Dáil Éireann debate -
Wednesday, 19 Feb 1986

Vol. 363 No. 14

Health (Amendment) Bill, 1985: Committee and Final Stages.

Section 1 agreed to.

SECTION 2.

Dr. O'Hanlon

I move amendment No. 1:

In page 2, subsection (1) (b), line 32, to delete "or will be".

My concern is that if a person were to be injured in a road accident and were to develop some complications later on as a result of the accident which had not been provided for in any settlement, a health board might charge that person, as they would be entitled to do under this legislation. I know there is a discretion for health boards to waive charges. Nevertheless I fear that it would be possible, if health boards were to find themselves short of revenue, that they might pursue somebody, or charge him, for services rendered or maintenance in a hospital on the basis that the services were provided to deal with a complication of accidental injuries.

Proinsias De Rossa

On Second Stage I indicated that I opposed the Bill because I felt it was a move away from what I consider to be a need to expand rather than to restrict the free availability of hospital services. I said I believed it was wrong to differentiate between patients in hospital on the basis of how their injuries occurred. On section 2 there is a number of questions I should like to ask.

An Ceann Comhairle

The Deputy will appreciate that we are simply dealing with amendment No. 1 in the name of Deputy O'Hanlon.

Proinsias De Rossa

I thought we were discussing the section.

An Ceann Comhairle

No, we will come to the section later on.

Proinsias De Rossa

The amendment covers one of the reservations I have concerning this Bill, that is, the whole question of how far the health board can go in claiming charges from a patient. It strikes me that it is possible that treatment arising from a road accident could go on for many years after an accident occurred and after compensation had been paid. Is it the intention that, once the board assesses a patient as being liable to pay for hospital care or outpatient care, that will stand until such time as they consider that the compensation has been totally spent or paid out? The part of the Bill to which this amendment refers would appear to give the power to a board that, regardless of when the care may be provided, once it is necessitated by a road accident the board will have a right to claim from the person concerned. That is one of the concerns I have in relation to the Bill.

Dr. Ormonde

The problem we see with the "will be provided" aspect of this is that these charges can only be estimated. One may ask whether the recipient will be asked to pass to his health board whatever moneys he is awarded to cover the services he will require in the future to treat his injuries. If that is the case, what will become of the moneys if the anticipated need does not materialise, or if the individual dies without availing of the services which he had indicated would be required? Will the health board be entitled to be heard in court and to be involved in out of court settlement consultations and, if not, what redress will be open to a health board in a case where a claimant has understated his claim in respect of medical expenses?

Minister for Health (Mr. B. Desmond)

I have examined carefully the proposed deletion of the words "or will be" from section 2(1)(b) and I have come to the conclusion that the effect of this would be to deprive health boards of the right to charge for services in respect of an injury subsequent to the person receiving compensation or damages. We must always bear in mind that we are talking about specific instances where compensation and damages are adjudicated on and the right of the health board to recover a degree of moneys.

In relation to Deputy O'Hanlon's amendment one could take a typical case where a person is permanently incapacitated by an injury received in a road traffic accident. Naturally that person receives treatment prior to his claim being assessed by the courts. At the time of assessment he is receiving treatment on a permanently incapacitated basis and he expects to continue to receive treatment subsequent to the grant of compensation. The special damages would include compensation for past treatment and would also allow for whatever treatment might be foreseen in the future. That would be the normal method of assessment of compensation. If we were to delete the words as proposed by Deputy O'Hanlon we might finish up in a situation where health boards would be excluded from charging for future treatment even though the damages awarded took account of the cost of such treatment.

Another very important aspect of this Bill is where a court awards compensation and where, in the opinion of the health board, the damages are not sufficient for the ongoing and the future treatment of the person concerned, or where the damages have been so reduced in the heel of the hunt, after a long period of years. As we know, it can take up to five years, or more to get settlement. Health boards, in those circumstances, have discretion under the Bill to waive the whole or part of the charges. I submit to my colleagues that the Bill as framed meets the wishes of Deputies and that the House would be wise not to press the amendment unduly.

Dr. O'Hanlon

I appreciate the difficulty outlined by the Minister. He gave an example of a person who was permanently incapacitated as a result of injury. I believe that such a person would be covered by subsection 2(1)(b) which states:

In-patient services or out-patient services have been, are being ...

I am suggesting that we delete "will be" and that, at that point, they are being provided and that the court could equally decide to grant an award for the treatment that would be necessary. Let us take an alternate example of, say, somebody who suffers a whiplash injury to the neck. There is a court settlement in perhaps two years' time and the person is not having any serious trouble with his neck then but in five or six years time he may well have developed arthritis in the neck with serious neurological complications in the arms. The health board at that stage might charge a person for the service it was necessary to provide because it was legitimately the result of an accident that person had been involved in five or six years previously. We want to guard against health boards doing that.

