A woman who discovered the organs of her deceased baby girl had been retained by a Dublin hospital has lost High Court proceedings aimed at having the Minister for Health set up a public inquiry into the controversial issue of organ retention.
Campaign group Parents for Justice expressed disappointment with the court's decision and urged the Minister to go ahead with a public inquiry.
The action was brought by Christine McStay, Portlaoise, Co Laois, whose baby daughter Anne Marie died at Our Lady's Hospital for Sick Children, Crumlin, Dublin, over two weeks after her birth on February 3rd, 1981. She had been born at the Rotunda hospital and transferred to Crumlin later.
The High Court was told in December 1999 that Ms McStay was informed by telephone that the brain, heart, lungs and liver of her deceased daughter had been retained by Our Lady's hospital, Crumlin, upon the child's death.
Ms McStay had asked the court to direct the Minister for Health to set up an alternative form of inquiry into the organ retention issue, including the establishment of a statutory inquiry as was promised six years ago. The case was before the courts via a preliminary issue as to whether Ms McStay, a member of the Parents for Justice group, could secure a declaration to that effect against the Minister.
Yesterday, Mr Justice Thomas Smyth said the court must be careful not to "fetter unduly" the Executive's freedom of decision. The Houses of the Oireachtas and the Oireachtas Committees could not be dictated to by court orders. It was not open to the court to give the declaration sought and there was no legal obligation that would justify such an order.
The judge said the setting up of an inquiry was a matter for the judgment of the Oireachtas, not the court.
Ms McStay had sought a declaration that the Minister for Health, Mary Harney, would keep the word of her predecessor and set up an inquiry.
It was submitted on Ms McStay's behalf that the Minister for Health in May 2000 set out the type of inquiry that was proposed and described it as a two-tier inquiry with a statutory basis.
It was pledged that, in the unlikely event of the Dunne inquiry not meeting its objectives with regard to the determination of the facts, the Minister would pursue the establishment of a statutory inquiry under the Tribunal Acts, if necessary.
The Dunne inquiry, which started in 2000, was wound up in March of last year, having cost some €20 million. A barrister, Deirdre Madden, was later appointed to prepare a report for the Minister. It was claimed that, in failing to complete the initial Dunne inquiry and in subsequently publishing a report which failed to specify any findings, the State was in breach of a duty of care.
Counsel for the State contended that a full statutory inquiry, with power to compel witnesses to attend, could only be established by the Oireachtas.