Dáil Éireann debate -
Wednesday, 23 Apr 1997

Vol. 478 No. 2

Adjournment Debate. - Hepatitis C Provisions.

Mr. Cowen:

I accuse the Government of once again putting the victims of hepatitis C through the wringer. I call on the Minister for Health, Deputy Noonan to quickly amend his proposals for aggravated damages to the victims and bring forward long-promised legislation to put the compensation tribunal on a statutory basis.

The ongoing delay in this matter is difficult to understand. The Minister has tonight signalled to the victims that he has to go back to Government next Tuesday before he can give agreement. Either the Government does not trust the Minister to handle this matter and has not given him a negotiating mandate or it is once again playing games with the victims. The Taoiseach, in replying to my many queries in the Dáil, said that getting agreement on this legislation is a top priority. Yet, the Minister for Health claims he does not have the answers to straightforward matters put to him by the victims, which one would expect a junior official to anticipate as questions arise. If the matter is as urgent as the Taoiseach claims it is, why is the special Cabinet meeting on the matter not being held tomorrow? Will the Minister tell me tonight where matters stand and what work is really under way?

The victims have been told by the Minister they must wait until next Tuesday at the earliest before they can get a reply. This means it is most likely the legislation will not be passed before the general election. At the rate the Minister, Deputy Noonan, is going, the victims will be lucky to get a reply, not to mention a Bill, before the election is called.

Amendment must be made to the Minister's proposals on aggravated damages. Fianna Fáil is concerned that the Minister is attempting to limit the scope of awards for aggravated damages to only some categories of victims. This arises because the draft documents refer to the Finlay tribunal alone. That tribunal investigated only matters relating to contaminated anti-D victims. Another tribunal is yet to be established to investigate matters relating to transfusion victims, haemophiliacs and kidney patients. However, there is no reference to this tribunal in the Minister's documents. Despite promises made in the Dáil as far back as January of this year, the terms of reference of this tribunal have not even been brought forward for consideration by the Minister.

Fianna Fáil is also concerned at reports that the Minister plans to introduce enabling legislation and will only then establish a statutory tribunal by way of statutory instrument. The victims have always made it clear they wish the tribunal to be established under primary statute and not by a secondary measure such as a statutory instrument which could possibly be rescinded by a ministerial order that would not have to come before this Dáil. A commitment to put a tribunal on a statutory footing in the aftermath of the biggest scandal in the history of the State should come before this House for the most intense scrutiny and examination. If the Members of this House, as representatives of the people, are to be seen as righting the State's wrong, why is there continued reticence to publish the Bill or the heads, or to deal with the matter by enactment of primary legislation? Why is there reticence about having a full and frank democratic debate on this issue in the House?

All the evidence suggests a Government which continues to be more concerned with being saved from further embarrassment and is more sensitive to the protection of its image than addressing the substance of the just cause of these victims. The enactment of primary legislation might exorcise the guilt of Members of this Government who have dealt with this matter ineptly and insensitively.

Fianna Fáil calls on the Minister to clarify his proposals on compensation and the reparation fund. What he has offered falls far short of what the victims seek. There is no agreement on this issue. We are concerned the Minister has not fully addressed the issues raised by the victims, including Positive Action and Transfusion Positive, who have put forward a series of proposals which have not yet been included in the latest plan. These include matters regarding the reparation fund, rights of appeal to the High Court, the application of the statute of limitations, life assurance and mortgage protection for victims, private hospital facilities, VHI care, increased funding for research and compensation for families of deceased victims. If the State had treated the victims fairly and honestly from the start, there might not be a need for the payment of aggravated damages. However, the oppressive manner in which the victims have been treated gives from strong legal rights which have to be acknowledged in this House.

I also call on the Minister to explain the Government's decision to only admit liability in certain Hepatitis C cases. A reply to a parliamentary question I tabled stated that the admission of liability is restricted to just 28 cases out of upwards of 1,800. Why is the State admitting liability in those cases? This smacks of more legal manoeuvring by the Government, rather than an upfront admission. I hope the limited admission of liability is a precursor to the State admitting its role in the offensive legal strategy used against the late Mrs. McCole.

I ask the Minister to commit himself to laying all Government memoranda and correspondence between State agencies on the McCole case before the Dáil. I also call on the Taoiseach, the Tánaiste, the Minister, Deputy Noonan, and the Minister, Deputy Howlin, to give a commitment that they will come before the Dáil Select Committee on Social Affairs to explain why they acquiesced in the use of heavy-handed legal tactics to intimidate Mrs. McCole against taking a High Court legal action.

Mr. Currie:

The Minister has already announced the Government's decision to, as a matter of priority, place the Hepatitis C compensation tribunal on a statutory basis. Last week, he gave each of the four representative groups a copy of the draft heads of the Bill placing the compensation tribunal on a statutory basis. Since then, the Minister and officials of our Department have held a series of meetings with representatives of the groups. While there was a broad measure of agreement on many matters among the different groups, there were a number of key issues on which different approaches were taken.

One such area was the question of aggravated, exemplary or punitive damages. In the light of the views expressed by the groups, the Government, at the Minister's request, yesterday approved the following approach. The Bill shall incorporate a provision to enable claimants at the tribunal to establish an entitlement to aggravated, exemplary or punitive damages. Head 8 of the Bill provides that:

The awards of the tribunal should be calculated by reference to the principles which govern the measure of damages in the law of tort, including consideration of an award on the basis which reflects the principles of aggravated, exemplary or punitive damages. Awards of aggravated, exemplary or punitive damages may be made by the tribunal where a claimant establishes a legal entitlement to such damages against either the Blood Transfusion Service Board, the National Drugs Advisory Board or the State. In making a claim for such damages, a claimant may rely upon the facts found by the Tribunal of Inquiry into Hepatitis C (the "Finlay Report") which have been accepted by the State or such other facts as the claimant may wish to rely on, and which the claimant establishes to the satisfaction of the tribunal.

The Government also decided that claimants after establishing their claim for damages, general and or special, at the compensation tribunal, will have two options. First, they can seek to establish their entitlement to aggravated, exemplary or punitive damages at the compensation tribunal as set out in head 8. Second, they can accept a payment from a special reparation fund which will be established by the Government. This payment will amount to 15 per cent of the total amount of the award of damages, general and or special, made by the compensation tribunal. The reparation fund would have the following advantages for the claimant; simplicity; ease of calculation, certainty of result and early conclusion.

The Minister presented the Government's proposals last evening, and today to the four representative groups. He is aware the Irish Haemophilia Society is concerned that head 8 does not refer to the findings of the forthcoming tribunal of inquiry on the HIV infection of blood and blood products. The Minister has already made a commitment to the Irish Haemophilia Society that the next tribunal of inquiry will deal with the circumstances surrounding the hepatitis C infection of its members. There will be further consultation with the society on the detailed drafting of the terms of reference of the tribunal of inquiry and it is the Minister's intention to proceed with the establishment of the tribunal of inquiry at the earliest possible date.

The Minister's first priority however, is to ensure the enactment of the legislation on the compensation tribunal and he will have further discussions with the groups on the concerns they have expressed. The preliminary advice available to me, however, is that it will not be possible to have a reference in the Bill to the findings of a tribunal of inquiry, which has not yet been established, for the purpose of determining liability for aggravated, exemplary or punitive damages.