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

I move amendment No. 1:

In page 11, line 7, to delete “5 years” and substitute “3 years”.

I just make the point at the outset that it is a bit mad that the Joint Committee on Justice and Equality is sitting to deal with business at the same time as this debate is taking place. While I acknowledge that it is not the fault of the Minister of State, things should be organised a little bit differently. I am heading back to the justice committee and Deputy Clare Daly will stay here.

It is important to record that the Joint Committee on Justice and Equality took a decision to divide its resources today between the committee and this discussion in the Chamber. As such, the different groups have sent half their representations here for this debate. It is a bit regrettable.

While amendments Nos. 1 and 2 are not grouped, I would like, with the indulgence of the Chair, to make a verbal contribution on both together. As they are related to much the same subject matter, it would be difficult to talk about one without discussing the other. Amendment No. 1 deals with the waiting period for the first review of the suitability of the harmonised index of consumer prices for the setting of periodic payment order amounts.

Our proposal in this amendment is to reduce the time we have to wait for the review to be done from five years to three. Amendments Nos. 1 and 2 relate to the crucial issue of linking periodic payment orders to the actual cost of health care. As we pointed out on Second Stage, if this is not done, we run the very real risk that people who have been catastrophically injured in our health service will not receive funds sufficient actually to pay for the care that they need. We have recently had representation from wards of court at the justice committee. They described the complexities around some of these issues.

On Committee Stage, we tabled a number of amendments that proposed the creation of a new index based, among other things, on the actual cost of care and for that index to be used in calculating periodic payment orders, PPOs. Those amendments were defeated on Committee Stage, with the Minister of State noting that there could be problems with the reliability of a new index early on in the periodic payment order system. In light of that, amendment No. 1 provides that the Minister would review the suitability of the index that is now being proposed in the Bill - the harmonised index of consumer prices, HICP - after three years instead of five. Amendment No. 2 provides that if the Minister forms the view that the index is not suitable, he will be required to specify a different one. That is the nub of the two proposals before the House.

It is worth pointing out that the original recommendation with regard to indexation of PPOs, which was unanimously endorsed by the judicial working group on medical negligence, was that an earnings and cost-related index be introduced as a guide to PPO costs. However, the Bill before us uses the harmonised index of consumer prices as published by the CSO with no special provision for an index of care costs, which is the exact opposite of what the judicial working group recommended and completely ignores its unanimous recommendation. Linking payment orders to the HICP ignores the real difference between general increases in consumer prices and the much greater increase in medical wage and treatment costs. The working group on legislation to provide for PPOs points out that the Department of Finance, in its paper on PPO indexation, stated that an index based purely on either the consumer price index, CPI, or the HICP would not take direct account of wages and that the CSO's quarterly earnings, hours and employment costs survey should give the best outcome to recipients over the longer term. Using the right index is actually critical, which is why so many of the working groups spent so long telling us what it should be. What we are doing in this Bill is not that. It is something different. I think it does cause a problem which will get worse over time.

There is another point of danger. The word on the ground among people who work in the area is that if this proposed system is not changed to something else, plaintiffs will not go for PPOs at all, although that is what we want them to be doing. They will instead take lump sums, which is what we are supposed to be moving away from. It would be crazy if we went to the trouble of bringing in this legislation only to have it not used. We are not really asking for that much. We are asking that the review would occur in a timely manner, after three years instead of five. We think three years is enough for trends to emerge without them having a potential negative impact on recipients. We think five years is too long and could bring us into the territory where people are being negatively impacted.

On amendment No. 2, the Bill currently provides that the Minister "may propose" an alternative index after the review, even if the review has found that the current index is not suitable. We think that is ludicrous. It should provide that if the Minister finds it is not suitable, he or she "shall" come up with an alternative. I would not have thought either amendment to be hugely problematic, to be honest.

The Leas-Cheann Comhairle's guidance would be helpful. The Deputy has spoken on both amendments together.

I think we will be pragmatic.

However, procedurally, we will be dealing with them separately as they are not grouped.

Is it the Leas-Cheann Comhairle's advice that I speak to both amendments now?

