As amendments Nos. 2 and 3 are related they may be discussed together. Both are in the name of Senator Fallon.
Health (Amendment) Bill, 1985: Committee Stage (Resumed).
SECTION 2.
I move amendment No. 2:
In page 3, subsection (1) (c), line 3, to delete "is entitled to" and substitute "will".
The purpose of the amendments, which asks that the words "is entitled to" be replaced by "will", is that there is a clear difference between "is entitled to" and "will". For example, one might be a patient as a result of a road traffic accident, be concussed and have to spend up to three nights in a hospital. The person involved may never decide to seek damages or claim compensation. Therefore, while he would be entitled to damages, it does not follow that he will ever pursue a claim. Therefore "will" in this instance would be a preferable word. For example, there might be a claim by a third party against, say, a relative or a friend who might have knocked him down. While he has been in hospital with minor injuries, he might never pursue a claim for damages, but the health board assume once it was a road traffic accident that he would have claimed. Therefore, if you had a case where one might be weak on liability issues, while he might be entitled to, and everybody would feel he was entitled to claim compensation, it might not be pursued for the reasons I have given. Those words in the amendment are preferable to those in the Bill.
The purpose of the section is that bills will be issued by the health boards to enable the individual to process the cost of services as part of his special damages claim. If the amendment were adopted by the House, the particular bills, or charges, or whatever one might wish to call them, could only be issued to persons who had actually received damages. Therefore, a very difficult situation would arise. As the section now stands these bills can be issued to two groups of persons: to persons who received damages or who are entitled to receive damages, namely, all of those who may have a claim. This is where the health board effectively ensures a degree of recoupment for the cost of treating road traffic victims arising out of their compensation claims. Therefore, if it transpires that the person was not entitled to receive damages, of course under the section the claims and the bills are automatically null and void. This is provided for within the Bill itself. That is the best framework the Attorney-General, the parliamentary draftsman and the Department could come up with, bearing in mind that this particular section of the Health Act has been the subject of intense scrutiny at High Court and Supreme Court level.
The Minister is saying that in the situation where a person is a victim of a road accident and is subsequently hospitalised he may have a claim which would require compensation to be paid. If he opts not to pursue that claim, as a personal decision for him or her in those circumstances, what would be the position in relation to the hospital charges?
The position is pretty clear-cut under the Bill. It is only where a claim has been pursued and where compensation has actually been paid arising out of a road traffic accident that the particular charge automatically applies. Otherwise, if he is under the £14,500 he has free hospital cover; if he is over that limit he has to have the conventional payment.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Amendments Nos. 4 and 5 are out of order.
Regarding amendment No. 4, where a health board may waive the whole or part of a charge under the subsection, I had asked that you should use the word "shall". However, I accept your ruling on it, Sir. This discretionary element of the case would be covered if the words "shall waive" were there rather than the "Health Board may waive".
The Senator is at liberty to discuss the substance of his amendment, but he cannot move it. I had some difficulty in ruling it out of order. I can see the Senator's point.
We will dispose of the amendments and then discuss the section.
Amendments Nos. 4 and 5 not moved.
I move amendment No. 6:
In page 3, between lines 31 and 32, to insert a new subsection as follows:
"(3) This section shall come into operation on such date as the Minister for Health shall by order specify, and shall only apply in relation to charges incurred in respect of injuries caused after the date of the making of such order."
The Senator is noted for his independence.
Bear in mind that the Supreme Court in December 1983 very clearly ruled that the situation was ultra vires. It would be quite inappropriate and totally improper on my part to suggest that there should be retrospective implementation of the Bill. Very careful cognisance was taken of the situation. The advice which I received, and which I totally accepted, was that there was no need for a specific provision in the Bill relating to retrospection because of the general principle that, unless a very contrary intention appears, an enactment is presumed not to have any retrospective effect. Therefore, there is no necessity for the amendment. I am glad that the Senator has tabled the amendment to enable us to make the matter absolutely clear despite the fact that the health boards in the process have lost about £25 million.
Can I take it that it will not be retrospective? There is more than one way of looking at it. Does that mean it will not apply except to accidents occurring after the coming into operation of the Bill or to claims settled after the coming into operation of the Bill?
It is quite clear. It would in effect mean accidents occurring after the date of enactment of the Bill. Indeed, I can envisage a substantial rush in settlements in the next few weeks.
Do we have an indication in this context as to what type of funds are available to health boards for the remaining six months of this year arising from this new legislation?
We would hope to have a very early signature, subject to the agreement of the Government and of the President. On that basis certainly for the second half of the year it could be worth anything up to £3 million.
How could that be? Surely it would only apply to accidents that take place after the date it becomes law. Any substantial cases which might arise after today's date are not going to be settled before the end of the year. I cannot see how any money of a substantial nature would accrue during that period. I know the preparatory work will be done, but I do not think they will be getting money before the end of the year.
Within the accounting framework of health boards, as the Senator is aware, at any one time we would have balances of around £65 million floating between our Department and the eight health boards. Money of that nature would effect our balances figure at the end of the year. It would be, so to speak, money in the bag in our accounting process.
Amendment, by leave, withdrawn.
Question proposed: "That section 2 stand part of the Bill".
Did Senator Fallon wish to raise a question on the section?
I have raised it. I made my point on it. I have nothing further to add.
The Minister did not really deal with the point when he was replying to the Second Stage speech. You could not disagree with the substance of what the Minister said but he did not deal with the problem that I see will confront potential litigants as a result of the enactment of this legislation. As I explained on Second Stage, there are two separate and distinct problems which will arise. One is in respect of settlements in cases which go the whole way and which are ultimately decided by court, and the other is the problem that will arise in respect of settlements which are made out of court. If one looks at the position with regard to settlements, the position will be something like the following. When a settlement is proposed in an action and where there exists in respect of that action a claim by the health board in respect of services provided in the past or, alternatively, services being provided at present or in the future, that claim will have to be taken into account by the plaintiff when settling the case.