The Minister pointed out that in awarding damages, courts take into consideration the cost of care and attention particularly where a person has been incapacitated. Where it is possible to measure the extent of that incapacitation the courts award damages, but there are many other aspects to awards of courts and it is not always possible to say how much of the award relates to the need for treatment in the future. Indeed, in the case that gave rise to this legislation, Cooke versus Walsh, damages were awarded under eight different headings: hospital expenses to the date of the trial, hospital expenses for 12 months after the trial, the cost of alteration to the father's house to suit the needs of the child, the loss of expectation of life, future loss of wages, cost of future care, general damages to the date of the trial and general damages in the future. We want to ensure that if a person receives an award health boards will not charge that person, if he or she is entitled to the service otherwise, if he or she has not received damages to cover the cost of treatment in the future. In many instances, including the one I have outlined, it is not possible to foresee the consequences of a road accident or the injuries a person might suffer.

Proinsias De Rossa

I listened carefully to what the Minister said and I do not think he replied to the point I raised. To what extent will a board have the right to claim charges against a person who may require services, whether in hospital or as an outpatient, in the future? Is it the case that a board will be entitled to claim until such time as they consider that an adequate sum, or no sum, remains of the compensation received by the injured person? It seems to me that the board's right to claim for future care is not dependent on the court, or any other body, deciding that compensation includes an amount of hospital or outpatient care. There are cases where claims are settled on a global figure.

In the case of compensation claims settled by the Motor Insurance Bureau, ex gratia payments or lump sums are made, but they are not broken down on a percentage basis for hospital care and so on. A person who sustains a head injury and is detained in hospital overnight may legally have a claim for compensation for such an injury but may not pursue it because he or she may consider the injury to be slight but in the future it may be more serious. To what extent will a health board have a claim against such a person?

Mr. B. Desmond

My general response is to refer Members to section 2(2). It is of critical importance that there is within the Bill a power to enable a health board to waive the whole or part of the charge levied under subsection (1). The discretion is quite deliberately left to health boards who will have to have regard to the amount of damages received and to any reduction in the damages awarded by virtue of contributory negligence, an aspect that is of importance. The provisions are necessary and entirely reasonable in order to obviate any hardship on the individual arising out of an insufficient or a reduced award by the courts. It protects the Minister of the day against the very charge which preoccupies Deputy De Rossa, that we are singling out persons injured in a road accident for unfair or invidious discrimination. The services can still be provided free of charge or at a reduced charge, depending on the circumstances of the case.

The health board will also take into account cases where an injured party is awarded damages but does not have any hope of collecting them. It is of considerable importance to bear in mind that, where damages are assessed in court and where the cost of the treatment is built into the amount of the award, it is manifestly unfair that health boards which must provide services do not have any prospect of recouping from that award the very substantial amount of money involved. Frequently a lifetime of total care is involved for the person concerned. Where money is paid out by an insurance company or where there are out of court settlements, a health board should be entitled to their fair share of such an award in certain circumstances.

The fears Deputies may have in regard to the Bill are unnecessary. Putting this in a very broad sense I should like to state that the fact that this problem has not been remedied for five or six years has meant that the health system has lost the best part of £20 million. That amount of money has gone to individuals by way of compensation for damages and treatment which was provided by the health boards. The provision is an effort to remedy that. We are revising the system and, by and large, I have not met any substantial arguments in opposition to the broad thrust of the Bill.

Dr. O'Hanlon

My difficulty is that the Bill gives health boards discretion in that they may waive the whole or part of the charge, according to section 2(2) (a). However, it is not stated that the health board will waive such a charge in the event of a person not being awarded damages that would take into account the cost of any future and unforeseen illness. Can the Minister give some assurance that the health board would not charge a person in respect of a complication that would manifest itself four or five years after the accident and where a case had been settled without the injured party not being awarded compensation to cover the cost of future treatment?

Dr. Ormonde

Perhaps at the outset we were a little remiss in not congratulating the Minister for having held out against all the attempts to transfer him. I should like to rectify that omission now.

The Minister referred to the £20 million that has been lost to the health boards since the Cooke v. Walsh case. As a member of a health board I can assure the Minister that we were equally distressed about this especially as the Minister made no attempt to compensate the health boards for that loss.

