Civil Liability (Amendment) Bill 2017: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

I am very glad to speak on the Civil Liability (Amendment) Bill 2017. This is important, because over the years we have all seen cases that have dragged on and on and I have always thought that there should be a better system for dealing with certain genuine cases where the HSE has liability and should acknowledge it early on. We see the length of time these things take in the courts and the amount of hardship that families are put through in trying to reach a settlement and an agreement. I have always thought that there could be a better system put in place. I hope that the Civil Liability (Amendment) Bill 2017 will help in that regard. There should be better mechanisms in place. We must think of the injured parties, their parents and their extended family. I support the Bill and I hope for a better way forward because I do not want to see families go through the hardships that they have in the past. There has to be a better way and a better system. I know the Minister of State is very open to that, and I appreciate that.

I am also happy to speak on this Bill this evening. There are certain technical elements of the Bill that deal with step payments and reform in that area, and these are important. I want to focus on the elements of the proposed legislation that deal with the importance of open disclosure in health care settings. I heard Minister of State at the Department of Health, Deputy McEntee, speak on this Bill in the Seanad. She spoke about the purpose of Part 4. The provisions are there to support open disclosure as part of a broader package of reforms aimed at improving the experience of those who are affected by adverse events within the health service. The Minister of State, Deputy McEntee, went on to note that last December the Minister for Health, Deputy Harris, launched a new national patient safety office located in the Department of Health to prioritise work in this area. He also directed the office to work on a range of initiatives, including new legislation, the establishment of national patient advocacy services, the measurement of patient experience, the introduction of a patient safety surveillance system, and extending the clinical effectiveness agenda.

Within the programme of legislation, it is intended to progress the licensing of our public and private hospitals. This is very well meaning, but we will have to see where it goes. Open disclosure, as the Minister mentioned, is about an open, honest, consistent approach to communicating with patients and their families when things go wrong in health care. We all know that things can go wrong, and we have had some horrific experiences. The open disclosure process includes keeping the patient informed, providing feedback on investigations and steps taken to prevent a recurrence of the incident. It may include, depending on the particular circumstances involved, an apology for what happened. That is very important. I note that the Minister for Health, Deputy Harris, first announced his intentions to push forward with legislation to enforce medical negligence open disclosure policy in an address to delegates at the State Claims Agency's final annual quality, patient safety and clinical risk conference at Dublin Castle in September 2016. It is a fact that many barristers make tidy sums from this area of legal practice, with some receiving up to 89 payments from the State Claims Agency. That is unacceptable. It has become a gravy train. The Minister also said at that 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 are disclosed to patients and their families and the process of claiming medical negligence compensation.

I note A Programme for a Partnership Government makes clear that open disclosure is an essential component of patient safety and commits to measures to support it. The programme also states that it will be made mandatory to report specified patient safety incidents or serious reportable events to the authorities and to the patient harmed. The general scheme of the Health Information and Patient Safety Bill also has provisions on voluntary external reporting of non-serious incidents to the State Claims Agency, supporting and complementing current reporting to the agency. However, it is not proposed at present to legislate for mandatory open disclosure to patients. The reason for that, we are told, is related to creating a positive voluntary climate for open disclosure, laid out by the Madden report, which will be reviewed in line with experiences to see whether it needs to be strengthened and how, if necessary, that can be best done.

In Australia, one of the central principles around open disclosure policy is the presence of good governance. Quality assurance requires that organisations shall be able to demonstrate that they learn from and improve their performance through continuous monitoring, by reviewing the system and processes in place for meeting their objectives and delivering appropriate outcomes. Can we hold out any great hope that the HSE will be capable of demonstrating that kind of approach? I do not think so. 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 willingness to learn from adverse events. As noble as the aim is and as good is the principle, do we really need to go about creating an additional level of governance within the HSE? I do not think so and neither does anybody else. We have all governance and very little compassion, transparency or acceptance where things go wrong. How can we prevent the difficulties that go along with that?

