The chairman of an inquiry into the deaths of five children says it is "almost unbelievable" that a heath trust has declined to make a decision on its liability until the outcome of the public hearings.
John O'Hara QC, who is leading the Inquiry into Hyponatraemia Related Deaths, was addressing a statement made by counsel for the Altnagelvin Hospitals Trust, Michael Stitt.
Mr O'Hara was referring to a High Court lawsuit taken by the parents of Ferguson (9) against the trust – now part of the Western Health Trust – which is running separately but simultaneously with the inquiry.
The chairman's surprise came during the first day of the governance phase of the inquiry which aims to examine the actions taken by the authorities following the children's deaths, which took place over a period from 1995 to 2003.
The inquiry is investigating the circumstances surrounding the deaths of three children, Adam Strain, Claire Roberts and Raychel Ferguson, and the events following the death of Lucy Crawford.
At the heart of the probe is the management of fluids administered to Raychel, who died on June 10, 2001.
A factor in the cause of her death was hyponatraemia, a condition involving abnormally low sodium levels in her system.
Addressing the possible admission of liability in Raychel's case, for which Mr Stitt said the trust would be "deeply apologetic" if proven, Mr O'Hara asked Mr Stitt: "Does that mean the trust's position on the High Court litigation is pending while I finish the inquiry and write the report?"
Mr Stitt said that was indeed the case, prompting Mr O'Hara to state: "I'm sorry Mr Stitt, that's almost unbelievable.
"We had a witness who gave evidence... in the evidence of Mr and Mrs Roberts who, as they walked out of the inquest, said they will have to admit liability because of what I have heard in this inquest." He said the witness made the statement "because they didn't do an electrolyte test on the morning after Claire was admitted for treatment".
Though he was referring to one of the other cases, Claire Roberts who died in 1996, the chairman was expressing his surprise in light of the fact of those previous admissions heard of in evidence.
"If a senior figure within the Royal (Victoria Hospital) could give that indication and take the decision on the basis of what he heard in the inquest, I'm lost as to why the trust is waiting for the end of this evidence and my report."
Mr Stitt confirmed: "The decision was taken that if this matter is going to inquiry it will thoroughly examined and all the relevant factors will be looked at."
The inquiry was also told that a report produced at the request of the trust by medical expert Dr Declan Warde raised issues of serious concern over Raychel's care.
However, it was never sent to the coroner who investigated her death, nor to Raychel's family. The inquiry also heard the trust failed to use it in any internal probe into Raychel's death, or to learn from its findings.
The inquiry only got hold of the paper following an issue on discovery and a relinquishment of privilege.
The chairman agreed with Mr Stitt that under existing legal parameters there was no duty of disclosure to a coroner of such material.
The inquiry also heard from one of the lead nurses in charge of Raychel's care during the night following her operation.
Ann Noble disputed a ward sister's account of the events surrounding the child's death when Mrs Noble had been reported to have described Raychel's condition as "funny" and "confused" prior to her going on her break.
She said she couldn't recall the conversation, adding "it didn't happen", and that she wouldn't have gone on her break without instructing the other nurses to assess the girl and to contact a doctor.
The inquiry continues today.