A woman who found that the organs of her dead baby girl had been retained by a Dublin hospital has brought High Court proceedings aimed at procuring an "effective" inquiry into the issue of organ retention by hospitals.
Mr Justice Thomas Smyth yesterday reserved judgment on a preliminary issue relating to whether Christine McStay of the Parents for Justice group is entitled to bring the proceedings.
The case has implications for the parents of other dead children whose organs were retained.
Ms McStay, Portlaoise, Co Laois, wants the court to direct the Minister for Health to set up an alternative form of inquiry into organ retention, including a statutory inquiry as promised six years ago by then minister Micheál Martin.
She claims the State has a duty of care to her and also claims a legitimate expectation of an effective and expeditious inquiry.
Ms McStay's baby daughter Anne Marie died at Our Lady's Hospital for Sick Children, Crumlin, over two weeks after her birth on February 3rd, 1981.
The High Court was told in December 1999 that Ms McStay was informed by telephone that the brain, heart, lungs and liver of her daughter had been retained by the hospital upon her death.
Richard Nesbitt SC, for Ms McStay, submitted that in May 2000, the minister for health had set out the type of inquiry that was proposed, describing it as a two-tier inquiry with a statutory basis.
It was expected that there would be an effective and expeditious inquiry by Anne Dunne SC, that a second phase of an Oireachtas Committee on Health and Children would sit which would, in light of the Dunne report, conduct an inquiry with full powers to discover documents and compel witnesses to attend.
However, the first phase had in its interim report stated it could not compel witnesses and could put no time scale on a report. It was terminated by the minister after five years, having cost the taxpayer €20 million. An interim progress report was published.
Its work was summarised by barrister Deirdre Madden, appointed by the minister, and her report was published in December 2005. The Oireachtas committee had since said the inquiry could not take place.
It was promised that in the event of the Dunne inquiry not meeting its objectives, the minister would look to set up a statutory inquiry under the Tribunal Acts if necessary, Mr Nesbitt said.
Ms McStay claims the minister's promise of a two-tier inquiry was compromised by legal decisions relating to Oireachtas powers, the effect of which prevented a committee from undertaking any second phase of the inquiry. Therefore, her legitimate expectation of an effective inquiry has not been met.
Maurice Collins SC for the State said a full statutory inquiry with power to compel witnesses to attend could only be established by the Oireachtas and the Minister for Health did not think it was appropriate to establish such an inquiry. This was a matter for the judgment of the Minister and ultimately a decision for the Government, he said.