Deputy Jim O'Callaghan was in possession.
Civil Liability (Amendment) Bill 2017: Second Stage (Resumed)
One of the most tragic events that can happen to a child is that it sustains catastrophic injuries at its birth that will dominate the rest of his or her life. Unfortunately, although these events are infrequent in Ireland, they do occur. The parents of that child are then also placed in a life altering position. They were expecting to take home a healthy child who would grow up to enjoy all the great pleasures and challenges of life but instead they take home a child who will no doubt provide them with joy but who will require enormous care throughout his or her life. Overnight, the parents of that child have their lives changed and, for their remaining days, their primary and never ending responsibility will be to ensure the care of the child. Many parents in Ireland today are in such a position in that they are the parents of children who sustained catastrophic injuries at birth. Those parents need to be commended and acknowledged. Being responsible for a child with catastrophic injuries is not only emotionally draining, it is also financially impossible for most ordinary people. When one thinks of the costs that need to be incurred to accommodate the care necessary for the child, one can recognise the enormous cost involved. Houses need to be restructured - on occasion, they need to be rebuilt - and facilities need to be provided while constant nursing and medical care are required.
In many instances, when parents ask what caused their child to sustain these injuries, the hospital is guarded in giving a response. Unquestionably, there is a fear on the part of the hospital that litigation may ensue but, notwithstanding that, parents are entitled to be told what happened to their child if he or she sustained catastrophic injuries during birth. If there is negligence on the part of the hospital, court action will follow. Professional negligence in all walks of life is an occupational hazard. It applies in every profession. If there is negligence, it would be preferable if parents of children who suffered catastrophic injuries at birth could be told that from an early stage and if hospitals and the HSE could own up at an early stage to the fact that there was negligence leading to catastrophic injuries rather than dragging parents through the arduous and emotionally draining process of going to court.
The cost of looking after a child with catastrophic injuries is enormous. All parents, however, who have such a child will do their best to ensure he or she is cared for throughout his or her life. The greatest fear that the parents of a child with significant disabilities have is that once they die, there will be no resources in place for the child to be cared for. That is why parents go through the process of trying to get compensation for their child if they believe there has been negligence during child birth. It is not just children at birth who can sustain catastrophic injuries. People can also sustain serious injuries during childhood and adulthood, which alter their lives permanently. The injuries mean that they need constant care throughout their lives. If that is the fault of others, individuals are entitled to seek to hold those responsible for the life changing injuries they have sustained to account.
The only method our legal system has to try to rectify damage done to individuals who have sustained such catastrophic personal injuries is that the courts will award them damages for the negligence of others. In our system, people can only get damages as a method of recompensing them for those injuries. They can seek general damages or special damages. General damages are intended to compensate the person for the pain, suffering, distress and loss of amenity of life. However, it is in the areas of special damages that matters become more complicated. Special damages include loss of earnings. That obviously does not apply in the case of a child who sustains catastrophic injuries at birth but it would apply to somebody in middle age who sustains a catastrophic injury. Special damages also include the cost of care, medication, treatment and medical aids required to carry somebody through his or her life. When it comes to the assessment of special damages, the courts make assumptions in respect of relevant factors and contingencies. They are based on factors such as the life expectancy of the person taking the case, the prospect of deterioration, the cost over time of medical care, inflation rates and the rate of return on the compensation for the category of loss concerned when invested. When this matter comes before a court, it can be complicated for the court to calculate how much is required for an individual who sustains catastrophic injuries at birth, assuming that he or she will live to the age of 65 or 70. In many respects, the court is making a guess as to how much money is necessary. To do so, the court will calculate the capital value of future care by multiplying the annual net cost by a multiplier, which is actuarially calculated based on life expectancy. The resultant capital sum is awarded to the plaintiff as damages to enable him or her to pay for a lifetime of future care.
Many legitimate criticisms can be made of a process that requires a court when a child is aged ten to award him or her a lump sum to compensate him or her for life. The process can be seriously undermined by the assumptions that are taken into account by the court such as the life expectancy of the person taking the case. The child may live much longer, or not as long, as has been assumed by the court. The court also estimates future investment returns and inflation rates as best it can when awarding a lump sum. The court cases become lengthy hearings because of a conflict of evidence between the two sides as they both try to advance the best outcome from their point of view. They will have different actuarial reports and different assessments based on the child living to a particular age and the court will then have to determine which is correct and resolve the conflicting expert medical and other evidence. This is a difficult task for the court because it has to do what is fair and just in all circumstances. The reason it may be unfair is many catastrophically injured persons have spent their final years without the appropriate compensation. If a court could make periodic payments on an ongoing basis, it would not have to guess as to what is the appropriate amount. Currently, certain individuals who have sustained catastrophic injuries at birth can be left without sufficient compensation in the latter part of their lives to pay for the care required. That is an unfairness to them. A shortfall arises because the lump sum awarded many years previously has proved to be insufficient.
Similarly, there can be a situation where a defendant will have to pay a lump sum on the basis that the child will live to 65 years of age. It may be the case that the person concerned will die in his or her 20s or early 30s. In that instance, it is unfair on the defendant to have to pay the money; the defendant is paying a lump sum to compensate a person who was to live to the age of 65 years.