What procedure does the Minister envisage to ensure that a bona fide settle ment arrived at — I am not talking about tricksters or anything like that — by the plaintiff and his professional advisers and the defendants, which, because of a problem on liability, is discounted in some way or to a certain extent? What guarantee will there be that that discounting element will be the same element of discounting as will be accepted by the health board for the purpose of exercising their discretion under subsection (2)?
I am not talking about a trickster situation. I am talking about a genuine situation where the professional advisers of a plaintiff recommend that he or she should settle for a 50/50 basis because there is some difficulty on liability or some degree of contributary negligence. They advise that a claim which is worth £200,000 should be settled for £100,000. Within that £200,000 claim there might be £40,000 for past, present and future medical expenses. The reduction of that claim by half would mean in ordinary circumstances that there would be a similar reduction in the £40,000 owed to the health board.
If they, bona fide, settle that case for 50/50, is it possible at a later date for the health board to say that the case should not have been settled for 50/50, that it should have been settled for 60/40? Will there be a system for monitoring this? Will it be necessary to get approval of the health board before you make such a settlement?
My second point is in respect of cases that are settled in court, cases which are actually tried, where the court decides that it should be a 50/50 liability basis, that there should be a 50 per cent contributory negligence basis. Will that be automatically accepted by the health board? It appears to me that on the basis of this subsection they do not have to automatically accept it. In they do not have to automatically accept it, disputes will arise. If disputes arise, how will they be resolved?
In the event of a major dispute arising, it would have to be settled on the basis of an ordinary debt by a court of competent jurisdiction. One can envisage a situation where the plaintiff's solicitor may be unpreoccupied — I would not like to attribute any other circumstances to him — to put the particular claim of the health board as part of the special damages. If that were so, it could be open to the health board to query the amount on a direct basis, on the basis of charges due. More particularly, there is still open to the health board, not a mandatory obligation but rather a prospect open to the health board to waive whole or part of a charge if it considers it proper to do so, having had regard to the amount of damages.
There is a genuine dispute. The full money is due then.
The discretionary element was deemed to be very necessary as part of the section, namely the introduction of "may" instead of "shall". On that basis, it was felt that in equity to a particular individual who may have received a particularly bad degree of damages, the health board cannot vary a judicial award; it has no function in relation to the variation of the totality of an award but the health board are still free, in a conventional way, arising from other aspects of the treatment given to a person, to negotiate with that person on charges which may be due.
If there is a dispute either on the basis of a settlement outside a court or inside court, ultimately what you are saying is that the health board can take all the money which a person gets up to the maximum of what it is assessed to be. The court's award will be for pain and suffering and for special expenses. They can go beyond what he got for special expenses, eat into what he got for pain and suffering and take all the money. Ultimately that is what the Minister is saying.
It is important to bear in mind that any self-respecting solicitor, — and there is a large number of them around — would be extremely loath to hand over a penny of his client's cash until the dispute with a health board had been resolved. That can only be resolved in court itself, so that ultimately the matter would have to be settled by another court of jurisdiction, not the court in question. Perhaps, the Senator could come back to it.
I propose we should suspend the House to allow the Minister to attend the Vote in the other House.
Sitting suspended at 8.45 p.m. and resumed at 8.50 p.m.
Let us concentrate for a moment on what would happen in a situation where the court makes the award. I realise that where settlements are made people can say settlements could be good or bad. There is an element of discretion involved in those settlements. I wonder if the Minister could go along with us in this way. Could we change the Bill so as where a court makes a determination of contributory negligence that that determination must be applied to the charge as calculated by the health board? Under the Bill as it stands at present that is not the case.
During the sos Senator Durcan, who will be contributing later, I am sure, gave me the following example. Take somebody who has a very serious illness, say a paraplegic whose case is worth £400,000 of which £100,000 is in respect of medical expenses. In that case the £100,000 might be an underestimate rather than an overestimate, because remember it is past medical expenses and future medical expenses. Say, it is worth £100,000 of the £400,000, it goes to court, there is a dispute on liability and the court holds that the paraplegic was responsible for 75 per cent and the defendant responsible for 25 per cent and makes an award of £400,000 to which the appropriate percentages are applied and the paraplegic gets £100,000 into his or her hand or, indeed, into the hand of a solicitor.
I am aware of the Minister's intention that the £100,000 charge of the health board should have the same 75 per cent 25 per cent ratio applied to it and that the health board in those circumstances should get £25,000 and the paraplegic £75,000 as his damages for the pain and suffering, etc. But the problem as I see it in the Bill as drafted at the moment is that it would be open to the health board to say "No, in spite of the award of the court we will not discount it. We will have regard to the amount of damages, we will have regard to the question of contributory negligence, but we will exercise our discretion which this subsection gives us and in this case we will not make any discount". Where the person has got £100,000 into the hands of his or her solicitor the health board say they are insisting on the full £100,000 for looking after this person in the past and in the future. This leaves the paraplegic without anything in respect of the pain and suffering, which was the major portion of his or her claim.
That problem appears to me to exist. If the Minister can persuade me that the problem does not exist, I will be very happy. I have no problem beyond that. But it appears to me that in a case like that — and, of course, it would apply similarly to other cases at a different level — there is a problem. The problem is very dramatic in cases involving paraplegics or quadraplegics where you have high medical expenses and contributory negligence. You could have the case where the wrong exercise of discretion by the health board would give rise to a situation where the paraplegic or quadraplegic would get nothing into their hands in respect of their general damages.
