Vaccine rollout in Ireland taking place amid heightened litigation concerns

All medical interventions in Ireland occur against a backdrop of “heightened concern” about possible litigation, the Tánaiste, Leo Varadkar, said earlier this week when talking about roll-out of the Covid-19 vaccine.

Whether it be immunisation programmes, screening programmes, or maternity care, it is “particularly the case” in Ireland that medical procedures take place in the context of a heightened awareness of the possibility of litigation.

This in itself is not a bad thing, as it “helps ensure that we take a little bit more time to make sure we get everything exactly right,” he said, speaking on RTÉ Radio 1’s Morning Ireland.

Among the reasons why Ireland may be more likely to see recourse to the courts than other jurisdictions, is that we have not put in place a no-fault compensation or redress scheme for certain types of medical claim, according to legal sources.

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In some countries there are schemes that make support available to people who claim they have suffered because of the administration of particular medicines, including vaccines.

These schemes offer an alternative to the very expensive option of going to court.

In a report published earlier this month, an expert group on “the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims”, came down in favour of a vaccine compensation scheme being established here “as a matter of urgency”.

There is, the group said, “a strong moral argument that the State, which actively encourages vaccination, should accept responsibility for those who suffer harm as a result.”

None of this is to suggest there is anything particularly unsafe about vaccines. It is just that no medical intervention is entirely without risk.

The Taoiseach, Micheál Martin, said in the Dáil earlier this month that the Government intends to introduce a vaccine compensation scheme.

The scheme would be for all vaccination programmes, such as the yearly flu vaccine campaign, and not just the Covid-19 vaccines.

Mr Martin explained that the Covid vaccines that Ireland is getting by way of the advance purchase agreements that have been negotiated at EU level with their manufacturers, include the provision of an indemnity.

Each EU member state is required “to provide legal support costs and payment of claims arising from any damages associated with administration of the vaccine”, he said.

The administration of vaccines, as with all medical care, is conducted on the basis of “informed consent”, which means that the person receiving the vaccine has to be told clearly about the benefits and risks associated with the vaccine, by the healthcare worker providing the product.

A document prepared by the HSE for the Covid-19 vaccination programme outlines how the person receiving vaccine must also be told about the risks associated with not taking the vaccine, must not be acting under duress, and must have the capacity to make the decision (even if requiring support to do so).

It is not the case, as may be widely believed, that for people incapable of giving informed consent, the task falls to their “next of kin”.

In cases where a person is not capable of making an informed decision, the decision falls to their healthcare professional, who should make the decision based on a “best interests” principle, while also taking into account the person’s values and preferences, and the views of those who have a close relationship with the person, as to what that person would opt to do were they capable of giving informed consent.