There are strong arguments in favour of what is contained within this legislation, which is why Fianna Fáil will be supporting it. The arguments in favour are that there will not be a situation where there will be an unfairness whereby somebody could be awarded too much or too little. By far the preferable position is for the court to be able to make periodic payments, to assess the needs of the child or the person at a particular stage and then to come back and assess it at a later stage to see whether a top-up is required and how much further compensation is necessary.
We are behind the curve compared to other countries on this issue. If one looks at other civil law or common law jurisdictions, one will see that many of them have periodic payment structures in place. Periodic payments were introduced in Germany in the late 19th century as the appropriate means of compensating for pecuniary loss. In Belgium damages for future loss may be awarded as a lump sum or by way of periodic payments. The court has discretion to decide the method of compensation to be employed. Initially, there is a mechanism whereby periodic payments are permitted. Periodic payments are still the norm in Sweden in cases involving serious loss of earnings.
When one looks at the common law world, one will see that periodic payments are also made. They were introduced in Australia in the 1960s. In the United States and Canada there has been a recognition from as far back as the 1980s that partial and periodic payments are the most appropriate mechanism. Legislation was introduced in the United Kingdom in 2003 to enable a court awarding damages for future pecuniary loss to order that damages take the form of periodic payments. It required the court to consider whether it should make such an order.
This matter was also considered by an expert group in Ireland in 2010. It was chaired by the High Court judge Mr. Justice John Quirke. It produced a report in October 2010 which concluded that the existing method of awarding damages for future pecuniary loss in Ireland, namely, the single lump sum award, was inadequate and inappropriate in cases where a plaintiff had been catastrophically incapacitated in the long term or permanently. The group noted that these views had been expressed in this jurisdiction previously and that they had also operated in other jurisdictions at the time. It recommended that the court be empowered by legislation to make periodic payment orders in catastrophic cases where long-term or permanent care would be required, subject to its satisfaction that the continuity of the periodic payments would be secured.
The report and its recommendations were produced in late 2010. It is unsatisfactory that the legislation is only now going through the Oireachtas in 2017. It is not just me who is saying it is unsatisfactory; it is apparent to anyone who has knowledge of the courts that it is unsatisfactory for parents to be put in a very difficult position when they have a child with catastrophic injuries and to have to go through this process involving a lump sum payment rather than have the option available under the legislation going through the House. It is instructive to note that the President of the High Court, on 22 March this year, referred to the fact that it was shameful that legislation to allow periodic payments in such cases had still not been enacted. He was saying it was shameful not as a judicial criticism of the Oireachtas because the judges wanted the option but because in the case of a young boy from Killorglin a settlement of €15 million had been approved because of brain injuries he had sustained at birth. The court, when making the comments, stated it had seen many families worn down by the legal process who were opting for lump sum payments instead of coming back to the court for interim payments.
It is important to note that there is urgency attached to this legislation. It is not to facilitate judges or lawyers but families, in particular parents who find themselves in the most appalling position of having to go to court to gain compensation for a child who sustained catastrophic injuries at birth. It is important to note that sometimes when people hear that families have been awarded millions of euro as a result of their children sustaining injuries at birth, they think that in some respects it is a windfall for the family, but it is nothing of the sort. The money is kept under the control of the wards of court system. The parents do not receive the money. It is to be used for the child and his or her essential care throughout his or her life for as long as he or she is a ward of court. That is why we welcome the legislation.
There is another part to the legislation which was introduced when it was brought to the Dáil. It is contained in Part 4 which deals with open disclosures of patient safety incidents. It is a proposal within the legislation which we also support. It seeks to cut down the barriers that prevent medical practitioners or hospitals or other individuals from apprising a patient of the fact that he or she sustained an injury of which he or she should be informed. The hospital may or may not have liability, but that is not the issue. In section 9 of the Bill there is a reference to the open disclosure of patient safety incidents. I believe this will have a positive effect on the way medicine is practised in Ireland. I also believe it will have a positive effect on the rights of individuals who are in hospital and receiving treatment.
As I said, professional negligence is an occupational hazard. There is no professional in this country who has never made a mistake. Unfortunately, if one is a doctor and makes a mistake, it can lead to catastrophic injuries. In general, however, when doctors or medics make mistakes, it does not lead to catastrophic injuries, but it can lead to injuries to a patient in a hospital. The benefit of this legislation is that it will enable the hospital to make an open disclosure. There may be concerns on the part of insurance companies or the hospital about whether this will lead to liability being imposed on the hospital or the doctor concerned. I am pleased to say section 10 of the Bill recognises that any such disclosure will not constitute an admission of liability or fault on the part of the person or hospital making the disclosure.
A novel proposal is contained within the legislation which we welcome and can consider further on Committee Stage, but the legislation should be expedited as much as possible through the House in order that the parents of children with catastrophic injuries will not be forced to go through the very difficult process outlined by the President of the High Court two months ago.
I will be brief in my contribution because we will also be supporting the legislation and look forward to its speedy passage through the Dáil.
