Having, as promised, considered the matter, the Minister is going to make a statement.
Health (Amendment) Bill, 1985: Committee Stage (Resumed).
SECTION 2.
Question again proposed: "That section 2 stand part of the Bill."
As agreed last week in view of the suggestions made by several Senators in relation to subsection (2) (a), I did undertake to have another close look at the situation. I have discussed the matter with the Attorney General's Office and with the senior parliamentary draftspersons directly involved. I would like to make the following points to the House. First of all, as we agreed, there is little point in substituting the word "shall" for "may" on line 12, page 3, of the Bill because it would not have the effect desired by Senators. I had originally offered that, but not in any very firm or hopeful way. A change merely of that nature, unless the remainder of the subsection was also amended to remove other elements of discretion which are permitted to health boards, would have little point. We will leave that by agreement at that stage.
Basically, therefore, it comes back to the question of whether the power to waive the whole or the part of a charge should be mandatory on health boards in all cases or whether these powers should be discretionary. I think it boils down to that. Considering all of the possibilities that may arise in any one case I consider that the health board must be left in a position to make a decision on each individual case regarding the facts of the case placed before the board. Moreover, I have had a general overview of these types of actions. In most cases many of them never reach a hearing and many are settled on the basis of a global general settlement. In such global settlements the costs of hospital services are usually not distinguished and neither is reference made to any specific degree of contributory negligence. Therefore, it would not be possible in those cases for the health boards to be obliged to waive charges in circumstances that are not very specifically set out. Where they are not mandatory, it is of course open to the health board to exercise that general discretion.
I would also like to point out that the Bill is designed to enable charges to be made by health boards for in-patient and out-patient hospital services provided for persons in respect of treatment for certain injuries caused by the use of mechanically propelled vehicles in public places. While I have built in safeguards for the person injured, I must ensure that the prime purpose of the Bill is adequately covered as far as possible. The health boards have to be in some position to protect their interests, which are the interests of the taxpayer at large, in order to avoid, in particular, the possibility of any collusion that might arise in relation to the settlement of claims and, indeed, to ensure that charges for services provided are not generally ignored when settlements are arrived at or, indeed, in the bustle of the Round Hall negotiations which are well-known to some Members of this House.
I might point also that an attempt to try to draft legislation which would cover all the complexities — these are multiple in the case of road traffic accidents — to cover these in all type of settlements would make the Bill enormously cumbersome and possibly unworkable in practice. I strongly point out to Members of the House that the old regulations in force since 1971 had operated generally with considerable success up to December 1983. They were operated without complaint. We do not have on record complaints from members of the public about draconian imposition by health boards in seeking recoupment of hospital charges. In fact, the general indication we have is that health boards bend over backwards to help and to operate to the benefit of the patient or the prospective patient. The discretion is used very much in that direction. We do not have complaints from the public. We did not have them about the considerable period in which that discretion was exercised. Therefore I am satisfied that that situation can continue. I want to reassure Senators that I will be issuing a quite specific circular to the health boards in relation to this matter indicating that it has been raised in the House and indicating the views that have been expressed here and saying quite clearly that I wish to see the Bill when enacted implemented in that manner. I propose to issue that particular statement to the health boards and the CEOs as soon as the Bill is enacted.
I have consulted at length about the matter. I am delighted with the advice I have received on the basis of the stated objective of the Bill and the safeguards that have already been built in under the Bill to protect the injured party from hardship. I hope that my parliamentary colleagues will accept my view that we should if at all possible proceed with subsection (2) (a) as it was drafted as being in the best interests of all concerned. It is the best we can do at this stage if I may, with that confession of humility, make that point to the House.
I must confess that I am a little unhappy with the outcome of the discussions that the Minister has had over the week. I felt at the end of business last Wednesday evening that there was a very real possibility that the Minister would accede to the amendment. In the point he has made now about leaving it up to the discretion of the health boards, he is trying to suggest that health boards will be helpful — and I think health boards will be very helpful — but I think on the question of the specific circular to all the health boards, in a few years time it can be said with certainty that it will mean nothing at all once this Bill is passed and has become law. Circular letters from anybody at that stage will have no effect. It might, in the short term, but over a period of years Ministers, CEOs and health boards change and so on, and it becomes lost in situations like that. What really counts is the Bill as produced on the day.
