some of the medical personnel responsible for the terrible injuries inflicted on the victims were brought to trial before the Nuremberg Tribunal.

The Tribunal, in addition to finding these acts of the defendants offences under International law, promulgated “The Nuremberg Code�.

The Code was a clear exposition of the only legal basis on foot of which a medical experiment could be lawfully carried out on a human being. The free consent of the subject of the experiment was the key to the Code.

In 1949 the Geneva Conventions (ratified by Ireland) stipulated that no medical experiments could be carried out on prisoners of war. See Article 13.

Durng the 1960s and 1970s a number of babies and children in Ireland were the subjects of medical experiment by the administering of a vaccine to them. They were not of an age to consent and the available evidence shows no adult gave a consent for them or was even asked to do so.

The Commission to Inquire into Child Abuse was investigating these trials in “Institutional Settings�

On 28th November 2006 the Minister announced there would be no more inquiries into these vaccine trials . (She told the Commission to stop its inquiry).
a) These trials were clearly a breach of the Nuremberg Code;

b) They would have been a war crime if they involved prisoners of war.

c) They were a trespass to the person.

d) They were a breach of the constitutional rights of the children, one of the rights comprising the State obligation “to defend the “life, person, good name and property rights of every citizen” (Article 40.2)

No inquiry?

Time to think again.

This article examines the facts of nosocomial methicillin-resistant Staphylococcus aureus (“MRSA�) and the applicable law.

MRSA is a serious infection caused by a microorganism. We are engulfed by microorganisms. We cannot live without them. They are in the air; in the water we drink; on everything we touch; on, and in, our bodies.

Most of them, clearly, are benign and not pathogenic. Pathogenic means “disease-causingâ€?. (more…)

Our website has been criticised, indeed severely criticised, if not actually attacked. The criticism comes from the Medical Defence Union through its Dublin solicitors.

It alleges it has been defamed in our article (now deleted) and that the article contained several inaccurate statements.

We see, from the solicitors’ letter (to which we have made reply), there are a number of matters in our article with which the MDU do not take issue. They are:

a) “[MDU]… offers membership to doctors for a year. That may or may not be renewed.�

b) “Medical practitioner members are not contractually entitled to indemnity from the MDU; they are offered the benefit of the serious consideration of the MDU to extend an indemnity. That is, MDU will not lightly refuse an indemnity. If it does indemnify, it will behave just like an insurer, but if not, not.�

c) “A doctor and his/her patient must have certainty that, in the event of a claim of negligence, given the very high legal costs in establishing the fault or otherwise of the doctor, it cannot be left in doubt that an indemnity will be forthcoming for the claim and the costs associated with it.�

d) “The Irish Department of Health, on hearing of allegations of a lapse from high standards of corporate governance by MDU (the chief executive was in receipt of a higher salary than that of which the non-executive directors were aware), suggested in a letter to MDU that it might withdraw recognition of MDU as an insurer of general practitioners in the Department’s Medical Card Scheme�

e) “The Solicitors Mutual Defence Fund Limited is a copycat version of the MDU�

We have deleted the article pending receipt of justification, from the MDU, for its criticisms. If we have been unfair to the MDU we will admit that and apologise but otherwise we will assert our right to free speech.

We have no indication from the MDU that it does not regard its business as a matter of public interest.

Our article had cited authority for some of its contents and we have cited other authorities in our reply letter to the solicitors. We will keep readers informed.