In this Bill we are missing a golden opportunity to sort out a number of problems. As I said on Second Stage, it can be argued that in this country a person injured in a road accident has an incentive not to avail fully of all the available rehabilitation services which, I might add, are among the best in Europe. The greater the recovery from an accident the less the injured party will receive by way of compensation. Therefore, there is an argument for deferring calculations of compensation until such time as the injured party has availed fully of whatever rehabilitation programme has been recommended for him following medical and vocational assessment. As I said previously, this is not a matter for the Minister but it would benefit motor insurance financially to fund rehabilitation programmes in the case of road accidents. In this way they would be ensuring greater recovery and, consequently, less in payouts.

Mr. B. Desmond

The point made by Deputy Ormonde is very reasonable but it is outside the remit of this Bill. One would have great difficulty in enlarging the scope of the Bill into the area mentioned by the Deputy but I should hope that in future legislation we would grapple with the problem in question. I would be reluctant to make it mandatory on the health boards to provide a waiver. This is an enabling provision and I might find myself in considerable difficulty with the parliamentary draftsman if I were to include a mandatory "will" as distinct from "may" at this stage.

Proinsias De Rossa

I apologise to the Minister if I seem to be niggling at something which may be obvious to him but there is the question of the extent to which any health board will have the right to pursue a person for money from compensation acquired in an out of court settlement and which may not include specific amounts for hospital or out-patient care. There is also the question of cases where there are ex gratia payments, especially from the Motor Insurance Bureau. I had experience of one case in which a young man lost his leg in a hit and run road accident and consequently liability could not be pinned on any individual with the result that the bureau are making an ex gratia payment of some small amount, in the region of £3,000 to £4,000, but the board concerned are insisting that limbs will not be provided unless they are given a commitment that if the compensation includes payment for limbs the person concerned will pay the money over to the board. The bureau insist that they will not make a payment setting out what that payment is for. That is the difficulty in which that person finds himself.

Mr. B. Desmond

I would make the broad point that legislation of this nature will mean that in future when claims are made, the plaintiff will know without question that the health board have statutory power to recoup their expenditure in the case. The insurance companies will be aware of that position, too, and also where people are settling out of court they will know the prospects facing them. That would apply even in respect of ex gratia payments. An effort would be made to make provision within the framework of a settlement for the prospective health board or hospital charges. I will endeavour to issue guidelines to the health boards and to the hospitals regarding charges. It would be impossible to specify charges in a Bill or indeed to provide for various specific regulations because these vary with the type of injury, with the type of hospital treatment required and so on. However, we will make an effort in that direction in a sensitive way and in consultation with those agencies. By and large, though if the settlement is minimal and if the contribution by the bureau is purely token, the health board will have no option but to forego their claim because a person cannot be discriminated against in an obvious way. That is the area that was challenged in the Supreme Court on the grounds that there was discrimination against persons injured in road accidents and that that discrimination was unconstitutional.

We are changing that situation but we cannot make it retrospective. We can create a new situation even where there is very little by way of compensation and the health board have no hope of recouping money. The prospect is there, though, for the recovery of some moneys. The yearly cost to the health boards in this area of £4 million represents a lot of money. The hospitals and the health boards are entitled to a recoupment of that kind of money.

Dr. Ormonde

Will they be allowed to be represented in court cases and out of court settlements?

Mr. B. Desmond

I should think that the plaintiffs' legal representatives would be under no illusions.

Dr. Ormonde

But there will be no onus on them to consider the health boards. They will be considering their clients.

Mr. B. Desmond

I would expect the health boards not to be slow in bringing forward their claims on the basis that they had spent a great deal of money. They will be making that case very emphatically to the plaintiffs. The expenditure in these cases would be fairly well established and the courts would regard the sum put forward as a definite sum within the framework of a settlement. Such considerations as loss of earnings and degree of contributory negligence are very much more subjective in terms of a settlement. We are dealing with a difficult area but bearing in mind that the Bill must remain within the interpretation of the Constitution it is fair and reasonable and will bring to an end this particular anomaly.

Dr. O'Hanlon

I might not disagree with a health board's right to seek recoupment from moneys awarded in court but my concern would be that if, say, someone were awarded £50,000 in lieu of wages and at a future date they developed some unforeseen complication, there is nothing in the Bill which would prevent the health board from charging for services out of that £50,000. I am concerned about that.

In relation to constitutionality, the constitutionality of the legislation was never tested because in the Cooke v. Walsh case it was decided that it was ultra vires for the health board to charge the person concerned and the court did not get as far as trying the constitutionality of it. My main concern is that the health boards could charge a person out of an award that was given by the court for some other reason, not to cater for some complication that arose many years later. If the Minister could give some assurance on that, that would satisfy us.

Proinsias De Rossa

The Minister said he would issue guidelines to the health boards for implementing this Act. Would the Minister require the boards to give notice of a person's right to seek a waiver in demands going out to persons who have been treated as a result of road accidents?