On amendment No. 1, unfortunately I cannot accept this amendment. Section 51L(2) provides that a review of the efficacy of the HICP index be carried out after an initial five-year period. Deputies Wallace and Daly's proposed amendment would reduce that to three years. I am sure Deputies will recognise that to get an accurate representation as to whether the HICP index, as the reference index on the basis of which PPO annual payments are adjusted, is working to the benefit of catastrophically injured persons, it will be necessary to have a sufficient number of cases and allow a sufficient amount of time to determine the efficacy of the index. There are, thankfully, relatively few cases coming before the courts on an annual basis and in that context I consider that five years is the correct time period to establish whether the HICP is the appropriate index for use in cases involving catastrophically injured persons. We are far more likely to have a good volume and range of cases on which to make an assessment after five rather than three years. Therefore, while I appreciate the Deputies' intentions in seeking to accelerate the review, I believe that the best outcome for assessing the efficacy of these new measures can be achieved on the basis of a five-year review and am not accepting the amendment.

By way of further information, I am advised that there are approximately 20 catastrophic injury cases involving State defendants per annum and an equivalent number involving non-State bodies. Not all will involve PPOs as many will be resolved by lump sum payments. The analysis of this index over three years could be too volatile, given the small number of cases. The UK experience is that the CPI performed better over the past eight years than the earnings index. There are good reasons for not doing that.

On amendment No. 2, section 51L(4) provides for the making of regulations where a review of the prevailing index has concluded that an index other than the HICP would be more appropriate for use in catastrophic injury cases. Deputies Daly's and Wallace's proposed amendment would make it mandatory for the Minister to make such regulations. We have looked closely at this and can see merit in the proposal. It makes sense to me that if an alternative index were considered more suitable for use than the HICP, the Minister should be required to make the necessary regulation, subject to the consent of the Minister for Finance. In that context, I propose to accept this amendment.

I welcome the fact that we are on Report Stage of this important legislation. As was indicated earlier, it is essential that we get periodic payment orders on the Statute Book to assist individuals who have suffered the most serious injuries. As Deputy Clare Daly mentioned, a number of weeks ago we had representatives of wards of court in before the justice committee. Many of them were family members of persons who had received awards many years ago. One of the difficulties was that the courts that made the awards all those years ago were not able to calculate accurately the amount of money required in order to maintain the wards under care for a sufficient period. It was instructive that many of the individuals were of an older age. Their loved ones had received awards some 20 or more years ago. The whole purpose of this legislation is to protect people in that position and to ensure that they will not be left in a position where awards have to be made by a court on day one and then, 20 years later, it is seen that the award was not sufficient.

In respect of amendment No. 1, I agree with the Minister of State that three years is too short a period. It is necessary for there to be a period of five years in order to assess the extent to which the awards made by the courts are sufficient and the impact of the harmonised index of consumer prices. It is going to take some time to consider it. The Minister of State has indicated that there are about 40 cases involving catastrophic injuries. I think we need to build up a body of cases before decisions are made.

In respect of amendment No. 2, before the Minister of State had spoken, I thought it appropriate to support the amendment. It seems illogical that the Minister would recognise that there needs to be a new index introduced, and that there was another index that was more suitable, yet that the Minister would have discretion as to whether to introduce it. It is also noteworthy that this requires the consent of the Minister for Finance. We will be supporting amendment No. 2.

All Members want periodic payment orders which are far preferable to lump sum payments. We are trying to facilitate a move in that direction because it would presumably and I hope be more beneficial to a catastrophically injured person. It is very important that the chosen system be set up in a robust manner in order that people opt for it and will not have to rely on the lump sum payment.

I hear what the Minister of State is saying about a period of three versus five years. I would probably be less concerned if the Bill provided for an index such as that recommended by the various bodies we went to the trouble of setting up to consider the issue. I would then have been happier to leave the review period at five rather than three years because the judicial working group on medical negligence, the working group on legislation to provide for periodic payment orders, PPOs, and indications from the Department of Finance all recommended a different index from the one included in the Bill. That is regrettable, although I appreciate there will not be enough data available, but I would have been far more comforted if the recommended system were to be used and then reviewed after five years. However, I do agree and in many ways would have been pressing the second amendment had the Minister of State not agreed to it. Therefore, we have thankfully saved ourselves a vote on it. It is the more important amendment and I am glad that it is being accepted. At the end of five years I hope things will work out, although I do not know if that will be the case. I will not press amendment No. 1.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 11, line 23, to delete “may, with” and substitute “shall, subject to”.

Amendment agreed to.

