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Seanad Éireann debate -
Thursday, 15 May 1997

Vol. 151 No. 12

Hepatitis C Compensation Tribunal Bill, 1997: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Limerick East): The purpose of the Hepatitis C Compensation Tribunal Bill is to provide for the establishment of a tribunal, on a statutory basis, to be known as the Hepatitis C Compensation Tribunal to award compensation to certain persons who contracted hepatitis C within the State from anti-D immunoglobulin, other blood products or blood transfusion and to provide for connected matters.

Before outlining the details of the Bill I should point out that a non-statutory compensation scheme for persons who contracted hepatitis C from the use of anti-D or other blood products within the State has been in place since December 1995. It is acknowledged by the representative groups — Positive Action, Transfusion Positive, the Irish Haemophilia Society and the Irish Kidney Association — that this scheme has been effective in its objective of dealing sensitively and efficiently with the claimants who appeared before it.

The non-statutory tribunal was established to fulfil the Government's commitment to provide fair compensation for women infected by the hepatitis C virus, which is contained in the policy document A Government of Renewal. I published the scheme of compensation in June 1995 and on 5 September 1995 the Government decided to extend access to the tribunal to include blood transfusion recipients. The tribunal has provided an alternative to the court system for persons infected with hepatitis C and has alleviated many of the anxieties which might arise if claimants only had recourse to the courts, which are adversarial by their nature.

As with the non-statutory tribunal, the Bill provides that the making of a claim to the tribunal does not involve a waiver of any right of action. It is only if the claimant accepts the award made by the tribunal that he or she is required to waive a right of action which he or she may otherwise have had. Therefore, should a claimant not be satisfied with the tribunal award made to him or her, the claimant can initiate or continue court proceedings.

The Government has also resolved that the operation of the non-statutory compensation tribunal would not be disrupted or delayed while the legislation was being prepared to put it on a statutory basis. I am also determined that any advantages conferred by the enactment of this Bill will also apply to those claimants who have already had their cases processed by the tribunal or those who in the interim will process their claims. I have made provision for this in the Bill.

Senators will be aware that following the publication of the report of the Tribunal of Inquiry into the Blood Transfusion Service Board, the Government embarked upon a full reappraisal of the compensation tribunal. The reappraisal was required principally because the state of knowledge was significantly altered by the publication of the report. For this reason the Government has decided to place the compensation scheme on a statutory basis.

In March this year I made a number of commitments in respect of the non-statutory compensation scheme. These commitments were, first, that it would be placed on a statutory basis, second, that the prohibition in the present scheme on the payment of exemplary or aggravated damages would be removed and third, that there would be a right of appeal to the High Court on awards made by the compensation tribunal. I am glad to inform the House that these commitments are being fully honoured and reflected in the Bill with many other new provisions which improve the scheme for the claimants.

In line with the terms of the motion which was put before and agreed by both Houses of the Oireachtas on 25 and 26 March, I engaged in a process of consultation with the four representative groups and the chairman of the compensation tribunal in relation to the reappraisal of the compensation scheme. As set out in that motion, the reappraisal of the scheme had also to take account of any necessary legal advice.

The Bill before the House today has been prepared exceptionally quickly, particularly when one considers the many innovative provisions contained in the Bill and the significant legal complexities of many of the issues. The positive experience of members of the representative groups at the hearings before the non-statutory tribunal and the extensive consultation process on the Bill has formed the foundation for this draft legislation. The purpose of this extensive consultation process was to ensure that the Government's legislative proposals would take account, as far as possible, of the views of the representative groups. A number of difficult and complex issues were raised during the consultation process and as far as possible the views of the groups have been incorporated into the Bill.

The consultation process commenced in late March/early April. On 16 April 1997 a copy of the draft Heads of the Bill, placing the compensation tribunal on a statutory basis, was presented to the groups. This was followed by numerous meetings with the representative groups who made submissions, both oral and written, to assist my Department in preparing the Bill. The representative groups put forward suggested amendments to the draft Heads of the Bill.

The following are some of the more notable amendments which have been incorporated into the Bill which were not included in the non-statutory scheme of compensation, many of which have been included at the request of the representative groups: provision for aggravated or exemplary damages to be assessed by the compensation tribunal and a claimant may rely on the facts found in the Report of the Tribunal of Inquiry into the Blood Transfusion Service Board or any other fact in relation to their case for such damages; provision for the establishment of a reparation fund from which 20 per cent of the total amount of an award of general and/or special damages or 20 per cent of the settlement of a claim will be paid to applicants; provision for a claimant's right of appeal of any decision of the tribunal to the High Court; provision for oral evidence by the claimant to the tribunal or her or his medical practitioner or both — in the non-statutory scheme the tribunal had a discretion in this regard; provision for a person who has had a claim for compensation determined by the non-statutory tribunal to apply to the tribunal to hear, at the discretion of the tribunal, evidence which was not made available to the non-statutory tribunal in calculating the award made to that person; provision for the Minister to make arrangements to provide for the settlement of claims in respect of general and special damages; provision for a claimant to compel a witness to attend and give evidence; provision for a claimant's right to discover documents; provision for the tribunal to sit in divisions to hear claims before it, that is, more than one tribunal can hear cases simultaneously; and provision for a dependant of a person who has died as a result of having contracted hepatitis C or whose hepatitis C was a significant contributory factor to the cause of death to make a claim to the tribunal.

I pay tribute to the work of the four representative groups and thank them for their assistance which has significantly contributed to the expeditious preparation of the Bill. The representative groups played a major role by their attendance at numerous meetings with, and submissions they made to, my Department. I also thank Mr. Justice Egan, chairman of the tribunal, for his contribution to the consultation process.

Section 1 is an interpretation section and defines the terms used in the Bill. Section 2 is a standard provision which provides for the establishment day for the purposes of the Act. Section 3 provides for the establishment of the tribunal on a statutory basis. This section provides that the tribunal may sit in divisions. It also provides for the appointment of members to the tribunal and for the appointment of employees. It provides for the compellability of witnesses and discovery of documents by the tribunal on its own behalf or at the request of a claimant. This provision is to meet a particular request of the representative groups.