While I welcome the principle of the Bill, I do have serious concerns about the capacity of the HSE to carry it through. There will need to be radical change in the culture of the HSE and I cannot see that happening anywhere in the organisation - governance, accountability and responsibility. Quite frankly, apart from the front-line services and the excellent skilled people working there, such as surgeons and the like, it is just a system of governance. We have managers and more managers and little hope anywhere of seeing any bit of sanity. I am not talking about insanity, as the Taoiseach was yesterday in respect of something else. We see precious little sanity prevailing in the system. It has become too big and cumbersome, too all-protecting and self-serving and it is not serving the patients and the sick people.

We have seen too many cases in which children were adversely affected at birth, with court cases going on for years. They are on the steps of the court four and five years later at enormous expense to the State with the barristers, and then the HSE admits liability. Obviously, children cannot get payments until they are 18 or 21. We must have a staged payment system. If the State drags people through the courts, fights them all the way and then accepts liability, and there is an award made, there must be a system whereby those monies so hard fought are paid out. The money cannot sit in some solicitor's account, it must be paid in stages to help the family. Goodness knows those families have gone through enough with the disabilities or whatever the young person is suffering from. They have to wait until the child is 21 although the family might need that funding after going through the courts and taking on all the expense of travelling to the High Court, and the trauma as well. They need to be compensated and need to be able to access that compensation on a staged basis. I cannot see why we cannot have that included as well.

We need open disclosure and we need a whole culture change right across the HSE and in many other agencies and Departments as well. I do not see that coming. I am in the House ten years today. I am delighted that the people elected me in Tipperary and West Waterford on a number of occasions. I see things becoming more cumbersome. We saw with Caranua how it has become so cumbersome and we see all the sub-agencies it is setting up. I call them quangos. They are putting up more barriers to serving the public and being open and honest in disclosure, particularly with these institutions. It is not good enough. It is backwards we are going instead of forwards.

I and my party welcome the legislation and support its passing, as the Minister of State is aware. The Civil Liability (Amendment) Bill allows courts to award periodic payment orders to compensate injured victims in cases of catastrophic injury where long-term permanent care will be required instead of the awarding of lump sum awards of damages. This is long overdue. In 2010, the working group on medical negligence and periodic payments led by Mr. Justice Quirke proposed this and the Law Reform Commission also made recommendations as long ago as 1997. The current system of awarding damages as a lump sum is not fit for purpose and should be replaced by periodic payments.

Following on from the 2010 paper, many thought that this legislation would be passed quickly, however that has not transpired. Many families in which there has been a victim of medical negligence resulting in catastrophic injury have been compelled to go to the High Court on multiple occasions to secure funds to provide the necessary care of their loved ones. These lump sums can be an additional burden and mental strain on families very often caring for a loved one with catastrophic injury, and leave them dependent on investment advice. On certain occasions, unfortunately, that investment advice has not been as good as people might like. In addition, people have often lived beyond the life expectancy upon which basis these payments have been calculated.

The concerns regarding section 51(l) about indexation have already been raised and I add my voice to them. Specifically, I highlight the indexation of costs and the fact that the biggest costs will be care. The particular cost of labour needs to be taken to mind and I hope the Minister of State will consider it when drafting amendments. Labour is not necessarily the same as other costs.

I note the comments of Mr. Justice Kelly, who recently said it is shameful that legislation has not been introduced to provide periodic payment orders, PPOs, when he was addressing a case involving a 13 year old suffering from cerebral palsy following medical negligence during his birth. I also want to highlight another case that illustrates why this legislation is necessary. Catherine O'Leary is a mother of one who has had locked-in syndrome since undergoing major brain surgery at Cork University Hospital five years ago. Catherine is tetraplegic and can only feed and drink through a tube. She cannot walk and is dependent in all aspects of her daily life on her carers and parents. She can communicate only through blinking. Since surgery for the removal of a brain tumour on 31 January 2008, Catherine's physical and mental capacities have been catastrophically impaired. It was asserted during proceedings that had a brain tumour diagnosis been made on Catherine and surgery carried out earlier, it was very probable she would have avoided catastrophic brain injury. This is a dreadful situation.