The Minister might say that if there is a dispute it can go to another court. That is what the Minister said before he went to vote. That is true. But that court will have to judge it on the basis of the legislation and the legislation appears to say that the health board is entitled in certain circumstances where it considers it appropriate to demand the full amount. Unless there is a denial of natural justice, I do not think it will be open to the court to find that the health board are not entitled to pursue the full claim. It appears to me that in those cases to leave a discretion with the health board is to place at risk the full general damages which the person has got in cases where there was a substantial degree of contributory negligence. If the Minister can say that I am wrong, I will be very happy to accede to the passing of this section.
I support that view. I touched on it on Second Stage and I made the point about contributory negligence. I also made the point that at the moment and for the future the health boards are and will be hungry for money. If they feel they are owed a debt of £50,000 or whatever, they will look for their full pound of flesh. They will not worry one iota whether or not there is contributory negligence or whatever. Because of this section they can do so. The Minister must seriously consider changing this section in some way to allow for the difficulty we see in it.
At the outset I apologise for not being here to move amendment No. 6. I was detained elsewhere and I endeavoured to get here but did not succeed.
There are four points I should like to make in relation to section 2. The first point has been dealt with by the Minister while I was absent. That is the question of whether this provison can operate retrospectively or not. Certainly on reading section 2 (1) (b) it would seem that the provision can operate retrospectively. With all due respect to the Attorney General and the draftsmen who have advised the Minister that it does not operate restrospectively, I can only comment that it was their offices who obviously advised on the regulations which were made under the 1970 Act which were subsequently, for very obvious reasons, held to be ultra vires the power of the Minister for Health at that time. I must put on record my unhappiness at that provision.
The second point is in relation to section 2 (1) (c) which says "or is entitled to receive damages...". Further down "the health board shall, notwithstanding anything in the Health Acts, 1947 to 1985 make a charge upon the person...". In other words, there is a positive onus and duty on the health board to proceed against somebody who is entitled to receive damages, whether that person receives or does not receive damages. A situation could arise where somebody out of ignorance does not proceed with a claim. Time passes and the Statute of Limitations becomes effective against that person. The health board may still, by virtue of the liberal operation of the Statute of Limitations specified in section 3 of this Bill, proceed against that person. It seems to me to impose a positive obligation on the health board to proceed and I am worried about that provision. I would like the Minister to comment on that.
I would like to come to section 2 (2), which was the subject of some discussion already when the amendments were being discussed. This is the subsection which gives the health board power to waive under specific circumstances. It is a discretionary power under which the health board will have, power to waive "having had regard to the amount of damages or compensation, and interest (if any) thereon, received by the person liable to pay the charge in respect of the injury to which the charge relates...". I presume what is meant there is a case where a small amount of damages is awarded or where somebody settles their claim for a small sum of money, so the health board may consider for various reasons that they should not proceed. I would like the Minister to clarify that and more important, subsection (2) (a) (ii) which deals with the situation where there is an element of contributory negligence involved.
I am extremely worried for the reasons which Senator O'Leary outlined that the situation may arise where an award is made of substantial damages, say £400,000 and the court holds that the plaintiff was 75 per cent negligent. The plaintiff in such a case would receive £100,000. The charge which is due to the health board may be £50,000. The health board may very well say we will go after our full bite of the cherry because the plaintiff still has £50,000 left. That is why when I was putting down an amendment to this subsection I tried to provide that the health board would agree to a pro rata element, in other words, the maximum that they could obtain under such circumstances would be the percentage amount awarded on a contributory negligence basis. The fourth point is that I would like the Minister to spell out precisely what section 2 (2) (b) means because I have read and re-read that subsection and, quite frankly, I find it difficult to comprehend and perhaps the Minister would explain it to me.
I would like to support Senator O'Leary and Senator Fallon on the points they were making. As we all know, it is not uncommon for a case to take four, five or six years before the litigants get into the courts and have it heard and settled. It is only natural that the health boards will also have to wait that length of time to see what the situation and the outcome will be. Having to wait that length of time, the health boards could consider that they were entitled to charge their full fees. It would probably be the severely handicapped, the long term patients suffering from accidents that would suffer most in this case. It is the people that would really need the money that are very badly affected and indeed could be left with nothing at all.
Just to sum up we have been discussing this section in the Minister's absence. Our anxiety is just to have the legislation as good as possible. The Chair in giving its decision on this section, particularly subsection (2) (a), gave its decision based on the fact that this amendment would create a charge on the Exchequer if it were framed in the way that Senator Fallon has suggested. It is for that reason that we have a problem. If the Chair in his wisdom and consultation with advisers decided that this section could create a charge, well, then, our case rests on that because we are worried that the health boards will be looking for their pound of flesh; if we put in an amendment to ensure that they do not get it then that proves that it would create a charge. That is why we want to make sure that the Bill is as tight as possible. I do not mind some areas of discretion, but we have experience of discretion in this area, and it does not always work in the interest of the person. It works in the interest at times of health boards who could be in difficulty about trying to ensure that their books are balanced or if there is money due to them.
I know that the Minister has tried to explain it in the best way possible to reassure us in this area but if a matter is decided in court, as outlined by Senator O'Leary, and if the health board still pursue their legitimate claim as they see fit, they will have to go back into another court situation and the court would have to take account of the amount of discretion that this legislation gives. I do not know if the second court can give any other interpretation than that the Bill is there. Certainly, if I had this case and we had gone down along this road and we enacted the legislation as it is and I felt that there was an anomaly and I went to the Ombudsman, the Ombudsman would immediately quote the section under which health boards make their decisions. That is our problem with it. We need reassurance from the Minister; otherwise we might be suggesting to him that on Report Stage he put down a ministerial amendment if he feels that we are creating a charge at this end. If it is conceded that insisting on this amendment — if we can get it on the Report Stage — would create a charge that is confirmation that all our worries are not groundless. Perhaps the Minister would try to clear up all the worries we have about it.