Section 3 also provides that the tribunal shall determine its own procedures and, in so doing, shall as far as is practicable adopt procedures which are informal. Again, the groups were anxious to ensure that the informality of the procedures of the non-statutory scheme, which has served its purpose well, would be preserved. The section also provides for hearings to be held in private and that written reports which the tribunal is primarily relying on will be made available to claimants. This section also precludes the cross-examination of any claimant.

Section 4 defines the categories of persons who may make a claim for compensation to the tribunal and provides that negligence need not be proved by the claimant in respect of his or her claim for general and special damages. It also provides for legal representation for the claimant at the tribunal and also deals with the requirement that a claimant may have to compel witnesses or discover documents. The section also extends the time limit from six months to three years within which a claimant can make an application to the tribunal. This extension to the time limit was a requirement about which the representative groups expressed strong views. Section 4 also provides that a claim to the tribunal does not involve the waiver of any other right of action by the claimant.

Section 5 provides for awards in respect of aggravated or exemplary damages. It provides that an award of the tribunal to a claimant shall be made on the same basis as an award of the High Court calculated by reference to the principles which govern the measure of damages in the law of tort and any relevant statutory provisions and including consideration of an award on the basis which reflects the principles of aggravated or exemplary damages. This section also provides that an appeal shall lie to the High Court by a claimant in respect of any decision made by the tribunal and such appeal may, if the claimant wishes, be heard in private. Both provisions meet key requirements of the groups. This section also provides for the making of a provisional award which heretofore has not been available under Irish law. This gives the claimant the right to return to the tribunal where her or his hepatitis C condition has deteriorated. While this provision is a feature of the non-statutory scheme, the payment of a provisional award is at the discretion of the non-statutory tribunal. The groups requested that a claimant should have the absolute right to a provisional award if she or he so requested an award on that basis and I provide for this in the Bill. Section 5 also provides for the period within which a claimant must accept an award and, if the claimant so chooses, the tribunal may direct that the award be paid in instalments. In addition, it provides that reasonable costs and expenses incurred by the claimant will be awarded by the tribunal.

Section 6 provides for the dissolution of the non-statutory tribunal on the establishment of the statutory scheme. It also provides that the tribunal may hear evidence of a claimant which was not available to the non-statutory tribunal in calculating that claimant's award and also that such claimants may apply to the tribunal for aggravated or exemplary damages or for an amount to be paid to her or him from the reparation fund. Section 7 is a general provision empowering the Minister to make regulations.

Section 8 provides that the Minister may make arrangements for the settlement of a claim in respect of general and special damages by a claimant. The Government has also decided that mechanisms for settling claims be devised in co-operation with the Attorney General and this will be facilitated by the provisions of section 8.

Section 9 provides that the Minister may, with the consent of the Minister for Finance, by regulations extend the class or classes of persons who may make a claim for compensation before the tribunal. Section 10 provides for the establishment of a special account, to be funded from money provided by the Oireachtas, to be used to pay awards made by the tribunal, statutory and non-statutory, and to pay their administration costs. A Supplementary Estimate provided £60 million under the Appropriation Act, 1995; a further £50 million will be included in the Estimates for 1997.

Section 11 provides for the establishment of a reparation fund to enable payments to be made to claimants as an alternative to applying to the statutory tribunal to assess aggravated or exemplary damages. The amount paid out of the fund to a claimant will amount to 20 per cent of the total amount of the award of general and/or special damages or 20 per cent of the settlement of a claim. The fund will contain £22 million in the current year. Section 12 provides for the submission of reports by the tribunal to the Minister and the laying of these reports before each House of the Oireachtas.

Section 13 is designed to ensure that, should any difficulties arise in bringing any provision of this Act into operation, the Minister for Health may, by regulation, do what is necessary or expedient for bringing that provision into operation. Section 14 is a standard provision which deals with the laying of regulations made by the Minister under the Act before each House of the Oireachtas. Section 15 is a standard provision dealing with the expenses incurred by the Minister in the administration of this Act. Section 16 provides for the short title of the Bill. A small number of amendments to the Bill were suggested by the representative groups and, when in the Dáil, by the Opposition. These amendments were, where possible, incorporated into the Bill.

I would like to take this opportunity to update the House on the non-statutory compensation scheme. To date it has received 1,686 applications of which 1,530 are primary claimants, 87 are dependants and 69 are carers. Since it commenced hearings in January 1996 — regular hearings commenced in March 1996 — it has made 326 awards, lump sum awards and provisional awards; and in two cases no award was made. No award of the tribunal has been rejected. Further hearings have been scheduled up to the end of 1997 with further claims awaiting hearing beyond that date.

To reduce the waiting period for a hearing at the tribunal the Government has decided to expand the tribunal to include a second division. In this regard, I have recently appointed two additional ordinary members to the tribunal. As already stated, the Bill provides that the tribunal may sit in divisions to hear claims before it. The Government has also decided that mechanisms for settling claims be devised in co-operation with the Attorney General and this will be facilitated under section 8. I have always believed that claimants should have speedy access to the tribunal and these measures will undoubtedly reduce the waiting period for hearings.

The total amount of the awards made to date is approximately £38 million, excluding administrative and legal costs. The average amount of awards made to date is £116,481.19p and they have ranged from £15,200 to £453,904. A claimant to whom an award is made is entitled to the legal costs and expenses associated with the claim.

I am confident that all members of this House will co-operate in ensuring the speedy passage of this Bill which I commend to the House.

