Vol. 471 No. 2
12 Mrs. Geoghegan-Quinn asked the Minister for Health if he will extend the one month deadline for the acceptance of awards by the hepatitis C Compensation Tribunal until one month after the judicial inquiry has reported; [20485/96]
Limerick East): I have amended Clauses 5(i) and 5(ii) of the scheme to compensate persons who have contracted hepatitis C from the use of human immunoglobulin Anti-D, whole blood or other blood products.
Clause 5(i) of the scheme now reads:
"The making of a claim to the Tribunal under the Scheme will not involve a waiver of any right of action. If a claimant receives an award from the Tribunal after the establishment by the Minister for Health on 24 October 1996 of the Tribunal of Inquiry under the Tribunal of Inquiries (Evidence) Acts 1921 and 1979, the claimant will have a period from the date of receiving notice of the award to one month after the publication of the Report of the Tribunal of Inquiry, or one month after the date of receiving such notice, whichever shall later occur, during which the claimant can decide either to accept or reject the award. If a claimant neither accepts nor rejects the award within that period, the claimant will be deemed to have rejected the award. Only if the claimant accepts the award will the claimant be required to agree to waive any right of action which the claimant may otherwise have had against any party arising out of the circumstances of the claimant's claim and to discontinue any other proceedings instituted by the claimant. The execution of such a written agreement will be a condition precedent to the payment of any award under the Scheme".
Clause 5(ii) of the scheme now reads:
"In the case of an award to a claimant who is a minor, the acceptance of the award shall be subject to the approval of the High Court, which approval shall be sought within one month of the notification of the making of the award, or within one month after the publication of the Report of the Tribunal of Inquiry established on 24 October 1996 by the Minister for Health, whichever shall later occur, and the claimant shall have one month from the date of such approval within which to accept such approved award".
As the House will note the amendments have effect from 24 October 1996, the date on which I formally established the tribunal of inquiry.
I thank the Minister for not only amending the clauses of the compensation scheme but doing so in the terms outlined in Question No. 12. We have asked for this from this side of the House for a long time. Every week when new information became available from the Blood Transfusion Service Board we asked that this might be done. I thank the Minister although it has taken a long time to do it.
In respect of those who have already accepted final awards, of which there is quite a number, what will happen to them when the tribunal of inquiry reports?
(Limerick East): I am glad of the Deputy's welcome for the changes but do not understand the comment that it has taken such a long time. The request was that the time to consider and accept an award would be extended to one month after the tribunal of inquiry reported. Since the tribunal of inquiry was only set up on 24 October, the issue did not arise until after that date. A full month has not passed since then so everyone who has received or been offered an award since the tribunal was set up on 24 October will be a beneficiary of the new provision. I do not understand the suggestion that there has been tardiness on this because the issue did not arise until the tribunal of inquiry was set up. The second issue that arises in the question relates to the request by Positive Action and other groups to extend the period of consideration of an award to one month after the publication of the report of the tribunal of inquiry, of which everyone will be aware. There was a consequential amendment with which I dealt and which was not requested publicly in respect of the acceptance of an award subject to the approval of the High Courts for minors. To do the first without the second would be illogical so I am also including that.
The tribunal was set up to establish the facts. We know from the statements by the former Chief Justice, Tom Finlay, yesterday in court that it is proceeding apace to get under way. I understand he intends to have the first oral hearings on 2 December. It is not a tribunal which will draw conclusions on negligence; it is not a court of law. Although it is appropriate that anybody now getting an award from the compensation tribunal would have an extended period to consider its acceptance, it does not change the position for those who received awards previously. The House may be interested to know the tribunal is continuing its hearings. It has now fixed cases up to 27 March 1997 and it is offering compensation to plaintiffs at an average of ten per week. It is proceeding well and it will continue to do its work while the tribunal of inquiry proceeds.
It is extraordinary that the Minister has said there will now be a distinction between two groups. People have already gone to the compensation tribunal on the understanding that the Miriam Hederman O'Brien report contained all the information available on the hepatitis C scandal. Those affected were awarded a full and final settlement which they accepted. They now find that if they had not got their appointment prior to 24 October and had not been offered a full and final settlement until after that date, they would have been able to put that on hold until one month after the tribunal of inquiry reports.
