I move amendment No. 1:
In page 4, subsection (1), line 9, after "Board" to insert "or a health board".
Vol. 479 No. 3
I move amendment No. 1:
In page 4, subsection (1), line 9, after "Board" to insert "or a health board".
Limerick East): I have been informed that this amendment is out of order.
I received no such advice, although amendment No. 2 has been ruled out of order.
The section defines a relevant agency as the Blood Transfusion Service Board or the Irish Medicines Board, formerly the National Drugs Advisory Board. The reason for including a health board as part of the definition of a relevant agency is to provide for the type of case I outlined on Second Stage of which the Minister took note and was to check out. I would like to hear the Minister's response.
(Limerick East): I am at a disadvantage because the advice I have received from my officials is that we have been notified this amendment is out of order. It extends the scope of the Bill and, consequently, would impose a charge on the Exchequer. An amendment involving a charge on the Exchequer cannot be moved by the other side of the House. I will examine the amendment between now and Report Stage and will give the Deputy a better answer then. I understood we would not be discussing this amendment.
Amendments Nos. 2, 4 and a7a in the name of Deputy Cowen have been adjudged out of order because they involve a potential charge on the Revenue. As far as I am concerned, the amendment to which the Deputy refers is in order.
(Limerick East): If the amendment is pressed, I will have to oppose it. There is clearly a misunderstanding, which is probably on my side. I will examine the amendment between now and Report Stage when we will debate its merits.
That is fair enough.
It is appropriate when discussing the section to ask the Minister what assurances can be given to transfusees who are concerned about the issues raised in my amendment No. 2 which has been ruled out of order. When I tabled the amendment I did not intend to impose a charge on the Exchequer but I would like provision to be made to assist and facilitate in limited circumstances. A situation might arise where the State would have to indemnify in certain circumstances. Perhaps it was for that reason the amendment was ruled out of order.
When one meets members of Transfusion Positive and talks to them about these issues, it is clear they are outstanding and need to be addressed in some way, if not in this Bill because of the ruling that I cannot move an amendment which may be deemed to involve a charge on the Exchequer. Committee Stage debate affords us an opportunity to see how the Minister can address these issues, which I am sure have been raised with him during his meetings with this representative group. Can the Minister give any assurances or assistance to try to deal with the issues mentioned in my amendment?
The Deputy is entitled to comment but his amendment No. 2 seeks to make provision for matters such as life assurance, hospital accommodation, etc., and is adjudged out of order as it clearly involves a potential charge on the Revenue.
(Limerick East): It seems the items listed here are not homogeneous in nature. Under the health package we provided for research in respect of hepatitis C victims, which permits a section of the research board to deal with research on hepatitis. A significant number of research projects have been substantially funded this year and we shall continue to fund them in the future.
The Voluntary Health Insurance Board has continued cover of persons with hepatitis C, as it would in the normal way. I know of no prohibition on membership of persons with hepatitis C. Of its nature, our health insurance is communityrated. Membership is available to all members of the community without discrimination.
In respect of hospital accommodation, there are six designated acute hospitals with hepatologists who deal with the issue of hepatitis where accommodation arrangements are made on a one to one basis.
Matters that have proved very difficult for victims are life assurance and mortgage protection insurance. Obviously, if the risk varies private insurance companies will either refuse to cover the risk or quote higher premia. Disadvantages such as these for persons affected by hepatitis C would form part of the claim to be made legitimately either before the courts or the tribunal. In circumstances in which a provision cannot be made for a disadvantage along the lines of those listed by Deputy Cowen in his amendment, they have done and will form part of the claim of those who have already gone through the compensation tribunal who will be compensated for the disadvantages which might arise in the field of insurance cover. I am aware a difficulty will arise in the event of a waiting period before a claimant gets to the compensation tribunal but the amount awarded in respect of these disadvantages will be taken into account retrospectively by the tribunal.
I move amendment No. 3:
In page 6, subsection (16), lines 8 and 9, to delete paragraph (c) and substitute the following:
"(c) counsel appointed by the Tribunal in relation to any matter which it regards as necessary."
As drafted the use of the word "upon" in section 3(16)(c) does not make sense and I propose its deletion.
(Limerick East): The Deputy is correct. It is not a very felicitous use of language and I accept this amendment because it improves the drafting of the section.
This is the section which establishes the Hepatitis C Compensation Tribunal on a statutory basis. The idea of sitting in divisions was an interesting one. As we all know, there has been much concern about the timescale involved in endeavouring to deal with more than 1,600 cases. That 326 cases have already been dealt with, none of which has been appealed, bodes well for the efficacy of the tribunal and its operations. As the Minister said, the judge and his staff are to be congratulated on their work to date. The Minister has spoken about making two divisions. Has he any plans to increase the divisions beyond two because, should these settlement mechanisms incorporated in another section not prove very successful, there would be a need for more than two divisions to avoid the delay to which he referred when replying to Second Stage?
Despite the delays experienced in the courts, it might prove more expeditious for people to go the courts. The overall objective of establishing the compensation tribunal was to ensure its efficacy and replace the court in terms of trying to reach fair and just settlements in these cases.
Perhaps the Minister would clarify that aspect of section 3. He has not explained in any great detail what the Attorney General has in mind in devising these settlement mechanisms to obviate the necessity of 1,600 cases coming before the court, the alternative proposal being that settlements be made a rule of court, with the agreement of the parties concerned to the negotiations which preceded their cases coming before the tribunal in the first place.
Section 3(5) reads:
The term of office of a member of the Tribunal shall be for such period as is specified by the Minister when appointing such member.
Should the cases be dealt with over a reasonably short period — one might well compare the tenure of office of members of boards of semi-State agencies sometimes lasting between three and five years — it might well be expected that the work of this tribunal would have been completed well ahead of that timescale. What is the thinking behind the appointment of members of the tribunal by the Minister as distinct from their appointment for the duration of the tribunal, thus allowing its hearings to come to finality without the prospect of its members chopping and changing? Just as Mr. Justice Egan has considerable familiarity and knowledge of the issues arising in these cases — and he may be accompanied by another distinguished colleague to head another division of the tribunal — I should prefer that its members remained for the duration of its sittings. Perhaps the Minister would comment on that aspect.
Subsection (12) relates to the conduct of hearings otherwise than in public. Clearly the issue of confidentiality is very important in that it allows people to deal with cases that come before them in a manner which means they do not have to worry about public scrutiny, which is in sharp contrast to the position of the State which does not allow people to proceed under an assumed name. The Minister mentioned the constitutional problems involved in terms of ensuring that people who go to court must do so in their own name rather than an assumed one.
Although the thrust of this Bill is to ensure that victims have an equal right of going to the tribunal or having their day in court, unfortunately, those who must go the court route — since its hearings will not be held in private — will be discriminated against whereas those who go the tribunal route will have that benefit. If we are seriously endeavouring to provide parity of treatment for those who come before the tribunal and those who go before the court, we need to thrash out that issue more thoroughly. If some provision could be made for cases which go to court to be held in camera, it would provide equality of treatment for victims who wish to go to court rather than to the tribunal. Such a provision exists in family law. The devastation brought upon families by this tragedy, while not covered by family law, is such that familial implications are very strong and an in camera provision for those who go to court would be a sensible approach to avoid creating a disincentive for those people.
In the establishment of this statutory tribunal and the ad hoc compensation tribunal, there was a deliberate policy of encouraging people to use them rather than the courts. A paternalistic attitude exists that people should avoid the adversarial nature of a court hearing. However, some people feel so strongly about what happened that they are not prepared to accept the tribunal, despite its payments of general and aggravated damages. They want their day in court and believe it is the only way they can exorcise the traumatic experience, apart from vindicating their constitutional rights in a court of law rather than a tribunal. An in camera provision would signal that the Government and the State are genuine in ensuring equality of treatment for victims who want to go to court rather than take the tribunal route. Will the Minister give his views on that aspect of the matter because it is important it be addressed?
