I move: "That the Bill be now read a Second Time."
I thank the Leas-Cheann Comhairle for the opportunity to progress this Private Members' Bill. I thank colleagues for their co-operation in allowing me to advance this legislation, having introduced it earlier this autumn. I will first give a technical breakdown of the proposals by addressing the various sections. The Bill provides that people who suffered as a result of maternal ingestion of thalidomide are not excluded from pursuing their cases because of time limits in the Statue of Limitations 1957. The Bill amends the Statute of Limitations 1957, Statute of Limitations (Amendment) Act 1991 and Statute of Limitations (Amendment) Act 2000. It inserts into the Acts that a person shall "in respect of injuries suffered by that person as a result of the ingestion of Thalidomide by that person’s mother during the person’s gestation period" be deemed to be under a disability. This section would apply to actions referred to in subsection (1) where the action concerned accrued before or after the passing of this Act, including actions pending the passage of this Bill. The section is in addition to and is not a substitute for section 48 of the Statute of Limitations Act.
It is important to state clearly that the primary focus of this Bill is to give victims of thalidomide a right of action. Unfortunately, the statute is currently being used as the primary wall of defence by the co-defendants in this case. However, the Bill states in section 1(2):
Nothing in section 48B of the Statute of Limitations, 1957, (inserted by subsection (1)), shall be construed as affecting any power of a court to dismiss an action on the ground of there being such delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant its dismissal.
The lifetime of thalidomide survivors has been blighted by the consequences of a drug taken by their mothers when they were in utero. The survivors were born with injuries that have an exceptional level of effect. People have had to endure significant physical and psychological consequences of their injuries for nearly 50 years. I welcome many of the survivors in the Gallery. Hopefully, we can finally provide some hope and justice in their long struggle against the State and the company involved, Chemie Grünenthal.
The background to this case is important because it demonstrates a dark past, particularly in respect of the company, Chemie Grünenthal, which marketed and promoted the thalidomide drug after the Second World War. As people are aware, the thalidomide catastrophe is an example of a shameful cover-up by big pharma across the world. Chemie Grünenthal, which manufactured this drug, is still in existence and is the defendant in many of the cases currently before the High Court. It has been argued that the Chemie Grünenthal thalidomide catastrophe is one of the last remaining war secrets. The chemist in charge of research was Dr. Heinrich Mückter, who was also a medical officer in Poland during the Nazi occupation of the country. The founder of the company, Hermann Wirtz, came from a prosperous family which had been given two Jewish firms in the 1930s as part of the Aryanisation programme and emerged with the cash and contacts to establish this company, Chemie Grünenthal. In the 1950s, Chemie Grünenthal ignored German regulations about new drugs and appropriate testing, carrying out only limited clinical trials. A culture of profit superseded safety to the detriment of thousands of people born across the world who were left with disabilities.
In 1956, long before thalidomide was marketed in Ireland, concerns were raised about the drug when the baby of a Chemie Grünenthal worker who had been given the drug was born without ears. Chemie Grünenthal ignored this case, among others, to develop its blockbuster drug for profit. This reflected the prevailing culture after the Second World War. The company ignored warning signs for years as it pursued profits. A German judge described the company's actions as "negligent, misleading, inexcusable, unlawful" and "very inadequate by the standards of the day". Unfortunately, the State took a hands-off, laissez-faire approach in the 1960s and did not exercise its statutory functions under the Health Act to address concerns about thalidomide which had been flagged across Europe and beyond. The drug's recall was delayed as a result and carried out in a ham-fisted manner. Unlike other jurisdictions, the State took no action in 1961 to restrict the sale and distribution of the drug when other countries were doing so. The Whelehan Group, the distributor of the drug in Ireland, acted in a similar manner to the State by not proactively addressing a red flag that was spreading throughout Europe. The company took a hands-off approach to informing doctors and pharmacists, issuing a circular warning them of the emerging public evidence about the drug. The State and Whelehan delayed the drug's recall and a lack of information resulted in ongoing use of the drug which adversely affected many people.
There is documentary evidence in the Department of Health which demonstrates that flags were being raised in Tullamore, Ballinasloe and other parts of the country about the effects of the drug. The circular issued at the time did not warn people. The effects were being seen on the ground without any action by the Whelehan Group or the State. A confidential but questionable circular was issued to chief medical officers but there is no clarity about who was contacted and in what area, and whether the medication had been recalled and subsequently retrieved. The evidence suggests it was left on the shelves long after the official recall. There is evidence to suggest that the failure to properly recall thalidomide, even after the international withdrawal of the drug, demonstrated a shocking failure by the State and the distribution company, the Whelehan Group, to act quickly in citizens' best interests.
This is the backdrop to the ongoing struggle of thalidomide survivors. The State's failure to honour a promised healthcare package in 1975 meant there was no follow-through on the provision of care adaptations, special equipment, education, training opportunities and healthcare supports. The State, through the Irish Thalidomide Medical Assessment Board of the 1960s, failed to acknowledge many people who were injured through the ingestion of thalidomide by their mothers.