Mr. B. Desmond

Where a person has a serious injury he would be notified that it is the wish of the health board that he should recover the cost of that treatment by way of damages as a charge within the framework of damages and he would be billed by the health board for his hospitalisation. That bill would be presented by his solicitor as part of the special damages claim by him when claiming for the loss of his car, his employment, his earnings and his hospitalisation. The health boards are capable of making that kind of information available to a plaintiff. As part of the settlement the judge would make that bill part of the overall total paid.

If a plaintiff could prove that he got £20,000 exclusively for loss of wages, the health board would have great difficulty in claiming any part of that for health charges and the judge might regard the charge submitted by the hospital concerned as being grossly excessive. A person might have totally exhausted his VHI and still opt to spend another four or five months in a private ward and as part of his judgement, a judge might compensate the person for payments in relation to a public ward but require the plaintiff to pay the rest out of his total damages. That is the kind of framework we are talking about. That is why it will be necessary for the Department of Health and the Minister of the day to issue guidelines to health boards to ensure that this applies in a fair and reasonable manner and that there is not a major trawl by the health boards of those kind of settlements in an inequitable way. That will not happen. As health boards have pointed out time and time again in cases where substantial damages are paid and implicit within those damages is the requirement to pay for the cost of treatment for injuries sustained, not a penny is paid to the hospital by the person concerned, or his legal representative, for anything up to two or three years treatment. I sympathise with the health boards in that framework. I am quite prepared to receive suggestions from Deputies in relation to guidelines as applied to health boards so that within the Department of Health we can frame our guidelines in a sensitive way within the framework of the Act.

Proinsias De Rossa

Where major accidents involving major claims occur the solicitors on both sides will normally ensure the best for their clients, but it is not uncommon for people involved in relatively minor accidents to be detained overnight or over a weekend in hospital for observation and, where no claim is involved to be billed by the hospital. Unless he is very well informed the person who receives that bill will assume that he must pay it. This is why I ask if it is not possible to include in whatever guidelines are issued to the health boards that a specific statement be included with such bills to the effect that persons are entitled to seek a waiver of the charges being applied in certain cases. They will then have the option to get legal advice or apply for a waiver of the charge. People will at least be made aware of their rights in that situation. This would not necessarily occur in major cases where there is serious injury, but in cases where due to ignorance a person might feel obliged to pay a bill which he need not pay at all.

Mr. B. Desmond

We are anxious that in advising their clients all legal representatives would notify them of the prospect of the health board having an entitlement to charge and that, as such, the prospect of including that charge in a claim would be obvious early on where any claim for damages or personal injury was being prepared. In terms of minor issues if it was virtually a nuisance charge, I do not think a health board will demand payment from individuals for relatively small amounts of money such as in cases where people go into a casualty unit for a few hours and receive treatment and where there might not be a subsequent claim. Nowadays usually by the time the medical and legal professions are finished with a case involving personal injury, it tends to assume substantial proportions and, where people feel that the other side is fully insured, they invariably demand the full pound of flesh. I do not see why in those circumstances a health board should not have a prospect of recoupment of some of this money.

I will certainly bear in mind what the Deputy said in relation to a person's prospect of a waiver. That should be known, but not to the extent that the lawyers will turn around on a mutual settlement and say we are putting nothing in there now and that would prevent the health board from claiming. We have to establish the right of the health board to claim this money and it would be up to the plaintiff then to argue as to why a health board charge was not put into his damages. The purpose of the Bill could be totally nullified if there was that kind of mutual collusion between the two parties.

Dr. O'Hanlon

Obviously the legal profession would not negotiate a settlement on the basis of some unforeseen complication. In the guidelines will the Minister ensure that if a person receives an award of, say, £20,000, he will not be subjected to a charge by the health board if some unforeseen complication arises, where he would otherwise be entitled to a free service?

Mr. B. Desmond

The Deputy is making a reasonable point. Where something is totally unforeseen but where subsequent major treatment is required, in those circumstances the health board must provide the general health services.

Proinsias De Rossa

I will take the case of a person involved in a minor accident where there is no injury caused other than perhaps shock and who has to remain in hospital for one or two nights. That person receives a bill for £300 from the health board and this can have one of two effects. Either he goes immediately to a solicitor to initiate the whole process of claiming, perhaps against his mother or father who was driving the car, or else he is frightened into paying the bill. Where a health board claim charges from a person who has received care as a result of a motor accident, notification should be given that in certain circumstances a waiver is possible. The person concerned could then get further information from the board on the grounds on which a waiver might be granted. This could mean that people would not be driven into the hands of solicitors.