Section 3(16) allows the tribunal, in addition to hearing counsel for a claimant in respect of any matter before it, to seek the assistance of a number of parties, including counsel appointed by the tribunal, for any matter it regards as necessary. This is an important provision. The overall section seeks to ensure the statutory tribunal, in terms of resources and provisions, can deal more quickly with the workload than the ad hoc tribunal. Those involved in the latter are to be congratulated for the manner in which they dealt with the throughput.
Will the Minister give more information on the possible requirement of more than two divisions of the tribunal, the length of tenure of new members and why it should not correspond with the duration of the tribunal and the possibility of an in camera provision being made for those who wish, within the terms of this section, to go to court rather than to the tribunal? If the Minister were to address those issues it would clarify the Government's thinking, especially if he were to address the thinking which lies behind the settlement mechanisms which have a bearing on whether two divisions would be sufficient.
(Limerick East): If a person applies for a hearing date at the tribunal, they are more than likely to receive a reply that all dates for the next two years have been allocated. As practically all the 1,600 eligible people have applied, there will be pressure in processing the claims. Not all those who have applied have their applications at a state of readiness sufficient to have their hearing date assigned. Even those who have everything ready are in a position where their hearing dates are at least two years' hence. A serious problem is emerging and it can only be solved by increasing the throughput of the tribunal which means more personnel. I have already appointed two additional people to the tribunal and the Government has sanctioned four others.
We would prefer not to organise two tribunals and I will explain why. Mr. Justice Egan has been an extremely successful chairman and is recognised as such by the legal teams, the applicants and the representative groups. I want him to continue as chairman of the tribunal with his vast experience as a former Supreme Court judge. I also want to avoid a situation of two tribunals where one might be more or less generous than the other. There could also be a divergence in attitude, perceived or otherwise, with legal teams advising applicants that one tribunal might serve their interests better than the other. It is envisaged that Mr. Justice Egan will be the chairperson and that he can appoint another person of experience at the tribunal to chair a sitting of a division. This means people would get the advantages of the faster throughput while the uniformity of approach within the tribunal would be maintained.
If there were no settlement provision, two divisions would not be sufficient to deal with applicants quickly and to ensure the waiting time was significantly shorter than if they applied to the High Court. If the settlement provision does not work as well as I expect, either myself or my successor will have to appoint extra people to serve at the tribunal if that is the only way compensation can be awarded.
The Bill provides for a settlement procedure. If a claim for compensation is made to the High Court, it may be settled at any point up to just before the hearing. I want a similar facility to be available for the tribunal. Legal people tell me there is a significant number of people with expertise who can measure to the pound what it is likely to award in a particular case. If that level of expertise exists and if people, in accordance with the law of tort, can predict very accurately within a modest range what compensation award the tribunal will offer, there is an opportunity for a parallel settlement procedure. The only reason I include it is to address the issue of potentially long waiting periods and because it might be a more effective mechanism than adding indefinitely to the number of personnel at the tribunal.
My thinking is to first have the enabling provision in the Bill. Second, I have obtained a Government decision to appoint a number of extra solicitors to the State Solicitor's Office to deal specifically with this because it will have to be driven in the first instance by the solicitors serving it. Preliminary discussions have taken place with the Bar Council to see how it would facilitate that objective. That is as far as it has gone. If it comes to fruition in the way I think it might, it will be very beneficial, but it will not be in place until about September. The second division of the tribunal will operate during the summer court session, which starts on 29 May. We will try to get four extra people in the coming weeks.
On the period of office of the persons appointed, that relates to the quality of people we are looking for. For policy reasons we decided Judge Egan would be chairman and the other members of the tribunal would be women solicitors and barristers. The typical tribunal would sit in the first instance with Judge Egan chairing it, accompanied by a woman solicitor and a woman barrister. We are looking for women solicitors and women barristers who are very experienced, people whom an Administration would consider suitable to be judges. Already Ms Alison Cross, a barrister, has been appointed to the Circuit Court from the tribunal, although she still works at the tribunal, and Ms Mary Collins, a solicitor, has been appointed to the District Court from the tribunal.
It is envisaged very experienced and dedicated women practitioners would give some of their time at the tribunal and some of the people appointed would move on to the Bench subsequently. It is difficult to get people to commit to stay for the duration of the tribunal. The type of people we are seeking and have appointed up to now are very busy with their own practices. The work of the tribunal is not the most lucrative if one has a big private practice as a solicitor or barrister. The reason for the term of appointment is to ensure maximum flexibility and to get the people we need to do the work of the tribunal.
I am not sure of the legal position on whether the High Court cases should be held in camera. The constitutional position is if a person decides to sue, one is entitled to know who they are, they cannot use a pseudonym. That may apply in very harsh and tragic cases. The courts made such a judgment on a number of occasions, most recently in respect of the case referred to last night when Judge Mary Laffoy said it could not proceed on the basis of anonymity. I am not sure whether a similar constitutional issue would arise in respect of cases in camera, but it has been the practice in the courts, and has always been the position that in compensation claims justice is done in public, and there are good and valid public interest reasons for that. I will have this matter examined. It is not an issue that can be dealt with under this Bill, but I understand the thrust of the Deputy's remarks. The issue of confidentiality is important.
My approach to these matters has been to provide a compensation tribunal to overcome the difficulties presented by litigation in the High Court. There is no difficulty in an informal or statutorily based compensation tribunal ensuring applicants retain their anonymity, but that difficulty would arise in the High Court. The Deputy suggested I have been paternalistic in my approach and have pushed people towards the tribunal, and perhaps that is the way it comes across. I said time and again the compensation tribunal is a much better mechanism than the High Court for applicants who are grief stricken and who are stricken with hepatitis C, and I hold that position very strongly. If that comes across as paternalistic and pushing people away from their right to go to the High Court, I do not intend it that way.
We are all influenced by our past and, as Minister for Justice, I remember the Public Gallery full of people from north Dublin city whose children had been burned in the Stardust tragedy, and there was absolute bedlam here because their cases were tied up in the courts for three, four and five years without a hearing. After a very emotional debate we decided to put in place the Stardust compensation tribunal. That tribunal worked very effectively to relieve the anguish of and give access to compensation and justice to the parents of many of the young people burned in that fire. I brought the Bill into the House to establish that tribunal. It was a far less sophisticated mechanism than the informal tribunal in place at present and the tribunal we are putting in place under statute, but it was very effective.
If I have a blind spot about the High Court it arises from the experience of the Stardust case. I fundamentally believe that in an adversarial system such as ours, for the relatives of victims who died or are injured in tragedies such as the Stardust, or the victims themselves as in the hepatitis C tragedy, the High Court is the wrong place to do business. It was foreseeable it would lead to grief, and it led to enormous grief in the case of Brigid McCole. That is why from the start I tried to put in place a mechanism to provide fair compensation through the compensation tribunal. That is why all the time I have urged people to take the option of the compensation tribunal. There are no cost advantages to the State. Many people would say the cost advantages would accrue in taking the cases to the High Court, except in respect of legal fees.
I accept I may have appeared at times to push people towards the compensation tribunal, but if that is the case it is because of my experience of the Stardust tribunal and the unsuitability of the High Court and the adversarial system to deal with matters of great tragedy such as this, and that still motivates me in putting this tribunal on a statutory basis. Between now and Report Stage I will try to get further information and legal advice on whether cases which go to the High Court rather than the compensation tribunal may be dealt with in camera.
Amendment No. 4 in the name of Deputy Cowen is out of order because it involves a potential charge on the Revenue.
I move amendment No. 5:
In page 8, subsection (13), line 3, after "Service" to insert "Board, the report of any other Tribunal of Inquiry into the Blood Transfusion Service".