I can well appreciate the concern of Senators in this regard. One of the things which I would do and which I assure Senators that I will do, is that in writing to the health boards, arising out of the enactment of the legislation I would make quite clear the basis on which the health boards should act. If one wants to boil it down to a particular sum of money in this regard we can take the £400,000 figure mentioned with a 75 per cent contributory negligence, and £100,000 would be received by the plaintiff. If there was a health board charge of, say, £40,000 the health board knows that the same ratio would have to apply and would be seeking in effect its £25,000 out of the £100,000. It is difficult enough for the health boards in any circumstances to get any money out of people, particularly arising out of compensation cases and damages cases. Where somebody is held to be 75 per cent negligent and feels that he has been done out of £300,000, the problem of the health board will be to get their hands on the £25,000 in the first instance. You could well imagine how difficult that is going to be. Inevitably, in a proportion of those cases — and very rapidly this will happen — they will finish up in another court of competent jurisdiction whereby the sum due to the health board on foot of the charge made by the health board will be contested anyway, most likely by a solicitor who would reassure his client that he will bring the CEO, the programme manager and the accountant of the health board to the cleaners once again and will certainly contest what they would regard as a draconian imposition on them by way of a charge. I will certainly be saying to the health boards that in such settlements they will have to take account of the degree of contributory negligence, if any.
I have no doubt whatever that under section 3 which is explicitly there for the recovery of charges by health boards, any court of competent jurisdiction would first take clear cognisance of the intent of section 2 (2) and would have to take into account the obligation on the health board to grant a waiver; and, secondly, have regard to the amount of damages received, the interest on those damages and then the degree of contributory negligence arising out of that. I do not think a health board could sustain in a court of competent jurisdiction an excessive demand. Most health boards are reasonable in that regard and bearing in mind that persons who suffer severe injuries arising out of such accidents and so on, are not exactly great examples to be dragged through the courts by a health board. A health board invariably acts in a sensitive way. I find, going through the files in my Department, the biggest problem is to get any money out of anybody for anything in this country in relation to the health services.
I think that we are all delighted with the Minister's exposition of the position as it stands and the directive he will give to the health boards. I would like to ask the Minister, if that is the intention, why does the legislation not say it?
Very briefly, because there is a world of compensation for personal injury, for damages, for executorships. Persons die in some cases and subsequently the degree of complication relative to this whole question is so vast and the range of special damages for people arising out of road traffic accidents is so multifarious that it took a long time to get the parliamentary draftsmen to produce this legislation. Admittedly, they were wrong in the previous regulations but I am sure the calibre of Parliamentary Draftsmen has improved enormously over the years. They were deemed to be wrong by the Supreme Court in terms of the original regulations made. Therefore great care has been taken with this Bill.
Too much care.
As you well know, the best constitution of a country is the one which is written on a postage stamp and the best Bill is one which is written in very short, precise terms without all the extreme qualifications. This is why this is a short Bill to enable just that to be done.
I think Senator Cassidy's aside there summed up the entire position that too much care has been taken with regard to this Bill and I would agree with him. If we look at section 2 we see two things of interest. First, we see that the health board shall make a charge. There is a positive duty, there is a positive obligation, an onus on the health board to make a charge against a person who has recovered damages and who has incurred charges to the health board. The health board shall make a charge, it says; and yet in subsection (2) (a), which deals with waivers, under certain circumstances the health board is there afforded a discretion — the health board may waive.
I agree with Senator Cassidy. Great care was taken with the drafting of this Bill. It is a pity that the health board was not given some discretion as to whether they should make a charge or not, but the health board are given no discretion in the legislation. The Bill states that the health board "shall make a charge"; the health board "shall move"; the health board "may waive". That is what I object to in this Bill. The Minister said tonight that we are in times of strained financial circumstances, resources are scarce. Under those circumstances the health board will decide that they cannot waive. That is the problem we are faced with. That is the problem that somebody who is awarded £100,000, which is 25 per cent of the total award, is faced with, because on the basis of contributory negligence they are held 75 per cent responsible. It is under those circumstances that the health board will decide that they cannot waive the charge and there is no obligation on them to do so. That is my first point.
Secondly, the Minister did not clarify the meaning of subsection 2 (b). I would like the Minister to clarify that for me. That is a subsection which I have read and reread. I have read it in the context of the entire section and I have read it in the context of the entire Bill and I still have not been able to grasp it.
The health board would have almost no role in relation to recovery if it was purely discretionary on the part of the health board to impose a charge in the first instance. The purpose of it being obligatory on the health board is that the person is in receipt of health services. The person is going to be involved one way or the other in a compensation claim and at that time there is no way of knowing whether or not the person is going to get compensation, and the person must prepare the claim. Therefore, it shall be obligatory on the health board to give that person a document stipulating the cost incurred in his treatment to date which would broadly indicate the type of treatment he is getting, the kind of trauma he has suffered, and that would form part of his damages claim. We would have a queer kettle of fish if it was discretionary on the part of the health board to do this, because subsequently it could transpire that the person would be virtually taking action against the health board for failing to give him documentation to enable him to present his case to his solicitor to bring into court saying that there were charges upon him requiring special damages. That is where the situation is largely protective, and it is anticipatory where a charge arises upon a person who received or is entitled to receive such damages. That is a prospective anticipation of a person being entitled to receive such compensation in respect of the in-patient or out-patient services.