It is important that this Bill goes through as quickly as possible. I welcome the Bill, particularly some sections which I will refer to later. It is sad that it has taken so long to get this far. The Report of the Tribunal of Inquiry into the Blood Transfusion Service Board makes for sorry reading. Does anyone know what happens to victims of hepatitis C? Some of the earlier symptoms include generalised aches and pains, mainly in the hands, hips, shoulders and knees, fatigue which can be profound and interfere with occupational and social life, skin problems, blisters, rashes, a feeling of tired and gritty eyes, and an over or underactive thyroid gland which may lead to fatigue and weight loss on the one hand or weight gain and depression on the other. However, abnormal activity of the thyroid when it is a consequence of hepatitis C can be controlled by medication.

It is reported that 6 per cent of people exposed to anti-D have developed cirrhosis of the liver while 25 per cent have developed fibrosis. The majority have some degree of inflammation. Patients who at present display fibrosis of the liver will probably ultimately develop cirrhosis, the effects of which can include bleeding from varicose veins in the gullet, an accumulation of fluid in the abdomen and lower limbs and in some instances intermittent confusion caused by the circulation of toxins in the brain which would be cleared normally by a properly functioning liver. A minority of patients suffer from cirrhosis arising from any cause and — including those who suffer from cirrhosis arising from hepatitis C — can go on to develop liver cancer. In the event of liver failure arising from the damage to the liver caused by hepatitis a liver transplant operation cannot be carried out. However, hepatitis C victims are not always suitable transplantees and this fact can render the disease terminal, as has happened in many cases. The report of the tribunal clearly apportions responsibility and I wonder why some of those responsible have not been prosecuted for manslaughter. It is a scandal.

I do not blame the Minister. He has had a difficult time with this issue and I would hate to have been in his position. That said, he has not helped the situation. He was opposed to a statutory tribunal for over two years. In fact the Government is making a concession by introducing the Bill at this stage. Even at the Finlay tribunal the Minister continued to refuse to set up a statutory tribunal. He said it was a matter of policy and he would not concede to it. This tribunal has been dragged out of him, like all the other concessions. However, the victims of hepatitis C and their families will never forget.

Fianna Fáil favoured a statutory tribunal, Positive Action drafted a Bill and the hepatitis C victims first sought such a tribunal in 1995. Its advent is not before time. Many calls for a statutory tribunal have been made in numerous debates on the hepatitis C issue in the Dáil. However, the Government resisted the calls. It is only recently that one realises why the calls were resisted. I heard an interview on the radio in which the Minister for the Environment, Deputy Howlin, admitted that it was a determined Government policy not to give in on this issue and to pursue people. I find that extraordinary.

The case of Brigid McCole deserves mention. It involved a woman who was terminally ill. She received a letter in December 1996 in which the BTSB admitted liability and apologised, but only in the context of a threat that were she to proceed with a case for aggravated or exemplary damages and not to succeed, it would pursue her for costs. The Government stood over that approach. I find it hard to believe that the State apparatus was used against a woman who was terminally ill; she was only one among many victims. However, she was seriously ill for a number of years without knowing the cause. I was moved when I heard Mrs. McCole's daughter speaking tearfully on the radio. Many medical services are not available in Donegal and people have to travel long distances to avail of such services. Mrs. McCole had to endure many such journeys.

There are many other victims, men and women, who contracted hepatitis C through blood transfusions, including haemophiliac patients, transplant patients and others. The transplant patients have added problems. Their anti-rejection drugs mean they cannot be treated for hepatitis C with Interferon. Some of the victims have died and their families are devastated.

Nobody can delay this Bill. It must be passed as quickly as possible. I will praise aspects of the Bill later but it has been like pulling teeth to get the Minister to set up a tribunal. I heard say him that his legal advice was to resist it. I am not saying that is not the truth but there is a human dimension to all laws. It is unforgivable if we cannot look humanely at hundreds of people who are suffering through no fault of their own but instead try to defend that situation. It is unforgivable that it has taken so long.

Section 5 is a good one. This Minister was not responsible for what happened to these people initially. His response to other Bills which have gone through the House has been fairly helpful. I lay the blame not at the Minister's door but at that of the Government because this was a Government decision and he had to follow the party line. The Cabinet decided to instigate proceedings against sick people, even to the extent of writing to one woman 12 days before her unfortunate death to say they would haul her all the way to the Supreme Court to get costs. If that is what Government is about, I have had it all wrong. I thought the Government was supposed to look after and help people, not bury them.

There is no sense in raking over this issue again. It has all been said many times by other people and I have said as much as I need to on it. This Bill is long overdue and will have to be passed as quickly as possible. It is a pity it was left until now. A great deal of goodwill could have been engendered on all sides if it had come before the House two years ago. Positive Action drafted a Bill which meant the work was done for the Government. I understand Fianna Fáil drafted a Bill but was not allowed to present it because it involved a charge on the Exchequer. However, we have a Bill now and let us pass it as quickly as possible so that we can help people who should have been helped long ago.

Of all the issues on which I have spoken as a Senator, this is the one which gives me most cause to stop and leave aside the fact that I speak as a politician. Most of what we do as politicians falls into two categories: we are either arguing with each other or doing the detailed work of preparing and examining the minutiae of legislation and policy documents. That is the nature of politics.

The ground rules are different for this issue. It is the same as the rest of politics in that we have a responsibility to lead, we have a Bill to pass into law and we are discussing the spending of taxpayers' money. However, this debate is very different in that there can be no Member who does not feel for the victims of the hepatitis C scandal. We may be politicians but we are also human beings. Today we are required to face the fact that what we do impacts upon people. I do not have the right to say I feel the anguish and pain felt by so many families as a result of this affair, but I extend my sympathy to them.

The late Brigid McCole and her family behaved with great dignity throughout this tragedy and it is right that they should seek the fullest revelations of the part played by all those involved. Mrs. McCole had little choice but to bring a case to court and a case against the State if she was to get justice. All the money in the world will not undo the damage done to families who have lost their loved ones prematurely or whose health was ruined long before the natural progress of old age.