As Deputy Jim O'Callaghan outlined, this legislation stemmed from the recommendations of a working group on medical and periodic payments in 2010, under the leadership of Mr. Justice John Quirke who was then in the High Court. He had been asked to examine the system of claims for damages arising from alleged medical malpractice and to identify shortcomings in the system. The group concluded that the system was inadequate and inappropriate and that it should be replaced by periodic payments. We welcome this recommendation. I know that in my constituency in Cork we had a situation where one family had to go to court on three separate occasions to try to secure a settlement. That was a very difficult process for them, They spoke about it in public, but I will not name them here.
It was a much publicised case in national media at the time. Their son had a brain operation and, as a result of that, was left with a catastrophic injuries. The family found itself in a very difficult position in which it ended up having to make numerous High Court appearances on the matter. One of the other reasons that the periodic payments should be looked at, which was touched on by the working group, was that in cases in which somebody who is receiving this compensation exceeds the life expectancy, there can then be additional costs in care for that individual. It should be up to the court to periodically review that. It is very unlikely in the types of scenarios we are talking about that one would see an improvement in a person's condition, but one could very easily see a worsening of that condition. That may be reflected in the periodic payments. It is something that we will be supporting.
We have one concern in the proposed new section 51L in the 1961 Act, which deals with the indexation of payments and would allow for the adjustment of the PPO in line with the cost of living. We would like to discuss that further on Committee Stage. Not only should it relate to the cost of living, but one of the biggest costs in terms of care is the cost of labour. That is something that we could discuss further on Committee Stage. We will support the legislation and want to facilitate its speedy passage through the Chamber.
I feel like I am out of sync with everybody else on this, because while I am obviously very glad the Bill is before us today - there is no doubt about it, it is incredibly long-awaited - the biggest problem I have with it is that there are two key areas it was specifically teed up to address but, as far as I can see on both scores, it is deficient and will need radical overhaul if it is to achieve what all of us hoped it might. The two areas relate to periodic payment orders, which other Deputies have addressed, and open disclosures. In the manner in which both are dealt with in the Bill and in the way they have made it into the final stages of the Bill, they nearly end up thwarting the very objective that was there in the first place.
There are two problems with the open disclosures provision. The first problem is that in its current form, the Bill essentially provides that any open disclosure made and any information gathered as a result of the open disclosure process cannot be relied upon as evidence in any subsequent civil actions. As far as I am concerned, this conflicts with long-established principles of national justice and is likely to adversely impact on the trust between the patient and the health service, which is what the Bill is designed to enhance. In other jurisdictions, like the UK, for example, no such restriction is placed on this information. The other key problem with open disclosure is that, in our legislation, it is voluntary and not statutory. That is a massive failing as far as I am concerned.
The periodic payment orders are obviously long-awaited. Other Deputies who spoke have addressed that. The Bill could have represented an excellent opportunity to address the deficiencies in the existing lump sum model for compensation by replacing it with periodic payment orders, but in order for such a system to work, the periodic payments have to be linked to the right index. It will not work otherwise. It must ensure that annual payments remain pegged as closely as possible to the future cost of medical care and treatment. That is what we should be striving to get to. The original recommendation unanimously endorsed by the judicial working group on medical negligence was that an earnings and cost-related index would be introduced. Perhaps for budgetary reasons, although I do not know, the Bill before us has actually gone for a completely different model and recommends a harmonised index of consumer prices as published by the CSO, which is, as I said, the opposite of what the judicial working group recommended. It completely ignores the group's unanimous recommendation. Linking payments to the consumer price index actually ignores the difference between the general increase in consumer prices compared to the much greater increase in medical wages and treatment costs. Therefore, as it currently stands in the Bill, there is a very real danger that the Government is putting people who have been catastrophically injured in our health service at risk of running out of the money they need to live and maintain an adequate quality of life.
I know, and the Minister of State will undoubtedly say, that there is a review built into the Bill to examine the operation of the index every five years. However, that is a bit half-baked. It is the worst of all worlds. It is as if we know it is limited and we are just throwing something in there. I do not think it is adequate. This must be addressed when the Bill goes to a later Stage. I compliment the work done by the Medical Injuries Alliance in its address to the health committee on these issues.
I would like to develop the points about open disclosure a little bit. In the Bill in its present form, they are totally inadequate and contrary to the principles of natural justice. Again, the Bill states that any disclosure and associated information provided as part of the open disclosure in accordance with the legislation is not admissible as evidence in any court proceedings in connection with any injury or death caused by the health service provider. This is an absolute missed opportunity as far as I am concerned. The system we have at present is clearly not working. All the Deputies have articulated that position. People who are injured by our health service are at present forced into litigation to find out what happened and to try to get justice. Yet, we have had a national open disclosure policy since 2013. The policy has not changed the fact that expensive and antagonistic litigation is the only way ordinary citizens have to get anywhere near the truth. That is a fact.