A young mother has had her life confined beyond our imagination and her family has had to carry the burden subsequently. Her parents, Margaret and Pat, have fought for her tirelessly with great commitment and determination. I want to recognise them here today. The High Court awarded €2.5 million in damages against the HSE. In 2011, the voluntary housing association, Clúid, purchased a house in Carrigaline for her and the Department of the Environment, as it was then, provided an extension for her which allowed her to be moved home in 2014 to be cared for there as her family wished. However, this is not the end of the story. Catherine's care is inevitably very expensive. Equipment and medicine are provided by the HSE but the cost of her care, which is borne entirely through her compensation, runs into the hundreds of thousands or at least is well in excess of €100,000. This is after the O'Learys have made every effort to minimise costs. The difficulty is that the compensation was calculated on the basis of an additional four years beyond departing hospital. She left hospital nearly three years ago and is currently very stable. It now appears likely that she will live considerably beyond the four years after her discharge from hospital. The question is what happens next. What happens if the money runs out?

These questions arise even aside from her ability to leave something to her son, something her family is keen to do. It appears, however, that this sum could be exhausted. Since Catherine O'Leary requires 24-hour care, her parents are restricted in terms of employment and so on. The family income is limited and much of it is spent on the significant energy bills required for all the machinery and care.

I am highlighting this point for two reasons. The first is in support of the Bill. It may be too late for Catherine O'Leary and her family but it illustrates the difficulty with the fact that periodic payments and lump sums are calculated on the basis of life expectancy that can often be wrong. Addressing that is the least people in this situation deserve given what they and their families have gone through.

I also take this opportunity to highlight the fact that I believe the State does not do enough. I do not believe we have an adequate programme for younger people who require comprehensive home care. The programmes for older people are perhaps a little more generous. That is welcome, right and proper. However, I believe the programme is not adequate for younger people who have serious confining injuries and diseases. Catherine O'Leary does not even qualify for home-care packages currently, although that would relieve the burden on the family somewhat and make her care more sustainable. There is a need for the State to ensure that people such as Catherine O'Leary can be cared for properly at home.

I am aware of another case in which the failure to provide adequate supports is not dissimilar. This failure is currently preventing the patient from moving home from hospital. I intend to write to the Minister for Health on the matter following the debate. I will enclose a copy of my speech and raise these points. However, since the Minister of State at the Department of Justice and Equality is present to listen to my contribution I am appealing to him to make representations to the Department of Health in that regard.

While we believe that this legislation can be improved, it is welcome and it can make a significant difference to families in terms of how they manage the compensation they receive and in terms of certainty. It can also be improved with regard to the particular issue I have highlighted whereby a person's life expectancy can go beyond the basis of the initial calculation of the lump sum.

I welcome the opportunity to speak on this Bill. I welcome the Bill. I recognise the spirit in what the Minister of State and the Department have put forward and I believe it is correct. It is a step in the right direction. The concern I have is similar to that outlined by other Deputies earlier. The Minister of State is probably dealing with an elephant that is out of control in the line of the HSE. Basically, the executive does not seem to have regard for anything. Like numerous Deputies, I have seen how the HSE operates when we try to get answers. Everything we get back is twisted and turned and there is no direct answer to the questions we ask.

Unfortunately, in recent weeks I have seen a situation that has resulted in my losing faith in the HSE. I went to a house to talk to a person. I lay on tarmac with this person who has been left in continuous pain for the past three years after having a back operation. All the person wants is to get this solved. However, because of a hospital in the west of Ireland, things did not go according to plan. There was a review into the matter and a doctor resigned. Since there may be understudies involved with the doctor, the authorities are afraid to touch someone to put it right. That is a sad situation, especially because it involves a person with young children who is paying a mortgage and living life just the same as everyone else in the country.

I am concerned that the HSE is not trying to solve the case of this person who has been in such chronic pain for the past three years. This person has to go to Dublin but it takes an hour to get into the car. Then, the person has to go to Dublin for pain relief and pain control because no one will put up a hand and agree to sort it out at home.

I welcome the Bill and what the Minister of State is trying to do. However, in this situation the HSE is not even prepared to try to tackle a problem that can be solved. Thus, there is little hope that the HSE will turn around and admit things or admit that there is a problem that it should sort out.

I know legislation along the lines of the Bill has been discussed for years. I think it has been discussed for the past six or seven years. I commend the Minister of State on bringing forward the Bill. It is a step in the right direction. We may get the Bill in but, unfortunately, given what we are dealing with, we will still have trouble in trying to nail it down. Sadly, the HSE does not seem to have regard for the Government, Ministers, politicians or the public with regard to what is going on.