The health boards have discussed this situation with us and, as they see it, that is the only basis on which they can operate it. They must have, in effect, statutory authority devolved on them to so do. That is my brief comment in that regard and I do not see how one can dilute the Bill or shift the emphasis within the Bill at this stage in a way which would be of any further benefit.
Regarding paragraph (b), this is a technical cover whereby such a power to waive a charge cannot be taken into account in proceedings for determination of the amount of damages. Without this cover it is possible that the court could award a lesser amount of damages knowing that the charges can be waived or could be reduced. That gives the court a degree of technical cover.
The Minister has certainly clarified the position with regard to paragraph (b) and I appreciate that.
Briefly, going back to the original comment of the Minister, where he said that he was prepared to write to the various health boards explaining the position, let us assume that the Bill is passed in all Stages without amendment tonight and let us assume that the Minister writes to the various health boards next week, what happens in three or four years' time when there is a situation, which has been referred to, of a person getting an award of, say, £100,000 and there is proof of 75 per cent contributory negligence which would reduce his claim to £25,000, assuming the bill from the health board is also for £25,000? The letter from the Minister would not be worth the paper it is written on. The court would say the Act says that the health board may or may not waive and they would take every penny of the £25,000. Some health boards may avail, may decide that they should do this, but the law is what is going to count on the day. Having regard to that, it is still not too late to change this Bill to comply with the aspirations and beliefs of many Members of this House.
The degree of the waiver, the amount of the waiver and the discretionary non-collection would be recorded in the health board as a health services charge which was incurred by the health board. As we know, in relation to road traffic accidents people can be in hospital for six or nine months or for longer and there is a very large sum of money involved in those circumstances. There are other factors involved which frequently have to be taken into account. One million persons or 360,000 subscribers are covered by VHI. The plaintiffs solicitor might well argue about moneys accrued to a health board from VHI income if the person was in a private or semi-private ward for a period of time or transferred from one hospital to another or where the person required private specialised care. All these factors would come into the computing of a particular final account, but the health board have the discretion. Our problem in many respects relating to health board accounts is that there are so many representations made in respect of people who owe money to health boards, there are so many people who get magnificent services from hospitals and the day they walk out the door of the hospital — with no disrespect to my fellow Irishmen and women — they leave a box of chocolates with the nurse, but they do not pay their bills.
I do not think it is unfair to say that being a Member of Seanad Éireann is an exercise in frustration and being a Government supporter in Seanad Éireann is an exercise in total frustration — leaving aside the excellent amendments accepted by the Minister to whom we must pay tribute for his attitude during the passage of the Dental Bill some time ago and other amendments he has made. Normally, the position is that Bills are fairly well torn asunder in the other House, or else ignored. It creates a situation where this House is expected to adopt the same attitude. I do not think I am being unfair to anybody in saying that the examination on Committee Stage of the Bill in this House is throwing up problems that were not considered before. We are entitled to a response to those problems.
The principle of the Bill does not worry anybody in the House, so far as I can establish. I am not wildly enthusiastic about it, but it does not cause me any concern. It is re-establishing a position which existed until 1983. That is fair enough. If the Minister accepts the logic of what we are saying with regard to the question of contributory negligence, I do not see why he could not change the Bill along the following lines: leaving the discretion with regard to subsection (2) (a) (i) and inserting either a different subsection or a different paragraph between (1) and (2) that a health board shall waive pro rata a charge under subsection (1) of this section in a case where there is contributory negligence on the part of the person who was injured or any amendment of that which would have similar affect. It would allow health boards to have a general discretion in cases, for example, where settlements are made elsewhere or a general discretion to respond to the circumstances of the day as they find them. It would deal specifically with the problem of contributory negligence and where a determination of the court existed it would put a statutory obligation on the health board to acknowledge that judicial interpretation. I do not see any reason why the Minister could not consider an amendment along those lines. By inserting between (I) and (II), with reference to (II) that a health board shall waive pro rata a charge under subsection (1) of this section in a case where there was contributory negligence on the part of the person to whose injury the charge relates or one for whose act he is responsible, having regard to any reduction in the amount which would have been received but for contributory negligence.
That deals with that part of the problem. It does not solve the problem but it makes a major contribution towards easing the position which we feel will exist on the passing of this legislation: that justice in this respect will be dependent on the goodwill of the health board rather than the statutory entitlement of the citizen. The Minister is quite right, of course. Perhaps a court would shoot it down anyway if they went overboard. It would not stand up in constitutional law if they adopted the kind of suggestion which I made. But we cannot depend on the court for that kind of interpretation. It should not be necessary for a person to go to the extent of taking the health board to court in order to establish that principle when we have the opportunity of introducing it in the legislation. That is what we are there for. I suggest to the Minister that he consider making an amendment like that in the interest of clarifying the position. The Minister says it is not actually changing the position, that it is what he means anyway. But it is establishing in statute what the intention of the Minister is in any case. I do not see anything wrong with that.
I fully agree with Senator O'Leary. We all know our health board officials and CEOs would be very fair and competent people if we left it to their discretion. Most of those cases take three to four years and, often longer, five and six years. If a person had a very bad accident and had to be hospitalised for six or nine months and probably semi-invalided for the rest of his or her life — most people have to go through the trauma of one High Court case in a lifetime. It is probably a very emotional and stressful time, but the last thing anybody wants is to have to go through a second High Court case. This could even push it on for a further two years, creating further costs and further annoyance to everybody concerned. If we could change the word "may" to "shall" it would leave us all happier. The Seanad are known for scrutinising all Bills to the fullest extent. The Leader of the House in a recent remark in a Sunday paper, when he said that there was a higher class of debate in this House, was perhaps being factual. That is certainly true in the case of this Bill. I would appeal to the Minister to accede to the concern of all Members on all sides of the House and to amend the word "may" to "shall".
