The High Court has ruled that Christine McStay could not compel the Government to establish a statutory inquiry with powers to force witnesses to attend and documents to be produced over the retention of organs after post-mortem examinations.
McStay’s daughter, Ann Marie, was born in February 1981 and died 18 days later. In December 1999, after McStay contacted Our Lady’s Hospital for Sick Children in Crumlin, she was informed that her daughter’s brain, heart, lungs and liver had been retained.
McStay, a member of Parents for Justice, relied on statements made during meetings with the Minister for Health in 2000 and on a September 2000 Department of Health letter. She argued that those assurances created a legitimate expectation that an effective inquiry would take place and, if necessary, would lead to a statutory inquiry with compulsory powers.
The Government had established the Post Mortem Inquiry chaired by senior counsel Anne Dunne. That inquiry later ended in March 2005. Its report was not published following legal advice, and Dr Deirdre Madden was appointed to complete a final report on post-mortem practice and organ retention.
Mr Justice Smyth held that deciding whether to establish an inquiry, and what form it should take, was principally an executive function. A tribunal with statutory powers of compulsion could not be imposed by the court because such powers depended on decisions involving the Houses of the Oireachtas.
The court also rejected McStay’s negligence argument, finding that the Minister owed her no private duty of care requiring the establishment of an inquiry of the type she sought.
Her legitimate-expectation claim also failed. The judge found no clear and unambiguous promise that a tribunal under the Tribunals of Inquiry legislation would definitely be established. Any second-stage process had been described as conditional on it being necessary.
The High Court therefore ruled that the proceedings disclosed no justiciable issue requiring determination against the respondents.