It is interesting that back in February 2015, the then Minister for Health, Deputy Leo Varadkar, described doctors who failed to be fully open about incidents as the medical equivalent of a hit and run. He is right about that. He said at that time that if more doctors were open about making mistakes, there would be fewer lawsuits. That is true, and I think it has been verified in other jurisdictions. He promised to make it mandatory for medical and nursing staff to admit errors that have caused harm to patients. That promise has not been delivered in the legislation before us. When people make open disclosures, is it more about protecting the system rather than giving patients and families the right to full and open disclosure? Preventing evidence gathered through open disclosure from being used in subsequent court cases is ludicrous and I think it would be constitutionally suspect. I believe the Medical Injuries Alliance made good points in regard to this. It states that it would be abhorrent to the administration of justice that a court might be precluded from considering all existing information necessary to establish relevant facts before making a decision on questions of liability.
I have less difficulty with the proposition in the Bill allowing that admissions made pursuant to the legislation cannot be deemed to be an admission of liability. That is fair enough. However, when there is a dispute on liability, it is essential that the court has the right to consider all relevant factual information gathered on foot of the legislation. That has to include any open disclosure and all records created for the purpose of making that disclosure.
Let us be clear about this. Patients are at a massive disadvantage compared to the health service provider in terms of knowledge when it comes to establishing how an adverse incident came about. Let us be clear that it is the service provider that is in control of the information.
Sadly, unless we change this legislation on Committee Stage, it will not change. Patients might get some more information but will not be able to do anything with that information which is totally wrong and makes the legislation somewhat redundant. Allowing information and records given over as part of an open disclosure process to be entered into evidence in court proceedings does not mean the court proceedings will proceed. That is fair enough. The legal safeguards are still there because the patient would still be required to establish liability when there was not an admission of same. That would provide ample protection for the service provider, in particular when one considers the burden of proof the patient has to reach in any civil action is very high because it has to be proven the doctor is guilty of a failing which no other reasonable doctor of like skill or experience would be guilty of.
It is important to examine the legislation that exists in other jurisdictions. A statutory duty of candour has existed in the UK since 2014. Following an adverse incident there, health service organisations must give a patient a full explanation of what is known at the time, including what further inquiries will be carried out. Organisations must provide an apology and they must keep a written record of the notification to the patient. On top of that there is a statutory duty to provide reasonable support for the patient, such as emotional support or an interpreter, to ensure the discussions are understood by the patient or his or her family. The UK's guidance note on implementing the duty of candour states: "A public authority’s objective must not be to win the litigation at all costs but to assist the court in reaching the correct result and thereby to improve standards in public administration." That is what we should be trying to achieve by this legislation.
The UK's statutory duty of candour came about as a result of the Francis report which investigated catastrophic failings of the NHS in Staffordshire. We are devastatingly familiar with catastrophic failures here in Ireland. Deputies should think of Portlaoise or Portiuncula. The HIQA report into the deaths of babies in Portlaoise was hailed at the time by the then Minister, Deputy Varadkar, as a watershed in terms of maternity services in Ireland. It was published years after some of the incidents occurred. The report made sweeping criticisms of the HSE and its staff for repeated failures in the care in the units and, critically, the failure to learn from those mistakes over the years. Who is to say that, had they learned from those mistakes, some of the tragedies would not have occurred. A statutory duty of candour is one of the ways to address this.
Despite having Portlaoise in our recent history, the Government has shied away from this in the legislation. I cannot understand it. Let us look back. The HSE director general, Tony O'Brien, threatened to injunct HIQA when he saw its first draft report on Portlaoise and its criticisms of senior management. All this happened at a time when the HSE had a voluntary open disclosure policy similar to the one we are debating here. It has not done much good for the families in Portlaoise who spent ten years trying to highlight what went on at the hospital. I find it a bit bizarre that the Department's briefing note states there is no question that the protections in section 10 provide a hiding place for "incompetent, negligent or other unprofessional patient care" and that "organisations and health professionals continue to have accountability mechanisms." Having spent a lot of time working with families and the campaign to ensure mandatory inquests in cases of maternal deaths, I can tell the Minister of State the accountability mechanisms that are there now are not fit for purpose.
There were eight inquests into maternal deaths in Ireland between 2007 and 2015. All of them had to be fought for tooth and nail by the families involved in the face of intense HSE stonewalling. All eight were marked by consistent under-co-operation or non-co-operation by the hospitals involved. Families need to know when tragedies happen. Sadly, tragedies will happen and it is not necessarily anybody's fault. It is life. We need to be open when they happen. Our hospitals are chronically understaffed and underfunded which means accidents are probably guaranteed. The full scale of the crisis has to be known by the public and a statutory duty of candour is the key way of providing an impetus for change. There is a huge issue here because the proposal to prevent a patient from being able to rely in any way on the open disclosure process is likely to breed a lot more distrust. What will it do to public confidence in our health service if a patient is provided with clear and frank information about how an adverse incident happened but later in court the very same facts and version of events are denied by the service provider? The reality is the Bill, as structured at present, will lead to increased legal costs. The State already spends tens of millions in fighting damages claims as do the families who have to put up the money in fighting for it. If one party to a civil case has access to relevant factual information and the other party is denied access to the same information, the only consequence will be much more hard-fought, lengthy and costly civil actions. Patients will be forced into a situation of instructing a bunch of independent medical experts to give expert evidence needed to establish sub-standard care or causation, something which had potentially already been established under the open disclosure process but which they could not use in court. It is bizarre and will need to be changed. If the open disclosure is legislated for properly, it will lead to an improvement in the level of trust patients have in our health service, which is supposed to be one of the objectives. I genuinely believe, as the then Minister, Deputy Varadkar, said two years ago, it would lead to fewer civil actions, less trauma for injured patients and families and less money wasted on litigation. It will not happen as the Bill is now. In some ways the Department of Health agrees because the report of the commission on patient safety and quality assurance, published almost a decade ago in 2008, said:
Over the last two decades there has been growing support in the international literature for the concept that doctors should make full disclosure of medical errors to their patients. As well as enhancing patient safety by the acknowledgement that an error occurred, it is also in keeping with the ethical commitment of honesty to patients. Failure to communicate effectively with patients following errors therefore damages the integrity of the profession. Studies show that openness can decrease the trauma felt by patients following an adverse event and that patients often forgive the medical error when it is disclosed promptly, fully and compassionately and action is taken to make sure it does not happen to another patient.