We must recognise the level of pain, sorrow and anger that exists because of what happened. Speaking at a regional conference of the Labour Party last October, before the tribunal began its work, my party Leader, the Tánaiste and Minister for Foreign Affairs, Deputy Spring, said:

We are all damaged by our inability to say that we are sorry. Of course there are legal constraints but there are human imperatives too. We are a community, each dependent on the other. As a community we have seen hurt and suffering where it should not exist and we should be able to express regret for that in a human way.

I wish to express my regret for what has happened. We must ensure that nothing like this shocking debacle happens again.

This issue has caused great pain and anguish to many women and their families. The McCole family were not offered fairness and it took time after Mrs. McCole's death for others to seek compensation for pain and injury. Justice must be seen to be done and it is from this point of view that the Minister is approaching the matter.

Since this tragedy first became public there has been a long and comprehensive judicial investigation chaired by Mr. Justice Finlay. The Government accepted the findings of the tribunal and has made a solemn commitment to implement all its recommendations.

The Government must make every resource available to ensure that our blood supply is never again open to known infection or contamination. We owe it to the victims of the hepatitis C affair to ensure that the integrity and quality of the blood supply is beyond question. The country's blood supply is an integral part of our health service and the blood which many patients require in the form of transfusions must be to the highest standard known to science at any given time. We must ensure that those who need emergency supplies can have faith in the blood they receive.

The Minister has become the victim of a situation he inherited, one which was the responsibility of many of his predecessors. I welcome his decision to introduce this Bill which puts the Hepatitis C Compensation Tribunal on a statutory footing so that no Minister will be able to tamper with it.

We must never forget these people. These victims should not have to depend on the Government of the day because the intensity of the media and public interest will decrease. To the victims and their families we are saying that we cannot undo what was done, but we are making a gesture of recompense and we will be there for you.

Most importantly, we are making it clear that we will not allow this to be forgotten with the passing months or with a change of Minister. By legislating in respect of the findings of the tribunal the Minister is saying this is an ongoing commitment. The Minister said in the Dáil two days ago that this was the worst tragedy ever in our health service. Like him, I hope I will never again have to take part in a debate such as this. I commend the Bill to the House.

I welcome the Bill. I am glad the Minister took so much account of the various groups who have been seriously affected by this catastrophe and that he has tried to incorporate in the Bill as many of their wishes as possible.

I hope the Bill is the last part of an incredible saga about infected blood. It is important to remember that this has been an international problem and that it shows how difficult it is to deal with biological products such as blood. While we can minimise risks we can never say with certainty that something is risk free. When the initial event occurred in 1977 there was a policy throughout Europe that each country should try to be self-sufficient in their blood supply. That was very important in ensuring they did not have to call for outside aid with the products they were manufacturing. We must be extraordinarily careful because if we have a deficiency in technology we must be sure that we are in a position to call for outside aid whenever it is needed.

The Minister's attention has probably already been drawn to a European Court ruling about blood products in the EU. It is important because it shows the change in European law that means that blood is being viewed as a commercial product. The Irish Medical News of May 12 says:

A new European ruling could force the Irish Blood Transfusion Services Board to tender internationally for the supply of blood or blood products here. The European legal verdict could threaten Ireland's self-sufficiency in blood and blood products. The controversy has arisen following a Danish row over blood supplies. A court dealing with European law decided in March that Danish companies violated EU law by agreeing a deal with its national institute for the manufacture and delivery of blood products. An Australian company now owned by US firm, Baxter, had wanted to make an offer for the manufacture and supply of the blood products but did not have the opportunity. The company sued the Danish companies for violation of EU licensing rules. The court ruled in favour of the Australian-based company and this now threatens Denmark's policy that blood and blood products should be produced in Denmark and made only from the plasma donated by Danes.

Members will remember that throughout the Finlay tribunal we constantly heard that we should only use Irish plasma.

Observers say the case will have implications for foreign companies wishing to make offers on the manufacture of blood products in EU member states. In the case, the Danish companies attempted to use Article 36 of the European Union Treaty to protect the system of self-sufficiency. It allows for exemptions on EU Directives in special cases where issues of extreme national importance are at stake. However, the court did not accept this was such a case.

This is very important and it is as well that we have clarified the fact that blood products are under the aegis of the Irish Medicines Board. Over the years this led to the debacle which contributed to the second case of infection involving donor Y.

I am glad that the Irish Medicines Board is now strongly involved in the use of blood products. If we are to accept tenders from abroad, this will become even more important. Members will note that an Australian, not a European, company tendered in the case I mentioned. While Baxter has a world-wide name for quality, it has had some problems with other drugs as have other major pharmaceutical companies. We must remember that blood products are being used as drugs in these cases.

The Minister has pointed out the adversarial system in our courts and that was one reason I was so glad the tribunal was set up. I have had far too much experience of being an expert witness for patients going to court. The experience places a lot of stress on them. Today, The Irish Times carries an editorial on the same topic.

I have the greatest sympathy for the McCole family and how they felt their mother was pursued on her deathbed. Unfortunately, this happens all too frequently in medical negligence cases.

I ask the Minister to urgently address the problem of our adversarial system when dealing with cases of perceived medical negligence. Our system is very hard on the plaintiff, usually the patient. Changes have been made in other countries and I do not understand why we cannot do likewise. I know it is not for the Department to make those changes but it is a matter which should be pursued.

Some years ago in New Zealand a no fault compensation fund was set up. In such cases the plaintiff does not have to prove negligence and compensation is made from a central Government fund. Obviously, the plaintiff must go through certain procedures to get money from the fund. The compensation fund investigates the matter and it does not involve a court case. Such a system is not as hard on the injured party or, indeed, on the doctor or medical body involved. In this country negligence must be established and the patient must show there was a lack of duty or care by the doctor. Often it can be time consuming and difficult to do so.