Since my amendment No. 4 involves a potential charge on the Revenue it is out of order, but there is nothing to stop the Government putting forward an amendment to deal with the issue. Will the Minister seriously consider this matter between now and Report Stage? Section 4 states the persons who may make a claim for compensation to the tribunal include a person who has been diagnosed positive for hepatitis C resulting from the use of anti-D within the State. When originally published, the scheme did not confine the giving of compensation to persons who had become infected within the State. That was included at a later stage of the scheme and it is repeated in the Bill.
Where is the problem in ensuring the small number of people who have been affected by hepatitis C, as outlined in amendment No. 4, can be accommodated? The purpose of putting the Hepatitis C Compensation Tribunal Bill on the Statute Book is to provide for fair compensation in all cases. A limited number of people, one of whom I mentioned on Second Stage, will not be covered by the provisions of this Bill unless it is amended as suggested. It is not sufficient to say that something cannot be considered because it will involve some extra cost. The Minister said last night the cost of the hepatitis C scandal in general damage terms is about £200 million and aggravated damages will be another £40 million. It is important as we seek to obtain fair compensation under the terms of the Bill that we include everybody who has been affected.
At meetings with the Department of Health it has been pointed out by victims that there are circumstances where an individual can be and has been sent abroad for treatment due to the necessary medical services not being available at a particular time in this jurisdiction. That could be for reasons of lack of finance, expertise or long waiting lists.
The one specific case of which I am aware, which is not included in the parameters of this Bill, relates to a man who was sent to England for bone marrow treatment in the course of which he received an infected blood product. He had been referred to England by the Mater Hospital and his expenses were paid by the Eastern Health Board. He had no choice in the matter and no say as to where he would be treated. That individual who suffers from the virus and whose condition is well advanced has the hepatitis C medical card and is entitled to all the services to which all hepatitis C infected persons are entitled. Due to the fact that at the behest of the State he received this treatment in a foreign jurisdiction he is wholly excluded from any possibility of receiving compensation. I believe there are very few people in this category and such cases should be provided for.
I ask the Minister to have a serious look at this question because if a claim for compensation is to be limited to those persons who have been diagnosed positive for hepatitis C within the State it is excluding a limited number of people who have hepatitis C not as a result of obtaining infected anti-D from the BTSB but because the health system referred them to another jurisdiction to be treated. They are back in this jurisdiction and have all the medical services available to them which hepatitis C victims have but are not covered by the Bill for compensation purposes. It should not be beyond officials and the Minister to ring fence specifically the limited number of persons in this position, given that it would be the wish of the people we represent, in so far as we possibly can, to incorporate all those victims who have to suffer this life threatening disease as a result of what has happened.
Amendment No. 5 reads:
In page 8, subsection (13), line 3, after "Service" to insert "Board, the report of any other Tribunal of Inquiry into the Blood Transfusion Service".
The reason I seek to include this amendment is that the Bill refers to those suffering from infection of hepatitis C as a result of infected anti-D blood products and transfusees or the spouses and children of those people can claim. It does not take into account haemophiliacs and those who have the HIV virus. Rather than return to this issue again, as we must, when it will be clear people in those categories have been infected in the same way as the Finlay tribunal proved in relation to those being discussed, we should be able to incorporate a section, or part of a section, which confirms that those who have suffered wrongdoing in relation to HIV and haemophiliacs will have the same compensation tribunal available to them to deal with the trauma and seek compensation as expeditiously as those who have been the subject of the Finlay tribunal.
It is not impossible for the Minister to draft such a section. It would save much time, work and effort in the future when we will have to revisit this matter and presumably set up another compensation tribunal on a statutory basis to look into the case of HIV victims and haemophiliacs. Will the Minister indicate why he cannot draft an all-encompassing section which would include that category of people in the tribunal, once it has been established that a wrongdoing has been done in those cases by the State and its agencies?
(Limerick East): In respect of the discussion on amendment No. 4, the purpose of the scheme is to compensate persons who received blood or blood products in Ireland. We know the results of Judge Finlay's tribunal and his findings in respect of the BTSB's part in the infection of persons with anti-D product and so on. In respect of persons who went abroad and got medical treatment, for example, in the United Kingdom, and received infected blood, there is no suggestion of fault with the State or any agency of the State or that any liability lies there. The difficulty is we do not know if we are talking about a limited number of people. If we decided to pay compensation to persons who got infected blood or blood product in the United Kingdom, France or Germany we would be paying compensation for persons who got blood through blood banks in, say, England, where they are refusing point blank to pay compensation.
There is much misunderstanding about the issue of hepatitis C. I have seen World Health Organisation figures which suggest that between 12 million and 15 million persons in Europe suffer from hepatitis C. I have seen Health Council documentation in Brussels which shows there are almost 500,000 persons in France who have hepatitis C as a result of blood transfusions and the French Government is refusing point blank to compensate anybody. International comparisons would show what we are doing in a favourable light. The difficulty is that if we were to draft a section which would extend it along the lines of amendment No. 4, I do not know how wide we would open the gate or if we would open it. It may be that it would be for only a couple of persons. Section 4, which deals with the categories of persons who can make a claim at the compensation tribunal, has a paragraph (f) which includes a person referred to in section 9 in accordance with that section.
Section 9 states:
The Minister may, with the consent of the Minister for Finance, by regulations extend the class or classes of persons who may make a claim for compensation before the Tribunal.
This provides the Minister with a mechanism to include a limited category along the lines suggested by the Deputy. We cannot know what the category is at present. If we are talking about hard cases which are omitted, it is not beyond the bounds of possibility that a Minister would provide that persons referred for bone marrow treatment in the UK could form a category under section 9. That is preferable to trying to amend the primary legislation. That is why we included paragraph (f) and matched it to section 9. If other categories arise we have the mechanism to include them.
The Deputy referred to amendment No. 5 and the tribunal of inquiry into HIV infection. The amendment is not being accepted because the State cannot bind itself to the outcome of a tribunal whose report it has not yet seen. Section 4(13) includes the phrase "or any other fact". We had discussions arising from the heads with interest groups, particularly the Irish Haemophilia Society. The head on which this was based did not include this phrase. The new wording would include a report of a future tribunal.
Section 4(13) states:
In making a claim for aggravated or exemplary damages, a claimant may rely on the facts found in the Report of the Tribunal of Inquiry into the Blood Transfusion Service Board ...
That is how we drafted the head which was circulated. However, as a result of consultations with the interest groups and particularly to meet the expressed need of the Irish Haemophilia Society, we included the phrase "or any other fact". This satisfies the State's position of not agreeing to accept the recommendations or findings of a tribunal which has not yet been convened. At the same time, it reassures persons who believe that other facts will be established that those facts can be relied on when they make a claim for aggravated damages.
I am grateful to the Minister for that explanation.
There has been reference to amendment No. 4 which is deemed out of order. The Chair has been somewhat remiss in allowing discussion on that amendment which would be more appropriately discussed when we come to section 4, or section 4 as amended. I would ask Deputies to concentrate on amendment No. 5. When we discuss the section reference can be made to amendment No. 4.
In relation to amendment No. 5, the Minister is saying that the additional reference in section 4(13) enables those affected to use facts established at future tribunals to gain immediate entry to the compensation tribunal set up under this Bill. Is that correct?
(Limerick East): I would think they have entry already. They can rely on the facts when they make a claim for aggravated or exemplary damages. However, the issue would be that their case may become stronger as a result of new facts established by a future tribunal. We could not draft the Bill in a way which tied the State to the findings of a tribunal which is not yet established. However, we can allow for access by persons using newly established facts to support a claim for damages.
I accept that point. The Minister has made the point that the State cannot commit itself, as of yet, until facts are established. I bow to that legal advice and withdraw the amendment.
