Vol. 461 No. 3
4 Mrs. Geoghegan-Quinn asked the Minister for Health the contacts, if any, he has had with the hepatitis C compensation tribunal; the progress, if any, made with the groups representing the victims of Hepatitis C, particularly in relation to the level of details required on the tribunal application forms; and if he will make a statement on the matter. [2771/96]
28 Mr. Browne (Wexford) asked the Minister for Health the number of applications which have been made to the hepatitis C compensation tribunal; the number of applications which have been withdrawn; the way in which the Tribunal is briefing itself on Hepatitis C; and if he will give details of the guidelines on compensation which are being used by the Tribunal. [2693/96]
(Limerick East): I propose to take Questions Nos. 4 and 28 together.
The compensation tribunal is independent of my Department. However, in response to anxieties expressed by Positive Action in relation to the discretion of the tribunal to make provisional awards and by Transfusion Positive—a support group for blood transfusion recipients and their families—in relation to the non-availability of certain medical records, I requested my officials to write to the tribunal conveying these concerns. My Department wrote to the tribunal conveying the concerns of both groups on 5 January 1996.
Officials in my Department are in regular contact with the groups representing those who have been diagnosed hepatitis C positive, the Irish Haemophilia Society, the Irish Kidney Association, Positive Action and Transfusion Positive. Substantial progress has been made in meeting the concerns of these groups on a range of issues.
The question of the details sought in making an application to the compensation tribunal is a matter for the tribunal itself. However, I understand that the details sought on the application forms are in order that the tribunal may verify claims before it, to ensure that persons are compensated appropriately. The details that could be sought by the tribunal are the same as those that could be sought by the courts in a civil action. If claimants are concerned in relation to the tribunal contacting certain persons in order to verify details of a claim for compensation, their concerns should be conveyed by the claimants to the tribunal. Given the eminence and wide experience of the members of the tribunal, I know that they will act with sensitivity and fairness in all cases.
As the Deputy will be aware, I formally established the compensation tribunal on 15 December 1995. Since that date 600 application forms approximately have been forwarded to individuals and solicitors in response to requests by letter and telephone for such application forms. The scheme of compensation provides that claimants have six months in which to make their application to the tribunal from the date of its establishment or the date of a positive diagnosis for hepatitis C, whichever date is the later. I understand that 72 applications have been received by the tribunal to date and that it has heard 2 priority cases and expects to begin hearing further cases in early March 1996. No applications to the tribunal have been withdrawn. The scheme of compensation provides that the tribunal may appoint medical and other experts to advise it as it sees fit and the tribunal may take such other steps to inform itself as it considers appropriate.
The scheme of compensation provides that the awards of the tribunal will be calculated by reference to the principles which govern the measure of damages in the law of tort. Therefore, damages will be calculated in accordance with the same principles as those that apply in the High Court.
The Minister stated that 600 application forms were requested. If that is so, will he explain why the Department sent unsolicited application forms to women who were infected as a result of anti-D? There are approximately 1,800 potential applicants. Can he explain why 600 application forms were sought and only 72 have been sent back to the Department despite continuous intensive advertising by his Department in the national newspapers? Is that not sufficient evidence of the lack of confidence hepatitis C victims have in the ad hoc tribunal set up by the Minister?
(Limerick East): The Blood Transfusion Service Board sent out application forms in order to be of service to people who might wish to apply to the tribunal. My Department and the tribunal sent application forms to the solicitors who requested them. We advertised nationally to ensure that people were aware the tribunal could, if applicants wished, deal with their claims. The question of whether there should be more or less applications is a matter of debate. Persons have until the end of May to complete their application forms and they fill them up on the advice of their solicitors.
The tribunal was set up before Christmas and will proceed in March. I have given the number of applicants who have made claims. This matter should be handled sensitively. Nobody is being forced to go to the tribunal. People may go to the High Court if they wish, but the tribunal is a very good option which should not be attacked. At the end of the day individual decisions will be made on each case and there should not be undue influence, particularly since some of the information in circulation is inaccurate.
The Minister said he is very anxious that people have the right to go to the tribunal or the courts. Is it on his authority that the State is at present in the High Court objecting to and delaying the present case? If that is correct why is it so? Is it a device used by the State to cajole and corral hepatitis C victims from exercising their constitutional rights and to force them to attend the fundamentally flawed tribunal established by the Minister?
