A Dunne inquiry report is expected later this month. Why has it taken almost five years and €20 million, asks Carol Coulter, Legal Affairs Correspondent
Six years ago a group of parents whose children had died in various hospitals throughout the State were appalled to learn that some of their organs might have been retained by the hospitals and later incinerated or disposed of by some other method, without their consent.
This followed outrage in Britain when such practices emerged, which resulted in a public inquiry there.
In the Republic, the parents banded together to seek a statutory public inquiry into the retention of body parts. They wanted it to have the power to compel witnesses and to discover documents. The Government was sympathetic to their concerns but, wary of the costs involved when parties have the right to full legal representation to defend their reputations in public, it opted for a non-statutory private inquiry, which was announced in February 2000.
The inquiry was asked to review post-mortem policy, practice and procedure in all hospitals in the State since 1970, with particular reference to organ removal, retention, storage and disposal. It was also later mandated to examine any arrangements with pharmaceutical companies in relation to retained organs, including pituitary glands. The Government appointed Anne Dunne, a well-known senior counsel who specialised in family law, to chair the inquiry in March 2000, five years ago this month.
Having missed five deadlines for completion, the inquiry was given a deadline of the end of this month to come up with a report. It is understood that Dunne sought, and was refused, a further extension to 2006. A Department of Health spokesman said last night that a report on the paediatric hospitals is now expected by March 31st.
Two other senior counsel were also appointed to the inquiry when it was set up, along with a junior counsel, a solicitor, a number of researchers and secretarial staff. It rented offices in Parnell Square, which have cost just under €2.3 million to date. The fees agreed with Dunne and the senior counsel were a brief fee of £30,000 (about €36,000) and a daily rate of £1,500 (€1,904.61). A request from Dunne in 2001 for an increase in fees was turned down.
An unusual feature of Dunne's contract with the Department of Health was that she negotiated "flexibility" for herself and her team. This was, she wrote to the Department, because "in order to allow us to maintain some connection with the Law Library and with our respective practices, it will be necessary for each of us from time to time to attend to legal work other than that of the inquiry".
She acknowledged that the best interests of the inquiry would be the "paramount consideration" of her and her team and added: "There will be no charge made to the inquiry by counsel when they are engaged in other legal work."
According to legal observers in the Law Library, Dunne does not appear to have been involved in any significant amount of other legal work since the inquiry began. One of the senior counsel on the inquiry, Henry Murphy SC, left the inquiry last October and has returned to normal practice.
The bill to the Department of Health from the inquiry for "fees, salaries, administration and household" up to the end of 2004 was €10,820,000. It is likely to have reached €11 million by now, of which Dunne's fees are understood to amount to about €2.3 million.
At the outset, the hospitals at the centre of the inquiry responded to Dunne's request for information by saying that producing the required information would be time-consuming and difficult, although they did not object in principle. The Department of Health has paid the Eastern Regional Health Authority just more than €5 million to date to assist in meeting the requirements of the inquiry.
The Department also funded Parents for Justice, which has been paid €977,210, primarily for a counselling service, although the group also engaged a public relations firm, Paul Allen and Associates, for about a year. In recent years the policy with regard to consent for hospital post mortems and organ retention has changed and what is involved is spelt out for relatives in detail before they sign consent.
But two years ago the parents' lobby withdrew its co-operation from the inquiry because it felt there was no progress.
One feature of the inquiry was the extreme secrecy in which it operated. While it was announced at the outset that its hearings would take place in private, this confidentiality extended to requiring the parents appearing before it to sign a confidentiality agreement. No explanation for this was given to the parents.
Media requests for any information about progress or expenditure, including those put by The Irish Times this week, have not been responded to by the inquiry.
It is impossible, therefore, to know how the €11 million in fees and related expenses breaks down. There have been media reports about expenditure on meals for the team, but these have not been verified. One person who attempted to contact the inquiry in its early days told The Irish Times they were informed Dunne was in California looking at organ retention there, but again this cannot be verified because she does not engage with the press.
This secrecy contrasts with the modus operandi of a similar inquiry in Northern Ireland, which had almost identical terms of reference, except that it didn't cover the pharmaceutical companies. It held public meetings with relatives, as well as private meetings with individuals. Its chairman appeared on radio and television to explain what was going on and the progress that was being made. Most significantly, it finished its work in 15 months at a cost of £400,000 (€581,000). The report has been widely praised and new legislation is now on the statute books.