Mr. B. Desmond

It is important to bear in mind that the recovery by the health board of any moneys is after compensation or damages have been paid. The Deputy seems to envisage a situation where a health board would force a person down the road towards claiming compensation. At the moment ordinary out-patient, casualty and emergency services are free for those in the categories who are free entitled to the services. I do not see that kind of preoccupation as envisaged by the Deputy on the part of the health boards. They know they will not get any money from anybody for any service until compensation is paid. They would be very reluctant to force a person to the point where he might or might not win a case. The board would have great difficulty in sustaining the charge against the person concerned if he was reluctant to proceed and could not recover the money. We are talking about a restrospective clawback by the health boards. In the guidelines I shall issue to the health boards I shall clarify those issues so far as possible.

Proinsias De Rossa

The Minister quite rightly has said that actual payment follows compensation, but the actual sending out of the bill does not wait until all the procedures in court or otherwise have been completed. The likelihood is that the hospital will send out a bill to the person after a week or two. I am persisting in this because I have had experience of a number of people who suffered minor injuries and who were not interested in pursuing claims either against insurance companies or relatives. These people got bills from hospitals and they were frightened at the prospect of having to pay them. The result was that they went to solicitors to find out what were their rights in the matter. Because of the nature of funding of hospitals and the various shortfalls under which the boards have to operate, people will be driven into issuing as many bills and claiming as much money as possible. It is only reasonable that, where hospitals or health boards issue bills to people in respect of care following motor accidents, the people concerned should at least be notified that there is a possibility of a waiver in certain circumstances. I will leave it at that. The Minister knows my views on the manner and I hope he will follow it up.

Amendment, by leave, withdrawn.

Question proposed: "That section 2 stand part of the Bill."

Dr. O'Hanlon

On Second Stage I raised the point which Deputy De Rossa has mentioned but in a different way. If people are involved in minor injuries and stay in hospital for one or two nights they may be presented with a bill for £200 or £300. Many of them are forced unnecessarily into litigation because they do not realise they are entitled to a waiver. Secondly, somebody may advise them that having received an account they should take the matter to a solicitor and thus they find themselves, against their wishes, involved in litigation.

On Second Stage I suggested that some way might be found whereby the insurance companies would accept responsibiity for payment of these accounts where a person was insured, without admission of major liability for future claims. That would be in the interest of the person injured and of the insurance company because they would not become involved in expensive litigation. Even though at the end of the day the settlement may be small, as the Minister has pointed out litigation could be very expensive. I suggest that the umbrella insurance company could come to an agreement with the health boards with regard to people who may be detained in hospital overnight for a minor injury. Some way should be found where by they would not find themselves in a position where they had to go to litigation in order to have their small account waived.

There are many people who do not realise that if they do not press for litigation their account will be waived automatically if they are otherwise entitled to the service by virtue of a medical card or not. I would ask the Minister if something could be done along those lines. It is important to keep the cost of claims as low as possible. The Minister rightly points out that the health boards lost £20 million over the years as a result of this Supreme Court case but that £20 million was taxpayers' money. It might come from a more specific group, namely, motorists, who already find themselves hard pressed as a result of the various charges involved in motoring nowadays. It is all taxpayers' money. While here we are primarily concerned with health legislation and charges to health boards, nevertheless as responsible representatives we must keep an eye on other areas where taxpayers are involved. Would the Minister see any way in which the insurance companies might accept responsibility for minor accidents where there is no need for major litigation to decide on a settlement but where a person does not want damages but simply wants to have the account paid?

Is the Minister satisfied that the legislation will stand up constitutionally? A number of people outside the House have stated that it discriminates against the motorist, while public liability and employers' liability are not included. It is claimed that for this reason it may well be found to be unconstitutional. In the Cooke versus Walsh case the constitutionality was never tested, while it was an issue before the court, because the court decided that the regulations were null and void and it was ultra vires for the Minister to allow the health board to charge. They did not go any further than that point in the court and so the constitutionality was never tested.

Perhaps the Minister could explain section 2 (2) (b) which contains a technical provision enabling the courts to disregard the discretion of the health board to waive charges in determining the amount of damages to be assessed.

Mr. B. Desmond

When we were originally drafting this Bill I was acutely aware that there was a Supreme Court judgment in that regard and I can assure the Deputy that the Attorney General was very much aware of it as well. Fairly comprehensive advice was received before proceeding with the Bill. We are now satisfied that the constitutionality of the Bill does stand up. Regarding the issue of bills, it should be possible for the health board in issuing guidelines to ask individual clients to notify the health board if they intend to go ahead and claim compensation or damages in relation to injuries sustained in a road accident. The account is kept frozen until the compensation is settled. If, on the other hand, a person receives a minor bill and writes back saying that he or she does not propose to pursue a claim for damages, that in effect is the end of the matter because a person's eligibility comes into play at that stage. It should be possible to ensure that people are not alarmed when, after being involved in a road accident, they receive an account from a health board some months later for treatment given.