I think the Minister has a point which I would accept. He referred to out-of-court settlements and a kind of global settlement where the question of contributory negligence might not arise but there are many cases that go the whole way to the High Court. In that case it has been suggested down the years that 25 per cent or 50 per cent or some percentage of an award can be attributed to a form of contributory negligence. That is the real worry Senators have in this area. For example, a person receives an award of, say, £60,000; let us assume he has 50 per cent contributory negligence, so he receives £30,000 and there is a health board bill of £20,000. Will the health board be sympathetic? Will they decide that they should take only 50 per cent of what they are entitled to? Some health boards may but, given the perilous situation health boards find themselves in today, my bet would be that they would be entitled to seek their full pound of flesh. If they are owed £20,000 and an award has been made of £30,000 they will feel entitled to receive their full £20,000. That being the case, one could suggest that this Bill is somewhat unjust because of the wording of that section. I am not fully happy with the situation. I would much prefer if the Minister could see his way to accepting the amendment.
I am very unhappy with the situation. We had a very lengthy discussion on this problem here last week. In the Minister's own words he promised to ruminate on the problem initally overnight and then, when the problem became more obvious, over the week. The situation is that we are here to legislate and try to reach some form of legal certainty in terms of the legislation that we help to produce. The onus on us to do so is always there but it is particularly obvious when we are legislating for a situation where this House is really attempting to rectify something created when a ministerial order made by one of the Minister's predecessors under the Health Act 1970 was held to be ultra vires his powers under that Act. We are now trying to rectify that by legislation.
What we are doing is creating a situation of uncertainty and we are also creating potential inequity for people who may be the subject of this legislation.
For that reason I would ask the Minister to think and think again between now and Report Stage. The fact that there are difficulties and I think he said that there are difficulties in resolving the problems — gives in a sense a negative response to the issue which was raised last week. The positive problem is that there is a difficulty. There is a difficulty within the section and I am not happy with the situation whereby the Minister says he will issue a circular to health boards. My understanding is that we legislate in this country in various ways but we now have a new form of legislation, that health boards will be bound by ministerial circulars, documents which will be pinned on the back of a door of a programme manager which in time will become covered in dust until something else is pinned over it, maybe a more attractive calendar or something like that. I do not think that that is a satisfactory response.
I do not want to go over the arguments which were outlined in some detail last week but I want to say that section 2 (1) is mandatory in that it imposes an obligation on a health board. It states that a health board shall make a charge upon the person who receives or who is entitled to receive such damages or compensation. An obligation is therefore imposed on the health boards. Section 2 (2) is discretionary in that under the circumstances envisaged in subsections (1) and (2) the health board may waive payment. The one that gives me greatest cause for anxiety — and I mentioned this last week — is the situation where contributory negligence is held to exist by a court or indeed where a settlement is reached and the settlement is reached on the basis of contributory negligence. So there are two separate situations which can exist there. Obviously, if a court determines the matter and makes an award and contributory negligence enters into it, the court will state the proportion which arises. In that case there should be no difficulty for the health board. Taking that case the health board is not bound by the apportionment that the court makes. The High Court can make a particular apportionment in relation to negligence but the health board is not obliged to adhere to that.
Ministerial circulars and ministerial directives may indicate to health boards what they should do but health boards are autonomous bodies as we can see from the week that has passed. When health boards are financially stretched, as we gather they currently are they may say: "Let us waive a little but not waive as far as the High Court or the Circuit Court or indeed the District Court might specify." In so far as the determination of contributory negligence is provided, then I think there should be the power to waive pro rata in relation to this. Secondly, in cases where there are settlements, my understanding and experience would suggest that if there is an element of contributory negligence a settlement bears that in mind and in trying to settle a matter one would normally settle it on the basis that there is not contributory negligence and then apportion the figure downwards on the basis of whatever negligence is alleged against the plaintiff. I do not think the difficulty is as great as the Minister states.