Our duty here is to produce the best legislation possible. Our duty is to ensure that we have clarity within the statute law. I emphasise the word "clarity", bearing in mind the background to the Bill. At this stage it may be no harm to recall that background. Sixteen years ago this House and the other House were debating the Health Bill, 1970. At that time the then Minister for Health envisaged this type of situation arising where a health board would have to charge for services provided following injuries sustained in a motor accident. The then Minister for Health said we could do it by introducing regulations which he would make under the appropriate section of the Bill when enacted. The then Minister did so. But the Supreme Court held that he was acting ultra vires his powers as conferred by the Health Act, 1970.
This Bill is unusual in that we are now trying to legislate for a situation following the Cooke v. Walsh case. We are trying to legislate for clarity. We are trying to legislate to ensure we will not have grey areas here. Above all, we are trying to legislate to ensure that we do not have fuzzy law. What we are doing in legislating in this way is legislating for and enacting fuzzy law, legislating to introduce more grey areas. For that reason I would ask you to accede to the request of Senator O'Leary, Senator Cassidy and others. I would ask you to give this a re-think. We can amend this provision on Report Stage. I am quite sure the Members of the other House could deal with the matter speedily tomorrow. This Bill shot through the other House in record time. I am quite sure the amendment that has been suggested, the wording of which I am sure can be produced by the excellent parliamentary draftsman who has already been complimented by the Minister here tonight, can be found acceptable to the other House tomorrow. There is no reason, therefore, why this Bill cannot be enacted in a clear, simple form rather than in a fuzzy, grey manner.
I would express extreme worry once again about this section as it stands. It is a minefield into which not merely injured persons or their dependants, but health boards, should not be allowed to drift. I would ask you to prevent that situation happening.
As the Senators well know, I would have little hesitation in acceding to a request of that nature if I genuinely thought I could formulate, even for Report Stage, a particular amendment — going back to the other House would not worry me — in the interests of not being too fuzzy or too obscure about it. I have a genuine problem. I would point out, in fairness to my predecessor, the late Erskine Childres, that on the regulation which the late Minister put through. The High Court found firmly in our favour and firmly supported the regulation. The Supreme Court overthrew it on appeal. The fuzziness is not all ministerial. I remember a Deputy of the other House, a friend of mine, was driving along in County Meath when a fellow with a horse box pulled out in front of him. He went straight into it, he had to bring the case all the way up to the High Court. On the steps of the High Court — I remember him telling me, and he was a very tough Deputy, well known to give vent to his frustration — they settled without admission of liability, without any question of acknowledgment of contributory negligence, even though the farmer who owned the horse box was fully insured, ironically with the same insurance company as the then Deputy. That company went bang afterwards, not arising out of the settlement, I can assure you.
There are many cases where there is no admission of negligence. There are a large number of cases where there is no allocation of damages and there is no distribution of damages, other than a lump sum settlement after much heckling which goes on for months and finally there is a settlement in an ante-room or on the court steps. What does the health board do in that situation? A health board has to have discretion. It has to say: "That particular individual got £180,000". We as health boards do not have watching briefs at every road traffic accident litigation in the country. We get minimal information. We just get a return of information. We have to say: "We have a bill for £80,000. We know he got so much. We are going to look for so much and we are going to settle for so much". We are not going to be unreasonable about it because of one simple factor. He will not pay us. He is not at that stage handing over any money. So the health board must look for its money. It must justify what it is looking for. It must produce its evidence in a court if it is contested and there is not a solicitor in this country who will hand over a brass farthing of his client's money to anybody unless it is literally torn out of the cash box in his desk.
That is a very unfair comment.
That is their job.
That is what they are there for; protecting their client's money and getting interest at the same time. On that basis, the amount due to the health board is settled. If I could, on Report Stage, come back with a particular formula, I will willingly do so if Senators wish to give me a chance to ruminate on it overnight. I am quite willing to do that.
A good idea.
I would consult with the Attorney General or my colleagues in the Department but I would have great difficulty at this stage other than saying to the health board: "You now have enabling powers. We would not be requesting you to act in a draconian manner. If you did you would not get your money because it would be contested. A health board going into another court and losing their case or getting partial settlement, stuck for substantial damages again and caught, would find themselves in dire trouble. I have to leave it in that framework, but I can assure Deputies that I am quite prepared to write to the health boards in that framework and make it quite clear to them that they must take into account the amount of the damages, the interest paid on it, the degree of contributory negligence and the amount thereafter remaining.
The health board at this stage will have incurred a substantial degree of cost. It will be waiting until the money comes, because uniquely in Irish law, uniquely in this Bill, no penny can be got by the health board until after the award has been actually paid. It might take five years. Indeed you could have a situation where a health board might be due £20,000 from the year 1986. They would not see a penny of that until 1991. They would get no interest on it, but nevertheless there is a lot of money involved. There is about £4 million to £5 million a year involved. In the interest of our health services, it is essential that this issue should be resolved.
In view of the Minister's concluding remarks about considering this matter overnight, I think we would be prepared, in the interest of good legislation, to allow that to happen. We should review it tomorrow morning after the Minister gets legal advice on it. This would ensure that the legislation would be properly enacted, which is our role and our duty as legislators. The Minister will realise that any legislation that comes before this House is properly dealt with in an effective manner, even if it means sitting late. We want to do the job right. The Minister has given us a commitment that he will consider it overnight. Is he suggesting that he would be ready first thing in the morning and we could order it for 10.30 a.m. and go straight into the Report Stage then and discuss it? I propose we do that if the House agrees.
