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Joint Committee on Health and Children debate -
Tuesday, 27 Jan 2015

Medical Indemnity Insurance Costs: Discussion (Resumed)

I welcome everyone to our second session on the challenge of rising costs of professional medical indemnity insurance. At our meeting on Thursday last we heard evidence from a number of representatives of the medical profession and insurance bodies on the rising cost of premia. Today we will deal with issues arising from that discussion, including legal costs and the patient perspective of medical negligence. Apologies have been received from Senator Imelda Henry and Deputies Robert Dowds, Eamonn Maloney and Mary Mitchell O'Connor.

I welcome Mr. Michael Boylan, chairperson, and Ms Deirdre Courtney, member, from the Medical Injuries Alliance; Mr. Kevin O’Higgins, president; Mr. Ernest Cantillon and Mr. Ken Murphy who is in the Visitors Gallery from the Law Society of Ireland; and Mr. David Barniville, chairman, and Ms Ciara Murphy, director, from the Bar Council of Ireland. I also welcome the large group of people present in the Visitors Gallery.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the joint committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they will be entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

I ask members and delegates to be conscious of the fact that we have a great deal of work to get through. Delegates will have six minutes in which to make their opening remarks and I would prefer if members confined themselves to asking questions. I call Mr. Boylan to make his opening remarks.

Mr. Michael Boylan

I thank the Chairman and members for inviting me, as chairperson of the Medical Injuries Alliance, to address the joint committee. In view of the time constraints, I will be brief. Our submission and all of the letters in which members of the alliance recount their stories have been circulated. I urge members of the committee to read them.

We established the Medical Injuries Alliance four years ago to advocate for the rights of patients injured in medical accidents.

I apologise for interrupting, but I wish to inform everyone that there may be a vote in the Dáil during our proceedings. If a vote does take place, we will be obliged to suspend proceedings for the duration of it.

Mr. Michael Boylan

We believe the committee in its consideration of this problem must focus primarily on the needs of patients and the human cost and tragedy relating to loss of life and disablement caused by medical accidents which are preventable. Last week's proceedings seemed to concentrate almost solely on the financial, as opposed to the, human cost. There is a need to introduce a legal duty of candour to underpin and underscore an ethos of open disclosure when medical accidents which are preventable occur. The United Kingdom, following a long battle on the part of our sister organisation, Action against Medical Accidents, AvMA, introduced such a duty last November. I urge members, as legislators, to consider this in an Irish context. A duty of candour would make a huge contribution towards reducing the trauma caused by medical accidents. Ultimately, it would also reduce costs.

There is a need for doctors to learn from errors they make. No doctor begins his or her day intending to hurt anybody, but doctors do make errors. In order to learn from them, they must accept that they occur in the first instance. Unfortunately, there is a widespread culture of defend and deny which has the undesirable effect of poisoning the doctor-patient relationship. If errors are admitted to when they should be, doctors can learn and the doctor-patient relationship can be preserved in many cases. In cases in which an error has only resulted in modest injury, patients may not sue at all. It might be counter-intuitive, but it is the international experience that patients are very forgiving of doctors when there is candid communication at an early stage. What poisons the entire relationship is the putting up of unmeritorious defences.

It is already the case that too few patients are obtaining access to justice. That is the problem. There are 84,000 medical accidents reported to the State Claims Agency each year. At last week's meeting Mr. Ciaran Breen informed the committee that there had been 609 new cases in 2014. They represent a tiny proportion of the number of people who were injured in medical accidents. There are too few lawyers who specialise in this area acting for plaintiffs. On the other hand, as is only right, doctors have the best of legal representation. It is an unequal struggle for justice for patients and we would be opposed to anything which would make that struggle more difficult.

In the context of the presentation made at last week's meeting, the idea of reducing the damages awarded to catastrophically injured patients is completely objectionable to our members. For somebody who spends 40 years in a wheelchair, the cost involved comes to just over €200 per week. I challenge any member to say €200 per week for a lifetime spent in a wheelchair constitutes overcompensation. That to which I refer is not the solution to the problem.

In addition, the data provided for the committee by the Medical Protection Society, MPS, completely lack transparency. No details were provided of premium or investment income, nor was information forthcoming on the actual cost of claims to members of the MPS. Buried in one of the submissions I discovered that 238 claims had been made against MPS members last year. This figure was not included in its glossy report, but it can be found in one of the supplemental documents provided for the committee. The MPS has 16,000 members, against whom 238 claims were made last year. If that is correct, on average, this represents one claim per every 67 members. Something just does not add up. The MPS did not provide details of the total amount it had paid out; rather, it supplied a graph which I could not understand on which projections of future costs were made.

I will conclude by introducing one of our members, Ms Deirdre Courtney. Many of our members wanted to come before the committee to tell their stories. However, we could only select one. Ms Courtney is going to recount for members her story and that of her family and the struggle in which she engaged in her quest for justice.

Thank you, Mr. Boylan. Ms Courtney is most welcome.

Ms Deirdre Courtney

I sincerely thank members for allowing me to address them. They will have had the opportunity to read my statement. I am here to inform the committee of how difficult it was for my husband, Brendan, who is with me today, and I to go through the legal process and how difficult it is for other families to do so also.

The current system is clearly not working well. There is an emotional cost for families, notwithstanding the financial cost to the State when it insists on going as far as the steps of the court before it concedes. The position in this regard must change. No family should have to go through this horrendous process which is lengthy and intrusive. Up until the day on which the final settlement is reached, there is a huge elephant in the room for every family. If legislation which compelled doctors to answer questions and provide honest and truthful explanations for individuals and families with queries was enacted, this would surely be the right thing to do. I understand no doctor gets out of bed in the morning intent on making a mistake. However, mistakes are made and it should be incumbent on the medical profession to come clean and be truthful, open and honest. Those involved in the profession should not be afraid to be any of these things.

When we made our first foray into the High Court on behalf of our daughter, Bríd, we were obliged in advance to bring her to see 27 professionals who were going to be acting as witnesses.

I apologise for interrupting, but the opening statement provided for the committee is different from that which Ms Courtney is reading.

Ms Deirdre Courtney

That is because it would probably take me nine minutes to read my full statement. I have been obliged to shorten it.

That is fine.

Ms Deirdre Courtney

For our first foray into the court we had to seek 27 professional witnesses. This had to be repeated for our return in November 2012. The cost of these witnesses alone must be colossal, and had we not taken our solicitor's advice in 2012 but done as the State wanted us to do, we would have been back in the High Court again in November 2014 and would have had to revisit all the experts again. How much does the State think a family can take?

Bríd is the youngest of our five children. Her elder sister is aged 22 and the boys are 19, 17 and 14. Having a child with Bríd's needs impacts hugely on a family. The dynamics change and as parents we were always acutely aware of ensuring the other children always felt as cherished as Bríd. Extended family also feel the impact of it. Bríd's grandparents moved house from Cork to Kerry in order that they could help and through the years have helped with the care of Bríd and her siblings. They provide an almost constant taxi service to activities such as football, athletics, rugby and matches. They are still very much involved in Bríd's care. In defending cases such as Bríd's, the State never sees the child or the family. I would ask any of the members to come and live in our house for even a day and see the reality of our situation. We are not statistics. Our daughter has significant needs that must be met every day. She is a wonderful, happy, vibrant young lady and is an inspiration to us all. Her determination never ceases to amaze us. However, she will always and forever need care. That is our and her reality.

We often ask ourselves what the medical profession learned from our negative experience. Did they, as a team, sit down after Bríd was born and ask themselves what happened at her birth and whether they gave the appropriate care and paid enough attention to all aspects of her antenatal care and delivery, and if they did not, what they would do differently next time? If I thought they had learned from this and that it would help another family, I would be happy. However, the policy seems to be to defend and deny at all costs, and therefore the platform is not there for openness and frank discussion. I beseech the members, who are the legislators, to introduce the appropriate legislation that would compel our medical profession to be open, honest and candid.