(Limerick East): The tribunal is not fundamentally flawed. Never was a tribunal put in place with such a range of measures as this tribunal is putting at the disposal of applicants. The most recent example of a tribunal was that which dealt with compensation claims relating to the Stardust tragedy. This tribunal, which is built on the experience of the Stardust tribunal, is much better. It is on a different scale and has been constructed deliberately to facilitate applicants. There is no attempt to dragoon, compel, coerce or coax people.
Since I became Minister for Health I stated I would set up a tribunal which would have advantages over the courts and that it would be available as a choice for applicants. The choice of going to the High Court still exists. I have moulded the two options in that if people are dissatisfied with an award granted by the tribunal they do not lose one iota of their right to proceed through the High Court.
These are difficult times for persons with hepatitis C and misleading information in newspapers about the manner in which the tribunal is operating upsets them. Because the tribunal is independent of me and must act confidentially on behalf of applicants, nobody is in a position to correct that information. I ask all those involved, in the interests of fair play and of those who have hepatitis C and wish to make claims, to proceed cautiously. If people are dissuaded from doing what is in their best interests on the basis of incorrect information, there is a very heavy responsibility on those who disseminate such information.
On the issue of the case before the High Court, as I told Deputy Geoghegan-Quinn on the Adjournment last night, it was never the practice in this House to discuss cases currently before the courts. It would be completely out of order for me to argue a case being processed in the courts.
I am not asking the Minister to argue the case; I am talking about the principle.
(Limerick-East): The functions of the courts are separate from those of this House. It has never been in order in this House to ask a Minister to reply to a case before the court. I will not create a precedent and, with respect to the Leas-Cheann Comhairle, if the Ceann Comhairle was here he would rule me out of order if I tried to do so.
Will the Minister please stop equating the Stardust tribunal with the ad hoc tribunal for hepatitis C victims? There is no comparison between them. I hope he is not asking us to believe that where a State agency perpetrated a crime against women, men and children through negligence and of its own procedures, that should be equated with something that happened in a company run by private people. Is the Minister seriously asking this House and the public to believe that no contact has been made by members of the tribunal with any of the groups representing victims or with individuals inside or outside this House who have expressed public concern about the tribunal? Will he explain why, since women are not of right allowed to bring oral medical evidence before the tribunal, no member of the tribunal has medical experience specifically related to hepatitis C?
(Limerick-East): The Deputy raised a range of questions with underlying accusations, political and otherwise, all of which are incorrect. I am not equating the events which led to the establishment of the Stardust tribunal to the events which led to the establishment of this tribunal. I am comparing the two tribunals which were put in place to provide compensation to large groups of victims. The most recent example of putting in place a tribunal which would give, at a minimum, flexible and readier access to compensation for large groups of claimants than the court system is the Stardust tribunal. We learned from some of the inadequacies of that tribunal, which I as Minister for Justice was involved in setting up with the then Attorney General, John Rogers. This is a much more sophisticated tribunal which is better geared to deal with the legitimate claims of applicants who come before it.
On the question of whether the tribunal should be in contact——
I asked whether any member of the tribunal made contact with the people involved.
(Limerick East): That is like asking whether a judge made contact with a person claiming before a court. The terms of reference of the tribunal are laid down. Application forms are available and people who apply attend the tribunal with their legal advisers. I cannot predetermine the decisions of the tribunal. It is chaired by a very eminent jurist who has just retired from the Supreme Court. He has available to him a panel of very eminently qualified legal people and I have confidence in their ability to deal with the day to day issues that arise within the tribunal. It is not possible for me as Minister for Health to dictate to the tribunal how to proceed on every case. I think it will work very well. There have been two cases before it which were in very special circumstances, and totally misleading information has been published in the newspapers about those cases. To protect the privacy and rights of those who made claims and were offered awards, I cannot explain the details of the claims. They were not the regular type of claim with which we are all familiar and hearing of which will commence in early March.
