Limerick East): Senators are aware that this is a health Bill. We have achieved full agreement with the four interest groups on the measures being put in place to guarantee a life-long health service to people unfortunate enough to be victims of hepatitis C or who contracted hepatitis C antibodies. We negotiated an extension of the closing date for the tribunal from three months to six months. The tribunal made it clear, through public advertisements, that it was operating to the date in question.
I remind Senators that the tribunal merely provides an alternative to claiming compensation through the courts. The health issue is separate and full agreement was achieved in that regard. The only area where there is some disagreement is the manner in which compensation claims may be pursued. The tribunal was established because of the numbers involved and, as I pointed out on a number of occasions, the advantages it has over the courts system. If people are not happy with an award made by the tribunal, they do not have to accept it and will not concede any rights as a result. People will be given one month to consider an award and if they accept it, they will have been compensated. I read newspaper reports which seemed to suggest that these people should be allowed to go before the courts to obtain further compensation. There are alternative systems in place and people can either go before the compensation tribunal or the courts.
Compensation is measured in accordance with the law of tort, which applies to the tribunal and the courts. If people are satisfied with awards given by the compensation tribunal, they will be advised to accept by their legal advisers. They will then decide whether to accept the award. If they accept, that ends the matter of compensation. However, the health issues continue. This Bill is designed to ensure that people, regardless of their means or the compensation they receive, will have free access to general practitioners and the services listed in section 2. If a person does not accept an award, they can pursue the matter in the courts.
An earlier speaker stated that a test case is currently before the courts, but this is not correct. I am concerned about the legal costs involved with processing large numbers of compensation claims. I want the tribunal to proceed, as it is at present, to give fair compensation awards to victims. The tribunal has been so satisfactory that, to date, no one has rejected an award. This is a fair measure of the satisfaction of applicants. However, a test case is not currently before the courts. If legal people describe something as a test case, they are entitled to charge more. There is no test case in the courts at present, but a first case, which is like any other compensation case, has been scheduled for hearing.
I am not arguing that there will be some kind of judicial inquiry when the first case comes before the High Court. I am merely stating that the normal powers of the High Court will apply when that first case comes before it. As a consequence of an applicant pursuing a compensation claim, the issues about which people are concerned will be investigated. The purpose of that case is not to have some kind of judicial inquiry; it is to enable a particular person to pursue a claim for damages. They must retain their civil rights in doing so, as they would in claiming compensation for a car accident or breaking their leg as a result of a fall in the street. If a such a situation comes before the courts, the first issue to be decided will be that of an individual's or institution's liability. The issue of liability is connected to that of negligence. Senators should not make categoric statements about these issues which will be at the centre of any court case, whether it is that listed for 8 October or a subsequent case.
One of the major advantages of the tribunal is that the issue of liability does not arise. An applicant need only prove to the tribunal that they contracted the hepatitis C virus or antibodies from infected blood or blood products. The only proof required by the tribunal is the connection between the infection and the infected blood or blood product. In the case of Positive Action, because the infection of its members was discovered as a result of a national screening programme, which screened 58,000 people, it is self-evident that the proof exists. These people were notified by the Blood Transfusion Service Board that they had tested positive.
There is no issue at stake in respect of these applicants, who need only submit the evidence that they were so notified. The tribunal will not discuss negligence or liability, it will simply measure the amount of damages to be paid in accordance with the law or tort. All the usual considerations then apply — the state of the person's health and the prognosis but also loss of earnings. Compensation is measured in the normal way, and our country is litigious enough for Senators to be familiar with that. The law of tort will operate the same way in the court as in the tribunal. We should not pre-empt the work of a court by stating on the record that an institution was liable or negligent — it may or may not have been, but those issues have not been tested in court yet. A person pursuing a claim through the tribunal does not have to pursue those issues, she can proceed quickly, privately and anonymously to compensation. As I said, people are happy with the level of compensation and the proof of the pudding is in the eating — over 70 awards have been made and none has been rejected. The women have legal advisers, they may consider the award for a month and may either accept or reject it.
On the options, if a person applies to the tribunal she may withdraw her application tomorrow if she wants. No one can force anyone to do what she does not want. What I said in the other House was that I had been informed by the tribunal that no one would be forced to have a hearing she did not want to have.
However, there are good reasons that people should be allowed into the tribunal, because vested interests are operating. I am not speaking about the women or men who have hepatitis C or about those who represent them. There is a public interest in this, because ultimately it is the Irish taxpayer who will provide the money. My best estimate of what will happen in the compensation tribunal is that awards may total over £200 million. Everyone knows what the legal fees were in the beef tribunal and I would not like to put unnecessary expense on the Irish people, because this is a taxpayers' issue. I cast no aspersions on any individual solicitor or barrister, that is not in question. We are blessed with a good legal profession. Our solicitors and barristers are good advocates and always serve their clients. In general terms, there is a cost issue, although I am not talking about the total cost of awards made. Whether the case is pursued in the tribunal or in the court, the manner in which the compensation awards are measured will be the same, in accordance with the law of tort. However, the legal costs will be lower if the case is processed through a tribunal. It stands to reason that if a tribunal is sitting four days a week and processing three cases a day, the legal costs will not be as high as for individual cases taking six to ten weeks in the High Court, with huge teams of barristers supported by solicitors. The cost issue is therefore not one of compensation but of legal fees.
Nonetheless, all options are open. A person can go to the court or the tribunal. If she has applied to the tribunal, she can withdraw the application or pursue it; if she pursues it and receives an award, she has a month to decide whether to accept it; if in the course of that month she decides to reject it, she can either recommence an action started in the High Court or begin again from the start. No rights are being taken away and the only addition to that information, which I provided as a point of clarification rather than a new point in the other House, is that the tribunal has advised me it will not force people into a hearing which they do not want.
The tribunal will last indefinitely. People have said that one cannot have such a tribunal because everything finishes; but this tribunal is unique and operates differently from the Stardust tribunal and the courts in that it can make provisional awards. The nature of a provisional award is that one can go back in years to come on a certain prognosis and claim additional compensation, so it must continue indefinitely. Clearly, when all the applications are processed in two to three years, the tribunal will not meet four days a week; but it must be in existence and available for a hearing if a person wishes to return to it.
We are all in the business of politics — the Opposition makes charges, we reject them, etc. — but there is another consideration. I believe that unnecessary stress and trauma are being caused to individual applicants and their families by people pretending that the best tribunal ever set up in this country is somehow faulty and that people are being treated unfairly, when no group was ever treated like this before and given such a sophisticated mechanism for compensation without taking away any rights they may have to proceed to court. As I said, it is only an alternative — in my view a desirable alternative —to the courts.
I am a defendant in the High Court cases, although not personally. The defendants are the BTSB, the health board involved, the Minister for Health, the Attorney General and Ireland, the normal formula when an agency of the State is being sued. If a Senator argues with me about the court case, I cannot reply to his questions; nor may I intrude into the confidential relationship between legal advisers and clients. So if he asks me how a particular defendant or legal adviser is proceeding, I cannot answer.