That is the battle the spouses and partners of the women who lost their lives in maternal deaths in our hospitals over the last number of years engaged in when they launched their campaign to secure mandatory inquests in cases of maternal deaths. It cannot bring their wives back but it can stop it happening to somebody else. That has to be the objective of this litigation. Last week, I again met in my office an incredible man, Micheál Grealy, who is 84 years of age and whose wife, Kathy, went into hospital on Christmas Day 1972 to have their first baby. The baby was born on Christmas Day and died because the Coombe did not realise the mother was rhesus negative and the baby was rhesus positive and it did not correct it. Even worse than that, Kathy was given an anaesthetic when she should have been given an epidural. She vomited, which resulted in Mendelson's syndrome, and died seven weeks later in 1972. Her husband, at 84 years of age, is still carrying on the fight to find out what happened in that case.
He has seen documents which state his wife's death was avoidable, but he has had no explanation of why it happened. The names of the medical personnel involved in the case, the anaesthetist in particular, were withheld from him for decades. He eventually found out the correct name, following which medical personnel involved in his wife's care gave him information which led him to believe the anaesthetist had had a drug problem and probably should not have been working on that tragic day. He has still not received proper answers. These are things that follow people for a lifetime and the damage and trauma caused are reprehensible.
We have nothing to fear from a proper duty of candour which can actually also protect doctors and nurses in terms of personal liability for accidents. In the final Francis report which led to the statutory duty of candour in the United Kingdom Mr. Robert Francis, QC, very reasonably made the point about professional misconduct proceedings that professional regulators would be far more lenient on those who owned up to errors that had a serious effect on patient safety than they would on those who denied or sought to cover up their lapses. He said, "We need a situation where the legal advice is going to be, 'I know this is unfortunate, but you are going to be better off by telling them about it and by being honest and open about it than not'." Sadly, this Bill, as structured, will not do that. We owe it to people who will fall foul or be the victims of adverse incidents in the health service to deliver a proper Bill. I hope we can work together on Committee Stage to ensure the Bill will deliver on open disclosure and periodic payment orders in a way in which all of us believe citizens should be treated.
I welcome the opportunity to contribute to the debate on the long-awaited and long overdue Civil Liability (Amendment) Bill 2017. I am broadly in agreement with the points so cogently made by Deputy Clare Daly on open disclosure which were closely modelled on the well researched points made by the Medical Injuries Alliance. Open disclosure is an important concept. Very often a full and frank disclosure could prevent the initiation of a personal injuries claim and would most likely lead to a reduction in same. In that context, it is important for people to know the sequence of events. There is a duty of candour in other jurisdictions and the proffering of a full explanation of the sequence and precise nature of events is an act of civility founded on common sense and decency. An immediate apology should likewise be forthcoming contemporaneously. As Deputy Clare Daly said, this has clearly applied in the United Kingdom since 2014, particularly in the context of catastrophic events. I am of the opinion that it could be helpful to the professionals involved, doctors and others, to give their views and opinions and articulate precisely what happened in various situations. We have had a significant number of events in this country involving hospital treatments which would warrant a statutorily enforced open disclosure policy. As a midlands Deputy, I am familiar with some of the cases alluded to by Deputy Clare Daly.
We often hear the State Claims Agency referring to the significant costs associated with medical negligence claims. A lot of these costs would be eliminated at the outset by an early admission of failure, if there was fault. This could be facilitated by a statutory duty of candour. Very often plaintiffs are put through the legal wringer, with costs incurred at every step. Even when it is abundantly clear that liability should be admitted, there are still motions for discovery and so forth. Everyone is entitled to defend a case and I strongly argue that point because it is important to ensure all matters are properly tested. However, where it is abundantly clear that liability should be admitted, it should be so done. There is no point in bemoaning the cost of civil actions in the context of significant events where the opportunity to reduce such costs is not taken. This would be greatly facilitated by an open disclosure policy.