Last year a committee was set up in the United Kingdom chaired by Lord Wolfe. It proposed an alternative system of dispute resolution, with or without a professional mediator. Even if we do not go that far, we could at least try to improve matters and move as far as they are in Britain. At present we do not have an exchange of witness statements or expert witness reports, as they do in most countries early in the case. Without exchange of witness statements or expert reports, people end up on the steps of the court. Instead of both sides having an idea of the evidence the other side has, each side must wait until the case is virtually in court. This is very hard on the parties involved, is conducive to court cases and causes long delays. I suggest it is one of the most serious aspects of the delay in the McCole case. Apparently, proper cognisance could not be taken earlier of the cause of that delay. If witness statements and expert witness reports were taken into account earlier, the matter may not have reached a stage where great distress was caused to the McCole family. One should not look at the McCole case in isolation. It should be looked at in the broader context of the adversarial system about which we badly need to do something.

Section 6(14)(c) relates to those named in section 6(1)(e) who may have died as a result of having contracted hepatitis C or where hepatitis C was a significant contributory factor to the cause of death or any dependant of such a person. As I said during a previous debate on this subject, transfusions which contained hepatitis C were not only given to those who were dying. About 50 per cent of people who receive transfusions die within two years of receiving it. This has nothing to do with the transfusion but is because they have a condition which is terminal. Three families have approached me to say they believe — in one case they are sure — hepatitis C was a cause in the death of a family member in the early 1990s. I hope they will be given easy access to records which may be important in proving infected blood was given to the deceased relative. I would hate to think there had been a lack of co-operation between the hospitals or the Blood Transfusion Service Board because these people, having already had the distress of thinking one of their relatives had received such a transfusion, have a right to know what happened.

The episode involving donor Y was unbelievable. There were serious cutbacks at the time in the public service which did not exclude the Department of Health. However one may feel about the Blood Transfusion Service Board, it appears to have been short-staffed at the time. Pleas made to the Department of Health for more tests, staff and any improved facilities which could be obtained were not properly examined. When public service cutbacks are contemplated, the consequences should be examined carefully by those who suggest them. Such cutbacks must be applied in a proper manner and not just across the board. The loss of one key person in a certain area can result in the loss of a service. The loss of two such people could result in a reduced service. I have sympathy with those who were trying to run the service at the time as it was seriously understaffed.

Various people, usually with little experience of transfusions, are making proposals about how patients should conduct themselves when they require transfusions in hospital. We cannot proceed along the lines some of these people suggest, such as people bringing autologous blood with them when they go to hospital. This is of little more than psychological help because two pints is the most which can be collected in the six weeks prior to operating and one may need eight, ten, 15 or up to 20 pints during the operation. People should not be allowed to think they can have their own blood store before an operation because it is impossible. There are complications with autologous blood transfusions. We should get the blood transfusion system onto the best possible level to ensure we have a first class service and not have people thinking there are short cuts of which they can avail to ensure they are not at risk.

I am glad the Minister thanked Mr. Justice Egan for helping him prepare the Bill. He is owed more than that as it is interesting that no one has rejected the compensation tribunal's awards. From what I have heard from those who have been to the tribunal they were not just pleased with the awards but also with how they were treated. This is very important and I am glad the Minister has made a second court available because only ten cases per week can be dealt with. To give people the courtesy and attention they deserve, a half day must be given to each person's case. Those involved with the tribunal also have considerable reading to do for the cases.

We also owe a great debt of gratitude to former Chief Justice Mr. Finlay and those who assisted him with the tribunal of inquiry which was conducted with the greatest care and efficiency. His report was one of the most helpful items we could have received for changing the situation not just regarding the Blood Transfusion Service Board but also the Irish Medicines Board, known as the National Drugs Advisory Board at the time when these disasters took place.

Mrs. Miriam Hederman O'Brien also deserves great thanks for the expert report she compiled as it answered an enormous number of questions. I must hold my head in shame because some members of my profession did not co-operate with her at all and others did so in a very limited manner. It is very sad to see professional people behaving in that way. Dr. Caroline Hussey and Professor Alastair Bellingham also did a good job and they should have been in a position to get all the answers. It should not have been necessary to set up a tribunal. The only reason that was necessary was the lack of co-operation by those who should have known better.

As a doctor I was affected by this episode. The most appalling thing that can happen to any member of the medical profession is that, through one's actions, one does such harm. I pay tribute to my colleagues in general practice who did their utmost in 1977 to alert the blood bank to the matter when so little was known about hepatitis C. However, the experts told those they felt were in a lesser position that they were not in a position to give advice. Had that advice been taken and the quick clinical judgment shown been replicated by the BTSB we would not be in this position, nor would so many women and men have been affected by blood transfusions.

Episodes such as this should make anyone who makes pronouncements on the certainty of medical procedures cautious about what they say. It is so easy to make dogmatic statements and say this or that will result or there is no risk involved. This debacle shows that there can be very serious repercussions from something which started as a small mistake.

I compliment Senator Henry on her contribution. Throughout this tragic, sad, terrible experience she has consistently been a model of good sense, fairness, objectivity and moderation. All of her contributions have been informed. She has gone against the tide of public opinion on many occasions, yet has never tried to turn this issue into a political football. We owe her a great debt for her objectivity, compassion and honesty. She is an outstanding colleague.

The circumstances which give rise to this Bill have been debated, discussed, examined and analysed. I do not intend to do so again. The Finlay report, which was a model of what a judicial tribunal report should be, has clearly told us why and how the tragedy happened and who was responsible. It detailed in clear, understandable language the circumstances and causes and has pointed to those responsible. We do not need to go further than that.

Some people made extraordinary allegations of blame and malice before the report was published. However, when it was published and they were found to be wrong it was too bad for the report as it did not live up to their prejudice. Some of the hurtful, at times, libellous and slanderous things which were said were not retracted. The Minister, in particular, bore the brunt of many of these allegations. He has shown enormous fortitude. We pay tribute to Justice Finlay for the quality of his report.

This Bill answers one of the aspects of the problem and is one way in which the State can make redress. It bears out the fundamental rightness of the Minister's instinct and policy. He did not want to go down the adversarial High Court road. Senator Henry has pointed out some of the pitfalls in adversarial cases dealing with medical problems. The Minister did not wish to do so and he was right.