Regarding section 2 (2) (b), this provides technical cover where such power to waive a charge cannot be taken into account in proceedings for determination of the amount of damages. Without this cover it is possible that a court could award a lesser amount of damages knowing that the charges can be waived or reduced. It is a technical cover within the Bill.

Dr. Ormonde

Section 2 provides that only a health board can make charges. In the case of patients being treated by public voluntary hospitals, will those hospitals be obliged to notify the health board and supply the necessary information to make the claim on their behalf? Which health board will make this claim? Will it be the health board in whose area the patient is being treated or the health board within whose area the patient normally resides? What happens to the income received by the health board? Is the onus on them to keep it or to pass it on to the voluntary hospital concerned?

Mr. B. Desmond

These are services provided under the Health Act. Under the 1970 Health Act there is an agency agreement between health boards. For example, if somebody is sent from Ardkeen in County Waterford to the Richmond Hospital in Dublin there would be a parallel charge demanded and agreed. Voluntary hospitals are included in this. Technically all services provided in the State are provided through the agency of the health boards in their respective areas under the Health Act, even though we directly fund a number of voluntary hospitals. Tomorrow morning we could resume the practice of several years ago of paying for such services through a health board.

Dr. Ormonde

I think the Minister is confused about what I am saying. I am talking about a patient who goes directly into the emergency room in St. Vincent's Hospital tonight. What happens in that situation? Who is in a position to make the claim on behalf of St. Vincent's? The Bill specifically refers to health board hospitals and to the health board, not to public or private voluntary hospitals.

Mr. B. Desmond

St. Vincent's Hospital would have to claim through the Eastern Health Board. They are the enabling statutory authority.

Dr. Ormonde

There is an onus on the Eastern Health Board to refund St. Vincent's Hospital.

Mr. B. Desmond

It would be done on the statutory authority of the health board which provides the health services under the Health Act. One is basically talking in that context about the Dublin area and there is a lot of cross-transfer of moneys between different health boards and the voluntary hospitals.

Dr. Ormonde

Not nearly enough.

Mr. B. Desmond

I am not entirely in disagreement with the Deputy but every time I make that point the voluntary hospitals think they are going to be suddenly closed.

Dr. Ormonde

I have one further point concerning the consultants and I would ask the Minister not to cry "vested interest". Will the consultants be entitled under this Act to charge a patient whose income at the time of receiving his injury did not leave him liable to pay his consultant fees for ordinary hospital treatment? If it is so intended will these charges be included in the health board's claim and paid by the health board to the consultants?

Mr. B. Desmond

We are basically dealing with hospital charges as such. It may be that consultants under a general claim would be claiming through the hospital account but, by and large, the consultants are not particularly claimants under this Act. It is the health boards who would be claiming for services provided by them. If, for example, a private patient is involved, obviously that person is precluded under this. A consultant providing services to a person would have to make an entirely separate claim, because such consultants are outside the ambit of the health board claim. I am quite sure they will be well able to look after themselves in those accident cases.

Dr. Ormonde

I am sure they will. I am not talking about private patients as such. I am talking about those who were entitled to in-patient services and are now in a position to receive large compensations. Is there a change in the new Bill vis-à-vis the old one in this area or is it the same?

Mr. B. Desmond

Where a person receives in-patient consultant services as a normal part of the hospital treatment that is part of the charge that would be presented. If, on the other hand, he goes in as a private patient arising out of a road accident that would be excluded. I have no doubt that would be part of the damages sought. The normal bill that would come would be one which would be submitted by a voluntary hospital through a health board itemising charges as the person's accident charge. If he is placed in a private room with a private consultant that is a different matter. That would be a separate matter altogether.

Proinsias De Rossa

In relation to subsection (2) (b) how would that operate in the two situations? It says: "In proceedings brought by a person..." Do I take that to mean in court proceedings only, or does it exclude where solicitors or insurance companies are negotiating between each other outside the court? Does it refer only to court proceedings? How practical does the Minister see it? Is this a statement that a judge or a jury, in deciding compensation, are instructed that they must ignore the fact that, if compensation is reduced or if damages are of a certain level, hospital charges may not be claimed and they must ignore the possibility of a waiver? How will it operate in court proceedings? If it refers exclusively to court proceedings how does the Minister propose to cope with the situation where in private negotiations outside of court a settlement is made specifically with a view to avoid paying the health board for the hospital charges incurred as a result of an injury?