I now turn to the issue of periodic payment orders, the central core of the Bill. In December 2012, during the term of the previous Dáil, I brought this issue to the attention of the House. I am, therefore, no latecomer to it. As a barrister, it is an issue that has exercised my mind for some time. As the House will be aware, where a person is injured in an accident as an employee, or in a road traffic accident or under the auspices of the occupier's liability principles and the injured party establishes liability against a particular person or company, that party is entitled to recover compensation by way of damages. In deciding the amount of compensation to be awarded to a civil claimant the courts resort to two headings of damages - general and special damages. General damages are that part of an award which compensates a person for the injury up to the day of the court hearing and also into the future which at best is a guesstimate since the effects of the injury can be borne by the injured party throughout his or her life until he or she dies. One will often hear people belittling those who have been injured; for example, one will regularly hear people pour scorn on whiplash injuries. However, I know people who are still suffering ten or 15 years after suffering a whiplash injury and still receiving physiotherapy. People say this does not happen in England and so forth, but I take issue with those who belittle individuals who suffer such injuries. I am not talking about low-velocity accidents but those in which significant injuries occur.
General damages are encompassed by a lump sum award which, despite public perception to the contrary, is not unlimited as there is a court defined cap on general damages in civil claims. The second heading is special damages which include various items which can be calculated with reasonable accuracy with the aid of expert evidence provided by an actuary. Consultants and other experts are often also involved. Such items include loss of earnings, both past and future. In the context of likely future earnings, the possibility of not always being in employment must be factored into the estimate. Special damages also include future medical expenses and in the case of very serious physical injuries can include the cost of equipment, the modification of a dwelling house, the requirement for an automatic car, the requirement for home care and the cost of specific medical aids. Under the system as constituted in this jurisdiction, awards in these cases consist of a lump sum which is a once off payment. In terms of the amount awarded in special damages, it is especially problematic because the amount is intended to be a capital sum which, if invested wisely, will yield enough annual income for the person injured to pay his or her medical and other expenses and live comfortably with the injury.
The Judiciary has been very active in this area for the past six or seven years. Mr. Justice Kearns, then President of the High Court, established a working group on medical negligence and periodic payments under the chairmanship of Mr. Justice John Quirke and the first module of a report on periodic payment orders was presented in October 2010. The report has been available for more than six years. Several members of the Judiciary, most notably Ms Justice Mary Irvine and Mr. Justice Kevin Cross who have taken a number of these cases for ruling, have been urging the bringing forward of appropriate legislation to implement the recommendations made in the aforementioned report but nothing happened in this regard until recent times. In that context, I compliment the Minister of State on bringing forward the Bill.
The House will be aware that since 2005 in England and Wales personal injury awards in catastrophic injury claims may be based on structured settlements or periodic payments. A structured settlement is, in effect, an annual payment or an annuity purchased from an insurance company to meet the obligations in an agreement to provide periodic payments. Periodic payments are the payments made as a result of personal injury claims and to be made by way of a future stream of payments.
The executive summary of the working group's report contained 13 specific recommendations. The group was unequivocally clear that the single lump sum award was inadequate and inappropriate in cases where the plaintiff had been catastrophically injured either in the long term or permanently or where the person would require ongoing care and medical treatment into the future. As an alternative to a lump sum award of damages, the court can make consensual or non-consensual periodic payment orders to compensate injured victims in cases involving catastrophic injury where long-term or permanent care will be required for the cost of future treatment and care and the future provision of medical and assistive aids and appliances. The order should apply to the whole or part of an award in any case where, having regard to the nature of the injuries for which the award is being made and the circumstances of the person to whom the award is being made, the court considers it is appropriate and in the best interests of that person that such orders should be made, provided that the parties have been given an opportunity by the court to make submissions and be heard in full on the relevant issues. The court should be empowered to make periodic payment orders to compensate for future loss of earnings only with the consent of all parties to the relevant claim.
That is important because we do not want a broad brush. We want to give people an opportunity to be able to make their points in court. I wonder whether the Bill will facilitate this. The Minister of State might refer to this in his response because it is important that people have that opportunity. The legislation should facilitate rather than impose.
The 2011 programme for Government, to which the Minister of State, Deputy Eoghan Murphy, subscribed, as did I as part of the Labour Party's participation in government, included a strong commitment to the introduction of legislative reform in this area. It stated legislation would be introduced to enable the courts to make "provision for structured settlements in circumstances where lump sums are currently awarded as a consequence of individuals suffering catastrophic injury because of the negligence of another". The main purpose of an award of damages is to restore people, as far as is possible by way of pecuniary compensation, to the position that prevailed for them before they were wrongly injured. The provision of such awards is clearly inadequate for people with catastrophic injuries, but its objective is restitutory in nature. Such an attempt at restitution by way of monetary compensation is, of course, totally and absolutely inadequate.
I take grave issue with the fact that it has been determined by the courts that the maximum claim in general damages that somebody who has been catastrophically injured can receive is €450,000. The big awards are made when special damages are being claimed in respect of medical assistance, aids and equipment, the modification of houses, the provision of automatic cars and the loss of earnings. A recently qualified plumber aged 25 years should have 40 years of paid work in front of him or her, given that he or she could work until he or she is 65 years of age. When the loss of these earnings is actuarially evaluated, the amount of the compensation could come to several million euro. However, it is lost in the discussions on this issue that the maximum one can receive in court for the injury is €450,000, which is totally on the lower side. Special damages constitute a significant element of any award in catastrophic injury cases. I reiterate that the current ceiling on awards of €450,000 in general damages for catastrophic injuries is totally inadequate when considered against the pain and suffering, the loss of amenities and the loss of expectation of life.