Another lie I want to nail is that there is an instruction to the tribunal that it is not to give the going rate. The terms of reference explicitly outline that the tribunal will measure the amounts under the law of tort, which is exactly the same procedure under which a judge in the High Court operates. Many difficulties have arisen. When we discussed this matter some months ago the major difficulties did not relate to the amount of money victims would be awarded by the tribunal or the High Court, but to arrangements for the ongoing health needs of persons with hepatitis C. Those arrangements which were very complicated have been resolved to the satisfaction of all concerned. When the published legislation, with which Deputy Geoghegan-Quinn is familiar, is passed, there will be an opportunity to discuss the issues further.
Rather than being confrontational about this matter, many victims, who are not qualified legally and do not have experience of public debate or public issues, are concerned about their health. They are trying to make up their minds whether, in their interests and that of their families, they should bring their case to the tribunal or to the High Court. Some people in the public domain, whom I cannot identify for certain reasons, are trying to prejudice their decisions. That is not fair play. Victims should be able to make decisions freely which are in their best interests in consultation with their legal advisers. If they are unhappy with the award given by the tribunal, they can follow the twin track approach by simultaneously processing their claims through the High Court. I am confident that the tribunal will proceed. It will hand down awards and as soon as some of the very large awards are made, there will be a rush of applicants bringing their cases to the tribunal.
That remark is outrageous. The difficulties that have arisen with the tribunal do not relate to the amount of the award that will be handed down to victims.
(Limerick East): Two issues have been running for the past 12 months. The first relates to the provisions that could be put in place for the ongoing health needs of persons with hepatitis C, on which there is virtually total agreement, and the second to how persons with hepatitis C coming from circumstances which have been described on several occasions could claim compensation. That second issue is about money, whether victims will apply for compensation from the tribunal or the High Court and how much will be awarded.
The Minister said the difficulties of the tribunal related to money.
(Limerick East): I did not say that. I was making a point that would be helpful to victims. Persons who have been advised they have a claim have nothing to lose by bringing their cases to the tribunal because if they consider the awards granted by it insufficient they can reject them and process their claims in the High Court.
But they must have confidence.
(Limerick East): The courts by their nature will process claims in the usual way. This brings me to the point I was making when I was interrupted by Deputy Geoghegan-Quinn who misunderstood what I was saying. The work of the tribunal to date has been exceptional, but when it deals with its normal business of processing applicants' claims it will grant a variety of awards, some of which will be small and others large. The time will come when people will be anxious to have their cases heard by the tribunal and there will be a queue of applicants. Victims should be aware that many potential applicants will bring their cases to the tribunal and there may be delays in processing claims there.
I am not prejudicing or making a case for the tribunal. The rate of compensation that will be paid by the tribunal will have to be the same as the rate that will be paid in similar cases brought to the High Court. There are no savings for the State in having cases heard at the tribunal. The £60 million allocated for victim's compensation, debated on an earlier occasion, is a notional amount and I expect total awards to be far in excess of that. As there are many claimants I do not expect it to conclude its work in 1996. People who are not in a position to establish what is in their best interests should not be put off making an application to the tribunal. Some information in the public domain about particular awards did not take account of the circumstances in which those awards were made.
Will the Minister respond to the second part of my question relating to whether a medically qualified person with specific expertise in hepatitis C may sit on the tribunal?
(Limerick East): The skills needed in the tribunal are those required to measure, in so far as it is possible, the appropriate amount of compensation to be given in, say, a civil damages case. Those are the skills of judges and other members of the legal profession familiar with that task. They will need to brief themselves fully on the medical side. As I said in my reply, there is a provision within the terms of the tribunal that legal people can retain any medical advice they need and have any medical consultation they need or can attach expertise to the tribunal as needed. A case heard at the tribunal would proceed in exactly the same way as a medical damages case in respect of a hospital in the High Court. It would not be appropriate to put a doctor on the Bench to decide the appropriate level of award, but medical expertise could be used to enable a judge more accurately to measure an award. There is not a hidden agenda nor is the Government attempting to confine the amount of money allocated for compensation. Once the tribunal grants an award, it must be paid. There are advantages for applicants in bringing their cases to the tribunal, but the only advantage to the State is that a large number of claimants could be dealt with and their cases would not cause a backlog in the courts. There are some legal cost advantages to the State in pursuing the tribunal route as larger costs would accrue if cases were individually processed in the courts. I ask Deputies to restrain themselves from trying to score political points.