I move amendment No. 3:

In page 12, between lines 7 and 8, to insert the following:

“(8) Where, pursuant to an initial review or a review under subsection (3), the Minister is of the opinion that an alternative index would not be more suitable for the purpose of the annual adjustment of the amount of payments provided for under periodic payments orders, he or she shall cause to be laid before the Houses of the Oireachtas a statement of reasons why he or she has formed this opinion.”.

This is a relatively simple and not hugely controversial amendment. It stipulates that the Minister would have to provide reasons for not ordering an alternative index to be used following the review of the harmonized index of consumer prices, HICP. What can one say about such a straightforward amendment? If the Minister and the Government think the index is fine, it should not be left at that, rather the Minister should outline the reasons for forming that opinion. In view of the seriousness of the issue, the Oireachtas and the public need and deserve to know why the Minister decided not to use an alternative index. I do not think it is too much to ask for an explanation to be provided. It is a very simple accountability mechanism rather than anything else. It is hardly a big deal that, if the index is not being changed, the reasons for that decision be outlined.

Amendment No. 3 would requires the Minister to lay a formal statement before the Houses in respect of a decision regarding a change of index but only where the decision was not to change the index. The thinking appears to presuppose that the reasoning behind the decision on the index to be used in catastrophic injury cases would not be made public or that there would be a reluctance to justify why a particular decision had been made. That appears highly unlikely and I do not believe it necessary to enshrine it in legislation that a Minister should make a statement on a hypothetical situation. The amendment would seem to require the Minister to lay a statement on the reasons for maintaining the status quo provided for in legislation which would have been enacted by the Oireachtas. There would be ample opportunities for a Member of the House to seek information on a review and the reasoning behind a decision made in a review by way of parliamentary questions or other mechanisms of accountability in the Houses of the Oireachtas, including, for example, via the relevant committee.

I do not think it is a big deal. The Minister of State has zoned in on the reasons only being required if the index is not being changed, but one could also provide a statement on the reasons it was being changed. That is not a stumbling block for the acceptance of the amendment which we put forward in the context of there being huge concern about the issue. Many people are considering the legislation and many are concerned that the right index may not have been chosen. As an index is being introduced in the primary legislation that is against the best advice of those asked to consult on it, we have come up on the wrong side of the advice offered. Therefore, in terms of the review, what is to stop these valid viewpoints or concerns being articulated therein or how do we know that they will be taken into account or what criteria will be used? One could argue that it reflects a nervousness that the Government might not be forthcoming in reviewing the orders because oddly it has chosen a method that was not favoured by the consulted groups. It is not personal. It may not even be this Government that will be responsible for the review in five years' time. There should be an accountability mechanism in place such that people would know the reasons the index was not being changed, even though the expert advice had not been heeded the first time the index was brought in. In view of the fact that the review will only happen in five years' time and perhaps periodically thereafter, it is not a hugely taxing amendment and I do not think it is a big deal. It would not require the report to be discussed by the Oireachtas but only to be laid before the House. It is a relatively simple proposal.

The purpose of the amendment is to get a Minister to explain why he or she is not taking a particular course of action or doing something. Members have enough difficulty in getting Ministers to explain why they are doing something, rather than getting them to explain why they are not. Members know that there is a great peace delegation going to North Korea and that explanations have been given by the Ministers involved for why they are going. However, an amendment such as this would require the Minister of State, Deputy David Stanton, to give an explanation for why he was not going. Deputy Clare Daly's amendment is well intentioned, but it is difficult enough to get Ministers to explain what they are doing without trying to get them to explain why they are not doing things.

As I said to the Minister of State, if that was the stumbling point of the amendment, it could have been amended to require the provision of reasons whether the index was being upheld or amended. It is not a decisive point. It is about accountability and overcoming the suspicion aroused by a method being chosen that experts said was not the best option. One has to assume, if the experts are right, and, given that they are supposed to be experts, as we hope they are, that the index will have to be amended. I hope it will not arise.

Amendment put and declared lost.

Amendment No. 4 has been ruled out of order as it does not arise from committee proceedings.

