Should the right of a few doctors or health service managers to the constitutional protection of their good name, outweigh the right of many thousands of hospital patients to the constitutional protection of their bodily integrity - the right not to have their health damaged by the state?
Rebecca O'Malley, the Co.Tipperary woman who was given a false all-clear for breast cancer and subsequently had to have a mastectomy, yesterday asked what to her is a rhetorical question.
She was referring to the further delay in publishing the report of the HIQA review into her case, in order to legally facilitate those identified in the report to scrutinise of statements made in it and to avail of a right of reply. While not denying people the right to exercise this legal right, she feels the balance of rights in this case has tipped too much in favour of the people providing the service that is being scrutinised.
In her view, and the view of many who are concerned with the state of the health service and how it is run, the public good and public safety should in the end, outweigh any legal right of reply, or in her view any potential attempt to obstruct or derail certain findings.
Rebecca O'Malley has suggested that there should be a time limit of around 10 days in which people can view a report which mentions them and reply to it if necessary.
It should be remembered that the inquiry into Rebecca O'Malley's case, which involves reviewing pathology services at Cork University Hospital and breast services at Limerick Regional Hospital, was initiated in May 2007. It is one of a number of inquiries into breast cancer controversies initiated last year and yet to publish their findings.
While accepting that everyone has a right to maintain their good name, Rebecca has also stressed that everyone is also entitled to a safe health service, and feels the longer the delay in publishing major reviews of adverse events the greater the risk of further misdiagnoses occurring.
"I accept that there must be due process as regards the right of reply for people who might be identified in a report," Rebecca O'Malley told irishhealth.com.
"However, I feel there is a need for a balance between constitutional rights in this area and the public good in terms of the risk to women's health and lives. I do not believe there is a fair balance to this at present."
She also believes that recent misdiagnosis scandals and the way they have been handled point to a need to change the culture through which we deal with adverse events within the health service.
"Under the current system," Ms O'Malley said, "people find it difficult to admit mistakes because of the way the system is organised. It makes it very difficult to move on and learn from our mistakes. Everyone is human and we do make errors; we cannot expect doctors, for example, to be robotic perfectionists."
"If errors are acknowledged quickly, something can be done about it to ensure it doesn't happen again."
She said she believes we need a system of open disclosure and mandatory reporting of medical error.
The Rebecca O'Malley report's planned publication in mid-December was postponed after new information came to light, and it is now unlikely to see the light of day until the end of March.
It is one of a number of reviews currently taking place following the breast cancer scandals of last year. The report of another review, of the breast cancer misdiagnoses at Portlaoise Hospital, is being delayed for similar legal reasons to the O'Malley report.
This report was initially due for publication around early December.
Other reports into the breast scandals are also due. These are: a HIQA review of pathology services at University College Hospital, Galway (announced in August 2007 and due to be published in April); an inquiry into breast cancer care at Barrington's private hospital in Limerick (announced August/September 2007 and due to be published within the next few weeks): and two internal inquiries into the HSE's handling of the Portlaoise controversy (announced in November 2007).
It is likely that some of these inquiries will be subject to the same legal right of reply as the O'Malley report.
In fairness, there is little those conducting such reviews can do about such legal delays. The legal right to uphold your good name is , after all, in the Constitution, and a failure on, for example, HIQA's part to allow people a full right of reply could lead to any reports it writes being tied up by court injunctions.
Rebecca O'Malley, however, has asked a key question - how far should this legal right of response extend, and where do you draw the line between individual rights and the collective right of all people to a safe health service?
The legal right of reply has been invoked before, for example, in the publication of the O'Neill report into the deaths of residents at the controversial Leas Cross Nursing Home.
Dr Des O'Neill, an eminent geriatrician, completed his report in April 2006. It was not published until November 2006.
Prof O'Neill's report was dogged with controversy before it was published. The HSE said it presented legal difficulties, as parties referred to were not given an opportunity to respond.
In the end, all parties identified in the report were given the right of response. The total length of these responses exceeded that of the Prof O'Neill's actual findings.
While the HSE said many of these responses sought to put the controversy over care of the elderly at Leas Cross in context, no amendments were made by Prof O'Neill or by the HSE to his final report as a result of these submissions. Prof O'Neill had stated in his report that his findings were consistent with a finding of institutional abuse.
It is likely that there will be similar lengthy responses appended to the O'Malley report and to the other breast cancer reports.
Rebecca O'Malley, however, has stressed she believes that the many recommendations which will be contained in the HIQA report on her case will when implemented, provide significantly improved protection to women being tested for breast cancer.
She said she would also urge HIQA to disclose within their forthcoming reports the source of any obstacles that may have been placed in their way during the course of any investigation.
For the future, however, she believes we need to change attitudes from 'an illusion of infallibility' to acceptance of the existence of human error and a policy of learning from our mistakes.
This culture change, she believes, could be initiated through making mandatory the reporting of medical errors in the health system.