Civil Liability (Amendment) Bill 2017 [Seanad]: Second Stage

I move: "That the Bill be now read a Second Time."

On behalf of the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, who cannot be here this evening, l am very pleased to bring the Civil Liability (Amendment) Bill before this House and I look forward to our discussion of its provisions.

The primary purpose of this Bill is to empower the courts to make awards of damages in cases of catastrophic injury by way of periodic payments orders, which I will refer to for short as PPOs. The Bill will apply in cases involving both State defendants and non-State defendants. It addresses the concerns raised repeatedly by the courts about the absence of legislation to enable periodic payments orders in appropriate cases. At the outset, I acknowledge the work carried out by the High Court working group on medical negligence and periodic payments in bringing this matter to the fore. Since the publication of the working group’s report on this issue, the Department of Justice and Equality has worked with other Departments, State agencies and other stakeholders to develop the provisions of the Bill.

Currently, damages for personal injuries are paid by way of a lump sum. The lump sum is intended to compensate for all past and future losses resulting from the injury, including the cost of care, medication, medical and assistive aids, and treatment. The lump sum is intended to represent the capital value of future loss. The working group on medical negligence and periodic payments noted that under the lump sum approach, there is no recourse for plaintiffs who exhaust their funds by exceeding their projected life expectancy. Many catastrophically injured persons have spent their final years without the means to pay for their care because the damages awarded have proved inadequate.

The principal recommendation made in the working group report was to address the deficiencies in the lump sum system by giving the courts discretion to impose, with or without the consent of parties, periodic payments orders in catastrophic injury cases. The working group recommended that periodic payment orders should be calculated to meet the cost of permanent and long-term care and treatment and should be index-linked. The principal advantages of introducing periodic payments orders are as follows. Inadequate compensation will be avoided, as payments will be tied to the actual rather than the expected cost of care and treatment; and inappropriate compensation will be avoided, as payments will be linked to actual rather than expected duration of life. In addition, the payment of enormous lump sums will be avoided. Since the publication of the working group report, the courts have made more than 50 interim periodic payment orders. These interim periodic payments orders are subject to review by the courts on relevant returnable dates. However, the courts have indicated that they do not favour settlement of claims by periodic payments order in the absence of legislation. This Bill provides that a court shall have the power to award damages by way of periodic payments order where appropriate, having regard to the best interests of the plaintiff and all the circumstances of the case. I will shortly outline the details of the new provisions.

Deputies should note that, at the request of the Minister for Health, a new Part 4 was inserted into the Bill on Committee Stage in the Seanad to provide for open disclosure of patient safety incidents. At this point, I acknowledge on behalf of the Minister for Health that these open disclosure provisions benefited from detailed pre-legislative scrutiny by the Oireachtas committee on health. Open disclosure is about an open, honest and consistent approach to communicating with patients and their families when things go wrong in health care, as they sometimes do. When that happens, it is important to keep the patient informed and updated in a timely and comprehensible way as to what occurred, why it occurred and any investigations being undertaken. Open disclosure may also involve, depending on the particular circumstances of the incident concerned, an apology for what happened. The origins of the open disclosure provisions in the Bill can be found in the report of the commission on patient safety and quality assurance and the intention is to help create a safe space where honesty and respect can flourish and where lessons can be learned by health services providers and health practitioners and acted upon to improve the health service.

The provisions in Part 4 are therefore designed to give specific legal protections for the information disclosed and any apology made during the open disclosure process, but only when the information provided and the apology made are in accordance with the requirements of the legislation. To help ensure consistency and uniformity in open disclosure practice across the health system, the open disclosure protections in the Bill will apply in both the public and private sides of the health service. It is important to be clear that there is no question that this Bill will protect incompetent, negligent or other unprofessional patient care. Clinicians will still operate within existing accountability frameworks, including through the bodies regulating their particular professions. It is also important to point out that patient safety incidents may not be caused by the actions or inactions of individual clinicians. Systems failure can also cause patient safety incidents.

