The High Court has rejected Michael Walsh’s judicial review challenge to the Health Service Executive’s publication of a report about deaths of residents and former residents of Leas Cross Nursing Home.
Mr Justice O’Keeffe held that the application was not brought promptly and that no good reason had been given to extend the time for bringing it. He also considered the merits and concluded that Walsh had failed to make a case for judicial review.
The report, prepared by Professor Desmond O’Neill following an investigation commissioned by the HSE, was published on 10 November 2006. Walsh, a former HSE Northern Area chief officer, argued that the process breached his rights to natural and constitutional justice because his written responses were not properly considered or published with the report.
The HSE had invited responses from people whose roles were referred to in the draft. It decided that submissions would be appended to the report, but told Walsh that material identifying third parties, potentially confidential documents and other material could not be included as submitted. Walsh insisted that his additional submission of 25 October 2006 be published in full.
The judge resolved a dispute between solicitors for Walsh and the HSE about their communications shortly before publication. He accepted the HSE solicitor’s account that she had explained the objections to Walsh’s submission and told his solicitor that it would not be published in that form. The judge found that Walsh maintained his request for the material to be included, despite those objections.
On the timing issue, the judge treated publication as the event that triggered the time limit. Walsh complained immediately after publication, but sought undertakings to withdraw or alter the report in a letter dated 5 February 2007. The judge found that the application, for which leave was granted on 12 February, had not been made promptly. He said an expected response to the November letter was not a sufficient explanation for the delay.
On the merits, the judge found that the HSE’s decision to append submissions, and its directions for handling them, were consistent with fair procedures. Walsh had engaged with that process. The HSE was not required to delay publication indefinitely until the parties agreed on an appendix, the judge said. He concluded that refusing to publish Walsh’s submission in the form requested did not deny him fair procedures or natural and constitutional justice.
The court therefore dismissed the judicial review application. The judgment does not rule on the underlying investigation’s findings about Leas Cross.