Thank you for your very moving testimony. I also welcome your husband, Brendan.

Mr. Kevin O'Higgins

I thank the committee for inviting the Law Society of Ireland to attend and for giving us an opportunity to make this short presentation. The Law Society represents almost 14,000 members who are entrusted to represent defendants and plaintiffs. In the context of today's discussion, solicitors represent the best interests of injured patients, health professionals, hospitals and the State. We are thus uniquely positioned to comment on the matters that are of concern to the committee. The Medical Protection Society, MPS, report on the cost of medical indemnity contained a number of statements that the society believes are erroneous and misleading. We are here to outline our commitment and active engagement on reforms that seek to create a culture of fairness, equality and justice.

The society was struck by the testimony of the witnesses last week and the relegation of the patient in their presentations. The economic interests of the MPS and consultants working in private practice must be measured against the welfare and rights of patients. Crude discussions on economic costs fail to encapsulate the human cost of medical negligence. The consequences for a plaintiff and his or her family arising from a catastrophic medical injury must always be at the forefront. The trauma, anxiety and financial impact must be acknowledged, appreciated and addressed. The root cause of medical negligence claims, quite clearly, is that medical negligence occurs. A patient who has been a victim of medical negligence is entitled to seek redress. The committee members are to be congratulated on drawing attention to the impact of hospital resourcing on patient safety. On behalf of patients and legal advisers on all sides, a focus on minimising these occurrences and creating a culture of safety is to be welcomed.

Based on the evidence and the case for balance, we would say that access to insurance on the part of doctors in the private sector should never trump the patients' access to justice. A balance must be struck between the commercial interests of insurance companies and medics, and a fair and just system for patients who have suffered harm. The State Claims Agency confirmed that the increase in the cost of claims handled by it in recent years was attributable to several factors, including the expanding remit of the agency, which now oversees the claims of 117 agencies and bodies. Another factor it cited was the spike in clinical claims in recent years arising from a number of specific actions. The agency also cited the effect of 2,500 consultants joining the agency's clinical indemnity scheme, CIS, from February 2004 and the effect of the judgment in Yun v. Motor Insurers' Bureau of Ireland (MIBI) and Tao, 2009, which increased the cap level of general damages in catastrophic injuries to €450,000.

Other contributory factors that the MPS, Irish Hospital Consultants Association, IHCA, and Irish Medical Organisation, IMO, omitted from their recent presentation include the level of market penetration MPS has in Ireland compared with other territories and how it impacts on its exposure. They also omitted to mention the extent of private medical care cover in Ireland compared with other territories and the expanding range and complexity of medical procedures undertaken by their members in recent years resulting in a higher risk profile. Unlike the SCA, the MPS chose not to disclose its claims outcomes, recovery of costs or litigating strategies, nor did it clarify its distribution of claims by specialty.

While it might seem counter-intuitive to many commentators, litigation can be a force for good. Professor Crown touched on this when he noted that there is such a thing as constructive litigation. While the injury should have been avoided, the transformative impact of litigation creates a more responsive and safe health care setting. Efforts to stifle or prevent claims from being taken serve no one, including doctors.

Less than 3% of CIS claims are resolved through the courts. The cases that go to court are generally those involving infant cerebral palsy or other catastrophic injuries. In recent years, the State Claims Agency has reduced the fees paid to solicitors and barristers by 25%. For solicitors working on behalf of plaintiffs, there have been similar fee pressures, with many reducing their fees by 30% to 50% in recent years. Other factors that impact on total cost include level of activity, VAT, the extensive number of expert reports required in medical negligence litigation and the increasing complexity of cases. In 2014, the SCA reported a saving of €97 million, inclusive of third party recoveries against projected costs. In 2013, these savings were €34.3 million.

In respect of the MPS's proposal to cap general damages, the MPS is cherry-picking from various sources. In Northern Ireland, the guide figure for general damages for a quadriplegic injury is between £400,000 and £575,000, which is much higher than the €450,000 cap on general damages for catastrophic cases in this jurisdiction. Also suggested by the MPS and endorsed by the consultant representative groups is the proposal to cap special damages, in particular future earnings and future care costs. On behalf of the patient, the Law Society asks why a patient who has already suffered immeasurably due to medical negligence should be penalised once more. Neither the MPS nor the consultant representative bodies referenced the deteriorating impact that lower interest rates and bond yields have on premia income returns.

The Law Society supports the proposed reforms of the working group on medical negligence and periodic payments. Reforms in the area of open disclosure promote a culture of openness and trust, where communication is the first step in resolving a claim. Delay does not suit either side, especially the patient who is seeking to move on from a traumatic period in his or her life, in so far as possible.

Delay can arise in respect of securing medical opinions, tracing medical statements and teasing through the complex issues of causation. In that regard the Law Society supports the recommendation of pre-action protocols where issues in dispute are identified much earlier in the process. Calls for shortened limitation periods, that is, the period within which a claim should be initiated, have a clear economic benefit, namely, more claims run the risk of being barred. The rights and circumstances of the patient should be carefully considered in any discussion on reducing periods. The Law Society believes access to justice for all parties to be paramount. In this case, barriers to accessing the courts system underscore the need for increased judicial resourcing and supports.

The Law Society appreciates the tension that might naturally occur between the parties to a claim and the impact claims have on the parties. The role of the courts and an ethical, professional approach on the part of the respective legal teams must seek to ensure a fair outcome in accordance with the law. The Law Society supports the existing judicial reasoning for both general and special damages with a particular focus on the rights to fair damages for the patient who has been injured through medical negligence. The Law Society reiterates its support for improved education and training, the roll-out of open disclosure policies and other reforms that operate to reduce medical errors and injury. In this regard, we support the duty of candour as a professional and ethical one.

I refer to the presentation made by Mr. O'Higgins and its use of the terms "erroneous and misleading". As the Medical Protection Society, MPS, is not present to defend itself or to offer a counter, in the interests of fairness and balance I ask members to be careful, please, in the language they use. I invite Mr. David Barniville to make his opening statement.

Mr. David Barniville

I thank the Chairman and members of the joint committee. I am accompanied by a fellow member of the Bar Council, Ms Sara Moorhead, senior counsel, and we are anxious to assist the joint committee in its deliberations on this difficult and important issue. One point that struck us was that it is important that this session is taking place because it is critical to ensure there is a balance in the debate, that is, balance between the interests of patients and their families who have been damaged or harmed by the medical negligence of doctors and the interests of the medical professionals involved and their insurers. There also is a further critical public interest that the system is designed to work and works effectively in the interests of the administration of justice.

I wish to make a couple of points, the first of which is on the role of barristers and where they fit in all of this. Second, I wish to consider some of the reforms that have been proposed, with some of which we agree and with others of which we do not. Finally, I will say something about fees. I first should note the Bar Council is the representative body for all barristers practising in Ireland. Barristers act for plaintiffs and defendants in cases. As we are an independent referral Bar, work comes from solicitors to barristers and we are instructed by solicitors in these difficult cases. The area of medical negligence work is difficult, complex and requires a high degree of specialisation on the part of barristers, solicitors and other professionals working in this area. It is not an area of work that is easy to jump into and jump out of or to transfer into at short notice or in times of economic difficulties in other areas of work.

I will turn to some of the suggested reforms, some of which are referred to in the recent MPS report, and they refer to both procedural and other substantive issues. I will deal first with the procedural and other issues, and it is fair to state that as with many of the organisations that spoke to the joint committee last week, we are agreed that there are a certain number of critically important procedural reforms that should be introduced in this jurisdiction. They have been the subject of a number of reports already of the working group on medical negligence, to which I will turn in a moment. However, the first and fundamental point to make in this respect is the question of delay. Delay is bad for everybody in the system. It is appallingly difficult for plaintiffs in these cases to have to wait months and years in many cases for their cases to proceed. It also is difficult for the medical professionals involved to have to wait to have their cases decided by the courts or resolved. It is bad for lawyers because if the case is delayed, lawyers do not get paid, and it fundamentally is bad and damaging to society.