This Bill puts on a statutory basis what has been in operation for quite some time. The tribunal, under its excellent chairman and staff, has offered privacy, a speedy hearing and a humane discussion of the issues. From the results so far, it has been seen to be just and fair in the monetary awards it has made. Like Senator Henry, I pay tribute to the tribunal's work to date. I am pleased the Minister is adding a new division and if he needs to add a third division there will be no opposition from the Seanad. It is important the backlog of cases is dealt with as speedily as possible, although speed should not mean the proceedings should not be comprehensive and humane.

This Bill is welcome and will be commended by all sides of the House. We are dealing with a tragedy and scandal which has no precedent. At almost every level the State was trying to come to terms with something with which it had no previous experience. Mistakes were made but, as The Irish Times pointed out in its judicious and fair editorial today, the same mistakes would probably have been made by any group of public servants confronted with the same problems.

One of the most distasteful aspects of this saga is the ease with which the issue has been politicised in a personal way and used in a manner which did not help the case of hepatitis C sufferers. That has clouded the debate on the central issues involved — how it happened and what should be done. This is a good Bill. I welcome it and commend it to the House.

I agree with Senator Manning that the circumstances which gave rise to this issue were a disgrace and a scandal. I am not suggesting that any Minister deliberately contrived to create those circumstances or that any Minister, including the present one, would be involved in aggravating that disgrace.

Obviously our sympathy goes to all those who have suffered as a consequence of this disgrace. As elected representatives we must and should put that on record at every available opportunity, particularly in respect of the late Brigid McCole. On every possible occasion we should express our apologies, regret and deepest sympathy to her family for the disgraceful manner in which her case was treated and for the deep hurt which will probably remain with her family forever as a result of the circumstances under which they perceived they were treated harshly, if not cruelly, by the State.

I wish to address a number of issues in that context and to put on record the procedures involved when the Attorney General advises the State and when consultations are held with the Attorney General and with the Department and Minister concerned. My observations are based on my experience as a Minister who was involved in such consultations with the Attorney General when actions were brought against the Minister for Agriculture or the Minister for Finance, positions I held at the appropriate times. My observations are also based on my perspective as a senior counsel since 1973, albeit with intermittent periods when I was a member of the Government and could not practise at the Bar, who represented the State and has considerable experience of how State consultations are conducted and of what view is finally represented by the State's counsel.

The Minister said on many occasions that he was not free to admit liability on behalf of the State because his legal advice was that the State was not liable. I have no doubt that the defence entered on behalf of the State was that it denied liability. One sees that pattern every day in the practices and procedures of the courts. As a senior counsel I have advised on the liability of the State. On more than one occasion I gave the opinion that the State should not be held liable. The Minister's opt out does not hold water because the representatives of the Minister in question are involved in consultations as often as the representatives of the Attorney General, on many occasions before a case comes to trial. In representing the State and acting against it, I found that the views expressed by the Minister's representatives took precedence when it came to deciding if a case would be fought to a conclusion or settled.

The Minister's opt out does not stand up in practice. The vast bulk of the 30 cases involving negligence listed in the High Court every day include a denial of liability — as was the Minister's position in this case — on the part of the defendant. However, the majority of cases involving a formal denial of liability are settled through discussion, reasoned negotiation and understanding by the counsels on both sides. That has been the pattern and will always be so. If advice is sought from senior counsel and their opinion, based on the documents, is that the State or the Minister is not liable, the Minister of the day is not precluded from reaching a different conclusion in the context of a humane, proper and sympathetic settlement. Many Ministers have done that over the years. This Minister cannot hide behind the position that it was not open to him to do so.

The Minister conveyed the impression that it was not open to him to concede liability. That position is unacceptable and not in accordance with the practice and procedures in the courts. Many factors must be taken into account in cases involving the type of human suffering and hurt in the McCole case. A senior counsel considering the effect of bringing witnesses into court to prove their case would be conscious of the fact that one could lose the understanding and sympathy of the court by cross-examining such witnesses. The counsel would also be conscious of the fact that the court would have a predisposition towards sympathy for the unfortunate victim and their family. Any counsel of any standing, even in their first year at the Bar, would take that into account and convey that fact to his client, which in this instance was the Minister.

As Minister for Agriculture I had consultations with the Attorney General in cases where the legal advice I received from the original senior counsel — which the Attorney General calls the Attorney General's advice — was that we were unlikely to be held liable. However one considers the totality of the case, the costs which could accrue to the State from a lengthy hearing and the fact that the court may not give a decree of costs against the plaintiff in circumstances similar to the late Mrs. Brigid McCole, if we take a balanced view of law and fact — fact is the terrible experience, hardship and suffering and law means its textual application — we can reach a conclusion. It is unacceptable that the Minister has attempted to abrogate his responsibility when his departmental representative as well as the Attorney General's representative were involved in those pre-trial consultations.

The Minister said this Bill allows him to make arrangements to provide for the settlement of claims in respect of general and special damages. That is the constitutional right about which we are talking. Every citizen, such as the late Mrs. Brigid McCole, is entitled by definition to the right of access to the courts and does not need a statute to give her that right. If she is entitled to that as a citizen in law, she is entitled, as a citizen of this nation who has suffered as a result of this scandal and disgrace, as it was called by the Leader of the House, to human understanding and consideration. I note with regret that the Minister did not offer one word of regret or sympathy in relation to the scandalous case of Brigid McCole v. the Blood Transfusion Service Board and the Minister for Health. That is extraordinarily insensitive after all we have heard about it for so long.

It is also bizarre and insensitive that on a day when the Minister could have appeared before his peers when the Dáil was still in session to waive the privilege which every client can waive — he does not need to be a first year law student to know that — and to fully disclose the position which, in time, will be fully disclosed, he and the Government decided to wait until the Dáil was no longer in session and to frustrate the right of the people to inquire fully into these sad and tragic events. It is fortuitous that the Upper House is still in session, but that is not adequate to discharge his responsibility.