There is still a very serious problem here. With respect, I do not think the problem has been constructively addressed. The matter will have to be taken care of before this Bill leaves the House.
I agree with the point being made. I think a distinction should be made in a situation where a court or jury has stated exactly what the element of contributory negligence is. In that case if they say contributory negligence was 50 per cent then I think the health board should have to accept that that is the amount by which they should waive their charges. In the case of a settlement, it is a much more difficult situation. I think an amendment should be brought in to deal with that. There should be a distinction between the two. I see no reason why the health board should not have to abide by a decision of the court as to what the element of contributory negligence is.
I am disappointed with the Minister's "rumination". He has restated the problems that exist and, of course, they are very real problems but he has not addressed the problems which were pointed out to him on this side of the House. The problems are correctly stated by Senator Durcan. We have two separate and distinct problems. There is the problem that exists where a court adjudicates on the question of contributory negligence. I cannot see any logical reason in that case why there should not be a statutory obligation on the health board to take that into account. There is no point in getting a second organ of State to adjudicate separately and to make a separate decision in such cases. It has been decided by the court that there was contributory negligence on the part of the plaintiff of X amount, and that should be accepted. I do not think anything the Minister said or any of the difficulties he pointed out or any indication of what past practice was justifies departing from the principle laid down in the Act, the obligation on the health board to take into account proportionately the amount of contributory negligence found by a court.
My second point relates to settlements. Since the Minister spoke last week, I have also done my homework and I have spoken to people who were active in this field at a time before Cooke v. Walsh was decided. I was told that no great difficulty was experienced in the case of settlements; I confirm what the Minister said in that regard. In discussion with these individuals they said that on examining the legislation which is now before the House they would feel in a far more vulnerable position now than they were under the 1971 regulations. The 1971 regulations make no reference to abatement. It was a practice which grew up and which was accepted on all sides. Cooke v. Walsh eliminated that and new ground rules are now being established in the context of the health boards being short of cash.
Nothing whatsoever to do with it. It is money which we are looking for from insurance companies, £25 million which was paid to people who were liable for hospital charges. It is nothing to do with the health board budgets.
Is the Minister trying to say seriously that the health boards will not look on this as a welcome addition to their funds?
They will look upon it as money which they have been deprived of to the tune of £25 million.
I recognise that what the Minister says is correct. I also recognise that what we are deciding is that the health costs of motor accidents should be borne by the premiums of insurance policies. I am not making any serious objection to that but the reality is that we will have a new set of rules, we will not have the reintroduction of the 1971 set of rules; we will have a new set of rules which contain an element of discretion and which must be viewed against the background of the difficult financial situation in which health boards find themselves.
In that situation the problem that arises with regard to settlements, the pattern that will develop over a period of time is probably the same pattern as applied after 1971, but there is no guarantee that it will be. The pattern that will develop will not guarantee in an individual case what the attitude of an individual health board will be. The difficulty for a solicitor or any other legal adviser in advising a person to settle in advance of an agreement from a health board will be that they will not be sure that in the particular case the discretion will be exercised in a proportionate fashion and that their assessment of what the element of contributory negligence is will be accepted by the health board.
There are two separate points and I think I have a solution to both of them. One is I do not see why the Minister cannot make it statutory in the case of an adjudication by the court. Nothing the Minister said convinces me even in the slightest that there is any reason why that cannot be done. All it requires is the division of subsection (2) into two sections, the first portion saying a health board may waive the whole or part of a charge as it considers proper having regard to the amount of damages and the second part saying that a health board shall waive the whole or part of a charge under subsection (1) of this section in a case where there was contributory negligence and so on. All you have to do is divide it into two, use "may" in one and "shall" in the other. There is absolutely no problem. It is not a difficult drafting problem. It can be done very easily by dividing subsection (2) into two sections, subsection (2) and subsection (3).