I turn now to the question of the duty of candour. The Bar Council is in full agreement with the comments already made today and before this joint committee last week. It is essential that there is a statutory duty of candour in this jurisdiction to encourage medical professionals to come clean at the very beginning and to ensure that by so doing, they do not prejudice the defence of cases in due course. There should be a statutory requirement to this, as well as ethical and professional underpinning. A series of recommendations has been made by the working group on medical negligence and periodic payments initially chaired by Mr. Justice Quirke, a former judge of the High Court, and then by Ms Justice Mary Irvine. We agree with, fully support and participated in those working group reports and agree that a number of things are essential to try to cut down on the delay and waste of resources and trauma caused to people in these cases. The first is the question of periodic payment orders. The court should have the statutory jurisdiction to make such orders in appropriate cases. Not all cases are appropriate for such orders to be made. There should be pre-action protocols in cases in order that there is the facility to have an early admission of liability in cases, because what happens in many cases is that liability should be but is not admitted at an early stage. This leads to enormous trauma and a huge waste of costs and resources. There should be case management of cases and there should be legislation enacted and rules of court amended to implement them. All the relevant legislation and amended rules of court have been proposed by the working group reports I have mentioned. There should also be greater use of alternative dispute resolution, ADR, and mediation.

We disagree with a number of things in the report and we set them out in our paper. We do not agree that there is a tolerance for unmeritorious claims in this jurisdiction and we do not agree that the type of specialised and expert work involved in medical negligence cases makes it amenable to the jumping from conveyancing to medical negligence work that has been suggested. We disagree with a number of the substantive reforms proposed. We do not think there is a need for a tort of clinical negligence and we do not think there is a need for caps on special damages, as that would be highly unfair. We do not agree that it would be necessary to reduce the limitation period and we do not agree with the concept of caps on costs. On the question of fees, a fundamental point must be made. In the absence of an adequate and satisfactory system of legal aid in this jurisdiction, those barristers and solicitors who act for plaintiffs in effect provide legal aid to their clients. They take on this difficult work with no guarantee of payment and in many cases will not be paid. They will only be paid if the cases succeed and, ultimately, if the indemnifiers of the doctors pay their costs. This can be many years after the work has been done. If there is a dispute on the question of fees, there is an independent statutory body to determine them. The Legal Services Regulation Bill will enhance and make more transparent the system for the adjudication of such costs. Those who act on the defendant's side generally agree the fees with the client, whether it is the MPS or the State Claims Agency. In general, fees for barristers, and I believe for solicitors, in this area have come down significantly since 2008.

We commend the joint committee on introducing this balance into the debate. We have set out in our paper those areas of reform that we support and those with which we disagree, which paper the joint committee has to hand.

I thank Mr. Barniville and remind members that the pack for today's meeting contains the substantive documents from all the witnesses who made presentations to the joint committee this afternoon.

I welcome the witnesses before the joint committee. At the outset, I note members have received a lot of correspondence from all sides and none, including people with a particular interest and those with specific cases and views as to how the system may not have worked for them when they were taking medical negligence cases. While this issue is quite complex in many ways, one point that is obvious is that when a person is injured, he or she is entitled to seek redress. This is a simple fundamental. Another obvious point is the State is very often picking up the tab in many cases and a third is that people are left with catastrophic injuries and must live with them for the rest of their lives.

As there is a vote under way in the Dáil, I will ask Deputy Kelleher to conclude after which we will suspend the meeting.

That is placing a time limit on me, is it not?

It is. There is a time limit on everybody so-----

However, I do not charge by the hour. I thank the Chairman and will be as brief as I can. There are a few obvious issues. A fact of life we must address is that our legal system is adversarial in its nature.

A more open approach and honest and candid sort of disclosure in these discussions will take a mindset change. It is not just a few of us in a committee room. It is embedded in our adversarial legal system.

Obviously we need to look at it in the context of a duty of care that must be provided by the State in terms of public hospitals - the duty of care provided by those carrying out procedures on behalf of the State in our public hospitals. There is also the MPS, whose representatives made a presentation here last week. I suggest to the Chairman that we should contact the MPS to seek clarity on certain issues raised today because we did not have time to do so last week.

On the issue of open disclosure and the duty of candour, I believe Ms Courtney summarised it very well in the context of her experiences with her daughter Bríd. Many people feel frustration even at the initial stages to get the basic information from the HSE and medical professionals merely to find out what happened before they ever contemplate taking a case. There is a secretive culture instilled in the HSE and medical professionals that the patient or the person who is acting on behalf of the patient is the last person to know what happened. That is just beginning to change now. We talk about the HSE becoming more accountable in terms of discussions with its clients - patients of doctors acting on behalf of the HSE. It is something that will take a long time. It is evident that we have a long way to go. Before we ever go down the litigation route, there must be a more open approach by the HSE and those acting on behalf of the HSE.

When we get to the further issue of cases, the State Claims Agency now acts on behalf of the State on the issue. It is promoting mediation, for example. However, of approximately 460 cases it handled in 2013, only about 19 or 20 were concluded through mediation and the rest of them ended up going through the adversarial legal route. The losers in that are those who are seeking compensation or redress and also the State which often picks up the tab. The money that is being wasted through the adversarial approach ends up coming from the taxpayer and not going to people who need it.

We need to see if we can do something and we would appreciate advice from the representatives of the various organisations present. How do we make it more efficient and streamlined? In whose interest is it to try to keep it as it is at present? We need to be honest; the legal representatives will be paid. Those acting for the plaintiff might find it more difficult at times, but those acting on behalf of the defendant will always be paid. The only people really throwing the dice in this are sometimes people acting on behalf of the plaintiff, but the defendant's lawyers will always be paid. We should try to encourage the HSE and the State Claims Agency, given the mentality of the legal profession-----

I thank the Deputy.

I just have to finish this issue. The others can go. What I have to say is for the witnesses more than anything else. The adversarial nature of the legal system must be tackled or else we will have Ms Courtney, Bríd and Brendan in courtrooms or on the steps of courts for many years to come, which is not right.

I would like to talk more on the cap issue, but we need to go to a vote and that is it.

We must suspend until after the Dáil vote. I apologise to the witnesses.

Sitting suspended at 5.35 p.m. and resumed at 5.49 p.m.

I apologise to the witnesses and those in the Visitors Gallery.

I welcome the panel this afternoon. I suppose this is part 2 of our two-part engagement on this particular and vexed issue. I would like to ask a number of questions. I took a little note. My colleague, Deputy Kelleher, spoke about encouraging. I am more of the view, after last Thursday, that encouragement is not enough. That is my certain view, having listened to the Medical Protection Society and the State Claims Agency's contributions. I would like to ask the panel, but Mr. Boylan initially, a question.

The focus has to be on the patient. Doctors must admit avoidable errors that have resulted in some harm being done. I believe, and am more certain in that belief after last Thursday, that there needs to be a legal duty to inform the patient.

How would Mr. Boylan respond to the Medical Protection Society, MPS, and the State Claims Agency? What if it were the case that they were to proactively encourage disclosure? I am anxious to have this matter dealt with. "Encouragement" suggests a voluntary code. I am very much of the view that what has happened on the neighbouring island, and is applicable north of the Border, is what should happen here in terms of a legal duty of candour. We need to look at this as committee members and on a societal level. This is not about somebody we do not know - it is not always the other person. It could be you or me. It could be any of us at any point in our lives. We all have a requirement to use our health services. I would like to know that from the get-go until I am - hopefully - discharged, I will be treated openly and honestly and will be kept informed of all that takes place. I would like Mr. Boylan to address the issue of a voluntary code as against the legal duty of candour.

