The High Court has ordered discovery of specified records in a care assistant’s personal injuries action over two alleged assaults by a service user at Connolly Hospital Blanchardstown in November 2017.
In a judgment delivered on 25 May 2023, Mr Justice Garrett Simons ruled on the plaintiff’s contested application for discovery against St John of God Community Services Company CLG and the Health Service Executive. The alleged assaults are claims in the underlying action, not findings made in this discovery ruling.
The plaintiff sought records about previous assaults or violent behaviour by the service user, risk assessments, management and care plans, and medication. She argued the records were relevant to whether the alleged assaults were foreseeable and what the defendants knew. The defendants opposed the request as speculative and argued that the service user should have been joined to the case to seek confidential records directly.
The judge found that the defendants’ own pleadings made the requested records relevant. They had pleaded that the service user was appropriately assessed and resourced, that the plaintiff had received appropriate information and training, and that the alleged assault was not reasonably foreseeable. The court said a previous pattern of aggression could bear on foreseeability and that the plaintiff could not reasonably be required to prove previous assaults before seeking records held by the defendants.
Recognising the sensitive and confidential nature of records about a vulnerable person who is not a party, the judge concluded that the narrowly framed categories were necessary to a fair resolution of the liability issues. He rejected the argument that the plaintiff should join the service user, noting that the documents were held by the defendants and that joinder would be cumbersome and costly.
The court directed discovery, with modifications. It ordered records of violent behaviour towards or assaults on staff during the three years before 19 November 2017; specified reports by psychiatrists, psychologists or behavioural specialists concerning positive behavioural support plans or PRN medication, including administration records on or about 19 November 2017; and management and care plans in place during that three-year period. The parties had agreed wording for discovery of policies and procedures on staff assaults or violence at Blanchardstown Hospital and St John of God.
The judge refused discovery of the broader category concerning “medical regimes”, finding it overbroad given the other records ordered. For incident investigation material, the defendants were to address any privilege claim in their discovery affidavit and explain its basis; the ruling did not determine whether particular documents were privileged.
The judge’s view that the plaintiff should recover the motion’s costs was provisional. The matter was listed for 12 June 2023 to finalise the order and allow the defendants to address costs.