Mr. B. Desmond

Where people have a liability and where a health board feel there is any collusion between the parties, particularly where there might be a reluctance on either side to admit liability or the extent of culpability, the health board are not precluded from pressing ahead with the charge and insisting that it be paid. Generally the settlement between the parties is made within the framework of the court case. I hold the view that the Act as framed enables the health board to press ahead and ask a person: "Is it a private settlement? How much did you obtain?" If the person says: "I only got paid my wages and for the loss of my car and compensation for my wife who was with me and was tragically killed" and the health board then say: "We spent £70,000 keeping you alive for five months. Did you not claim?" and the person then says: "No, I did not", the health board would take a dim view of that in terms of being effectively deprived of moneys which they would seek.

The legal representative of the health board, in contact with the plaintiff's solicitors would make it quite clear that they expected at least some recoupment of the massive public expenditure involved in the case itself. The legal officers of health boards, who are very experienced people, would make sure that the health board did not finish up before the court. They are very concerned in relation to their general approach, and rightly so, being public agencies. They would handle a case like that with considerable firmness and would ensure that reasonable payment was made.

Dr. Ormonde

Are the health boards in those circumstances entitled to be heard in court and be involved in any other court settlements?

Mr. B. Desmond

Out of court settlements are notified to the court. The health board would be entitled, so far as they have a charge up front, to ask a plaintiff what was the out of court settlement.

Dr. Ormonde

Can the health board insist that they are legally represented to ensure that their case is put forward?

Mr. B. Desmond

They might well have to employ their own legal representatives in a given case. A young motor cyclist could suddenly ram into a person driving a car who was very drunk, and that young person of 18 years of age might spend the next 30 to 40 years in an acute orthopaedic residential hospital with massive public expenditure involved. The health board, well aware of this prospect facing that person, will take very great care to ensure that their future funding of the life span of the person concerned is protected.

Dr. Ormonde

Under this Bill can they be legally represented?

Mr. B. Desmond

There is no formal provision in the Bill but that does not preclude a health board at any time, from taking proceedings against any solicitor in relation to moneys due under the Health Act, 1970. They can proceed against any citizen or corporate body to recover moneys where they deem themselves to be owed a civil debt.

Dr. O'Hanlon

The Minister has come back to the point of my amendment. While I sympathise with what he has to say that if a person were awarded damages——

Mr. B. Desmond

Sorry?

Dr. O'Hanlon

I said that the Minister brought the case right back to the point of my amendment. He stated that if a person was awarded damages, say, for loss of wages, loss of a wife in an accident and loss of a car, and did not claim damages for future treatment, the health board would take a very poor view and presumably would press for treatment in these circumstances. This would be unreasonable to the victim of such an accident, because the victim is very much at the mercy of legal advice and presumably there would be some legal advice as to why he or she did not press for charges for future treatment for health. What worries me about this legislation is that persons who get an award for, say, the loss of a car, the loss of wages or the tragic loss of a relative, will find themselves paying out that money for future treatment and particularly treatment of unforeseen complications that might arise as a result of the accident. I want to be assured that that would not be the case because generally it is not the victim who makes the decision to press for damages for the cost of medical treatment.

Mr. B. Desmond

I can well appreciate the point the Deputy makes. As we know, in the overwhelming majority of cases the victim would initiate the proceedings for damages, but a health board have to issue a charge in such road accident cases, otherwise they will not establish for the plaintiff the amount of money he should look for in terms of damages. That is why the health board must have that enabling power of establishing the cost. We know that everybody in the country is unaware of the magnitude of such costs until presented with the reality of what it costs to keep a person in an acute hospital even for one week. That is why it is essential that we have the Bill up and running. If there are any defects in the Bill in the lifetime of the Dáil after working it in now — I hope it will apply pretty well immediately in terms of 1986 — I will be only too willing to come back to the House and amend it further to tighten it up or, if it has excessive ridigity in it, I will be only too willing to entertain amendments subsequently, but I would like to get the CEOs, their programme managers at local level and their legal officers involved in administering this Bill as quickly as possible. Road accidents nowadays consume a great deal of health care and hospital maintenance and treatment.

Proinsias De Rossa

It seems that the net effect of this will be in relation to the waivers. People will be driven into the hands of solicitors unless they are advised of their rights to a waiver. It may even drive people further to the point where court proceedings would be initiated in order to establish the level of their culpability or otherwise in the accident. This Bill may well be a recipe for increasing the whole range of cases that come before our courts. While I said at the beginning that I do not agree with the direction in which this Bill is going in relation to recouping the costs of hospital services in some cases, it could be approached from a different direction. Even within itself it has section 2 (2) (b) which defeats effectively the purpose of what it sets out to do. It is, so to speak, providing the escape hatch in many cases where proceedings are not initiated, where settlements are made not just out of court but simply by agreement as a result of a claim. I have no statistics on the matter but there must be at least as many minor claims against insurance companies as there are claims for major injuries. On the basis of the Bill as it stands it is quite feasible for an insurance company to say, "You got a whiplash in that accident and there was minor damage to the car. We will give you £5,000 and you will sign a form saying that we are not liable for any future medical costs as a result". In those circumstances the person as a result of a whiplash injury could be attending hospital for physiotherapy and attending consultants of one kind or another for years afterwards. It seems that here is an escape hatch for the insurance companies, whom we are told the Bill is brought in to catch, for the costs of the motor accidents.