I wish to raise a brief point on that amendment because it seeks to provides that appeals from the High Court about periodic payment orders, PPOs, by a recipient could be made on grounds other than a point of law. It is remarkable that the Bill, as drafted, permits an appeal to the Court of Appeal against a court decision to direct payment of damages by way of a PPO only on a point of law. I have been told by experts in the area that it is easy to think of many cases where a party might wish to appeal against findings of disputed facts on which the decision to award compensation by way of a PPO was based. It seems needlessly narrow to allow appeals on a point of law only. The provision should be broadened. Will the Minister of State address that issue?

The amendment proposes a broadening of the grounds of appeal in respect of periodic payment orders by deleting the proviso that the appeal against a High Court decision to the Court of Appeal must be on a point of law. As the issue was not discussed on Committee Stage, the amendment must, therefore, be ruled out of order as it does not arise from committee proceedings. I refer the Deputy to the salient ruling of the Chair, No. 173/2011.

Amendment No. 4 not moved.

Amendments Nos. 5 to 17, inclusive, 20; 30 to 49, inclusive; 53 to 55, inclusive, and 63 to 65, inclusive, are related and will be discussed together.

I move amendment No. 5:

In page 17, between lines 33 and 34, to insert the following:

" "Category A safety incident" shall be construed in accordance with section 8;".

I want to raise a procedural point and I know that Deputy Wallace also wants to come in on this. This group of amendments is the essence of the debate around the Bill. It is likely that the bulk of debate will concern them and I am conscious of the fact that it is nearly 12 noon. Can we jump this group and move on to another one? Do we have to proceed in this order? We would have called a vote on amendment No. 2 had it not been accepted, which means that we would not have been left in this situation because the meeting of the justice committee would have been over. I do not know what to do now.

Deputies Daly and Wallace can discuss this.

The problem is that we are dissecting the main area of discussion on this legislation. By the time I finish our time will be up. This section is the key to the debate but the Minister of State will not even have time to answer me before midday, never mind anybody else.

The debate will be continued at a later point.

I know. Okay.

I would like to accommodate Deputy Daly on this but unfortunately I cannot.

I know that but this disrupts the key to the discussion and that is unfortunate. Can we set the clock back to seven minutes then, as we have just been discussing procedure? That would be a help.

Okay. We will give that to the Deputy.

These sections are the key to the Bill and concern the issue of open disclosure. We are dealing here with new definitions of the types of safety incident that cause serious and less serious harm; with mandatory open disclosure regarding serious incidents; with voluntary open disclosure of less serious incidents; and so on. This is a huge group. With the Leas-Cheann Comhairle's permission I would like to deal with one half of it first before dealing with amendments Nos. 38 to 47, inclusive, separately as they deal with a different issue.

The first group-within-the-group is, we believe, the most important. It deals with making the open disclosure of serious safety incidents in the health service mandatory. Open disclosure is absolutely crucial. When something goes wrong the patient has to know what happened and there also has to be an acknowledgment of the fact that something went wrong. When somebody is injured because of a mistake it is imperative that there is openness all around. At Committee Stage our amendment to provide for mandatory open disclosure of all incidents, whether major or minor, was miraculously accepted. That was a very welcome development. Following from that we had meetings with officials from the Department of Health at which we gave a commitment to table further amendments on Report Stage to the effect that near misses and very minor incidents would not be subject to open disclosure. This is because the way in which our amendment was accepted on Committee Stage would probably have resulted in it being too burdensome for health care workers to go through open disclosure for every near miss. We were very happy to meet the departmental officials halfway on this matter and we gave a commitment that we would limit what was agreed at committee. That, then, is what these amendments are about.

What we now propose is, first, that in the cases of near misses and minor incidents open disclosure to the patient is something that the health providers can and should do but is not absolutely obligatory in law. It is of course open to the HSE to make a disclosure of all incidents mandatory as a matter of policy if it so wishes. This would not, however, be defined in law. Second, and crucially, we propose that when it comes to more serious incidents and more serious harm, health care providers must be open with the patient about what happened and what the consequences for the patient might be.

It is important to say that we have had a system of voluntary open disclosure in Irish hospitals since 2013 and all of the evidence and anecdotes so far point the fact that it has not done much good. The United Kingdom, on the other hand, has a mandatory duty of candour. It is not an unknown quantity and it has been shown to work very well. The departmental officials, in fairness, agreed with us when we met them that they do not know which is best. Everybody wants a system in which patients get information but it remains an open question as to which approach is best. We believe that the UK example is the best model to follow because the open disclosure of serious incidents is simply too important for patients, safety, staff, and for our health service in general to be left on a voluntary footing.