Amendment No. 6 is an alternative to amendment No. 5a. Amendment No. 7 is related to amendment No. 5a. We will discuss amendments Nos. 5a, 6 and 7 together. If amendment No. 5a is agreed, amendment No. 6 cannot be moved.
(Limerick East): I move amendment No. 5a:
In page 8, lines 5 to 9, to delete subsection (14) and substitute the following:
"(14) Subject to subsections (15) and (16), a claimant referred to in—
(a) subsection (1)(a), (b) or (c) may only make an application to the Tribunal within the period of 3 years of the date upon which she or he first became aware of the fact that she or he may have been diagnosed positive for Hepatitis C or the establishment day, whichever is the later,
(b) subsection (1)(d) may only make an application to the Tribunal within the period of 3 years of the date upon which she or he first began to incur such financial loss or expenses or the establishment day, whichever is the later,
(c) subsection (1)(e) may only make an application to the Tribunal within the period of 3 years of the date of the death of a person referred to in subsection (1)(a), (b) or (c) or the establishment day, whichever is the later,
(d) subsection (1)(f) may only make an application to the Tribunal within such period as may be prescribed.".
My amendment seeks to delete subsection (14) and substitute a new subsection (14). It is drafted to achieve the objective of Deputy Cowen's amendment. However, we had to put this to the parliamentary draftsman to get a formulation which was sufficient to deliver on the intent of the Deputy's amendment. While I am not accepting the Deputy's amendment, this amendment takes his views on board.
The import of the amendment is that a carer may only make an application to the tribunal within a period of three years of the date upon which she or he first began to incur financial losses or the establishment day, whichever is the later.
I raised this matter on Second Stage in relation to section 4(14) and the difficulty created by the three year period. I have no problem in accepting this amendment if the Minister is correct that the substance is what is required in legal terminology to address the issues in my amendment.
As originally drafted, section 4(14) provided that an application may be made to the tribunal within three years of the date on which a claimant was diagnosed positive or within a period of three years of the date on which a claimant first became aware of the fact that he or she had been diagnosed positive for hepatitis C. I can see no reason why wording different from that included in the Statute of Limitations (Amendment) Act, 1991, should not have been included in this Bill. I do not wish to see a different interpretation of hepatitis C cases than that to which the 1991 Act applies. If the Minister is confirming that this amendment includes the substance of the Statute of Limitations (Amendment) Act, 1991, it meets my concerns.
I move amendment No. 7:
In page 8, subsection (16), line 17, to delete "6 months" and substitute "3 years".
The purpose of this amendment is to ensure the same period — three years — is specified in subsections (14) and (16). The Minister suggested that subsection (14) is in keeping with the Statute of Limitations (Amendment) Act, 1991. Subsection (16) makes provision for an extension of the period referred to where a person was under a legal disability by reason of being a minor or of unsound mind at the time at which the claim should have been made. Under the Statute of Limitations, where a minor is injured and entitled to sue, the limitation period provided for only begins from the date upon which he or she attains the age of majority, in other words, if a person under 18 years of age is injured, the period within which he or she must issue proceedings runs from the date he or she attains 18 years. Under subsection (16), as drafted, such a person will have only six months in which to make a claim. I ask the Minister to accept the amendment to extend the period specified to three years.
(Limerick East): Although this amendment was discussed with amendment No. 5a which was in substitution for amendment No. 6, it is an additional amendment. I am accepting it as drafted by the Deputy.
This section lists the persons who may make a claim for compensation to the tribunal. They include those who have been diagnosed positive for hepatitis C resulting from the use of anti-D within the State and those who have been diagnosed positive for hepatitis C as a result of receiving a blood transfusion or blood product within the State. During the debate on the Hederman-O'Brien report concern was expressed that infected product may have been exported by the BTSB. Happily, we were assured at the time that was not the case and no claims were pending against the State. Is that still the position? The Minister is indicating it is the case, which is good news.
What is the BTSB's estimate of the number of persons who have not come forward for testing or who have not been traced and who may have received infected anti-D or infected blood product? The number currently stands at 1,600. What is the estimate of the number of persons who may make a claim for compensation to the tribunal?
Has the Minister been made aware of a possible claim against the State or the BTSB by a person with another strain of hepatitis, hepatitis G, which causes liver disease, linked to anti-D? I understand tests are being conducted.
(Limerick East): I have no information of such a claim. Neither have I heard rumours that such a claim will be made.
Nor of testing?
(Limerick East): No. If the Deputy can provide us with information, something may be happening somewhere about which I have not heard. I have no estimate of the number of new claimants. These cases will arise under the optional testing programme which has been under way for a long time. While those who felt they were at risk went to their general practitioner and were tested, there may be others who will present for blood tests over a period of time. The programme is continuing but it is impossible to give an estimate. What we can be sure of, however, is that there will be new cases. As the Deputy is aware, of the 60,000 eligible for testing approximately 57,000 to 58,000 have been tested. There will be new cases but on the basis of present information I expect the numbers to be quite small.
There is a reference in subsection (1)(f) to section 9 which states that the Minister may, with the consent of the Minister for Finance, by regulations extend the class or classes of persons who may make a claim for compensation before the tribunal. The Minister suggested that it would be possible to provide for limited categories of persons, such as those who have had to travel to the United Kingdom for bone marrow treatment, beyond those categories about which we know who may make a claim for compensation before the tribunal. He also made the point that it is not possible to estimate the number of persons who may be affected by such an extension. Does he have a timescale in mind within which serious consideration may be given in the Department to the introduction of regulations under section 9 to provide certainty?
In a vague way, the Bill holds out the prospect that the limited number of persons about whom I am speaking may receive a measure of compensation. Does the Minister have a timescale in mind in which the Department will come to a conclusion as to which categories beyond those about which we know shall be specified in regulations? The limited number of persons about whom I am speaking should be given some indication as to the length of time that will elapse before the Minister and the Department can decide whether they can accommodate them. It should be possible to introduce regulations immediately covering the categories about which we know to prevent an increased number of claims in future. We should deal with these matters on the basis of present knowledge rather than on the basis of a promise that as soon as we know what we are talking about we will do something about it. We may never be able to come to a final conclusion on the number of people who contracted hepatitis C in another jurisdiction through, for example, a bone marrow transplant. Obviously the number of people in this category would be very small. It should not be beyond the expertise available to the Minister to devise regulations covering these specific cases without opening up the possibility of a flood of applications.
I ask the Minister to be more specific as to the timeframe involved in coming to a conclusion on the category of persons who can be accommodated under section 9. Will section 9 simply serve as our best effort so that we do not have to make a concrete decision on the categories entitled to compensation under it?
(Limerick East): We are dealing with an unprecedented situation in the health services. We all agree that this is one of the greatest public health tragedies to have occurred in this country. In bringing forward solutions to deal with this tragedy I had no precedent to follow either in terms of the health care package suitable for victims or the compensation package. I have dealt with the issue on the basis of the best judgments I can make and the best information available to me.
One of the reasons I proceeded by way of an informal compensation tribunal is that it was vitally important at that stage to maintain flexibility to amend the terms of reference as circumstances changed. I amended the terms of reference of the informal compensation tribunal on several occasions to meet new needs as they emerged. Even though I have many more facts now than I had two years ago, under the statutory tribunal it will be more difficult for the Minister of the day to meet a new need when it is established as it will require primary legislation. We are losing some of the advantages which existed by moving to a statutory tribunal at this point. However, we now have the bulk of the facts, unlike two years ago when it was vitally important to maintain the ability to amend the terms of reference of the informal tribunal.