Many of the high-profile cases over the years have gotten significant coverage on television. Listening to Ms Courtney's contribution, for which I thank her, I recall situations in my own home over tea when the six o'clock news was reporting on different events, and my wife and family were commenting on how disgraceful it was that the State had actually sought to contest a case that was beyond question. We felt such disgust that this was being done in our collective name. I have no doubt that situation was replicated at family tables throughout the land. People have no wish for further hurt and pain to be brought to families who have already suffered so much.

How would the panel reflect on the Medical Protection Society's recommendations regarding the new statute of limitations of ten years for brain injury in children? I would be particularly interested to hear the response to this.

We watched and listened here last week and a number of comparisons were made between the situation here and in the neighbouring island. We are not comparing like with like. We have a very different health delivery system. At times, one wonders if it should be called a system at all. There is a national health service on the neighbouring island, which is a very different scenario. Would the panel like to offer a view on that? The MPS would have used statistics to suggest these were comparable situations but they are not. Furthermore, how would the panel respond to the MPS claim that we have seen a doubling of claims over a relatively short period?

I would like to take the opportunity on all our behalf to extend our very best wishes to Ms Courtney's daughter Bríd and to wish her every blessing in life. That there was no admission of liability and no apology is a very serious matter indeed. In many other collective cases, in terms of neglect through the years, a State apology has been hugely important. Members of this committee are more than conversant in that. It can be no different for an individual experience and a family's hurt. An apology and an admission are hugely important.

When discussing organisations that have appeared before the committee, particularly the MPS and the State Claims Agency last Thursday, it was observed that they have failed in their own stated intent - and I would place question mark over that intent - to deal with people's claims with integrity and honesty. There is scant evidence of that intent and the honesty factor certainly goes out the door when they are aware of the facts having been reported for their evaluation. If they are not proactive in encouraging that information to be shared with the individual patient, in my opinion as a layperson, they are then complicit in the withholding of critical information that could concern me, or any individual. As well as having neither integrity nor honesty, there is clearly no compassion whatsoever in their respective approaches. Go raibh maith agat.

I welcome the witnesses and thank them for their presentations. What we have heard today is the other side of the coin. It gives us a much more balanced view of the whole issue following on from last week. Particularly welcome is the indication from all parties that they would be in favour of a statutory duty of candour. This is vitally important and is probably the cornerstone of changing the system and making it fit for purpose. The system as it stands is not fit for purpose, based on what we have heard today and last week.

I particularly welcome and thank Ms. Courtney for giving us her story and that of her daughter Bríd. She has given us a real insight into what it means to be involved in a situation where there is an adverse medical event, such as clinical negligence. She described it as being horrendous, lengthy and invasive, including having to contact and be examined by 27 different professional witnesses.

Ms Courtney also put her finger on something else when she said it is a very unequal struggle. That is another key part of this debate because it is very unequal. The inequality starts from the very moment the event takes place. The manner of dealing with these events continues to be to deny, defend and delay. That area, as well as the whole question of open disclosure as soon as possible, the question of getting misinformation or being misled, continues to be a problem for families. The statutory duty of candour is a key element of this. As much information as possible should be given as quickly as possible.

For families, that is most important. I wonder how we can ensure in the future that families and patients are treated properly, are given correct information early, are not misinformed and are not given misleading information. That is probably my only question. How do the various witnesses see that being put in place and being effective? How can that be done? Is it done in other jurisdictions and if so, has it been successful and how has it been done?

There are five other members to speak. I will take the panel first and then come back to them. I will start with Mr. Barniville and work down.

Mr. David Barniville

I will respond, first, to Deputy Kelleher. He made a telling point, that there needs to be a mindset change generally. Litigation is generally adversarial. There are some cases, however, in which it certainly merits consideration that it be less adversarial.

Fundamentally, two things play in to this in these kind of difficult cases. The first, a point on which we all are agreed at this table and on which there was substantial agreement on Thursday, is there should be a statutory duty of candour. It works elsewhere and the experience so far elsewhere has been positive on that.

The second, another point raised by Deputy Kelleher, is the use of mediation and alternative dispute resolution. It is used in medical negligence cases, but not enough. It should be encouraged to be used much more often than it is. It is something that was addressed in the second two reports of the working group on medical negligence, Mr. Justice Quirke's and Ms Justice Irvine's reports. From the Bar's point of view, mediation affords the sort of facility for people's grievances to be aired and resolved in a way that is generally much more effective than open court. For those reasons, we have been encouraging people to train as mediators and we have been generally trying to ensure that there is a greater use of mediation, and we feel there is greater possibility for mediation to be used in these cases.

Turning to Deputy Ó Caoláin's questions, the first point touched on the question of the statutory duty of candour and whether mere encouragement would be sufficient. The Bar Council does not believe that mere encouragement is sufficient. We think that there should be a statutory duty. It should be enforced that way and it should underpin the professional and ethical duties that are already there.

On Deputy Ó Caoláin's next point, he mentioned seeing cases where he was appalled that they could have been run and how they could have been defended for so long.

I am sorry, Mr. Barniville. I remind Senators there is a vote in the Seanad.

Mr. David Barniville

To put the other side or a bit of balance in that issue, there may well be cases which, at the outset and during their progress, appear to be cases that could be successfully defended by the medical practitioner involved, but evidence could emerge, whether it is a late expert report or a piece of information, that shows late in the day that these are cases that should not be defended. Those sort of cases do happen. It should be encouraged that there should be as early an admission of liability in such cases as possible. That means that if it is clear at the very outset that liability cannot be resisted then it should be admitted at that stage. If it means during the course of the case that something emerges that shows a case that looks like it could be a case that could be successfully defended no longer is, there should be an encouragement to admit liability at that point.

On that point, to the non-legal eye from the outside, such as Deputy Ó Caoláin watching on television, it seems more often than not there is this policy of defend and deny, where one gets to the steps of the courthouse and, suddenly, there is an eleventh-hour solution where the injured person and family is put through an inordinate amount of stress and tribulation which should not need to happen. Surely that is part of what we should be trying to change as well.

Mr. David Barniville

I fully agree. There certainly are cases in which one could see them like that.

In an ideal world, we should not have to have Ms Deirdre Courtney before us tonight giving a heart-rendering account of her daughter, Bríd, and her own experience. That applies cross the board. I am not casting aspersions on anybody in or beyond this room, but that should not be the way of doing business. At times, that is the way it comes across.

Mr. David Barniville

The Chairman is right about that. We should not have cases such as Ms Deirdre Courtney's case. We should not be hearing about those kind of experiences, whether from either the legal system's point of view or the medical system's point of view. One thing that will help this early admission of liability is to do something that was recommended in 2012 by the working group on medical negligence, that is, to have pre-action protocols, where there is engagement from an early stage and where, therefore, there is the opportunity to have an early admission and to engage and have communications and discussions with the other side at that very early stage, rather than leaving it late in the day so that it certainly gives the impression in cases that they have been either wrongly defended up to a point or dragged out when that should not be the case. One answer is this pre-action protocol.

The next question Deputy Ó Caoláin raised is whether the Statute of Limitations should be amended in some way in these cases. We do not believe that it should. Already, the Statue of Limitations period in personal injury cases was reduced, from three years to two years. The working group felt it should be increased, back up to three years. In cases that are brought within that period but in which, because the plaintiff may have been an infant at the time the accident happened, that time can run on, the court has a discretion not to dismiss cases after a fairly long period of time. In those cases, the court will look at what is fair and what is not fair. It has to look at fairness from both sides of the equation. Obviously, the plaintiff or injured patient is a critically important person in the equation but, equally, in these cases, there is another side - the doctor. In many cases, the doctor may feel that he or she has done nothing wrong and is entitled fully to defend the case. It is important, in all of these cases, to look at both sides and to have, as the committee is looking at, balance in the debate.