I was out of the debate early in the day. Many people do not have regard for the Minister but I have quite a regard for him. I am sure we on this side of the House, the few of us who have stayed for this very important debate, would agree to what the Leader is proposing but, I worry deeply about any letter that goes from a Minister of April 1986, to health boards that are going to be done away with. We are going to have a different type of health board before he leaves the Ministry unless something else removes him sooner. I agree absolutely with Senator Durcan and Senator O'Leary. I do not know for the life of me, why what he, as well as Senators Durcan and O'Leary, believes in cannot be put into this legislation, or what he as a Minister is going to write to the health boards.
With the best heart in the world, we will go out of here now and we will agree with the Minister he will still come in the morning and tell us that some legal person has advised him that this cannot be done. When the Minister is gone out of the Department and maybe some of us are still left here with another Minister for Health, this Bill is what will rule on claims and what the person injured will eventually have in their pocket. There are two very good lawyers advising the Minister on the Government side of the House, Senator O'Leary and Senator Durcan. They are asking him to include this in the Bill with the support of the Opposition rather than sending letters to boards that he is going to change before he leaves the Ministry. I have a holy horror of them anyway, whether they are Fianna Fáil, Fine Gael or Labour, and CEOs do not know what they are at half the time.
The oracle has spoken. The Minister has agreed to ruminate overnight. I want to thank the Minister for his agreement to delay the matter until tomorrow morning. The Minister is carrying through his record of allowing us to amend virtually every Bill he brings into this House whether initiated here or in the other House. I sincerely hope that the Minister in his talks on this section and this problem will respond constructively along the lines which have been suggested.
I wish to support that sentiment and hope that something comes out of it. I want to instance what I think would be a factual situation. I am sure Senators Durcan and O'Leary will agree with me. For example, take the case of a front seat passenger in a private car which is involved in an accident. The front seat passenger is injured and is not wearing a seat belt. Insurance companies will automatically tell you that a claim of, say, £100,000 is reduced by roughly 25 per cent. Therefore, there is £75,000 of an award. Let us assume that the health board charges come to £20,000. Will the health board say they are prepared to take £16,000 or will they look for their full £20,000? They will say: "You have got £75,000 of an award. Our bill is £20,000 and that is what we want". That is a factual situation. I am not talking about other cases where a little bit of contributory negligence may be argued. It is a well known fact, as solicitors will tell you, that if a front seat passenger is involved in an accident and is not wearing a seat belt the claim is reduced by 25 per cent. Knowing health boards I would say that under this Bill they will say; "Our bill is for £20,000 and we want every penny of it."
I would like to thank the Minister for his agreement to look at the matter overnight. That is very helpful. So that the Minister will be fully appraised of what the concerns of the House are I think we should refer briefly to the second matter to which the Minister himself quite rightly referred and which I did not refer to during the course of my initial contribution to the debate on this section. That is, what is going to happen in cases where agreement is reached and that the case is settled not as a result of a judicial decision, which is the first problem, but as a result of a compromise by the parties of the action? The Minister himself quite rightly says that a lot of these cases are settled outside the court. The settlement of cases outside the court should be encouraged because it saves money, it reduces what the lawyers get and that is a good thing.
The problem is going to be that, as the Minister has outlined that time table, the following is what will take place. The plaintiff on the steps of the court house or otherwise, advised by his solicitor and barrister, will compromise the action and accept a certain sum of money. That sum of money, if it represents less than the full value of the case, will represent a real compromise. After that, discussions will have to take place with the health board as to what discount, if any, they will allow on their charges. I must advise the Minister that in those circumstances no legal adviser is going to accept such a compromise. A client could not be advised to accept a compromise when one does not know what the health board are going to charge. It could be done if the charge was a potential £5,000 out of £50,000 but where there is a significant compromise situation one could not advise somebody to reach a compromise on the basis of future discussions with the health board. How could one say to a person, take £100,000 and we will afterwards discuss with the health board whether they will charge £50,000 or £10,000. Nobody would ever agree to a compromise like that on the basis of such an uncertain outcome.
What the Minister is saying with regard to the cases that do not go to court is that in respect of those cases compromise will not be possible. With those cases either one of two things will happen: either the prior approval of the health board will have to be sought to the compromise which will lead to total chaos or alternatively the case will not be compromised at all out of fear that the person advised will be damaged by the ultimate demand of the health board. As a result more cases will go to trial.
There are two problems which we should keep separate. The first problem can be sorted by a simple amendment. The second problem is a lot more complicated. It is a problem which the Minister must yet confront. In respect of a claim where the medical charge for past, present and future care is significant no legal adviser will advise a person to settle a case at less than full value on the basis of the prospect that the health board will ultimately compromise the amount of money which they are claiming. It will not happen because the solicitor would undoubtedly be leaving himself open to a negligence action if he failed ultimately to get the health board to compromise their charge to the expected extent. They are practical realities.
There are two problems for the Minister to consider. One in respect of cases which go to court, which I think is very easily solved, and the other, which is not so easily solved. The Minister should seriously consider conceding on the court award system. It will write into the legislation the principle of pro rata. That will be an aid and a help in the question of compromising. If the health boards are under no obligation to accept even a pro rata payment where the court adjudicates, they will feel under less obligation to accept it where the court does not adjudicate. I thank the Minister for his open approach to the matter. I think those matters should be considered. I am hopeful that having considered them, the Minister will come back and solve our problem.
Is section 2 adjourned until tomorrow morning at 10.30?
In view of the complexities that have arisen since the Minister gave his assurance, is overnight sufficient time for him to consider this problem?
