According to the HSE's National Consent Policy "Seeking consent is not merely getting a consent form signed", it must be valid and genuine, and "treating service users without their consent is a violation of their legal and constitutional rights and may result in civil or criminal proceedings being taken by the service user."Peregrinus wrote: ↑Thu Feb 17, 2022 1:24 am But, Schittel, you still haven't explained exactly what your claim against the government is. If I tell you something that turns out to be untrue, that does not in itself give you a cause of action against me. This is true even if I am the government. You need some addtional facts in order to have any kind of a claim against me. You mention consumer protection rights as an analogy, but the analogy doesn't work. If I tell you X in order to get you to give me money, and you give me money in reliance on what I have said, then you can complain if what I said turns out to be untrue. But you haven't given the government any money in reliance on their statements about the efficacy of the vaccine.
If the government urges you to stop smoking, suggesting that it will lessen the chances of you getting lung cancer, and you stop, but you get lung cancer anyway, can you sue the government?
My claim is that I was given a medical intervention with obtaining valid informed consent.
The consent I gave was invalid because the information on the purpose and the benefits of the intervention - to protect against symptomatic infection and reduce transmission - I was provided with was incorrect. It does not matter whether or not they knew it was incorrect when they provided the information, the very fact it was incorrect renders the consent invalid.
The smoking analogy is ridiculous because the government does not have a legal requirement to obtain my consent to encourage me to stop smoking. It is not a medical intervention to urge me to stop doing something I am already doing. It is obviously quite the opposite.
The vaccine roll out was based on the successful trial results at preventing symptomatic infection. There is no shortage of studies and data showing that the vaccine effectiveness in the real world was significantly less than the trial results showed. In addition to that it is clear that the HSE changed their messaging on the benefits of vaccination to ultimately focus on entirely on reducing hospitalisation and death.Peregrinus wrote: ↑Thu Feb 17, 2022 1:24 amOn a separate point, you say:
"In order to defend this the HSE will either have to prove that the information was not flawed, which seems like a big ask.
Or failing that they have to argue that it is legitimate to obtain informed consent using flawed information. That also seems like a big ask."
I think this is wrong on both counts. If you're suing the HSE on the basis that they gave you flawed information, the onus is not on the HSE to prove that it was not flawed; the burden of proof is on you to show that the information was flawed.
In April Tony Holohan wrote an open letter to the vaccinated encouraging them to get out and start living life again because they could have "confidence" in their vaccine. Less than four months later he was publicly expressing disappointment with the vaccine's performance in reducing case numbers.
You can be sure that there are internal documents expressing this disappointment and change of messaging in slightly more robust terms.
Whilst the onus may not be on the HSE to prove the initial information they provided was correct, they will at least have to defend the claims it was incorrect. How do they do that if they are unable to prove it was correct?
I'd argue that the intended purpose and benefits of vaccination is an expectation of immunity. Is that materially different to an expectation of not ending up in ICU or the morgue? I'd argue yes, and the court can decide who is right based on the strength of the HSE's argument that not ending up in ICU or the morgue is not materially different to immunity.Peregrinus wrote: ↑Thu Feb 17, 2022 1:24 amAnd, as to whether it's legitimate to obtain informed consent using flawed information — it depends on what we mean by "flawed". If by "flawed" we mean "it could be wrong", well, all scientific understandings could be wrong. That's fundamental to the concept of "scientific". If we mean that it was wrong (something you have to show, remember) then, if you have shown that, you have a number of other hurdles to cross. You have to show that it was wrong in a material way, for one thing. As to whether it is "legitimate" to rely on it, again that is going to come back to whether the HSE could or should reasonably have known that it was wrong. And, again, the burden of proof will be on you.
As to the legitimacy I'd argue that whilst I accept the HSE cannot possibly know all the risks involved with a medical intervention, it it is reasonable to expect that they know what the rewards of an intervention are. I can make a strong argument for the the idea that if the HSE are advising medical procedures to citizens then they could and should reasonably know that the reasons for that advice are correct.
Again it would come down to the court to decide based on the strength of the HSE's argument that they could not or should reasonably be expected to know it was wrong.
In terms of valid informed consent, it is not enough to say "Well we we wrong about the expected benefits, but sure the intervention did provide some. benefits and it didn't do you any harm anyway. We think. But we're not sure. And in any case it doesn't matter whether we are sure or not, we cannot reasonably be expected to know."
As you said earlier, the key question is how will it play out? Are the HSE really going to argue to try and argue these points to the hilt? If they argue the points and win they run risk of undermine public confidence in their future advice. If they argue and lose they obliterate public confidence.
They might decide that discretion is the better part of valour.