Mr. O'Higgins?

Mr. Kevin O'Higgins

I will pass on to my colleague, Mr. Cantillon, who is an expert in this area.

Mr. Ernest Cantillon

I will start with what Deputy Kelleher asked. He inquired about the adversarial system. It is an adversarial system and it would take a mindset to change that. There are pros and cons of it. Those, such as Ms Bríd Courtney, can have their cases advocated in a strong sense. Some of the patients feel that getting their say out there publicly and having persons publicly accountable for what has happened to them in the court setting has a positive effect in trying to balance the scales. It comes at a cost.

The principal focus on the costs that we have been considering here is the late occurrence of the settlement and how can we bring that forward. The fact that it is not brought forward means that there is a significant human cost to people, such as Bríd and her parents, but there is a significant financial cost. There is a problem. Those on the defence side will tell one that the doctors themselves have difficulties in accessing hospital records, the doctor wants his or her position vindicated, etc. The defend and deny policy has overridden all of those. I see, day in, day out - Deputy Ó Caoláin stated that he sees it on the "Six One News" - parents coming out of the Four Courts stating that their daughter was born five, ten or 15 years ago and they miraculously settled it two hours earlier. What were they doing for the past 15 years and what light shone on them that illuminated them in the Four Courts that could not have been shone into the risk management department of the hospital so many years previously?

The key to this is to obligate the medical people to tell what happened. In fairness to the Medical Council, it has brought this in as a professional guideline, but we do not have it in the legal arena.

In some cases, a doctor may want to admit liability but is told by the risk management department of a hospital not to do so as it could prejudice the hospital's defence. This is a nonsensical approach because any liability issues will come out. In that case, why not bring them out at the outset?

On Deputy Ó Caoláin's point on the Statute of Limitations, the statute was reduced some years ago at the behest of the Medical Protection Society, MPS, and State Claims Agency, SCA, from three years to two years. People such as Ms Courtney do not come running to their solicitors the day after an adverse event occurs. They first try to cope with the consequences of the event, which may take a year or two. The case then has to be investigated. The Medical Protection Society and State Claims Agency complain about cases being taken late in the day. Meritorious cases are being taken late in the day and it is opportunistic to try to deny people justice if their cases are meritorious. On the other hand, if a legitimate defence can be made on the basis that the staff nurse in the hospital has died or some other prejudice can be shown, that is fair enough and there may be some argument for prohibiting such cases. However, the use of the mere passage of time, without there being any prejudice, seems to be an opportunistic attempt to exclude people from justice.

To respond to Deputy Healy's point, it is an unequal struggle and scales, as I stated, need to be recalibrated. This can be done by the doctors in question making an admission as to what occurred.

The Deputy asked what is the experience in other countries. Studies have been done in this area. Dr. Timothy McDonald of the University of Illinois, who addressed the Medical Injuries Alliance in the past year or thereabouts, has introduced a duty of candour, under penalty, at the university. If a doctor does not admit he has had an adverse event, he may have six months' salary deducted or may be held back if he is in the progression from junior doctor to senior doctor. This approach has resulted in the number of adverse incidents being reported multiplying. However, while the number of adverse incident reports may have increased from perhaps 100 to 1,000 per annum, the number of claims has declined because patients were dealt with fairly and honestly. In addition, those patients who proceeded to litigation were easier to deal with and settled their cases easier. Dr. McDonald's statistics on the issue are startling. There is evidence throughout the world to show that the defend and deny approach, such as we have here, is costly, whereas the alternative process works.

Mr. Michael Boylan

To respond to Deputy Kelleher, the Medical Injuries Alliance is fully in favour of mediation and alternative dispute resolution. The Deputy noted that only 19 of the cases involving the State Claims Agency were mediated. My experience is that mediation takes place much too late in the process, generally in the month before trial when patients and their lawyers and legal teams have incurred great expense and experienced much stress. Mediation is usually viewed as an alternative to settling a case and can create a further delay and more expense.

To respond to Deputy Ó Caoláin, I agree with Mr. Barniville that a voluntary code will not work because there will always be people who act like dinosaurs and resist change.

Would it be preferable to have a voluntary code at the beginning?

Mr. Michael Boylan

I do not believe a voluntary system will work. It is very much like the speed limit in that people will not comply with good practice unless sanctions are available. The Medical Council changed its code of professional conduct around ten years ago, yet we still have denial of liability and a defend and deny approach. There must be a legal duty to report. We should also take the same approach as has been taken in the United Kingdom in respect of hospital administrators because I detect that much of the problem does not lie with doctors. I have been told by doctors that they wanted to be candid with patients and admit fault but were prevented from doing so by the hospital administration. The United Kingdom has introduced a duty on hospital administrators as well as medical consultants. This approach should be examined.

Mr. Cantillon cited the example of Dr. McDonald at the University of Illinois, which appears from the research I have read to have worked reasonably satisfactorily.

Mr. Michael Boylan

Yes. We invited Dr. McDonald to a conference at the end of last year. It was startling to note the difference between the system in Illinois and the system here. They were like parallel universes. He explained that the University of Illinois had saved substantial amounts of money and pointed out that if patients are dealt with fairly, humanely and candidly, some would accept an explanation and apology and did not seek compensation, and seriously injured patients who needed financial help were much more reasonable to deal with. He described a case where a girl had died completely unnecessarily in the operating theatre and rather than suing, her parents donated all of her organs to the hospital as a result of an open, candid admission of liability and fault. These are the types of things that can happen if people co-operate rather than taking a head in the sand approach.

The suggestion of a ten-year or long-stop statute of limitation in all circumstances will lead to manifest injustice. As Mr. Cantillon stated, the parents of many seriously injured children will struggle with the burden of care and will have accepted explanations they were given at the time of the adverse incident. One of the individuals present has gone through this experience. The family of another patient who wanted to speak today would have been able to get through a ten-year statute of limitation by the skin of their teeth because they were misinformed at the time of birth about the circumstances of the birth and did not-----

I ask Mr. Boylan to be careful.

Mr. Michael Boylan

I will not identify or libel anyone. I am merely pointing out that the family was misinformed, with the result that legal advice was not sought for eight years and proceedings were taken just before the tenth birthday of the child. This is not an isolated case. I am contacted by the families of 15 year old children who could not cope.

I ask Mr. Boylan to be careful when referring to cases that could become identifiable in the public domain.

Mr. Michael Boylan

I will move on.

The lack of an apology is a major problem. People do not understand why, when the light has suddenly dawned and €7 million, €8 million or sometimes more has been paid over in damages, an admission of liability or apology is not forthcoming on the steps of the court. This causes great bitterness and is totally unnecessary. Everybody in this room knows that no one will pay out €8 million or €10 million without realising he or she is at fault. This approach is wrong and must change.

I apologise for missing some of the proceedings. I thank all the witnesses for their attendance and the comprehensive presentations they have provided on the issues. Ms Courtney's story about the difficulties she experienced was telling. I read the full report she provided, which highlights the difficulties people experience and the hurdles they must jump when dealing with issues of this nature.

It was in the context of addressing the substantial increase in MPS premiums that I became involved in inviting the various witnesses last week. The MPS is one of the few insurance companies left. The Medical Defence Union has left the country. There has been much speculation over 12 months about the MPS because of the increase in premiums, in some cases by 68% over two years. I became involved because of the capping levels and the point at which the State takes over after the MPS pays out. We have a problem in the sense that insurance premiums have increased substantially. A number of medical personnel have left the country for various reasons, but including for insurance reasons. We must face this problem.

There is also a problem in that, although there are approximately 2,500 consultants in the HSE and another 400 in the private sector, there is a shortage of consultants in many areas. Therefore, we must be very conscious of the need to keep consultants here and make it attractive for them to stay. On the other hand, we must ensure there is balance in regard to compensation. People must be compensated adequately if errors are made. All members of the committee are of the view that victims should get adequate compensation. The main issue is trying to reduce the number of errors.