It is not.
Does the Minister require it to be tomorrow afternoon or does he require it to be the following week? We want to assist him, but we do not want to rush him if he needs to consult with the Attorney General. He realises that there are problems arising out of the points being made.
Once one enters into the uncharted waters of pro rata reductions being formally enshrined in legislation, which would be such a major issue it would take some time to consider, certainly not overnight. I do not think the parliamentary draftsman could possibly look at it in a short time. If it were a question of the House being satisfied that it was mandatory on the health board to a more substantial degree following the change in this Bill, I could go along with that. For example, the first line of section 2(a) whereby a health board shall waive the whole or part of a charge, which puts a firmer obligation on a health board in that framework—I think that is possible. On the hypothetical case, I would be prepared to accommodate the House in that regard.
There are two factors to be taken into account. First, for 15 years the health boards were operating this system and operating it quite successfully; and, by and large, they were operating a degree of discretion and substantial waiving of whole or part of the bills as they arose. There was no great problem in that regard. They never resorted to massive litigation. There is substantial precedent available which could be drawn upon by the insurance and legal experts in the event of that situation arising in future. The health boards and the law agents of the health boards are well aware of these precedents. Therefore there is a protection already there in the event of this situation arising.
Secondly, I think it is highly unlikely that any solicitor or legal adviser would urge a client to accept something like £40,000 if he was aware — and he would have to be aware because he would have fought the case through — that the health board was claiming £20,000 for services rendered. That figure would be available to him. He therefore is fully aware of that. Whereas the insurance company may be offering £60,000 they know that the health board would not settle on the basis that the full £60,000 be retained or that the client retained £55,000 and the health board would settle for £5,000. From casual inquiry to the health board, he would equally be aware of it. Therefore, to that extent the parties are far more aware of their prospects.
This is not a new enactment. I doubt if I could accept a pro rata concept being introduced into legislation — in other words, devolving on a health board a mandatory obligation to accept a court decision on a pro rata basis. The implications and ramifications of that on a health board in terms of its proceedings would be such that I think a serious precedent would arise. Certainly, within the framework of a statutory body having this imposition imposed on them willy-nilly in terms of charges arising, I doubt if the Government or if I could accept a change in that regard. I could, I think, do this much and do it entirely on my own initiative in deference to the strong views in the Seanad, which have been more than interesting. They have been particularly concerned about the kind of situation which can arise, namely, that there should be a much stronger obligation on the health boards to waive whole or part by deleting the word “may” and inserting the word “shall”. But let Senators not be under any illusion. There is still a section which says “if it considers it proper to do so”. It is not phrased particularly eloquently. I hope the Parliamentary Draftsman will forgive me for saying so. Nevertheless, that particular consideration is still there. However, it does strengthen it. Now it is that they “shall” waive whole or part of a charge if they consider it proper to do so, having regard to the two contingencies in subsection 2 (a) (I) and subsection 2 (a) (II). Perhaps we could reach agreement on that and enable me to get a few bob for the health boards.
Does it follow that my amendment, which you Sir, indicated you regretted having to disallow because it could have the effect of imposing a charge on revenue, will now stand?
Not your amendment.
Or a similar amendment from the Minister?
It is open to the Minister to bring it in.
I am sorry that the Minister is changing his mind about overnight mental rumination. Clearly, he wants to get this matter disposed of.
That was in relation to "shall" or "may".
Removing the word "may" and producing the word "shall" does not do anything whatsoever there. It makes section 2 (2) (a) (I) a little bit senseless because the word "shall" is not applicable in relation to that. But, more importantly, what it does is this. It allows a health board in a case where there is an element of contributory negligence, where a plaintiff is held, say, 75 per cent responsible and he gets a quarter of his award, 25 per cent, in those circumstances to say "Right, we will take 5 per cent off our bill" and they have complied with their obligation. To my mind, that would not be acceptable. The introduction of the word "shall" does not solve the problem. In fact, it can create other problems particularly in relation to section 2 (2) (a) (I). I would ask the Minister to consider the overall problem either overnight or between now and next week, because it is a very serious problem for the reasons that Senator O'Leary outlined in his last comments on this section with which I fully agree.
Would the Leader of the House report progress on it? Is that the intention?
Yes. I would like a decision about when we are going to continue? Will the Minister be ready tomorrow afternoon or does he want a week to ruminate?
On a point of order, the section having been started and the amendments considered and the section itself now being considered on Committee Stage, is it open to anyone to introduce a Committee Stage amendment at this stage? Can anybody introduce a Committee Stage amendment to Section 2 (2) now?
No. Report Stage would be the better place, but I could accept an amendment at short notice. It is at my discretion.
I wonder whether it would be better to conclude the Committee Stage and to put the amendments down on Report Stage? It limits the discussion. That is the problem. Would it be better to adjourn the discussion at this stage? I suppose it could be better to adjourn. I support the Leader of the House.
Is the Minister going to bring in his own amendments? He is going to think about it.
It is a good commitment.
Progress reported; Committee to sit again.
The Leader of the House has reported progress. That ends the discussion until the Minister comes in with an amendment.
On what section will we resume?
We will resume on section 2.
Next Wednesday?
I do not know. That is a matter entirely for the House.
The Minister had better have no further appointments on that date.
Would I be in order in saying how much we appreciate the open approach of this Minister to the problems presented by this House.
Senators
Hear, hear.
We appreciate it. As far as this House is concerned, Minister Desmond has no equal.
When is it proposed to sit again?
It is proposed to sit at 10.30 a.m. tomorrow. I also propose that we continue with this Bill at 2.30 p.m. on Wednesday of next week.
Is that agreed?
Yes.