I will support the Bill, which I welcome. However, I have reservations about whether some of these groups will listen or take note. They might try to duck and dive every way rather than face up to their responsibilities. I have seen one family go through so much. I have seen a great deal with regard to the HSE over many years. Sometimes one would be forgiven for wondering what will be next. I have been down on the tarmac with another person who cannot walk and who is on hands and knees and has to lie face down. It would be unfair of any hospital in Ireland, but in this case a hospital in the west of Ireland has washed its hands of the person. Morphine is the only option at present. It has gone so far that the patient cannot be given any more - the doses cannot be increased. The hospital authorities have argued that the patient should go somewhere else. No one will stand up and take responsibility. This is evidence that we have a major problem. I realise what the Minister of State is doing with this Bill, but I am concerned that to even get that far with some of these hospitals will be a problem.

On behalf of the Tánaiste and Minister for Justice and Equality and on my own behalf I thank Deputies for their general welcome and constructive engagement with the Bill.

It is important to emphasise why the Bill is being introduced. The courts award damages for personal injuries to try to ensure that injured parties are put in the same position as they would have been had they not sustained the wrong for which they received compensation. At present, damages for personal injuries in catastrophic cases are paid by way of a lump sum. The working group on medical negligence and periodic payments identified deficiencies in the lump sum system as it applies to persons who have suffered catastrophic injury. The group recommended that to address these deficiencies legislation should be introduced to enable the courts to award damages in catastrophic cases by means of periodic payments.

While relatively short, the provisions of the Bill are rather complex. Before introducing the Bill it was necessary to consider several issues carefully, including: the scope of the legislation; the powers to be granted to the court in respect of period payments; the security of periodic payments; the indexation of period payments; the treatment of periodic payments in bankruptcy; and the treatment of periodic payments for income tax purposes. The Department of Justice and Equality has consulted extensively with Departments, the State Claims Agency and other stakeholders to ensure the Bill addresses these issues.

Several Deputies raised the issue of indexation of periodic payment orders and the possibility of specifying the use of a dedicated index to apply the orders. This would allow periodic payments to be index-linked to the levels of earnings of treatment and care personnel as well as to changes in costs of medical and assistive aids and appliances. An actuarial study of periodic payment orders commissioned by the State Claims Agency concluded that, in respect of indexation of periodic payment orders, an index in the form suggested by the working group on medical negligence and periodic payments could prove to be volatile given the small sample size available in Ireland.

The study suggests that instead the legislation should specify a broader based index in order to reduce volatility and provide certainty with regard to payments under a PPO to catastrophically injured persons. In addition, the study noted that in a five-year period from the adoption of the ASHE 6115 cost of care survey, as the index for periodic payments in the UK, the retail price index in the UK out-performed ASHE 665 by a cumulative 13%.

The interdepartmental working group on legislation on periodic payment orders considered the issue of indexation of PPOs in some detail. The group's considered view was that any index specified in legislation should provide as much certainty as possible for defendants in terms of the projected increases in their financial liabilities, should not lead to an unacceptable degree of statistical fluctuation, should not be unduly volatile and should take into account the types of costs incurred by claimants and the changes to these costs over time. A number of different options were considered by the working group which concluded that to meet the criteria set out above, an index based on the Irish harmonised index of consumer prices, HICP, should be the initial index specified in the Bill.

Section 51(l) provides for an annual adjustment of a payment under the PPO in line with the prevailing rate under the harmonised index of consumer prices. This section also requires the Minister to carry out an initial review of the index after a five-year period and, should an alternative index prove to be more suitable, make regulations specifying that index to be used in adjusting payments under PPOs.

Turning to Part 4 relating to open disclosure, I assure the House that the Minister for Health fully appreciates that while some Deputies believe that open disclosure should be mandatory, the relative merits of a mandatory and voluntary open disclosure framework were carefully weighed by the Government in coming to the view that at this time the best option for successfully ensuring the essential cultural change to foster open disclosure lay with a voluntary approach. Deputies will be aware that the Joint Committee on Health also considered this issue in its pre-legislative scrutiny of the open disclosure legislative proposals. The committee recommended that the success of voluntary open disclosure based on the legislation as proposed be assessed in the future and the possibility of mandatory open disclosure be considered if it is determined that a voluntary system is not having a satisfactory impact in increasing the rates and quality of disclosure. The Minister for Health has given a commitment to do this.