On the matter of whether legislative provisions on open disclosure should be of a mandatory or voluntary nature, the Minister for Health considered this issue very carefully, including the international evidence. He concluded that the best chance for achieving and embedding the necessary cultural change lay with a voluntary system that operated within a clearly defined legislative structure that emphasised the importance of communicating meaningfully with the patient. The Oireachtas committee on health in its pre-legislative scrutiny arrived at a similar conclusion. The Minister for Health has, however, indicated that a structured evaluation of the success of voluntary open disclosure will be undertaken in the future in the light of experience gained.

The open disclosure provisions form part of a number of initiatives to improve the management of patient safety incidents. These include the draft standards on the conduct of reviews of patient safety incidents developed by HIQA and the Mental Health Commission, which expand on the National Standards for Safer Better Healthcare. This set of standards, along with the mandatory external reporting of serious reportable events that will be provided for in the Health Information and Patient Safety Bill, and the provisions to support open disclosure, will provide a comprehensive patient-centred approach to preventing, managing and learning from incidents.

I would like now to outline briefly the main provisions of the Bill. Section 2 is the main provision regarding periodic payment orders. It inserts a new Part containing new sections 51H to 51O into the Civil Liability Act 1961. Section 51H is an interpretation section for the new Part. "Catastrophic injury" is defined as meaning "a personal injury which is of such severity that it results in a permanent disability requiring the person to receive life-long care and assistance in all activities of daily living or a substantial part thereof".

Section 51I is the central provision relating to periodic payments orders. Where a court awards damages for personal injuries to a plaintiff who has suffered a catastrophic injury, it may order that all or part of the damages for future medical treatment, future care and the provision of assistive technology be paid by means of a periodic payments order, PPO. Where the parties agree to do so, damages in respect of future loss of earnings may also be paid by PPO. In deciding whether to make a periodic payments order, the court must have regard to the best interests of the plaintiff and the circumstances of the case. A court may make provision that a PPO may increase or decrease from a specified date to cater for anticipated changes in the plaintiff’s needs. This is termed a “stepped payment”. Changes in circumstances that may form the basis of a stepped payment include entry into primary, secondary or third level education, reaching the age of 18 years or changes to the care needs of the person including transfer to residential care.

Section 51J provides that a court may only make a PPO where it is satisfied that the continuity of payments under the PPO is reasonably secure. Section 51L deals with the issue of indexation of payments. The section provides for the annual adjustment of a payment under a PPO in line with the prevailing rate under the harmonised index of consumer prices and provides for a review of the application of that index after a five-year period.

Section 51M seeks to address the risk that a claimant could be encouraged to agree to commute their periodic payments order into a lump sum payment even if there were compelling reasons for the claimant to receive periodic payments. The section provides that if a plaintiff wishes to assign, commute or charge the right to a PPO, an application must be made to court for approval. Section 51O ensures that the new provisions on PPOs can apply to cases where a court has already made an interim award of damages.

Section 3 of the Bill amends the Insurance Act 1964 to provide that the limit on amounts that may be paid from the Insurance Compensation Fund shall not apply in cases involving periodic payments orders. This means that where an insurance company becomes insolvent, the full amount due to a person entitled to receive payments under a PPO will be paid in full from the fund.

Section 4 of the Bill makes technical amendments to the Bankruptcy Act 1988 to ensure protection of payments under a PPO in the event of bankruptcy. Section 5 provides an exemption from income tax in respect of payments made to persons under periodic payments orders. Section 6 of the Bill amends section 17 of the Civil Liability and Courts Act 2004, which deals with formal offers of settlement and costs in personal injuries actions, to make provision for cases involving PPOs.

As I mentioned earlier, Part 4 of the Bill deals with open disclosure of patient safety incidents. Section 7 outlines the definitions of certain terms used in Part 4. The definitions of "health service" and "health services provider" capture the full range of public and private health services. A "relevant person", in respect of a patient, is a person closely connected to the patient who may be present at an open disclosure meeting, or may receive the disclosure if the patient has died or is not in a position to receive the disclosure.

Section 8 defines the key concept of "patient safety incident". The definition follows the accepted international classification and terminology used in the WHO conceptual framework for the international classification for patient safety.

Section 9 provides that a disclosure of a patient safety incident made in accordance with the Bill will be considered an open disclosure.