Advocates of a lump sum award note that it is final and that it allows the injured party, or those acting on his or her behalf in loco parentis or as part of a committee, to deal with his or her needs and wants as they arise. I accept that it is an advantage that a lump sum award of €4 million or €5 million is final. This approach enables people to deal with their circumstances. While there are advantages to this approach, the argument against it centres on the possibility of over or under-compensation. The Minister of State has made this argument, with which I agree. The periodic payments principle is enshrined in the Bill for this reason. The role of the actuary is central to the calculation of awards in cases involving catastrophic injuries. Actuarial assessment plays a pivotal role. The calculation of average life expectancy which a court has to determine might not ultimately bear comparison to the real or actual life expectancy of the person involved. If the injured person dies before the date expected, measured or outlined, there is over-compensation. In such circumstances, the defendant cannot recover or reclaim what is, in effect, an excess of damages. We are talking about special damages in such cases because that is where the huge sum arises. Of course, the converse is also true. It is clear that when an injured party lives for a significantly longer period than expected, anticipated or measured under the Irish population mortality statistics - all of this is done statistically - the damages will not be sufficient to meet his or her needs or requirements during the latter phase of his or her life. Such a person will find himself or herself with insufficient resources to meet his or her needs. That creates a huge issue. Annual periodic payments could deal with this issue on a real and practical level. That is why the Bill is so important.
The rate of return on the investment of lump sums which have to be invested is critical. The other issue that has to be considered when a lump sum is awarded is that it is predicated on the cost of care and various other things I have mentioned. Such costs could escalate significantly as a result of inflation. This might mean that they are well in excess of the rate or value operating at the time of the court proceedings and the awarding of the grant. While lump sum awards have the benefit of being definitive and final, they have presented a significant challenge to the members of the Judiciary who deal with these cases and try to do their level best in a sea of uncertainty. Various judges have consistently championed the development of a system of paying damages by means of periodic payments. As I have said previously, periodic payments facilitate the structuring of awards or settlements in a more realistic way in order that injured parties receive regular annual payments for as long as they live.
The working group under the chairmanship of Mr. Justice John Quirke specifically recommended that a periodic payment order be made only where the court was "satisfied that the continuity of payment under the order is reasonably secure". If that recommendation is to be brought into effect, a form of financial infrastructure will have to be established to guarantee the level of payment. I suggest the Minister of State consider the possibility that the National Treasury Management Agency, NTMA, will have to be involved. It might well seek to be involved. My view is that it could have a significant role to play in that regard. It is a complex area. The Minister of State has a role in the Department of Finance which might well look at the possibility of providing for NTMA involvement in that regard. It has a very high reputation in areas such as this. It would be useful to resort to it in this instance. I have always been concerned about the impact of cases in which plaintiffs live for longer than expected or are imputed in the calculations. It is possible that the awards in such cases will be insufficient to meet the needs of those involved, thereby placing substantial pressure on parents, people acting in loco parentis or others concerned with meeting such needs. We hope those who receive €3.5 million or €4 million will live for ten or 15 years more than we might anticipate, but we must have arrangements in place for such cases. That is why this is an important area.
I have always advocated that provision should be made for the appropriate indexation of periodic payments. I believe they should be index-linked with the earnings of treatment and care personnel and changes in the cost of medical and assistive aids and appliances. The Minister of State deals with the ordinary consumer price index every day of the week. There is a huge difference between medical inflation and ordinary inflation. The Minister of State might say attempts are made to control both, but there is a big difference between them nonetheless. A link with the consumer price index would do a disservice to what we are trying to do. It would actually defeat the purpose of our endeavours. The Minister of State has spoken about the involvement of statistics from the Central Statistics Office and such things, but I argue strongly that there should be a link with the level of earnings of treatment and care personnel who are essential in this context and changes in the cost of medical and assistive aids and appliances. That would ensure plaintiffs would be covered for the cost of treatment and care well into the future.
I certainly welcome the Bill and compliment the Minister of State on reaching this point. I raised this issue with the then Minister, former Deputy Alan Shatter, on 4 December 2012, which is near enough to four and a half years ago.
Is he gone that long?
He assured me that this legislation would be brought forward in 2013. I appreciate that it is a complex area and the Bill is better late than never. I congratulate the Minister of State and the officials in the Departments of Justice and Equality and Finance. There is a lot of work ongoing in these Departments. I do not wish to criticise anybody as people do their best to bring forward proposals and it was not easy to legislate to deal with this issue. People often say flippantly that certain things can be done overnight. There are many flaws in the current arrangements. I have pointed to one or two things, of which I would like the Minister of State to take cognisance. I do not say this for the purposes of blowing a trumpet but to make sure the legislation that will emerge will deal with this issue. It will benefit people who receive catastrophic injuries in the course of medical treatment or road traffic accidents - we would love if nobody suffered such injuries at any stage - and who become plaintiffs in employers' liability or occupational injury claims. We hope no such accidents will occur, but when they do, we must ensure it is possible for those who are unfortunate enough to find themselves in this position to secure the very best result.