On the case itself, Mr. David Barniville talked about the Bar Council of Ireland and Mr. O'Higgins talked about the Law Society of Ireland. What changes to current procedures could be made immediately without having to legislate? If they cannot be made, why?

With regard to legislation, could the witnesses provide clarification on discussions they have held with the Department on the timeframe for putting in place the necessary legislative measures, particularly legislation on periodic payments? This has been talked about for a long time. Has any indication been given to the witnesses at this stage? I have raised this in the Seanad on numerous occasions over the past three years. I believed we would have had the legislation. Even over the next 12 months, what could be done to make it far more easy to deal with the very difficult circumstances in which an error is made and when a person needs to be compensated adequately? We do not seem to have made significant progress on this in the past ten years.

I thank everyone in attendance, particularly Ms Deirdre Courtney and her husband Brendan. I have nothing but admiration for Ms Courtney's courage and conviction in fighting the case of her lovely little lady. She is the spit of her mammy. I congratulate Ms Courtney and thank her as I acknowledge it must be difficult to attend today.

I do not know whether the witnesses can answer my questions. I agree absolutely that there needs to be a statutory duty of candour. I am still not sure whether people would continue to fight cases, perhaps in earnest. Mr. Ernest Cantillon was first engaged in 2004. Why in God's name did it take until 2012 for the institution to finally admit it was wrong and write a cheque? What happened during that very lengthy period that could not have happened much earlier? I refer to the changing of limitations and pre-action protocols. What could we do to reduce the duration of case proceedings from 11 years to perhaps two or another acceptable period such that, at the beginning of the fight, one would know the end date, regardless of the result? Obviously, one begins in the hope that the result will be in one's favour.

Do any of the delegates in the legal profession have any idea what it would cost the State to defend a case such as that of young Bríd? If I were a doctor and admitted liability in a case such as that of Bríd after week one instead of week 4,001, would there be a difference in my insurance premium after the settlement? If the hospital in the case in question had said in 2004 that instead of fighting the case it would acknowledge what occurred and pay out the €11 million, or another agreed sum, the tone of the discussion would have been entirely different. It would have been different had the authorities sat down with Ms Courtney and treated her in the humane and compassionate way in which she should have been treated. Are there other jurisdictions with a duty of candour? If so, has it had a massive impact on how litigation proceeds and on the level of medical insurance costs? I would be very grateful if the witnesses could tease that out for me.

I thank the witnesses. My question is for Ms Courtney. Her husband Brendan is present. I saw a picture of their little daughter on Deputy Doherty's iPad.

I wish to refer to point 11 in Ms Courtney's submission. Perhaps my question is too personal to answer. Ms Courtney was waiting until 2010, I believe, before getting some money towards the care of her daughter, who at that stage was six or seven. To do the right thing, Ms Courtney had to support her daughter and get the best she could get. Money must have been an issue for her. She had appointments with solicitors, doctors, etc. When she needed the most help for her daughter, there was actually no money available and no resources. Bearing in mind that it has taken so long to bring that case, is there a way in which money could be made available to the parents towards the care of the child who has suffered from medical negligence? That would be useful and helpful until the legal people, doctors and hospital administrators decide who is liable.

We are like Solomon here. We heard the perspective of the consultants and insurers last week and we are hearing a very different one today. Last week I asked whether the new legal duty of candour in the United Kingdom has resulted in a change of policy on the part of insurance companies. I asked whether it will result in less aggressive policies in hospitals and insurance companies. Could the legal practitioners who are present state what we could expect to happen if we introduced the duty of candour? How would circumstances change, including for Ms Courtney? How would circumstances be different for families? I am really interested in the victim.

I do not believe the second question I asked on the last occasion was answered. I asked about the statute of limitations. I am a little confused about it. I believe I was told there was a period of two years, but then I heard Mr. Boylan mention something about ten years. Has the period changed in the meantime? Could the delegates fill me in? I am concerned about what occurs when children are involved. The statute of limitations for children involves a very short period. Perhaps a child will grow up and want to take a case himself or herself, despite the views of his or her parents. I am concerned about that. Perhaps the delegates could answer my questions on this.

I thank the delegates for their presentations. I have two questions. Having read Ms Courtney's statement, I was astonished to learn she had to go to England to have a doctor make a diagnosis or participate. It was unfortunate that no Irish doctor would support the case. I find that tragic. It tells us an awful lot about what happens when people fall victim to medical negligence. Ms Courtney is a victim of circumstances that went really wrong. That no doctor in this country would support her case or help to bring her to a place where she could gain some kind of satisfaction or relief is astonishing.

According to Mr. Boylan, the Medical Injuries Alliance has been in operation for the past four years.

How many cases has it dealt with in those years that are similar to Bríd's case? I did not read it.

The only thing I can say to Ms Courtney is that I have a good friend who had a little boy four years ago. They are at the first stage of deciding whether they should do what Ms Courtney is doing. I have been trying to convince them, not as a politician but as a friend, that their beautiful little son is going to need a great deal of care, 365 days a year, 24 hours a day, seven days a week. As many have said, some people do not want to go to court. Ms Courtney is not going for money or for compensation. She is going in order to make the journey of her child's illness a little better. As these children get older, their needs are progressing all the time. I have been trying to hammer this home to my friend. Finally she has agreed to go to see somebody and have a talk with them.

I am a mother of five beautiful children, the youngest of whom is 21. Men will not understand this, but from the first day a woman feels the first pain that she is going to deliver her baby in the next 24 to 48 hours, one goes in with great excitement and joy, but also with a great deal of fear, because one tries one's best during the nine months of pregnancy to do everything that is right for one's baby. When the baby is delivered and everything is normal, it is wonderful. When the baby is delivered and everything is not normal, it is still a wonderful experience because a new life has been brought into the world.

I was taken aback when Ms Courtney spoke about the great joy that Bríd has brought to both their lives, because I know with my friend it is exactly the same. Her little son has brought great joy to them. However, their needs are huge. Things like getting a wheelchair, access to specialists, getting a vest that could help him because he has scoliosis, and so on are so important to them in the very early stages to take away the stress they are under and help them make their journey. That is what has put my friend off. She said: "I can't do this. I'm not able to struggle on." I want to tell Ms Courtney that I will see my friend this evening and I will hand her Ms Courtney's statement and tell her to read it, because Ms Courtney and her husband are an inspiration to everyone who has come through what they have come through. It is shocking that they have had to wait so long for somebody to tell us what all our mothers told us, "Tell the truth and shame the devil". Well done to them.

I thank the witnesses for their presentations, and particularly Ms Courtney for her very personal presentation. There are cases that should not be defended, which put families through years of unnecessary stress when they should be at home, caring for and spending time with the loved ones who have been at the centre of all of this. Ms Courtney stated that had the admission of liability been given, the cost of pursuing the legal case would not have been incurred. She also mentioned that her husband inherited a very small farm and should they have lost the case, they would have lost that farm. It is ridiculous that there has never been legal aid in this type of case in Ireland. Why not, particularly in this kind of case?

Ms Courtney said she had to travel to the UK to have her daughter examined because no Irish doctors would support this case. Is this normal practice? Do Irish doctors just not get involved in these cases? That is disgraceful. The defendants make a settlement at the eleventh hour and then there is no admission of liability and no apology. Everybody can see that if they make a settlement, they are wrong. They should have the decency to at least accept liability and apologise.

I would like to ask two questions before I hand back to our panel. Surely the delays in the conducting of claims will add to the costs. How can we expedite the process of admitting liability and ascertaining quantum?

If we focus excessively on the costs, are we missing the key issues of how to reduce the incidence of medical negligence and how to put in place measures to reduce the number of adverse incidents? The medical profession have seen the costs of professional indemnity insurance go up. Is there a way they can be assisted in reducing that? If one takes the consultant doing his work, in some cases 40% to 50% of their pay is going towards the cost of this insurance.