I am trying to maintain those features of the informal tribunal which were clearly advantageous to the victims. One of these is the ability to move quickly to amend the terms of reference to meet the needs of an existing victim or to bring in a new category. I also want to preserve the informal procedure before the tribunal so that Judge Egan and his colleagues can continue to deal with people in a humane and informal way and are not tied to High Court procedures about which I have a blind spot. This is why I included this catch-all provision in the section dealing with the persons eligible to apply and cross-referenced it to section 9. This gives the Minister flexibility to move by way of regulation instead of having to introduce an amending Bill, with all the delay that that implies. That was the thinking behind the provision. It was not included because a certain category of persons had been excluded. Rather it was to ensure a flexible mechanism in the Bill.
It would be difficult to include persons outside the State as this would give rise to all sorts of implications. If a person contracted hepatitis C through blood received in a London hospital then the liability lies with the health authorities in the United Kingdom. This is a difficult call to make. If I were to extend the facilities of the compensation tribunal to persons infected outside the State it would be difficult to know where to draw the line. If I am in the Department of Health next year I might be in a position to call it but I am not in a position to call it at this stage.
One can immediately see the legal difficulties which would arise. For example, a person referred by consultants at the Mater Hospital to a hospital in London may be eligible under an Eastern Health Board scheme for a rebate of the amount paid, while in another case a person who was not eligible under the scheme and who was simply referred by a consultant as a private patient to a hospital abroad where unfortunately he or she received infected blood or an infected blood product would be in a different category. In one case the person would receive compensation from the health board to pay for their medical bills while the other person would not. This would give rise to all sorts of difficulties. If we were to extend compensation to persons who received infected blood or blood products abroad could we in the new Europe confine this to Irish citizens? This is a very difficult issue with which to deal.
Deputy Cowen's amendment was ruled out of order as it would impose a charge on the Exchequer but it raises very interesting points. Given my present knowledge, I cannot meet the Deputy's request or give him any consolation in respect of the case which he brought to my attention, except to say that there is provision in the Bill to include extra categories of persons if this is deemed proper and necessary. This would not require the Minister to come back into the House with primary legislation. I am sure the Deputy is aware of the further difficulty in regard to the Long Title which would make it difficult to include persons outside the State.
(Limerick East): I move amendment No. 7a:
In page 9, subsection (8)(a), line 12, before "period" to insert "greater".
Section 5(8)(a) provides that a claimant will have one month from an award being made within which to decide whether to accept or reject such an award. The claimant must accept or reject the award in writing. This subsection is subject to section 5(12) which deals with a claimant who is a minor. Section 5(8)(a) also provides that the one month period may be varied by regulation.
The amendment will ensure that there is a minimum period of one month in which a claimant may decide to accept or reject an award and the Minister cannot reduce this period by regulation. While the regulatory provision is being included, I want to ensure there is a saver that either I or my successor cannot reduce the period within which a person may decide to accept or reject an award. Section 5(8)(b) provides that if a claimant neither accepts nor rejects the award within the period referred to in subsection 8(a), he or she will be deemed to have rejected the award. The amendment in my name to section 5(8)(b) is to align it to my second amendment to section 5(8)(a).
I want to make a point in relation to the amendment to section 5(8)(b).
We are dealing with section 5, amendment No. 7a.
Which relates to section 5(8)(a). I accept the Minister does not want anyone to be able to reduce the period of one month within which to decide, but the paragraph further states that where one neither accepts nor rejects an award, one is deemed to have rejected it. Must a formal notification be given before a person is deemed to have rejected an award? I realise some people would regard a month as a long time but the implications of this are serious in that if a person does not reply within 31 days of the award having been granted, they will be deemed to have lost the award. Some consideration should be given on Report Stage to requiring the tribunal to put people on formal notice that they have not received an acceptance or rejection, and that they have 14 days within which to accept or reject the award. That would prevent people finding out they were a day late in accepting or rejecting an award and, under the rules of double jeopardy, there would not be any prospect of going back to court. We must not assume people will grasp the fact that if they have not made up their minds within a month they cannot go back to the Minister in his constituency clinic and ask him to petition the court to keep the award alive because, under law, it would be lost. There should be a formal notification procedure, given the severity of the sanction if a person does not respond within a month. We must ensure that if people did not accept an award, and were deemed to have rejected it, they would have no excuse because of a formal notification they may have received two weeks previously.
(Limerick East): The Deputy has made a good case and I am prepared to try to deal with it. I am proposing a new section 13 by way of amendment. It provides a general power to remove difficulties which might arise but which are not foreseen now. It may be possible under the new section 13 to meet the detail of what the Deputy is talking about. As I said already, I would like to maintain the advantages of the flexible and informal tribunal we have now, even though we are moving it to a statutory basis and enhancing its provisions. Section 13 will be a catch-all section allowing a Minister to obviate difficulties which may arise in the process. I will make a commitment to include a procedure along the lines the Deputy suggests when we are regulating under that section.
Amendment No. 7b is in the name of the Minister and No. 7c is related. The suggestion is that we deal with amendments Nos. 7b and 7c together, if that is satisfactory.
(Limerick East): I move amendment No. 7b:
In page 9, subsection (8)(a), line 15, after "award" to insert "or to appeal the award under subsection (14)".
Section 5(12) provides that the acceptance of an award by a minor should be subject to the approval of the High Court, which approval should be sought within one month of notification of the making of the award, and the claimant shall have one month from the date of such approval within which to accept or reject such approved award. I am pleased to accept Deputy Cowen's amendment to section 5(12) because it renders it consistent with the settlement provisions of the Bill. I am also proposing an amendment to section 5(12) to ensure that in the case of a minor on whose behalf the claim for aggravated or exemplary damages is taken to the tribunal, and whose award of such damages is too low, the High Court may direct that a payment be made from the reparation fund instead.
I welcome that. It is important, particularly for minors, that we make every possible statutory provision to ensure that the compensation is fair. I particularly welcome the Minister's proposed amendment in relation to the reparation fund being used where it is deemed that the compensation payment is low. I am glad the Minister is accepting our amendment in relation to settlements because it is clearly in the interests of everybody that settlements be facilitated in the same way as awards. That is an improvement to the Bill.
(Limerick East): I move amendment No. 7c:
In page 9, subsection (8)(b), line 16, after "award" to insert "or appeals the award under subsection (14)".
I move amendment No. 8:
In page 9, subsection (12), line 36, after "minor" to insert "or in the case of a settlement for a claimant who is a minor".
This amendment relates to section 5(12) and it is being accepted by the Minister.
(Limerick East): I move amendment No. 8a:
In page 9, subsection (12), line 41, after "award." to insert the following:
"The High Court may direct that where it considers any part of such an award, in respect of aggravated or exemplary damages, is too low, that the claimant shall apply to have a payment made from the Reparation Fund in lieu of such damages.".
There is an amendment to this section in the name of Deputy Cowen. I am not accepting Deputy Cowen's amendment to section 5(16) because it would remove a discretion of the claimant. However, I am proposing an amendment to this subsection to split it into two paragraphs. The existing subsection will then become section 5(16)(a). There will be a new paragraph, section 5(16)(b), to provide that, in the event of the Minister or relevant agency appealing under subsection (15), this appeal shall also be held in private unless the claimant otherwise requests.
Section 5 states that an appeal under this section shall be heard otherwise than in public at the request of the claimant making the appeal. I did not hear the Minister's reply when I proposed to delete "at the request of the claimant making the appeal". What is the difference between the appeal and the original case being heard before a tribunal which is held otherwise than in public? Why are the additional words "at the request of the claimant making the appeal" necessary? I do not understand what is intended in the amendment.
(Limerick East): The intention would be that, in general, cases would be heard in private but that a claimant may ask that it not be held in private. If we were to make the deletion, it would remove a discretion from the claimant and I want to allow the discretion to the claimant to be maintained.
(Limerick East): I move amendment No. 9a:
In page 10, subsection (16), between lines 8 and 9, to insert the following:
"(b) Unless the claimant otherwise requests, an appeal by the Minister or relevant agency under subsection (15) shall be heard otherwise than in public.".