The others who will benefit from this legislation are legal people, particularly judges, who have been advocating for it for a long time and will be mightily relieved and grateful to see it at long last being placed on the Statute Book and passed by the Houses of the Oireachtas.
I am pleased to speak to the Bill as it deals with a matter that affected many people when they presented at a hospital and the right result was not achieved for them. This is an issue that does and will continue to affect many.
As the Minister mentioned, open disclosure is about an open, honest and consistent approach to communicating with patients and their families when things go wrong in health care. The open disclosure process should include keeping the patient informed, providing feedback on investigations and the steps taken to prevent a recurrence of the incident. It may also include, depending on the particular circumstances involved, an apology for what happened. I note that the Minister first announced his intention to push forward legislation to enforce a medical negligence open disclosure policy in an address to delegates at the State Claims Agency's first annual quality, patient safety and clinical risk conference at Dublin Castle in September 2016.
It is a fact that many involved in the legal profession make a great deal of money out of cases where people make a claim to obtain redress because things had gone wrong in hospital, something should not have happened to them and, in some cases, lives were lost or people were hurt and the right result was not achieved. The Minister also said at the event that the establishment of a new national patient safety office would "lead a programme of significant patient safety measures" that would include a review of how adverse medical events were disclosed to patients and their families and the process for claiming medical negligence compensation. I would be worried if this were to be another governance arm set up in the HSE where we would have to depend on the HSE to tell the patients about their rights. An independent body should be monitoring this area. It should not be another job handed to the HSE to correct itself or check what happened. I would not trust it in that scenario. It must be an independent body to monitor this area.
I note that A Programme for a Partnership Government also makes it clear that open disclosure is an essential component of patient safety and commits to measures to support it. The programme also states it will be made mandatory to report specified patient safety incidents or serious reportable events to the authorities and the patient harmed. That is certainly necessary.
The general scheme of the Health Information and Patient Safety Bill also has provisions on voluntary external reporting of non-serious incidents to the States Claims Agency, supporting and complementing the current reporting process to the agency. However, it is not proposed to legislate for mandatory open disclosure to patients. That is wrong. That is what we should be hoping to achieve in the Bill, that there would be mandatory open disclosure and that doctors, nurses, matrons or whoever makes a mistake or an error would come clean and tell patients or their families what had happened. That is what this is about. It appears that doctors and others involved in the medical profession are prevented by the HSE from disclosing to patients what happened in different cases. That is wrong. This measure should legislate for mandatory open disclosure to patients. We are told the reason it is not proposed to legislate for this is related to creating the positive voluntary climate for open disclosure laid out in the Madden report and which will be reviewed in line with experience to see whether it needs to be strengthened and how, if necessary, that could best be done. I do not trust that aspect of the Bill
In Australia one of the central principles of open disclosure policies involves the presence of good governance and the insistence that quality assurance requires organisations to be able to demonstrate that they learn and improve their performance through continuous monitoring and by reviewing the systems and processes in place for meeting their objectives and delivering appropriate outcomes. Can we hold out any great hope the HSE will be capable of demonstrating that approach? As the Australian model of open disclosure also notes, health care organisations need to ensure appropriate direction and internal control through a system of governance. It is imperative that each facility and its management show the capacity and a willingness to learn from adverse events. As noble as the aim is and as good as the principle is, do we really need to go about creating an additional level of governance within the HSE? How can we prevent the difficulties that will go along with it?
I welcome the principle of the Bill, but I have serious concerns about the capacity of the HSE to carry it through. There is a need for a radical change in its culture first. We all know about the serious events where the lives of family members have been lost, where family members have been left with serious disabilities, where babies have been left with serious disabilities caused by negligence during childbirth and where mothers, likewise, have suffered during childbirth. Doctors and nurses know at that point that they have slipped up and it would be much easier if they were allowed to come clean. I know that most of them would, but they are prevented from doing so by their organisation, the HSE. I refer to people who have lost a family member, a father or a mother, the breadwinner in the family, because cancer was not diagnosed in time. Men and women have lost their lives because a heart complaint was not diagnosed. Sadly, after spending days in hospital, when it should have been detected, they died. Someone has to be held to account. Someone must be accountable when something dreadful like that happens and family life as they knew it is finished forever. In cases where the breadwinner dies the wife and children will suffer for years and never recover following their loss. I know of one hospital which I will not name where six lives were lost in the space of two months. They lost their lives because they had developed clots as their complaints were not addressed when they presented at the hospital. I know about these incidents because I was very close to one of the people concerned. That is not right. I know that the doctors and nurses involved knew that things were not right and that they would have come clean, but the system in place does not allow them to do so. A lot of money has been lost in the courts with mounting legal costs. When an award is made, a percentage of it goes directly to the legal profession, including barristers and solicitors; that money could be used to pay damages to many people to give them some retribution, while freeing the courts to deal with other business.