The Minister says that in cases where the medical costs are not adequately claimed by the victim of the accident the board will take a dim view of that and, therefore, their option to apply a waiver would not be as generous as it might be. Then the board must judge whether the person did not claim the medical expenses past, present and future, out of ignorance or out of collusion with the insurance company. Then you are into an area which will lead to all sorts of claims, counterclaims and queues at Deputies' advice centres all over the country and people complaining about how the boards are treating them regarding their hospital benefits in relation to motor accidents. I do not know how the Minister can overcome that.

I do not agree with the Bill in general, not because of its approach, but I think we have reached a point in discussing it where it seems as a result of section 2 (2) (b) to defeat its purpose. Certainly in many cases that will be settled by agreement and without proceedings of any kind being initiated.

Mr. B. Desmond

Let me make one brief point. In our general guidelines to the health boards we will endeavour to make quite clear to the boards the type of claims which we feel the boards should follow through by way of claim and recoupment of moneys from compensation and damages received. We must leave it effectively in that framework and we will see how the Bill will operate, but we must recover in a reasonable manner, with a waiver provision, charges in respect of persons who have received or are entitled to receive damages or compensation for injuries caused in a road traffic accident.

Dr. O'Hanlon

I want to come back to a point raised by Deputy Ormonde. The Minister announced by press release when the Bill was circulated that the effect of the proposed legislation would be to restore the position which obtained prior to the Supreme Court judgement. From what he said to Deputy Ormonde it appears that, whereas formerly consultants in hospitals were entitled to make a charge for treatment provided for accident victims, and damages were awarded in court for this purpose in successful litigation, under the new legislation this will not be the case. There is a departure from what obtained prior to the Supreme Court judgment. Is it correct that where a person goes to hospital other than as a private patient, in other words, where a person is taken in as an accident case or as a public patient, whereas formerly the consultant was entitled to charge in the event of damages being awarded, this will not be the case under the new legislation?

Mr. B. Desmond

I make a broad point and one about which I have been very careful in terms of the eligibility of persons for health services. Under the Health Services Regulations, 1971, eligibility for services was withdrawn from persons receiving treatment for injuries received in a road traffic accident where they received, or were entitled to receive, damages from some other person. The net effect of this Bill is that we will make charges for services in those circumstances and so avoid the withdrawal of eligibility. That is the critical differential in this case. It is a good basis for a revision of the legislation.

Question put and agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Proinsias De Rossa

I have a question in relation to subsection (2). This mentions the phrase "without prejudice to Part III of the statute of limitations". Could the Minister explain precisely what that means? Does it mean that the statute of limitations will not apply to claims made by the board, regardless of how long it may take for a case to go through court or be settled, which could take six to ten years, depending on its complexity? I think the statute of limitations is six years at present. Does it mean that claims by the board will have no limit and will not be ruled out of order as a result of the statute of limitations?

Mr. B. Desmond

In effect, it means that the clawback by the health board accrues only from the date on which damages or compensation are paid by the person liable. The retrospective aspect is precluded from this Bill. The statute of limitations does not come into force in relation to the Bill because of the Supreme Court decision. That subsection is necessary in this Bill because we must take account of the length of time which elapses before many of these cases are decided and the consequent possible application of the statute of limitations to them. That subsection is very fair and equitable to everybody. The claim from the health board does not start until compensation is actually paid.

Question put and agreed to.

SECTION 4.

An Leas-Cheann Comhairle

Amendment 2 is in the name of the Minister.

Mr. B. Desmond

I move amendment No.2:

In page 3, lines 43 to 46, to delete subsections (2) and (3) and substitute the following subsections:

"(2) The Health Acts, 1947 to 1985, and this Act may be cited together as the Health Acts, 1947 to 1986.

(3) The Health Acts, 1947 to 1985, and this Act shall be construed together as one Act."

This is a technical amendment. The Bill was not enacted in 1985, therefore it is necessary to amend the citation and construction of the Bill.

Amendment agreed to.

Section 4, as amended, agreed to.

Title agreed to.

Bill reported with amendment and passed.