Another issue raised in the debate is the protection given to open disclosure. Part 4 of the Bill provides for certain protections for information given to the patient at an open disclosure meeting. These include that the information and written statement given to the patient are not admissible as evidence of fault or liability in a court in relation to the patient's safety incident or a clinical negligence action that arises from the consequences of that patient's safety incident. Deputy Clare Daly had concerns about this provision. Again, the Minister for Health understands the reason for questioning the provision. It is important, therefore, to set out the thinking behind it.

Open disclosure should be a genuine engagement between the patient and his or her doctor that should not be hindered by other concerns and fears. However, a persistent barrier to open disclosure recognised in other jurisdictions and Irish research is the perceived fears of the medico-legal consequences of open disclosure. The origins of the provisions of Part 4 of non-admissablity as evidence of fault or liability lie in recommendations made by the Commission on Patient Safety and Quality Assurance in its report, Building a Culture of Patient Safety. The commission, which was chaired by Professor Deirdre Madden, identified fear of litigation as a barrier to open disclosure and recommended that legislation should ensure that open disclosure which is undertaken in compliance with national standards cannot be used in litigation against the person making the disclosure. Legal protection was also a consistent issue raised in the HSE evaluation of the national open disclosure pilot. The Joint Committee on Health was sympathetic to the view that cultural buy-in is essential to open disclosure. As Deputy Michael Healy-Rae said, the system that is in place in our health service can sometimes stand in the way of people making open disclosures. The intention behind Part 4 of the Bill is to help bring about this cultural buy-in, supporting an environment where the patient's information needs can be addressed positively as soon as possible. Patients will receive information applicable to the patient safety incident in an open disclosure made under Part 4. Moreover, they will still, of course, have access to their medical records which, in line with good professional practice, will contain all information relevant to their care and treatment.

On balance it is considered that the system of open disclosure provided for in the Bill offers the greatest likelihood that patients will receive the information they are looking for after an incident without the need to resort to the courts system simply to get a straight answer, as Deputy Clare Daly has described. It is a consistent message from patients that they prefer to receive information and explanations and, where appropriate, an apology directly after an incident and not have to go down a legal route to get this information or apology. Litigation may sometimes be inevitable but it should never be the case that a patient or his or her family has to go to court simply to find out information about a patient safety incident. Ultimately, open disclosure is a human process underpinned by honesty and respect. The intention behind the legislative provisions to support open disclosure is to create a safe space where that honesty and respect can flourish and where lessons can be learned by health service providers and health practitioners and acted on to improve the health service.

More generally, the provisions in the Bill to support open disclosure are part of a broader package of reforms and patient safety initiatives which have the purpose of improving the experience of people who are affected by adverse events when they occur within the health service. These include provisions on mandatory external notifications of serious patient incidents that will be included in the health information and patient safety Bill. In addition HIQA and the Mental Health Commission have developed standards for the conduct of reviews of patient safety incidents. Another initiative is the recent establishment of the National Patients Safety Office, the NPSO. Deputy Healy-Rae referred to the location of this new office. I would like to clarify that the office is within the Department of Health rather than the HSE itself. The NPSO programme is focused on patient safety legislation policy and surveillance.

In her speech, Deputy Daly raised the issue of mandatory inquests in cases of maternal death. Deputies will note that the Government today approved a proposal from the Tánaiste to draft, as a matter of priority, the coroners (amendment) Bill 2017. The Bill will introduce mandatory reporting, post mortem examination and inquests in cases of maternal death. Its aim is to ensure clarity for responsible persons, including hospital authorities, and would support the development of a transparent and accountable oversight for checking and investigating certain types of death. Most importantly, it will provide clarity and transparency for bereaved families.

In conclusion, this Bill, which gives the courts the power to award periodic payments in the cases of catastrophic injury, is extremely important. It will ensure that people who have been catastrophically injured will receive the care and assistance they require for the rest of their lives.

I thank the Minister of State. That concludes Second Stage.

Question put and agreed to.