"The Tánaiste is very well aware of how these inquiries operated in Britain and Northern Ireland," says a spokesman for the Department of Health.
But even in this jurisdiction, where inquiries are carried out according to different legislation, it has been proved possible to conduct a private inquiry and produce a report without inordinate cost.
The Barron inquiry into the Dublin and Monaghan bombings (extended to inquire into other atrocities in this State arising out of the Northern conflict) produced its first and major report in February last year, and has produced more since. Because its first chairman, Mr Justice Liam Hamilton, died and was replaced by Mr Justice Henry Barron, it did not fully get going until 2001.
Judge Barron had part-time legal assistance from junior counsel, and the lawyers for the families' group, Justice for the Forgotten (JFF), passed on to him information they gathered independently. The total cost of this inquiry is just over €3 million, of which €700,000 went to the JFF lawyers. The Oireachtas has received and discussed his reports, and the relatives are satisfied with the inquiry's work.
Various theories have been put forward as to why the Dunne inquiry has taken so long. One was that it got bogged down in legalities at the outset, trying to sort out what its powers were, given that it was not a statutory inquiry. It has also been suggested that Dunne's interpretation of what was required from the inquiry has constantly expanded.
"There was elaborate structural and procedural wrangling," suggested one solicitor familiar with the area. "Imagine trying to get 10 law firms to agree on the rules of a new game!"
Appointing a barrister in the first place to run such an inquiry has also been queried. "They are not natural team leaders," said another lawyer. "Their skills are the opposite."
Dunne's personal characteristics have also been put forward as a contributory factor in the delays. She was successful as a family lawyer because of what her colleagues saw as her unwavering protection of her clients' claims. This strength might not have translated very well into running what was an inquisitorial, not an adversarial, exercise.
While the Parents for Justice feared that the inquiry would end up in legal challenges, last night there were hopes that they may, by the end of this month, see a report on what happened during and after their children's post mortems.
How the inquiry unfolded
1999: Parents for Justice formed to lobby for an inquiry into how the organs of children who died in hospital were retained.
January 2000: Post-Mortem Inquiry approved by then minister for health Brian Cowen.
February 2000: Inquiry formally announced by Cowen's successor, Micheál Martin.
April 2000: Anne Dunne SC is appointed chairwoman of the inquiry, with a brief to report within six months. Terms of reference published. It is stated that hearings are to be held in private.
January 2001: Inquiry's premises in Parnell Square, Dublin, ready for occupation.
March 2001: Interpretation of terms of reference published.
July 2001: All major hospitals written to seeking records of relevant post-mortems. Hospitals indicate this could take up to two years. Inquiry announces it needs more time to issue its memorandum of procedures.
April 2002: Supreme Court judgment in relation to Abbeylara inquiry casts doubt on the ability of the Dunne inquiry to come to conclusions that could impugn the good name of individuals; opinion of the attorney general sought by Oireachtas Committee on Health, to whom report will be sent.
June 2002: Dunne says she does not expect the report to be ready for "some considerable time".
September 2002: First deadline missed, deadline extended for a year.
October 2003: Dunne issues a progress report saying there were significant delays in obtaining responses from hospitals, and that progress was slow, given the volume of documents already obtained.
June 2004: Martin tells the Dáil that it was agreed with Dunne that she would give priority to post-mortem issues in paediatric hospitals, and that a report should be ready by the end of the year.
August 2004: Controversy reignited by families being informed that the pituitary glands of their deceased children had been handed over by hospitals to a pharmaceutical company. Parents for Justice calls on Martin to abandon the inquiry on the basis that it cost €15 million and had nothing to show for the time and money.
September 2004: Attorney General writes to all inquiries seeking an estimated completion date. None forthcoming from Dunne inquiry.
October 2004: Further progress report from Dunne, seeking an extension to the end of 2006.
January 2005: The new Minister for Health, Mary Harney, expresses surprise that the report on the paediatric hospitals had not been completed by Christmas, as promised.
February 2005: It emerges that the Government has decided to close down the inquiry by the end of March, which is the new deadline for its report on paediatric hospitals.