A very public advocate: Cian O’Carroll profile

O'Carroll's career path has made him a hero to many, but there have been rather noisy disagreements between him and some members of the medical profession and government

Barry J Whyte

Chief Feature Writer @whytebarry

Susan Mitchell

Deputy Editor and Health Editor @susmitchellsbp
23rd June, 2019
2

Factfile

Name: Cian O’Carroll

Age:48

Appearance: dapper, inscrutable

Newsworthiness: the lawyer is representing dozens of women fighting the state over alleged failures in the CervicalCheck screening programme

When Cian O’Carroll was 19, his father – a marine electronics officer in the Irish Navy – was fatally electrocuted in a workplace accident. The accident had not been his fault: someone had incorrectly rewired a device he was working on, inadvertently bypassing a safety circuit.

It was, as O’Carroll recalled it in speaking to The Sunday Business Post, his first introduction to the law. Not only had someone else’s negligence contributed to his father’s death, but he felt he was poorly served by the legal system at the time. Had it not been for his father’s financial prudence, the family would have been left financially as well as emotionally bereft.

O’Carroll is today well known for his representation of numerous women who were diagnosed with cervical cancer in spite of earlier screening results that reported no abnormalities.

His career path has made him a hero to many: he won a €7.5 million settlement for the late Emma Mhic Mhathúna, a €2.5 million settlement for Vicky Phelan, €2.1 million for Ruth Morrissey, and €2.5 million for an unnamed client. He is also acting on behalf of dozens more clients.

O’Carroll receives great praise from those he represents, such as Vicky Phelan, and is widely depicted as a champion of women in the media. He recently won an award for his work.

***

Perhaps surprisingly, O’Carroll didn’t immediately leap into law as a career. As a young man he went to Maynooth to study biology and computer science. But he was soon drawn to the legal world. On graduating with his Bachelor of Science, he sat the entrance exams for solicitors, and applied for a traineeship in 1993 with Clonmel solicitor John Lynch.

The young O’Carroll made an immediate impression. Lynch said he had “that extra X factor” that convinced him to take the young science graduate on, despite his not having a traditional legal background.

For Lynch, trainees fall into two very broad categories: the natural litigators and the contract-conveyancing-probate type of lawyer, which he describes as “front of house” and “back of house” respectively. From the start, he knew that O’Carroll was a “front of house” solicitor.

“He has a very good sense of right and he would always take on a good fight. He’s got a very good nose for a piece of litigation,” Lynch told The Sunday Business Post.

“He probably fits into that mode of the American-style lawyer, in the sense that he’d be very proactive about doing the business of law and litigation. He wouldn’t be one to sit back and wait for it to come in the door. He’s good at marketing: very presentable, very articulate and very passionate about what he does.”

O’Carroll cut his teeth on the traditional meat of small-town solicitors’ firms, but worked on a lot of workplace injuries and occupational asthma cases. He soon graduated to much more high-profile, and high-stakes, cases.

His early years as a solicitor coincided with the glut of Irish Army deafness claims. He also worked on claims against DePuy, the manufacturer of hip replacement joints which were later found to be defective and to have had major health consequences for some.

Then there was the Brian Rossiter case, in which a 14-year-old boy had been arrested by gardaí and later died in his cell. The case came to O’Carroll because the Rossiter family lived in nearby Clonmel.

The lengthy and multifaceted case included an inquest into Rossiter’s death, a judicial review against the coroner, a civil case against the Garda, a tribunal of investigation and – as would become characteristic of O’Carroll’s career – a high-profile media presence.

O’Carroll took on the case before the public became aware of the enormous number of Garda scandals. In 2005, he decided to go to veteran journalist Vincent Browne, who was then running Village magazine, to break the story.

Eventually the state settled with the Rossiters for €200,000, but without any admission of liability. The episode made clear to O’Carroll that cases can be advanced in forums other than the court, and that the ability to make the public aware of an issue could have an impact on the actions of the government.

The Rossiter case marked O’Carroll’s arrival in the public consciousness as a vocal advocate for his clients in the American style that Lynch described. O’Carroll said he had learned a huge amount about how a lawyer can use the oxygen of publicity to achieve positive goals for clients.

***

In 2010, O’Carroll left the partnership with Lynch and another solicitor, a process he is reluctant to talk about since he said there was a falling out. (For his part, Lynch still speaks warmly of O’Carroll.) He decided to form his own firm to handle the sorts of cases he wanted, the most high-profile of which are the cervical cancer cases.

The debacle has raised questions about the quality of the national cervical cancer screening programme and doctors’ failure to disclose information to patients.

Amid it all, O’Carroll has been a prominent voice in the media coverage, and it has led to rather noisy disagreements between him and some members of the medical profession and government, some of which he says he now regrets.

Take, for example, O’Carroll’s characterisation of Dr Gabriel Scally’s inquiry as “a sham” in an interview he gave last year.