We are not doing that. That remark is unfair.
(Limerick East): I do not object to political point-scoring, but Members should be aware of the circumstances of applicants and that the spin they might put on a reply to a question might discourage victims from doing what is in their best interests.
I hope the Minister is not accusing this side of the House of political point-scoring.
The Deputy should not speak repeatedly from a seated position. I am anxious to make progress and facilitate other Deputies. I call Deputy O'Donnell to ask a concluding question.
I am sure the Minister will agree that the two female Deputies on this side of the House are acutely aware of the subjective feelings of the women involved. The Minister referred to the twin track approach and stated that if the victims are not happy with the awards granted by the tribunal they can process their claims through the High Court. The State, acting on behalf of the people, is opposing and trying to obstruct the progress of a case currently before the High Court by trying to adjourn it or strike it out because the woman in question insists on confidentiality and is using a pseudonym. Why is the State trying to obstruct that woman's case? Will the Minister agree that such obstruction by the State in demanding that the woman in question does not use a pseudonym to ensure confidentiality is setting a bad precedent for other women who may want to exercise their constitutional right by bringing their case to the High Court?
(Limerick East): I am now being asked to comment on a case which is before the courts in respect of which I understand there is a hearing today.
The sub judice rule was lifted.
(Limerick East): I am not claiming it is sub judice, I am saying it is entirely inappropriate for a Minister or Member of this House to attempt to argue a case across the floor of the House which is being simultaneously argued in the High Court. Let us wait and see how it works out in the High Court.
Perhaps the Minister would clarify whether he has dealt with people who developed hepatitis C many years ago, a small proportion of whom, have since died. What is the position of families of those who died indirectly from hepatitis C vis-á-vis the compensation tribunal?
(Limerick East): Its terms of reference say the tribunal is available to persons who contracted hepatitis C from a blood or blood product where the blood or blood product is the factor which transmitted the virus. Persons within that category fall within the scope of the tribunal whereas persons outside that category do not fall within the remit of the tribunal.
If the Deputy has an individual case or cases in mind, and submits the relevant details to me in writing. I will obtain a more explicit answer for him.
I have in mind two cases whose families will be the claimants, whose deceased family members contracted hepatitis C from a blood or blood product. Are those families entitled to submit their cases to the tribunal?
(Limerick East): No, I have outlined the scope of the tribunal and the categories of applicants that can apply. Deputy McDaid is endeavouring to obtain a more precise definition than that, which comes very near to asking for legal advice across the floor of the House which I am not prepared to give because I do not know the full circumstances of the cases he is putting to me. If the Deputy will furnish me with their details I will obtain a confidential reply from my Department taking all the relevant circumstances into account.
The Minister gave the House incorrect information. I would like to give him an opportunity to correct that. Would that be possible?
(Limerick East): If I did, I will correct it.
I am sure he did it unknowingly, but the Minister has continued to emphasise in the House today and on other occasions the privacy of the tribunal proceedings and what an advantage that would be for the women concerned. How can he say there is privacy when the certificate of authority an applicant is asked to sign may well include her employer, the VHI, health board or Revenue Commissioners being informed of the decision of the tribunal? Does that not break the privacy proviso? Therefore, it is incorrect to state that there is privacy at the tribunal.
(Limerick East): No, people can always ask a tribunal, or a judge in court, to deal with a matter in a confidential way. There is a set of procedures laid down, there is an application form which has become an issue, and there is the verification of earnings with employers which does not present any problem to quite a number of people. Their names will not be spread all across the newspapers. It is something they can arrange with their employer quite easily. From time to time everybody has to request a certificate of earnings from their employer. I know the members of the tribunal and its chairperson are aware that there are cases where absolute privacy is essential. If that point is put I am sure it will be met.
The Minister is not saying it will definitely be met?
(Limerick East): I am repeating what I said earlier, that the tribunal has a job to do, it has a huge budget, is independent of me and has full authority to conduct its affairs in accordance with its terms of reference. It is not possible to have terms of reference so detailed they can deal with every eventuality. In the final analysis, one puts one's faith in the good sense of the people doing the job. The same issue would arise in the High Court where the issue has been dealt with quite fairly over the years, protecting the interests of the claimant in circumstances like that.