This section deals with the awards of the tribunal. On Second Stage the Minister referred to the size of awards, which ranged from five figure sums to large six figure sums. Every case is based on the facts but there appears to be an extraordinary discrepancy between an award of £10,000 and an award of more than £430,000. Perhaps loss of earnings and other issues were involved. However, could the Minister inform the House about the tribunal's view of claims, what the average claim would be and what serious cases have come before it which give rise to very large claims being successfully processed? Can he explain the reason for that range of compensation for people who are suffering from the same disease? Obviously, there are different family circumstances, different stages of deterioration and different prognoses for the victims concerned.
One hopes the settlement provisions in the Bill will become a serious dynamic in trying to reach conclusions and getting this matter wound up with everybody receiving their compensation as quickly as possible. The level of award has determined the level of people's confidence in the tribunal. How did the compensation tribunal find the level of performance that has met such wide acceptance? Apart from the benefits of informality, confidentiality and non-adversarial comment in determining the issues, I am interested to know, from the experience of the Minister and his Department of the tribunal's operations since its establishment, how it has been able to achieve the widespread support it has received, given the traumatic and emotional issues involved.
(Limerick East): There is no precise mechanism to get the information to which the Deputy refers from the informal tribunal. The tribunal is clearly separate from the Minister and the Department of Health and carries out its functions separately. However, we receive statistical reports on request, on which basis I can provide information to the House. The tribunal is now being established on a statutory basis. Section 12 of the Bill requires the tribunal to submit “a report of its activities and particulars of its accounts to the Minister at such time as the Minister directs”. Copies of such reports will be laid before the Houses of the Oireachtas. There will, therefore, be a formal reporting system and we will have better information.
I will attempt to answer the Deputy's question in general terms because I cannot comment on how the tribunal measures the amount of compensation it deems necessary. The tribunal operates in accordance with the law of tort. It does not measure compensatory damages in any other way than that which would be used before the High Court. All persons who go before the tribunal, even though they are represented by four different organisations and some are represented by no organisation, have hepatitis C or hepatitis C antibodies. There is a huge difference between persons who have the virus and persons who have the antibodies. Deputy McDaid can offer an enlightened medical opinion on that aspect of the matter.
Of the cohort of 60,000 people deemed eligible for testing arising from the possibility of infection from anti-D, huge numbers tested negative. However, some persons tested positive although they did not have the virus. In non-medical terms, their immune system was sufficient to have fought the virus. They still have the antibodies in their systems, which indicates they had contact with the virus, but they no longer have the virus. Persons who are receiving awards of £15,000 to £20,000 are, by and large, people who do not have hepatitis C but who have had contact with it and retain the antibodies. They are being compensated for that and it explains the lower level of award. On the one hand, one is dealing with people who have the antibodies and, on the other, with people who have the virus.
Of the 327 awards to which I referred on Second Stage, about 120 were provisional awards. The type of applicant who will opt for a provisional award is usually a person who has the virus and whose medical prognosis can carry them to a certain point in the future, but who would like to retain the ability to come back to the tribunal if the prognosis was better than the events which subsequently occurred. That explains another divergence in the awards. The people who receive provisional awards tend to be people who have the virus. However, while their awards are significant, they are less than those of people in similar circumstances who opt for full and final settlement by way of a lump sum. That accounts for another subdivision in the awards.
There are general damages and special damages. Loss of earnings would explain many of the larger discrepancies among persons of similar health status. The age of the person is another factor and it is linked to the loss of earnings factor. A young professional woman in her thirties who goes before the compensation tribunal with the same health status from hepatitis C as an older person who is not suffering loss of earnings would tend to get significantly larger compensation. Some people might deem that unfair but that is how the compensation system works before the High Court as well. Life expectancy is another issue. Special damages, loss of earnings, age of persons, life expectancy and so forth are the issues taken into account.
The Deputy said the range from several thousand pounds to several hundreds of thousands of pounds seems large. The explanation is that the lower end of the range is awarded to people who do not have the virus but have the antibodies and they are entitled to compensation for their contact with the virus. Persons at the upper end of the range will not only have the virus but would also have strong claims for special damages.
We have been discussing people who have the antibodies or the virus as a result of receiving anti-D. Those who received the virus as a result of transfusions are usually people who have another concomitant illness and, as a result of having that condition, they would be deemed to be in greater need. While the Minister has explained the situation of people who received blood products, are transfusion cases being pursued in the manner the Minister described? Are they regarded as being in more urgent need than those who received the virus as a result of anti-D? Will the people who received transfusions as a result of having some other condition be given priority?
(Limerick East): There are four representative groups: Positive Action which represents anti-D mothers; Transfusion Positive which represents men and women who were infected by blood products other than anti-D, normally transfusions; the Irish Haemophilia Association which represents people who were infected by a blood product; and the Irish Kidney Association which represents a smaller number of people, 35 or so, who were infected by blood transfusions. The members of these different groups have different needs, but they are all eligible applicants.
The tribunal approaches them all on an equal basis. In terms of rostering hearing dates, there is no preference given to anti-D mothers over members of other groups. The only time priority is given is to a person who is seriously ill. On a number of occasions we were asked to intercede informally when it was feared that a person might die before getting to the tribunal. We do not determine when persons go before the tribunal. The tribunal has to decide on these issues just as a court has to. However, if it is brought to the attention of the tribunal that somebody is seriously ill, and particularly that somebody is terminally ill, it will give priority in such a case. Members of all four organisations have been dealt with before the tribunal and, in terms of fixing dates, there is no discrimination between applicants based on the origin of their infection.
The issue of eligibility for the tribunal of persons with other medical conditions where hepatitis C was a contributing factor was raised. I will be dealing with that later.
There are 1,600 cases before the tribunal and they are being dealt with at the rate of five or six a week. At that rate it would take about five years to deal with them all. The Minister says there is no discrimination between the different categories, but surely patients with kidney transplants should be addressed through a special area of the tribunal to expedite their cases. Five or six years may be too late for some of these people.
(Limerick East): We had a lengthy discussion on this already. In the first instance, the tribunal will operate in two divisions and, in effect, double its output. As well as that we are putting a settlement procedure in place in accordance with the Bill and are working out the detail so that parallel settlements could take place, and that would speed up the process significantly. It would be untenable and unfair to tell people that if they apply now they will be compensated in five years' time. It would drive people into the courts with all the anguish that would entail, which I would like to avoid.
I do not think, however, that we should give priority to one category of victim over another. The tribunal is working very well in a very humane way. It is working informally, and if it is brought to its attention that a particular person is critically ill, it will take that into account regardless of the organisation to which that person belongs.
At the start Positive Action was reluctant to recommend its members to apply to the tribunal. However, the Irish Haemophilia Association moved quickly for reasons that are obvious — its members frequently do not have so long to wait. Members of the Irish Kidney Association applied quickly also. In terms of numbers, a significant number of people represented by the Irish Haemophilia Association have had their cases dealt with — up to now, proportionately more of those have been dealt with. However, here we are dealing with much smaller numbers, just over 100 in the Irish Haemophilia Association and 30 to 40 in the Irish Kidney Association. Positive Action represents a bigger group of people, but within that category there are more people who have antibodies than have the virus. The group that have the virus number about 450. Among the 1,680 there are dependants and carers as well as applicants, and they are also eligible to apply. Three hundred and twenty seven have gone through, so the number of outstanding applicants is down significantly.
We come to amendment No. 9b in the name of the Minister. Amendment No. 10 is an alternative. Is it agreed that amendments Nos. 9b and 10 be taken together? Agreed.
I move amendment No. 9b:
In page 10, subsection (3), between lines 28 and 29, to insert the following:
"(b) apply to the Tribunal to hear evidence on any statutory or non-statutory benefits which she or he has received or is entitled to receive which were taken into account by the non-statutory Tribunal in assessing an award to that person.".