Section 10 provides for protections for open disclosures. These protections only apply if the disclosure is made in accordance with the requirements of the Bill. The protections are as follows: information and any apology given in an open disclosure will not constitute an admission of fault or liability in a clinical negligence action in relation to that patient safety incident; information and any apology given in an open disclosure are not admissible as evidence of fault or liability in a clinical negligence action in relation to that patient safety incident; and information and any apology given in an open disclosure will not constitute an admission of fault and are not admissible as evidence of fault in professional fitness to practice proceedings.

Section 10 also provides that insurance or indemnity will not be affected by an apology made as part of an open disclosure.

Section 11 provides that a health service provider must prepare a written statement outlining the procedure for making an open disclosure and the restrictions on the use a patient may make of any information provided, as well as any apology made at an open disclosure meeting.

Section 12 states a health service provider may make an open disclosure on a patient safety incident.

Section 13 provides for who can make the disclosure on behalf of a health service provider. It will usually be the principal health practitioner involved in the patient's care.

Section 14 deals with the timing of an open disclosure meetin while section 15 outlines the matters to be addressed by a health service provider before making an open disclosure.

Section 16 provides for the open disclosure meeting. It specifics the information to be provided at the open disclosure meeting and the manner in which that information may be provided.

Section 17 provides for what will happen when a patient or relevant person declines to participate in a proposed open disclosure meeting. It is important to note that there is no obligation on them to agree to participate.

Section 18 facilitates the provision of new information that may become available after an open disclosure meeting. The protections in section 10 also apply to additional information provided under this section.

Section 19 deals with requests for the clarification of information provided by the health service provider. The protections in section 10 also apply to clarifications of information provided.

Section 20 provides for what will happen when a health service provider cannot contact a patient to arrange an open disclosure meeting.

Section 21 provides that a health service provider must keep records of specified matters relating to open disclosures.

Section 22 provides that the Minister for Health may, by regulations, provide for matters relevant to Part 4.

Section 23 will enable open disclosure of patient safety incidents that occur or come to the notice of a health service provider before commencement of the provisions.

The Bill will make a material difference to the lives of people who have suffered catastrophic injuries by enabling the courts to give them much-needed financial security by way of periodic payments orders. The open disclosure provisions mark a major step forward in creating a different mindset within the health service. Through the creation of a culture of open disclosure and emphasising the need to learn from the things that go wrong, we will see a safer health service emerge. I commend the Bill to the House.

I welcome the introduction of the Bill on Second Stage. Fianna Fáil will be supporting the Bill, just as it supported it in Seanad Éireann. It is important that we try to have the legislation enacted as quickly as possible. There has been a delay not only on the part of this and the last Oireachtas, but also going back many years. There have been delays by the Government, the Dáil and the Seanad in introducing vital legislation for people who find themselves in one of the most difficult positions in which anyone could find himself or herself. Generally, these issues arise when someone has suffered catastrophic injuries, as the Minister of State said, and an award of damages is made by the court in favour of a young plaintiff, a minor in the care of his or her family. It is not, however, limited to a scenario involving young children who suffer catastrophic injuries at birth. It is also relevant to persons who sustain serious and catastrophic injuries during the course of life.

I commend the Minister of State on introducing the Bill because the definition of catastrophic injuries is simple, yet it communicates accurately what they are. It refers to them as being injuries sustained by a person that result in a permanent disability that require the person to receive lifelong care for all activities. One of the most tragic events that can happen to any person occurs at the start of life, at birth, when, as a result of fault or an accident, he or she suffers catastrophic injuries. Such injuries will dominate his or her life for as long as he or she lives. Not only are they catastrophic for the child, but they are also catastrophic for his or her parents who would have hoped and believed they were going to be able to bring home a child and bring him or her up in the ordinary way. Instead, they discover that they have a child who will require lifelong care. That is the reason the legislation is so important. In many respects, for parents who go through the court process for the purpose of seeking the damages to which they are entitled, it is traumatic. That process will be helped by this legislation.

Debate adjourned.
The Dáil adjourned at 10.15 p.m. until 11.30 a.m. on Thursday, 11 May 2017.