The other problem is more difficult. I think it can be solved by a small amendment to subsection (3) which I mention now because it is relevant to subsection (2). The recovery of the amount of money is dealt with in subsection (3) and we will deal with that when the time comes. No matter what we say in this House the court will have jurisdiction to review the amount of that liability. What is important is that the court will be given specific legislative authority to review the way in which the health board has exercised its discretion so that whether it is in the District Court or in the Circuit Court or in the High Court that the attempt is made under subsection (3) to recover the money it would be open to the court in arriving at its decision as to the amount of money due and, the amount of money being due, to review the manner in which the health board have exercised their discretion. That problem would be overcome by adding a sentence after the word "jurisdiction" in subsection (3) which would say something like, "the court shall be entitled to review the manner in which the health board exercised its discretion under section (2) of this Act". That solves the problem in so far as that at least in the case of the solicitor who is going to negotiate with the health board and says this case was settled on the basis of 25 per cent, and the health board disagree with him at least there is some tribunal which can adjudicate on this matter. That will encourage commonsense and will guarantee that it will not go to court if such provision is made in the legislation. There is no reason why the Minister cannot put an obligation on the health board in the case of matters decided by court and cannot so adjust the remainder of the legislation as to give an element of review in the way in which the health board exercises discretion — a review which the High Court would have in any case but to make it part of the legislation so that the court in which the money is being recovered can itself act under powers granted to it in the legislation to review the reasonableness of the health board decision.
I agree with everything that my colleagues have said. We are putting a Health Bill through this House. Following the debate last week, I thought the Minister would amend this legislation after the case made by my colleagues. I sit on health boards and so have all the elected Members here. The Minister comes in here and says that he is going to send a circular to health boards instead of putting it into the legislation. Senators Durcan, O'Leary and Fallon last week agreed to wait a week for the Minister to go to the Attorney General. I think he should listen to the three lawyers here also who have the political and legal expertise. I am puzzled as to why the Minister is sending a circular to health boards instead of putting what the Senators are asking into section 2. We are not supposed to refer to advisers and officials in this House, but in fairness to the Minister when he left the House last week — he has been a long time in politics and dealing with health — I think he intended to change that part of it. Why it would not be put into the Bill before it is passed rather than send a circular to health boards is something I do not understand.
First, I want to thank the Minister for the efforts he has put into meeting our wishes. If we tease it down a bit further we will know the reasons. No Minister can put any legislation through the House without having regard to the legal opinion available to him. The highest opinion available is the Attorney General. As Senator Durcan said, the previous legislation was put through probably on that advice and it was then discovered to be defective by the Supreme Court. The problem is that where a decision is made in a court which attributes certain elements of contributory negligence, you have some precedent in a court of law that the health board should have regard to; but where decisions are made outside of that there is no guideline for the health board to act on. They have certain powers given to them in this Bill. In section 2 (1) (c) the health board
shall, notwithstanding anything in the Health Acts, 1947 to 1985, make a charge upon the person who received or is entitled to receive such damages or compensation in respect of the said in-patient services or out-patient services.
We are putting a responsibility on the health board to do that. But having done that with no guidelines we are now faced with the dilemma that we are allowing them a certain discretion in section 3 (1), which says:
Any sum due by a person to a health board under section 2 of this Act may be recovered by the health board from the person as a simple contract debt in any court of competent jurisdiction.
In a way the provisions are contradictory. We are asking them to do it and then we say you may do it in a certain way as a simple contract of debt. Who decides what the level of the contract of debt is? Senator O'Leary suggested a formula, by subdividing the section, that would leave the health boards and their legal and financial advisers in no doubt that we are legislating in a particular way.
We want to ensure that health boards are compensated for the services they give but with regard being had to the ability to pay of the person for whom damages were agreed, so that such person would not be penalised by a section which gives a discretion to the health board to do so. I have no doubt that the Minister has looked at all the aspects of it, but if he could respond in that light it would help. We want to make sure that discretionary powers are not administered in a way that could create hardship to people who were unfortunate to have an accident, but twice as unfortunate to be 50 per cent negligent in the accident with the resulting injuries, expenses etc. Whatever arrangements are made in or out of court, the legal representatives will always be looked after; but it is not always necessarily the case that where you have an injured party they will have somebody to look after them. I want to make sure the health boards will look after them because that situation could arise. We have certain legal advice available to us; but we do not want two court cases, one to make a decision about damages and another initiated by the health board to recover what they consider are their rightful dues from the person awarded damages.