I know that nothing this Minister or his predecessors did was intended to be deliberately or recklessly hurtful to any family, including the family of the late Mrs. Brigid McCole. However, I also know that since those scandalous and unacceptable events, the attitude and actions of this Minister, including the statements he made that he was not free to admit liability, have not alleviated the hurt but aggravated it. That is a matter of great regret.

I welcome this Bill which will put the compensation tribunal for the victims of hepatitis C on a statutory basis. I understand its provisions cover what the representative groups wanted. I appreciate that wide-ranging consultations took place with these groups before the Bill was drafted.

It has been a long hard road for the victims involved in what has been acknowledged by everyone as the greatest public health scandal in this State. The infection of women with hepatitis C through anti-D was first raised in this House in February 1994. What we have learned since then is a shocking indictment of a State board. It was shocking to hear the evidence presented at the Finlay tribunal. Throughout this saga, each step taken has been worse than the previous one. Today, through this tribunal being placed on a statutory footing, we see coming to fruition what the women, particularly those in Positive Action, campaigned for over the past three years. Great credit is due to all of them and I applaud their courage. It has taken their extraordinary courage particularly the courage of the late Brigid McCole, for this to happen. Had any other group been concerned, it would not have come this far. Nobody reckoned on the tenacity and courage of these women and we have reached this point today because of them.

I have always felt — and I could not be accused of being sexist in saying this — that women on all sides in the Houses of the Oireachtas had a much better understanding of the enormity of what was involved in this scandal and how it should be dealt with than the men in Cabinet. I welcome what the Minister has done and appreciate this has been a very difficult time for him and his officials. However, the enormity of what happened does not seem to have ever really dawned on some officials and some of those at the Cabinet table. It is unfortunate that we did not have women dealing with this issue. They would have dealt with it in a very different way. I do not intend any disrespect to the Minister when I say that. He tried to do what he believed was the right thing and what he was advised to do.

As public representatives, Members of the Houses of the Oireachtas are elected by the people to respond to issues in the right way. All reasonable people feel the way in which the women were treated in this case, particularly the way in which the case was pursued against the late Brigid McCole, was not right. It is extraordinary that the facts which have emerged in this long and sorry saga would not have done so were it not for the late Brigid McCole. It is very sad that the only issue which has not been dealt with is the legal strategy pursued in Brigid McCole's case. The way in which the State tried to deny Brigid McCole a hearing in the courts on the basis of the Statute of Limitations, the way in which she was forced to go public — which must have been extremely difficult for her — and the way in which she was deprived of an early hearing is shocking. I cannot understand why Mrs. McCole was treated in this way.

It is my understanding that the decision not to grant Mrs. McCole an early hearing was taken on the advice of three medical doctors. The evidence taken from Professor Fielding, who was dealing with Mrs. McCole's case, was not very committal. Dr. Courtney, who had been treating Mrs. McCole for a number of years, outlined the seriousness of her health condition and said that liver failure was imminent and that it was possible she would require a liver transplant. Legal opinion was sought on behalf of the State and the BTSB from a Professor Weir who decided that Mrs. McCole would be fit to stand trial at a later date. I cannot understand how the opinion of a doctor who had been treating Mrs. McCole over a number of years and was very familiar with the case was not accepted or why her general practitioner was not consulted about her condition.

I met Brigid McCole a number of months before her death and, even knowing nothing about her medical state, it was apparent death was imminent. I am appalled that she was unable to have an early hearing, that she died before her case went to court and that a couple of hours before her death she was forced to accept an award from the State and was threatened with legal action and costs if she did not do this. I hope such a case involving an individual, particularly an individual suffering as a result of negligence by a State board, will never occur again. We can say we would have done things differently with the benefit of hindsight, but I hope the lesson from this saga, which involved negligence by a State board, is that we will in future deal with similar situations in a humane manner and that the concerns of those involved, in this case the women, will be put before everything else. This is what the people wanted in this case and I hope in other circumstances this will be the approach taken. I hope legal advisers will not have the final say in such cases but that politicians will make their own decisions on the basis of advice given and in line with what the public desires.

I appreciate the difficulty the Minister had. This must have been the most difficult issue any Minister has had to deal with because it concerned the lives and health of so many individuals. I appreciate the Minister's difficulty as events unfolded and the truth came out, but I hope we will learn from this case and ensure that if a similar case occurs in the future it will be handled differently.

I am delighted the Bill is being passed during the lifetime of this Government. It makes provisions similar to those we would have liked to have seen in place from the beginning but the Minister obviously perceived difficulties along the way and I am happy these have now been overcome. I pay tribute to those who campaigned to have these provisions introduced and to their commitment, work and endurance. They were suffering from a life threatening disease and have not been in the full of their health during this effort.

I welcome the provision for aggravated damages. I had a case in my constituency where a woman died as a result of a transfusion. Her husband had to give up his job to look after the young family and I am glad they will be now in a position to get greater compensation than was previously available. This is very important and the provisions outlined by the Minister are welcome. I thank the Minister because, while money can never compensate, it is a help to families to know that the State will try to compensate them for the damage it has caused.

The issues I raised are those that come to mind when I consider what happened not just to the women but to the men who have contracted hepatitis C through blood transfusions, haemophiliacs and those in the Irish Kidney Association. All have suffered at the hands of the State and I am delighted they are finally getting what they justly deserve.

Limerick East): I thank Senators for their contributions and for their support for the Hepatitis C Compensation Tribunal Bill, 1997. The Bill applies to all persons eligible to apply to the compensation tribunal as it exists at the moment in an informal way, but also when it is put on a statutory basis. It is not a debate on the State's handling of the McCole case, but I appreciate that many Senators wanted to refer to that. Quite an amount of the time was taken up referring to that.