I apologise to the witnesses and the members. I must attend another meeting at 6.40 p.m. As a committee, we will review the evidence of the last two days before deciding what we will do next. We may have to take another set of hearings, but we will take time as a committee to review what we have heard today and last Thursday before deciding where to go next.

Deputy Catherine Byrne took the Chair.

Mr. David Barniville

There were some tricky questions, so I will hand them over to Ms Moorehead, who is more capable of dealing with them than I am.

Ms Sara Moorehead

I will deal first with Deputy Buttimer's questions, which lead in to Senator Burke's. It always strikes legal practitioners that the model of a commercial court that everyone would have heard of, a court that shows it is possible to expedite a trial, is only available for commercial practitioners and not for people in circumstances like this. That is not to denigrate what an excellent model it is, but there are many days where the rest of us regret that we are not commercial law practitioners. If one went into commercial law court in the Four Courts when Mr. Justice Kelly was there and or now, when Mr. Justice McGovern is there, on the day one is listed, there are pre-action protocols, there are time limits and everything moves on.

Mr. Cantillion and Mr. Boylan can tell of days even when their cases have been specially fixed, meaning there is supposed to be a judge available for them, and they have waited up to seven days for the case to come on. Those who have been down to the Four Courts know that facilities are not great. That is a dreadful experience not only for the plaintiffs, but also the medical professional involved, for whom this is a very traumatic time. It is also a ridiculous waste of hospital resources, because one cannot schedule witnesses or have any idea what is going on. Medical negligence, and many other areas of law, should be treated in the same model as the commercial court, namely, judges should be assigned to significant cases from the outset, directions should be given from the outset, there should be a designated judge, and there should be a guarantee to all parties that when their case is listed for hearing, it will come on and be dealt with. That is a resources issue and, like every other sector of Irish society, the courts' resources have been significantly diminished. It is hard to explain to people how big a stress it is for somebody to come down, having psyched themselves up for their case to come on, and there have been cases which do not get on at all.

That is probably the most immediate thing that could be done in the absence of reform, but we urge reform from the side of both parties. It is in no one's interest, whether the doctor or the patient, that this process should be delayed. If there is a case to answer, it should be dealt with earlier. I do not want the message to go out that the Bar Council does not believe there are many cases to be defended, because there are. If there are cases to be defended, each doctor is entitled to the best representation and robustness in the system. At the moment, in the absence of pre-action protocols, early exchange of liability reports between the parties may help, so that if there is something there, or an issue to be identified, everybody knows what they are talking about - early mediation, as Mr. Boylan said. Mediation is very important for two reasons. It involves the lawyers in the compensation issue, but it is also a major opportunity for people to get answers, to go into a room with the doctor involved and have a chat, ask the questions they were too overwhelmed to ask at the time. In my experience, that can have a huge effect on the settlement of a case, because many people come to court. Many doctors are very willing to come to mediation to explain their position.

Mediation does not have to mean settlement, although it often does. It can often assist in the process thereafter.

To answer Deputy Mitchell O'Connor's question on the Statute of Limitations, which I appreciate is confusing, for an adult the Statute of Limitations was reduced from three years to two years from date of knowledge. A child is permitted to bring a claim throughout the currency of his or her infancy, that is, to the age of 18, and for a period of two years thereafter. With regard to the ten year limit for a brain injury, irrespective of the Statute of Limitations, by the time a child is aged ten, he or she should not be entitled to bring a claim. As Mr. Boylan pointed out, in the early years of many cases parents are so overwhelmed by the nature of what they are dealing with that the last thing they are speaking about is taking action.

Many of these cases are not about negligence. They are actually about causation. It struck me that the Medical Protection Society, MPS, report stated a new law would have to be introduced to deal with causation. Most practitioners would state that negligence is often very obvious but causation is often very difficult because something could have happened to the child in the womb before the negligent act. This is a huge issue. Getting doctors to deal with the question of causation is often very difficult.

To answer Deputy Regina Doherty on the question of insurance, I do not claim to be an expert on it. The point of the State Claims Agency taking over was, to a large extent, to absorb all of the insurance issues for many doctors, and this should have happened. Many doctors are now represented by the State Claims Agency, unlike previously, but there are doctors who have separate representation. As I understand it, in some cases they may choose to do this and in others it may be because it involves their private work. Undoubtedly, there may be ramifications for them in the private area. I do not know. There certainly should be fewer ramifications than previously because of the introduction of the State Claims Agency and the clinical indemnity scheme, which was introduced so that irrespective of the apportion of liability between the hospital, nurses, consultants and registrars, there would be a joint approach which would result in an earlier settlement. Unfortunately, this has not proved to be the case.

It is also a resources issue for the State Claims Agency and the doctors. It is tremendously expensive to investigate medical negligence. They end up with the same difficulties as the plaintiffs in terms of commissioning expert reports. An issue one hears often from the State Claims Agency is that it has very short time limits for investigation. Late admissions of liability are often because much of the period involved will have been spent continuing to investigate, and by the time a formal defence must be entered, this investigation will not have been completed. For the avoidance of doubt, just because a case is settled for significant money, this amount may not be the full value of the case and there may be significant issues which made it legitimate for the defendants to defend it up to a period of time. There is a level of commercial reality. What we are speaking about with regard to early admission of liability are very straightforward cases and there are some whereby it is inexplicable to people that it took three or four years to do so.

Mr. Ernest Cantillon

We seem to have started with the MPS successfully taking the eye off the ball in avoiding the elephant in the room, which is that it goes without saying that if there is no medical error there is no claim and there are no legal costs. We seem to have jumped to focus on the costs and not looked at how to reduce the error. We need to look at reducing the incidence of error; Senator Crown raised this issue last week. According to a report today, we are now 22nd in the European league of health care providers. All doctors will always say if resources are slashed, they will have problems. No one comes out and says if resources are slashed, someone will be injured as a consequence, but it is obvious this is happening. We need to focus on the primary problem, which is reducing the incidence of medical errors.

Senator Burke asked about non-legislative intervention and rightly highlighted problems regarding capping levels and trying to get them reduced, and the problem of doctors leaving. This is undoubtedly a problem. I am not so sure the legal profession is the cause of this problem. Perhaps we contribute to it, but I do not believe we do. He asked for non-legislative changes. Ms Moorehead made an obvious point that introducing rules of court which would make the system somewhat akin to the commercial court could assist in information being disclosed at an early point in time. The State Claims Agency or the MPS could be encouraged to have early settlements voluntarily. Deputy Regina Doherty asked what Ms Courtney might do from the date of birth to the time of settlement, given the costs which would be associated. The State Claims Agency and the MPS could be encouraged to make interim payments to people, without an admission of liability if needs be, to put some money in their pockets so they can provide the required therapy for the children.

Deputy Regina Doherty also asked about insurance premia and whether a claim against a doctor resulted in an increase in the premium. I do not believe it does. Many doctors complain about cross-subsidisation. All practitioners, for the plaintiff and the defendant, will have experience of the same names coming up with appalling regularity in certain areas. The rest of the doctors are carrying the can for this.

To answer Deputy Mitchell O'Connor, the position on the Statute of Limitations has been adequately explained by Ms Moorehead. With regard to the ten year position, the MPS advocated that once ten years had elapsed from an event irrespective of any mitigating circumstances, it should be out the door and one should not be able to claim, irrespective of its merits. Certainly from the Law Society's point of view and, as I understand, from Bar Council's point of view, they see the unfairness of this.

Deputy Catherine Byrne asked about Irish doctors not supporting cases. Unfortunately, this is the situation. From a plaintiff's point of view, by and large, one cannot get an Irish doctor, with a few honourable exceptions, to give evidence on behalf of the plaintiff. Unfortunately, this adds to the costs because the doctors who come from abroad are expensive.