A number of people telephoned me — I am sure Deputy O'Donnell and Deputies on both sides have received similar calls — to say they had accepted a full and final award and that they thought all the information was in the Hederman O'Brien report only to discover that there must now be a tribunal of inquiry to establish the facts, all of which were not known. They have asked where that leaves them if other information comes out in the tribunal of inquiry, as no doubt it will, and if they have been short-changed. What does one say those people when their counterparts are allowed one month, which is correct, after the tribunal reports?
(Limerick East): The compensation tribunal will operate under the law of tort as it has done heretofore in assessing the amount of compensation it considers appropriate for a plaintiff. The tribunal of compensation has not become involved in the issue of negligence or otherwise. It has made payments to those who could establish a link between hepatitis C and the receipt of infected blood or blood product. That is all one is required to prove at the compensation tribunal.
The only change I am making is that from now on people will have a longer period to consider whether they will accept an award. There is no suggestion that there will be a variation in the manner in which an award will be calculated. I have always said that by establishing a tribunal of compensation on an informal — not a statutory — basis we would have the flexibility to have its terms of reference changed by the Minister in accordance with changing circumstances. If circumstances again change after the tribunal of inquiry reports, I will be prepared to revisit the terms of reference and to make appropriate changes.
The change I am now making is appropriate to the new set of circumstances in which we find ourselves. While it gives a lengthy period to people who receive awards to consider whether they will accept them, it does not disadvantage anybody who has received an award previously. If circumstances change, I will be prepared to change the terms of reference in the interests of those who go before the compensation tribunal. I will continue to make that commitment and to take advice from all sides on the appropriate changes. The fact that I did not go down the statutory route — I would like Deputies to acknowledge this — allows us to have an effective compensation tribunal, the terms of reference of which can be changed in the light of changing circumstances in the best interest of claimants.
What would the Minister say to a victim who contracted hepatitis C, went to the compensation tribunal on the understanding that all the information was in the Hederman O'Brien report, put their case and were awarded compensation and given one month to make up their mind whether to accept the award? Having accepted the award, the Minister established a statutory tribunal of inquiry. What avenue of appeal has the victim if the tribunal of inquiry establishes facts which were not available to their legal team when they went before the compensation tribunal? Is it true that they do not have an avenue of appeal to the courts or elsewhere because they have accepted an award as a full and final settlement?
(Limerick East): The Deputy's questions are based on a fundamental misunderstanding of the way in which the compensation tribunal operates. It does not operate on the basis of negligence or culpability. All one is required to establish before the tribunal is that one has hepatitis C, hepatitis C antibodies or one of the associated conditions and that one got it from infected blood or blood product. The premise on which the Deputy is asking the question is that if new information comes from the tribunal of inquiry, it will change the way in which the compensation tribunal calculates awards. It will not because it does not deal with the issue of negligence or culpability. It looks for proof of the link between a condition and the infected blood or blood product and it measures the quantum of damages in the way the High Court would in respect of a personal injury claim or, to put it in legal terms, in accordance with the law of tort.
The Deputy is questioning me on a false premise. However, if circumstances change in the future in a manner which we have not envisaged, for example, in a High Court case or if something else occurs, I will be prepared to revisit the terms of reference.
For those who have already accepted final awards?
(Limerick East): There is nothing new in what I stated. We are fortunate to have a flexible scheme which is working well and which can be measured at all times to serve the best interests of plaintiffs. The only bind on me is the aspect of the terms of reference which say I can change them to improve the position of plaintiffs before the compensation tribunal. I cannot change the terms of reference to disadvantage people. That is the only stricture on me. It is an appropriate one which I introduced, not to tie myself but my successors. When the public interest fades in this matter and it is no longer a matter of monthly scrutiny in this House I do not want the Minister, in a compensation tribunal which is to last indefinitely, watering down the provisions to disadvantage new plaintiffs.