Some 50 years later, sufferers are still emerging owing to a degree of covering up of the existence of records. Sadly, my legislation will come too late for two of the litigants before the courts who have passed away since their action began four years ago. I hope the Government and Minister will take this on board. This Bill gives those who are taking actions the ability to take their cases forward. The quantification of damages in the 1970s bore no relationship to the injuries sustained or the losses incurred. The State also failed to take the so-called settlement in the 1970s to be approved by the High Court, which was contrary to SI 72 of 1962, order 22, rule 9(2). It is important to put that on record. Damages proposed at the time were an insult and were generic, without proper personal injury precedents being followed, for the purpose of quantifying the entitlements of thalidomide survivors. The effect of the absence of a court ruling meant that an Irish court has not considered why children in Ireland continue to be injured after the international date of the withdrawal of thalidomide, whether the State failed under the Health Act to regulate the distribution of thalidomide and whether the German and Irish settlements met the threshold and precedent for the quantification and extent of the personal injury and loss sustained. As a result of the failure to rule on the settlements, many survivors have not received the benefit of the lump sum or even the healthcare benefits. If it had been approved by the High Court as it was in the UK, it would have enforced the limited benefits that were provided for in the settlement but for many, this did not even occur.
The entire lifetime of thalidomide survivors has been blighted by the consequence of a drug taken by their mothers. The survivors were born with injuries which, as I mentioned, have had an exceptional effect over 50 years. They have shown great stoicism and bravery in overcoming their disabilities to achieve so much in their lives. They demonstrate such courage and success. I have met many of them in recent weeks and months. They are very courageous and positive and they want justice. That the Government has been trying to technically knock out thalidomide litigants with time limits in a case management action in the High Court is shameful and wrong. New thalidomide victims who emerged since the 1960s, as well as people not acknowledged as survivors then, remain unacknowledged by the HSE and Minister for Health. These people have never received any entitlements from the State associated with their injuries. They should have the right to make their case if they can and they should not be locked out by a technical timing issue. It is not right for them to be stopped from taking their cases by the Statute of Limitations. They deserve the right to pursue their action. Even with the proposed change, they will still have to prove their cases, which will not be easy, given the time that has elapsed since the 1960s.
Thalidomide survivors have been subjected to threats by way of court applications that their claims will be struck out on the grounds of timing and failure to provide medical records details. The State is being intransigent and difficult with thalidomide survivors, which is shameful, given what befell them. Furthermore, this House is being told that the reason the litigation is not resolved is that payments of compensation would become deductible from German or Irish state pension entitlements. That statement is inaccurate. These litigants have never received any compensation or pension entitlement, or any thalidomide related benefit, from the State. A 2010 State Claims Agency report on the thalidomide controversy was fundamentally flawed and the State has held on to an entrenched position because of this. The report did not acknowledge that thalidomide had remained on the Irish market for several years after the date of knowledge that it posed a risk. Like the cervical cancer cover-up of this century, in the previous century pregnant women who ingested thalidomide were never told that their unborn babies could have been injured in utero. Why Ireland neglected to withdraw and recall thalidomide in a timely manner back in the 1960s has never been explained.
In its 2010 report the State Claims Agency states it is inappropriate, in its view, to apply current principles of tort and quantum to an event which took place in the years from 1958 to 1962. The perspective of this agency of the State that because justice in terms of quantification of losses in regard to damages did not occur many years ago and since has been delayed, the survivors have no appropriate entitlement today to losses is an insult. It appears to the agency that justice delayed should be justice denied and, shamefully, it is defending on that basis. That undermines an important principle of justice and due process. When faced with the hepatitis C and HIV victims from the 1970s, the State acted in a different way.
On 31 July 2013 the State again made a generic offer without quantification of damages and liability and tried to bounce survivors into a deal which did not address the core issues in the ongoing dispute. This has been described by survivors as the night of the long knives. Unlike in the aftermath of the cervical cancer controversy, no funding has been delivered to the HSE by the Minister for Health or his Department to enable it to provide the necessary medical records for thalidomide litigants. The Minister has a conflict in this matter. One one side, he underfunds the HSE's facilities for the provision of medical records, with the consequent effect that thalidomide litigants are placed in a vulnerable position in that their cases could be struck out for a failure to provide medical records. On the other side, the Minister is a defendant in the very same court proceedings. It is, therefore, within his remit to cure the issue on which advantage is being sought in terms of litigation. The Minister and his Department need to end this regrettable and hurtful approach of sympathising with victims, on the one hand, and blocking their progress and right of action, on the other. Actions speak louder than words, particularly for victims of thalidomide. In this action by the thalidomide survivors, in excess of 1,100 court documents have had to be filed thus far. Thousands of medical records have been sought by the defendants and the Minister from the survivors. As the hospital system's ability to deliver them is very limited, the litigants are in a catch-22.
I have given a broad outline of the Bill and the history and struggle of the victims. They should not be left in a precarious scenario of case management and a technical knock out to prevent their cases from being heard. It is ironic that the State Claims Agency and Grünenthal, a company with dubious foundations in Nazi Germany, are relying on the same defence to block genuine victims who were all failed by the co-defendants. Justice delayed should not mean justice denied. It is time to remove the Statute of Limitations for these victims in order that their cases can proceed and justice can be aired in the courts system. I urge Members across the House to support the Bill.