Deputy McLellan rightly drew attention to the absence of legal aid. We do not have legal aid. This is slightly overstating it as there is theoretical legal aid, but there are no specialists and the numbers of cases brought by the legal aid board are minimal. I do not know whether any of them have come through.

A question was asked about delays, and certainly they add to the costs because every step taken must be paid for by somebody and a whole pile of unnecessary steps are taken because one is asked to prove what is ultimately admitted, which should have been admitted at an earlier stage and, if it had been, other costs would not have been incurred.

Deputy McLellan raised the question of defending the indefensible, which unfortunately is the experience. One should try to be balanced and ask what is the defence's explanation for this. It is hard to see what it is except, in fairness, that doctors may state they do not believe they did something wrong and want their professional reputations vindicated. These doctors should be told they are wrong, that their colleagues who are independent experts have said they are wrong, and that no one is prepared to waste taxpayers' money defending them.

Mr. Michael Boylan

Many of the points have been covered. I apologise if I get the names of the Deputies and Senators wrong. Somebody asked what changes could be made now to improve the situation in the absence of a legal duty of candour.

The pre-action protocols have the potential to hugely transform and improve the situation. I was a member of the working group, which helped to devise these. There was a difference of opinion as to whether they could be introduced as rules of court - whether the rules making committee had the power to introduce them as rules of court or whether they needed legislation. The view which prevailed was that they needed legislation. It could have been put into a miscellaneous provisions Bill but I have been led to believe that the Department of Justice and Equality has decided it needs a whole new raft of primary legislation. If that is its attitude, then it will probably take a long period of time.

If it was introduced, it would set a seven-week limit for the HSE or the doctor to reply to a letter of claim. I wonder will they be able to comply with the seven weeks given that our experience has been that sometimes it can take seven months or seven years for the penny to drop. The idea is that following a letter of claim, the obligation will be that the HSE will the provide all of the relevant records by way of voluntary discovery. In fairness, the plaintiff would have to set out his or her stall in the letter of claim and itemise specifically the allegations of negligence. There would be a responsibility on the HSE to respond point-by-point. A mere denial of liability or breach of duty would not suffice. It will have to give specific responses and if it is going to rely on a defence, it will have to set out exactly what the defence is, what is its explanation is and what is its excuse. There is no question but that will be a challenge. However, that seven weeks has been set as the period of time. That would hugely transform the situation. This was all before proceedings are issued.

This has been copied from the UK and the reforms Lord Woolf drove more than a decade ago. The UK had the system that exists here. He described the ethos in his landmark report as mutual suspicion and hostility between practitioners. After those reforms were introduced, there was mutual co-operation and it helped hugely. That is what has to happen.

Ms Deirdre Courtney

I thank all the members for their kind comments. There was a question about cost and things like that. When an incident occurs, obviously, it must be proved legally that mistakes were made or that the medical profession is liable. I suppose it will come into being if the periodical payments order is brought in but there should be a fund from which one could draw. I mention early intervention because Bríd has cerebral palsy and it affects her four limbs. As members will have noted from the statement, she needs help with everything. Early intervention for children who have such difficulties, or who have any difficulties, is vital. One needs money to put those early interventions in place. That is the bottom line.

There were times my husband would ask me where I was getting the money because we used to take Bríd for physiotherapy and at one stage, it was costing us €400 per week. We kept that going for 18 months and then less frequently for another two years. When my husband asked where I was getting the money, I would say to him not to ask. We have four other children. One would hope and have aspirations that they would all get through their education and go to college. One was putting money in different pots and it was not easy. There should be something there from which one could draw and then move forward from there.

The fact this takes so long is beyond me. The proceedings were issued in 2006, so Bríd was only three years of age. She was seven years of age when we went to court the first time and nine years of age when we went the second time. If we had not taken our solicitor's advice, we would have been going to court for a third time. I just cannot understand it.

What I do not understand either is how the State can hand over €11 million, as in our case, but nobody has ever said sorry to us or that it was somebody's fault. Nobody has ever admitted it. How the State can do that and hand over the money is beyond me.

I thank Ms Courtney and her husband, Brendan, for attending. I am sorry the Chairman, Deputy Buttimer, had to leave. He left me a lot of instructions which I must go through. I had better follow them to a "t"; otherwise I will lose my good job. I thank the witnesses for attending today's meeting and for responding so informally to the members-----

I did not get the chance to ask a question. I am sorry I was not here at the beginning.

Did you raise your hand? I did not see you raise your hand.

I am sorry. I thought I indicated to the clerk.

I would like to ask a follow-up question.

I will definitely be sacked.

In terms of the rules of court, why has that not happened? What is stopping it from happening?

Ms Sara Moorehead

In regard to the pre-action protocols, there is the dispute that it would require legislation. In regard to doing anything, even in case management terms, that has all been recommended as part of the working group report by Mr. Justice Quirke and Ms Justice Irvine. At present, there are simply no resources to do anything in the courts with medical negligence. It requires to be done as part of a very significant picture. One of the difficulties is that the courts are spending a huge amount of time dealing with these periodic payments on an informal basis. People are coming back to discuss the price of nappies in the High Court for a day every two years. They are virtually finished with one set of periodic payments on an informal basis and they are back again because there is no statutory scheme in place. It is an appalling waste of court time.

The periodic payments should be brought in. It would bring certainty to everybody and would mean the likes of Ms Courtney would not be bringing her daughter to all the expert witnesses. One of the things about the situation, as it stands, is that because no structure is in place for periodic payments, everything is up for grabs when they come back every two years, which is no good to anybody. It is no good to the people involved and to the doctor who cannot bring finality to the case. It results in fresh legal costs every time. Since 2012, the Legislature has been urged to act and it has the support of all parties. The 2010 report and the second report in 2012 recommended that there should be periodic payments. It would not be a huge difficulty to bring it in.

If the legislation went through in the morning, how long would it take? It is important we get clear answers.

I know but can I allow Senator Crown to speak? Maybe a reply in writing would help because it is nearly 7 p.m. and we must finish.

I am very sorry I was not able to get here earlier but I had complex commitments today and I intended no disrespect to any of the witness by not hearing their testimony.

As I said last week, I really believe practising medicine in Ireland is nearly uniquely dangerous. A doctor in Ireland has one of the highest chances of finding himself or herself on the receiving end of a lawsuit of any country in the world. Primarily, this is not the fault of lawyers but of the health system. I am afraid all the craw thumping by the full-time politicians about how much they really want to fix the medical problems here rings hollow with me when they have had ample opportunity to do so. Certainly over the 22 years that I have been working in this country, no one has ever shown the slightest interest in actually trying to fix the health system. We have a health system which is right at the bottom of the charts-----

Could we have a question, Senator?

I will leave it at your discretion. If you think my contribution is not worth hearing, I will go now.

I am not here to argue with you. I was asking you if you had a question because other members have been here-----

If people were prepared to listen a bit more often, we might be in a better position. Thank you.

If there are any outstanding questions, witnesses may send their responses to the clerk, who will forward them to us.

I just wish to add a short comment on something that has not been said. I noted during Ms Courtney's contribution that she laid emphasis on how great a difficulty it was for her and her family to make the decision to proceed with a case, because of the stress, the strain and all of the risk factors.

I believe we have already had a response on that.

I am not asking for a response. I only want to say there is a tendency to suggest we have an overtly litigious society, but that is not the case. Many people in these instances are reluctant to take the course they have been compelled to take. It is important to mention that.

We are all in agreement on that. I thank the witnesses for attending today's meeting and for responding so fully to the questions. The committee will review today's proceedings and those of the previous meeting before deciding where to go on this issue. I thank Ms Courtney and the witnesses for their contributions.

The joint committee adjourned at 7.05 p.m. until 9.30 a.m. on Thursday, 29 January 2015.
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