Before I call on the Minister I should like to say that it was agreed by the House that we would report progress in this debate at 3.30 p.m. There is now one minute to go to 3.30.
The purpose of the Bill is to enable charges to be made by health boards for in-patient and outpatient services provided for persons in respect of the treatment of certain injuries caused by mechanically propelled vehicles in public places. The more we qualify this Bill and the more we introduce circumstances circumscribing the prospect of charges being made, the more the prospect is that this Bill could suffer the same fate as the 1971 regulations. Those regulations crudely withdrew eligibility. This Bill is different. There are a number of circumstances. I will give one example here. A person reaches agreement with an insurance company for £100,000 and in the process of the claim being made £50,000 of that is due to the health board, which is small money for hospital charges in a road accident case. If you take £600 a week for 52 weeks of the year the person in hospital — any kind of reasonably acute hospital now is £600 a week — that is £30,000 for the first year and £30,000 for the second year. If you have multiple injuries you would be in hospital for the best part of two years, leaving out operation costs but just maintenance alone. So the insurance company know what the claim from the hospital is, because they have given in advance clear notification to the person that there is £60,000 due. The insurance company says to the client: "Will you agree that you are 90 per cent contributorily negligent and we will give you £100,000?" If we are to follow the logic of what is being suggested by way of an amendment here, what happens? The client collects £90,000 and laughs all the way to the bank with it and the unfortunate health board, who are looking for £60,000, get, under the amendment suggested here, £10,000. Is that the intention of the amendment? Equally we have got to bear in mind that both sides go into court and have this approved by the court, 90 per cent confession, admission and formal registration.
Also, we know quite well that a large number of settlements are made outside the jurisdiction of the court. Where negligence is admitted outside the jurisdiction of court in an informal way, it has no bearing at all on the health board formally getting some money in their hands. You can have a situation — there are many around — in which a person of 50 or 55 years of age finishes up with multiple spinal injuries, a broken neck, likely to be on the flat of their back in a bed for the rest of their life and at 55 years of age with a good constitution, they would live for another 20 years. That is at £30,000 a year in current money terms. That is £600,000. A settlement can be of very substantial proportion but the health board must have some prospect of being enabled to obtain recompense for the services delivered.
I mentioned this point specifically. All preoccupations which Senators have given quite correctly and understandably in the past to discussions we have had on this matter, are covered by and large in section 3, whereby any sum due by a person to a health board may be recovered by the health board from the person as a simple contract debt in any court of competent jurisdiction. I have not got the slightest doubt that if a person gets a health board bill arising out of a settlement — remember the health board will not see a penny of that money until after the person has actually got the money and it might to be five years down the road with services having been provided — and feel or their legal advisers feel, that the charge is unduly draconian, it will be hotly contested. It will go back into a court of competent jurisdiction. The health board will be obliged to face the prospect of costs in relation to the recovery of the debt allegedly due by the citizen to the health board.
An Leas-Chathaoirleach
I am on record as interrupting everyone else, but I do not think I am on record as interrupting a Minister before now.
I am sorry. I will conclude. These are my views on it. There is ample cover in this instance for the health boards to act in a reasonable and responsible way to recover large amounts of money which are normally due to health boards in these matters.
An Leas-Chathaoirleach
Will Senator Ferris report progress?
At this stage, perhaps we might get a consensus on whether we are near agreement or whether we want further time before I formally move to report progress on this. Do we want further time?
We want further time. We have been talking about this for hours. I would like to know when we will be able to have further time, because it is a matter of concern. I am not trying to hold up the Minister, but I am trying to make him see the light of day. I thought we had succeeded last week in doing that. Maybe the Minister would like to ruminate for another week on the matter.
Due to the weather the grass is not growing sufficiently to enable me to ruminate at all. I would be available next Thursday morning, that is tomorrow week.
Tomorrow week will not suit me.
An Leas-Cathaoirleach
The House can decide it in due course, I think, Minister.
Progress reported; Committee to sit again.