Section 6(3)(a) provides that a person who has already had a claim for compensation determined by the non-statutory compensation tribunal may apply to the statutory compensatory tribunal to hear evidence at the discretion of the tribunal which was not made available to the non-statutory tribunal in calculating the award made to that person. This provision was requested by the Irish Kidney Association.
Section 6(3)(b) provides that a person who has already had a claim for compensation determined by the non-statutory compensation tribunal may apply to the tribunal for an award of aggravated or exemplary damages or an amount to be paid to her or him from the reparation fund. I am not accepting Deputy Cowen's proposed amendment which we are discussing with the amendment in my name. However, I am proposing an amendment to section 6 which will add an additional subsection to the section which effectively takes account of Deputy Cowen's view on this. The amendment provides that a person who has had a claim determined by the non-statutory tribunal may apply to the tribunal to hear evidence on any statutory or non-statutory benefits which were taken into account by the non-statutory tribunal.
Section 6(3)(c) provides that a person who has already had a claim for compensation determined by the non-statutory compensation tribunal may appeal an award. Deputy Cowen is proposing a further amendment to section 6(3) which I am not accepting. It has important legal implications. A person's case in law dies with the person. However, dependants will have an action, even though the deceased has received damages.
A copy of amendment No. 9b has just been handed to me by the Clerk. I will first deal with my amendment and then tease out what the Minister has said. Positive Action has written to the Minister asking that the amendment which I have submitted be included. No. 18 of the heads of the Bill was clearly directed to create an entitlement in those who had already been before the tribunal to "the benefit of any adjustments to the compensation scheme provided for under this Bill". In its view section 6 as drafted and now published does not reflect the substance of No. 18. For that reason they asked me to put down this amendment.
The whole question here is that of trying to ensure that, in the transition from a non-statutory to a statutory tribunal, people will benefit and that the equalisation will be up rather than down. It is important to try to see why the Minister is not accepting the amendment as set out. I am at a disadvantage in that I have not seen amendment No. 9b before now. It proposes that a person who has had a claim for compensation determined by the non-statutory tribunal may apply to the tribunal to hear evidence on any statutory or non-statutory benefits which she or he has received or is entitled to receive which were taken into account by the non-statutory tribunal in assessing an award to that person. How does that differ from the amendment I tabled?
(Limerick East): There is no difference in content. It is simply a drafting adjustment on the advice of the draftsman's office. In effect, I am accepting the Deputy's amendment with a recast of the draft.
I accept the Minister's assurance in that regard.
I move amendment No. 11:
In page 10, between lines 32 and 33, to insert the following subsection:
"(4) In subsection (3) of this section, `a person' shall include a personal representative of a deceased person who has had a claim determined by the non-statutory Tribunal and who has died.".
I tabled this amendment because the Bill does not refer to persons who died since the determination of their claims before the tribunal. Positive Action sought the insertion of this new clause in section 6(4). This amendment refers to a person who applied to the non-statutory tribunal, had a claim determined but subsequently died. The personal representative of the deceased should be able to go before the tribunal on behalf of the deceased person. This is a sensible and fair proposal which may have escaped the consideration of the draftspeople
(Limerick East): My legal advice is that a person's case in law dies with him or her. Therefore, I cannot accept an amendment that seeks to enshrine in statute a measure that would allow the claim of a person who has died to live on. Dependants have a right under the Bill to claim compensation even though the deceased may have received damages. Dependants and carers, as well as those who have been infected, may make claims. If a person receives an award from the compensation tribunal and subsequently dies there is provision in the statute for the dependants of the deceased to make independent claims in their own right. They will be dealt with on their merits.
That does not cover the case to which I have referred on a number of occasions. The dependants of a person whose case has not gone before the tribunal do not have rights. People who did not know they were infected died from hepatitis C prior to going before the tribunal. Have the dependants of such people any rights? The figure under the Civil Liability (Amendment) Act increased from £7,500 to £15,000 and does not cover these people. There are two categories of people not covered under this legislation. The dependants of those who did not appear before the tribunal have a right to seek compensation because they were also the victims of contaminated blood. People who we know from their files died from hepatitis C should also be taken into account. Their deaths were expedited by hepatitis C. Will their dependants be considered under this legislation?
(Limerick East): The dependants of a deceased person who have not appeared before the tribunal have a right to claim as dependants. Those claims are preserved. There are other issues which Deputy Cowen raised with which we will have to deal on Report Stage. I cannot concede his amendment because as a general principle a person's case in law dies with him or her and while we can ensure that dependants, as dependants, have a right to claim before the compensation tribunal, the representatives of the deceased person cannot re-enter for increased damages under the provisions of the tribunal.
I take the Minister's point that the dependant may be the personal representative in terms of the estate and may not be applying as a dependant. On reflection, I accept that is the legal position. I take it from what the Minister said that provisions elsewhere in the Bill will have a similar effect in that a dependant will be able to apply and receive the same level of additional compensation as a personal representative seeking to improve the assets of an estate based on a civil action while the person was alive. If I understand the Minister correctly, it is a case of six of one and half a dozen of the other. What is the position in regard to amendment No. a7a?
(Limerick East): The provision that was available for dependants of deceased persons until the implementation of the 1996 Act was £7,500. Since 1996 the figure has increased to £20,000. I am trying to construct an amendment that will apply the £20,000 benefit to persons who died as a result of hepatitis C prior to the enactment of the 1996 Act. This covers a point brought to my attention on several occasions by Deputy McDaid. If possible we will try to have the amendment drafted before 7 p.m., but if I am not sure of the wording we will have to resume after 8.30 p.m. for a short Report Stage. I would prefer to be certain about the drafting before tabling a Report Stage amendment which might have implications in the manner in which the High Court would deal with claims of dependants of persons who were deceased prior to 1996. I want to ensure that what we do is ringfenced in respect of this tribunal and that if something must subsequently be done for other persons affected prior to 1996, it is done in appropriate legislation and is not imported from here.
I take the Minister's point and I agree with him. I had forgotten the status of that amendment as it was hastily and clumsily drafted this afternoon to ensure discussion of this point. I am glad the Minister has readily accepted that, as a minimum, people from those families should still be able to claim. As Deputy McDaid has pointed out, even £20,000 in compensation may not be commensurate with compensation that others will get who may have lived longer than those who died before the coming into force of that section of the Civil Liability (Amendment) Act, 1996. I welcome the Minister's openness on that point and await his amendment, which should cover the issues raised.
We are talking about the rights of the representatives of a deceased person. I referred to this last night when discussing the entitlements of the McCole family. The public would be concerned that the McCole family are properly compensated. Mrs. McCole family are entitled to claim under section 4 of the Bill, but because their mother is dead they will have to claim under the Civil Liability (Amendment) Act. Can the Minister outline the options for the McCole family given that this was the case that provided the justice being afforded by this Bill to other victims?
(Limerick East): The Deputy has asked a question I cannot answer properly. I can speak about how applicants or categories of applicant can proceed in general but the Deputy has asked me to proffer legal advice to a particular family.
I do not mean to do that.
(Limerick East): I am not legally qualified but even a legally qualified Minister could not do that in the House. It is quite clear that dependants have rights as applicants before the compensation tribunal that are separate from those of their parents or others who may be deceased. Any family whose father or mother died as a result of hepatitis C would also have rights as applicants and claimants under these provisions. The right would be, in effect, that they are included as recognised applicants. The tribunal would deal with their applications as it would applications of others coming before it. They would be heard and their applications would be processed in the normal way.
I was not trying to ask the Minister to give legal advice. I wanted an assurance that there was an option for that family to benefit under the Bill as many people would be very anxious about that. I thank the Minister.
(Limerick East): The right of dependants of persons who have died to claim compensation before the tribunal applies to persons who have received an award either from the tribunal or from the courts.