While he disagrees with Scally’s conclusion that there is no evidence to suggest the labs are sub-standard (Scally said he was “satisfied with the quality management processes”), O’Carroll regretted his choice of the word “sham”.

“Having reflected on it, I should have used [a different] word,” he said, adding that there was “huge disappointment” after Scally’s report had not noted the 221 cases and had “absolved the process”.

It is unclear who exactly was disappointed. The report received widespread praise, including from high-profile campaigners such as Stephen Teap and Lorraine Walsh.

There was criticism of O’Carroll last year over an Irish Times article which said that Julie O’Reilly “lost her life” after four misread smear tests failed to detect her cervical cancer. The story – and subsequent coverage on RTÉ – elicited another public outcry.

Doctors at the hospital where O’Reilly was treated wrote to the HSE’s chief clinical officer to say the deceased woman was, in fact, never diagnosed with cervical cancer. She had endometrial cancer, which cervical cancer screening is not designed to detect.

O’Carroll said he was not attempting to be Jesuitical, and that he wasn’t trying to blur the issue of O’Reilly’s death for media attention. He insisted that the important point was that her endometrial cancer could and probably should have been caught by one of the four smear tests she took, and that while it was not a cervical cancer case per se, her four smears still showed evidence of a high-grade abnormality.

Scally was extremely critical of the frenzy surrounding CervicalCheck. He said that “a toxic mix of media, politicians and legal professionals” had created a fevered environment.

Although Scally never directly named O’Carroll in either of his two reports (his main scoping inquiry and more recent supplementary report), his findings clearly contradict some of O’Carroll’s public pronouncements.

Soon after the controversy broke, O’Carroll told RTÉ: “We have to find out why a direction was given to deceive the families of women who were dead and to deceive women who are now gravely ill – clearly done deliberately.”

Scally stated that he had found “no evidence of conspiracy, corruption or cover-up”. He concluded that while there were huge governance issues, “there was a genuine desire on behalf of CervicalCheck to give women who had developed cancer the opportunity to learn about the audit that had taken place”. The process or rollout, however, was “flawed”.

When the Department of Health explained that screening is an imperfect science and that false negatives are an unfortunate reality in all screening programmes, O’Carroll responded by telling RTÉ that this situation was entirely different. “A false negative is a smear that, when rechecked, is still negative,” he said.

Scally categorised false negatives as follows in his written report: “Samples where the test is originally reported as negative, but on review abnormal cells are found.”

O’Carroll also claimed (on RTÉ) that having earlier knowledge of the results of these audits could have altered the type of treatment the women received.

Doctors were incensed by this claim in particular. They insisted it was grossly inaccurate and fuelled the false narrative that some women were knowingly denied treatment. Scally also contradicted the claim, stating that “retrospective knowledge would have had no effect upon the treatment of the women involved.”

***

Scally’s general criticism of the legal profession might be seen by some to suggest that the legal profession was mainly concerned with maximising adverse publicity to drum up clients.

O’Carroll said he would be “hurt” by any suggestion that he was “not genuinely motivated by the interests of my clients [and instead] trying to improve my attractiveness to clients”.

Still, he knows that many will wonder – in the context of those multimillion-euro settlements – about his fees, not least after this newspaper reported that he had filed an estimate for interim legal costs in the amount of €700,000 in Emma Mhic Mhathúna’s case.

At the time, he told this newspaper the figure was inaccurate (though only slightly). It was an opening bargaining position for interim costs with Quest Diagnostics, the lab in the settlement, and these costs would be split between his firm, the barristers on the case and the expert witnesses called to give evidence.

He said the figure for costs was eventually settled at €250,000, adding that about a quarter of that would go to the expert witnesses.

It’s difficult to get a sense of just how much O’Carroll makes from his legal practice – it is illegal for legal practices to incorporate and thus no public sets of financial accounts exist – and he was loath to disclose how much money he was making from these high-profile cases. He said that when it came to the number of clients he had and the resultant income: “I wouldn’t even tell my confessor that.”

But a sense of the financial health of the firm can be gauged from the accounts of a company called Tipplaw, in which he and his wife are the shareholders, which owns the building in which his firm is headquartered. The most recent set of accounts for Tipplaw show that it had accumulated profits of €1.5 million, up from just over €1 million the year before.

O’Carroll makes no apologies for earning money: it is, after all, his day job. “There’s no point putting on the poor mouth. It’s a good, solid practice, it’s been growing for several years, and ultimately you’re entitled to be paid for the work you do.”

However, he said he never charges his clients. “The only person who pays our fees is the unsuccessful defendant. What you’re not entitled to do is do the work and then charge your client.”

He is now facing a Supreme Court appeal over the recent Ruth Morrissey verdict, which has divided medical and legal opinion, with doctors and the health service expressing huge concern over the “absolute confidence” principle.

O’Carroll, and others, have argued that a similar principle is already embedded in British law. It is likely to be his biggest ever case, and his most high-profile one too.

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