As we said before, we know that there is a problem with the culture in our health service. We know this from the hepatitis C scandal; maternal deaths; baby deaths in Portlaoise and Portiuncula; and from cases of catastrophic injuries that have occurred in hospitals. We know that the default position of the HSE in many of these cases is to admit nothing and to circle the wagons. This is an entrenched culture that will not change without a lot of prodding. As far as we are concerned, voluntary open disclosure will not work in this kind of culture. Incidents will not be disclosed and honest health care providers will be penalised for making disclosures if nobody else is doing so. We will end up with an awful prisoner's dilemma situation in the health service where each hospital will end up eyeing the others to see who is going to go first. This will not be good enough. There is no evidence to support the view that a voluntary system of open disclosure is better or more effective than a mandatory system. That evidence is not there. The UK example, however, shows that the mandatory model is a good one.

We also deal here with the new definitions that we propose in the second group of amendments in this section. When an incident takes place that causes major harm, moderate harm or prolonged psychological harm to a patient, we propose that the service owns up to it and tells the patient what happened. What this means, then, is that there is mandatory open disclosure in these cases. This has been limited following the Committee Stage debate. We have put forward the definitions of those kinds of harm and modelled them on the definitions of the types of harm given in the HSE's own safety incident management policy and on the impact table for incidents used to make what we are talking about here smoother to implement. These definitions are also based on the definitions of harm given in the UK's duty of candour regulations. It is worth noting that this duty of candour only mandates the disclosure of incidents above moderate harm, which is exactly what we propose in this legislation.

We define major harm as "a permanent lessening of bodily, sensory, motor, physiological or intellectual functions, including the removal of the wrong limb or organ that is related directly to a safety incident and not related to the natural course of the patient's illness or underlying condition". Moderate harm is defined as "harm that requires an unplanned return to surgery, an unplanned re-admission, a prolonged episode of care, extended time in hospital or as an outpatient, cancelling of treatment or transfer to another treatment area (such as intensive care)". Finally, prolonged psychological harm is "psychological harm which a patient has experienced, or is likely to experience, for a continuous period of at least 28 days".

We consider that our proposals are reasonable and fair, taking into account the committee discussions and our subsequent discussions with the Department of Health. We do not see how it could be argued that the open disclosure of more serious incidents should not be mandatory. That is all that is on the table here. We are talking about cases of serious catastrophic harm up to and including the death of a patient because of a mistake made in a hospital. It would be lunacy to give hospitals permission to clam up about what happened in such cases. We view these amendments, then, as incredibly serious.

As Deputy Daly said, our aim here is to place an obligation on health care providers to be open with patients in the aftermath of a serious incident resulting in the patient suffering serious harm. Our preference would have been to place an obligation on health care providers to always be open about any incident, no matter how minor, but in our amendments we have now restricted this to more serious incidents. This is because, as Deputy Daly noted, requiring open disclosure of every small incident or near miss could - though not necessarily - make things a bit difficult for health professionals. It remains open to providers to be open about near misses and minor incidents of course, but we are also trying to accommodate the qualms of the Department and the HSE over the strong need to make disclosure of more serious incidents obligatory.

We have been told in previous discussions over mandatory versus voluntary approaches that the latter would make open disclosure more likely.

This is a tortured piece of reasoning for which there is no evidence. The Committee on Health's report on open disclosure cites one piece of so-called research on voluntary systems being more effective. In fact, this so-called research is a one page editorial in the British Medical Journal in 2000, 17 years ago, by a specialist in medication error from the US. It relates to the area of medication error reporting and is focused on anonymous reporting of errors and, by extension, adverse incidents. This is what the national incident management system, NIMS, is for. It is nothing to do with open disclosure. This is not a research article. It is an opinion piece based on a very small number - four - outdated references, one of which relates to aviation errors. None relates to disclosures of errors to patients.

The UK has a statutory duty of candour, as do Alberta, Quebec, Manitoba and Saskatchewan in Canada. Quebec introduced its legislation on foot of scandals similar to those in hospitals here. Litigation rates have remained exactly the same since, yet there seems to be considerable fear here that what we propose will lead to greater litigation. That is not borne out by the evidence elsewhere. Seven states in the USA have mandatory duties of candour, as does New Zealand.

Debate adjourned.