This is an important section as it refers to settlement provisions. The Minister outlined earlier how far he has come with it and his ideas on how it will work. Subsection (2) refers to documents available to the parties which are not to be made available to others. It seems that there is no sanction if one does not abide by this provision. How would one know if a person has abided by this? It seems to take confidentiality of papers on settlement negotiations on trust, which may be naive. Why is no sanction suggested in the case of a person not complying with this subsection?
(Limerick East): I understand what the Deputy suggests, but not every prohibition in law requires penalties and sanctions to ensure it is applied. This confidentiality applies to members of professions such as solicitors and doctors who have the Bar Council and other ethics committees. Once this is a matter of law, the ethics committees of these professions would ensure that this is complied with.
What about claimants?
(Limerick East): What can one do? If one approaches this in terms of sanctions such as fines or imprisonment, that is very onerous on a claimant. We are trying to indicate best practice and we hope that the ethical position of the professions will ensure that it is complied with. To proceed beyond that would take us into an invidious position where we would have no more hope of success than with our present approach.
It is like Cabinet confidentiality.
The Minister might expand on the intent of this section.
(Limerick East): Section 10(1) provides for the establishment of a special account for pay awards made by the statutory compensation tribunal and the non-statutory compensation tribunal and the administrative expenses of both.
Section 10(2) provides, subject to subsection (3), that the moneys in the special account can be used at any time but only for the purpose for which they are voted and shall be issued out of the account only by direction of the Minister for Finance.
Section 10(3) provides that any moneys, including interest, if any, in the special account may be paid into, or disposed of for the benefit of, the Exchequer in accordance with the directions of the Minister for Finance.
Section 10(4) provides for the dissolution of the special account set up by section 3 of the Appropriation Act, 1995, and the transfer of all moneys in that account to the special account set up by this section. The latter was used to pay awards made by the non-statutory tribunal and that tribunal's administrative expenses.
Section 10(5) provides for the transfer of moneys from the special account by section 3 of the Appropriation Act, 1995, to the special account established by this section.
Section 10(6) provides that in this section, the special account, unless the context otherwise requires, means an account for the purpose of this Act and the scheme administered by the non-statutory tribunal in the joint names of the Minister and the Minister for Finance. That account shall be an account with the Paymaster General, subject to such terms and conditions as the Minister for Finance, in consultation with the Minister for Health, may determine and subject to audit by the Comptroller and Auditor General.
This refers to the setting up of the reparation fund, which the Minister suggested in 1997 would be £22 million and would grow in successive years. Will the Minister outline how the fund will work? Will it affect the Health Estimate as it is an additional major imposition on it as a result of the setting up of the statutory compensation tribunal to provide for aggravated damages? How does the Minister envisage it working and being resourced without impacting on other areas of the health service?
(Limerick East): Section 11 provides for the establishment of a reparation fund to enable payments to be made to claimants as an alternative to applying to the compensation tribunal to assess aggravated or exemplary damages. It is not a fund for aggravated or exemplary damages; it is a reparation fund which is outside the remit of the tribunal and is an option for persons who do not want to proceed or who do not want to process a claim for aggravated or exemplary damages within the tribunal, but that option also remains open to them.
The Government decided that claimants after establishing their claim for damages, that is general or special damages, at the compensation tribunal will have two options. They can seek to establish their entitlement to aggravated or exemplary damages at the compensation tribunal or they can accept payment from a special reparation fund which will be established by the Government. That payment will amount to 20 per cent of the total amount awarded in general or special damages 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.
Section 11(2) provides, subject to subsection (3), that the moneys in the reparation fund may be used at any time, but only for the purposes for which they were voted and shall be issued out of that account only by direction of the Minister for Finance.
Section 11(3) provides that any moneys, including interest, if any, in the reparation fund may be paid into, or disposed of for the benefit of, the Exchequer in accordance with the directions of the Minister for Finance.
Section 11(4) provides for a claimant's right to have an amount paid to her or him from the reparation fund as an alternative to applying to the compensation tribunal to assess aggravated or exemplary damages.
Section 11(5) prohibits a claimant who has had aggravated or exemplary damages made to her or him by the compensation tribunal from applying for payment from the reparation fund.
Section 11(6) provides that the amount paid out of the reparation fund shall amount to 20 per cent of the total amount of the award of general or special damages made by the tribunal or a settlement under section 8.
Section 11(7) provides that the Minister for Health shall manage and control the reparation fund.
Section 11(8) provides that the account of the fund shall be prepared in such form, in such manner and at such times as the Minister for Finance may direct, be an account with the Paymaster General, be subject to such terms and conditions as the Minister for Finance, in consultation with the Minister for Health, may determine and be subject to audit by the Comptroller and Auditor General.
Section 11(9) empowers the Minister for Health by order to appoint a day that the reparation fund shall be established.
In terms of what will happen in practice, an applicant who goes to the compensation tribunal will decide whether he or she wants to process a claim for special and aggravated damages within the tribunal and will see what that will be or will decide he or she wants to apply for general and special damages and does not want the tribunal to assess aggravated or exemplary damages. In the latter case the applicant would be entitled to an automatic top up of 20 per cent on whatever award the compensation tribunal would make without having to fight the case before it in terms of aggravated or exemplary damages.
The trigger which enables an applicant to draw down money from the reparation fund is a successful application which results in compensation being awarded by the tribunal and the amount is 20 per cent of whatever is the amount of the award. This is not a mechanism for awarding aggravated or exemplary damages. It is an alternative mechanism we put in place to acknowledge the hurt done by an agency of the State to many people. It is an extra amount of payment.
However, there are a number of alternatives a person may pursue. A person may go to court, process a claim for aggravated or exemplary damages within the tribunal or may waive the right to do that and, alternatively, be awarded general and special damages and automatically get a 20 per cent top up on that. The Government decided this will be a separate fund within the Department of Health and will not impact on its general finances. It should not have any crossover effect on the general Health Estimate.
Will the Minister outline the tortuous negotiations he had with Positive Action which started at 10 per cent, then moved to 15 per cent and will he tell us who twisted his arm to go to 20 per cent, or the reason he was so slow to come to that figure, which would be regarded as fair in the circumstances?
(Limerick East): There was not particularly lengthy negotiation on that. Most of the talks and consultation with the representatives of Positive Action were about the provisions of the Bill on which they went into great detail. We had a series of negotiations about the heads of the Bill and subsequently about amendments to the draft Bill. As a result of one of its general meetings, Positive Action's public position on the compensation tribunal was that there should be a top up of 30 per cent. However, in the process of negotiation — the Deputy is probably aware of this because he may have seen the documentation — I put forward a number of alternatives to the representative groups. One was that the compensation tribunal should adjudicate on aggravated and exemplary damages. A second option, which did not find favour, was an outside arbitrator to decide a percentage or some lump sum figure which could be added on in terms of reparation. There was also the idea of a reparation fund. What evolved was that persons wanted to maintain their legal right to process a claim for aggravated or exemplary within the compensation tribunal, but they also wanted an easier alternative system, easier in terms of process. We combined two of the options, the reparation fund and the first option. Positive Action's opening position was 30 per cent. The Deputy will be aware that when the Government sanctioned the heads of the Bill, it included provision for 15 per cent. Through a process of consultation agreement was reached on 20 per cent.
The process was not long or tortuous. There were many meetings, but they were not about that. They were about the content of the legislation before us. I am glad the consultative process brought about a result which is satisfactory for the interest groups. Some of the amendments tabled today by Deputy Cowen and in my name have brought the position forward and, to a large degree, have met further requests of the representative groups. While the last amendment we dealt with, to which I will have to come back on Report Stage, one in which Deputy McDaid has been interested for such a long time, does not meet fully the outer range of the request, it is a significant movement forward from what was the position.