There is no doubt this is a great health tragedy. It is the greatest public health tragedy that has occurred since the foundation of the State. Large numbers of persons have been infected with an incurable disease which has changed their lives and prospects as well as their family and work relationships. It has been difficult to deal with it first of all, because a Minister in my position had nothing to go on. Everything we did was an initiative to meet an unprecedented situation. We have made significant progress.

I appreciate the anger of families, including men and women with hepatitis C. No matter what we do in the Houses of the Oireachtas we cannot inform the victims that we have a cure for hepatitis C because no such cure exists either here or internationally. The victims want to be cured and to return to a normal lifestyle but despite our best efforts we cannot do that. However, we have made great efforts in medical research and practice. It is recognised internationally that a person with hepatitis C will get better medical care in Ireland than anywhere else. The state of knowledge here is more advanced than it is anywhere else.

I have expressed my deep sympathy to the family of Mrs. McCole on a number of occasions and, in response to Senator O'Kennedy's charge, I do so again. The principal debate was on the Second Stage of the Hepatitis C Compensation Tribunal Bill but in case it is seen as an omission on my part, I again express my heartfelt sympathy.

One of the difficulties I have on handling of the legal strategy in the McCole case is that no matter how many times I put the record straight and explain what happened, the same charges are thrown back at me either in the Houses of the Oireachtas or outside. Senator O'Kennedy, exceptionally among all Senators who contributed today, went down that road once more. He drew on his experience as Minister for Finance, Minister for Agriculture and on his experience as a senior counsel who has represented the State. He forgot to say, however, that all the experience he quoted from referred to when the State was being sued as a single defendant.

In this case there were three defendants: the Blood Transfusion Service Board; the State; and the National Drugs Advisory Board, now the Irish Medicines Board. Different cases had to be answered. Anybody who reads the Finally report knows the position of the State was totally different from the position of the BTSB in terms of liability. Anybody will know also that the position of the National Drugs Advisory Board was different. Not only were there three defendants, but they were represented by three full legal teams comprising senior and junior counsel and solicitors. The Blood Transfusion Service Board and the National Drugs Advisory Board had their own insurance, so insurance companies were in the background with an interest in how the cases were conducted.

The State was strongly advised by eminent independent counsel that it did not have a liability and still does not have a liability. That was acknowledged by the Attorney General as the correct advice. The only change in that which has come about arises out of the Finlay tribunal. The State is now prepared to admit liability for persons who contracted hepatitis during that period in 1991 when persons were infected. The Finlay tribunal found that testing, which was available, could have been introduced at an earlier date. That is the only area where, subsequent to the Finlay inquiry, I have been advised that there is a possible State liability and the number of persons involved is in the order of 25 or 28.

The Blood Transfusion Service Board pleaded that it was not liable, which, as Senator O'Kennedy pointed out, often happens in court, but, as the full facts of the case began to emerge in the summer of 1996, it admitted liability after a full review of its position. After consulting expert witnesses and reviewing the whole case, the board admitted liability. To put it in very blunt terms, the legal strategy pursued by the BTSB was decided by the BTSB, the legal strategy pursued by the State was decided by the State and the legal strategy decided by the National Drugs Advisory Board was decided by the National Drugs Advisory Board. All acted on independent legal advice and all had different cases to answer as is quite clear from their state of knowledge which we received from the report of Dr. Miriam Hederman O'Brien and doubly clear from the state of knowledge we now possess from the Finlay report.

On the question of waiving privilege, I have strong legal advice that I cannot go into a committee and waive privilege, but I wrote to the Chairman of the committee, Deputy Séamus Pattision, and stated that I was available to go before the committee and explain my position. However, there was a certain amount of political stunt work going on yesterday. A meeting could have been arranged for 5.30 p.m. but I was in the Dáil debating this Bill at that time. I was there from about 5.20 p.m. until after 9 p.m. between Private Members' time and the Committee, Report and Final Stages of this Bill. I was four and a half or five hours in the Dáil and the whole matter was being debated there. Was I supposed to have developed the skills of bilocation to be at the committee at the same time? There have been constant charges and many Members of the other House, in particular, have gone down a great deal in my estimation because they were not intellectually honest in the manner in which they dealt with this issue.

I thank God we do not have that experience in this House and I thank the Senators, with the exception of Senator O'Kennedy, for the manner in which they dealt with this issue today. Senator O'Kennedy drew on his experience as a Minister and senior counsel representing the State and he misled the Seanad. He then went on to make a puerile point about the speech which showed his state of knowledge, and that he had not even read the Bill. He laid a charge that there was a concession in the Bill, that the script stated the Department was conferring the power to settle cases and that he, as a senior counsel, knows that cases are settled every day in the courts. Of course they are, but that is not what is in the Bill. Instead of each case going before the tribunal — even when there are two divisions to clear the backlog on the lists — the Bill provides for a settlement system within the compensation tribunal so that persons who do not go to court but go to the compensation tribunal could avail of a settlement procedure so that there will be progress on the two divisions of the tribunal to deal with applicants but at the same time an arrangement could be made for settlement where formal sittings of the tribunal would not actually be necessary and people could proceed with their cases. If Senator O'Kennedy had even made the most cursory reading of the section, he would not need to be a senior counsel to know that. It was proof positive of his lack of interest and that he came in here today to make political points and launch a political attack, and that he has no great interest in this anyway.

Senator Honan raised a number of points. She said she was very disappointed with the manner in which the State dealt with the case. I have put this on record several times. Must I read the material into the record again? The charge about the Statute of Limitations is not correct; that is not what the State did. Obviously, anything a defendant does not rebut in a statement of claim is admitted. The normal procedure is that statements of claim are made, everything is rebutted in the first instance and then things are netted down. However, in terms of the statute of limitations, that did not happen.

As stated earlier, a plaintiff is required to provide reasonably specific details of the occasions on which important events are alleged to have occurred. These details were omitted from Mrs. McCole's statement of claim. In its plea and notice of particulars to the court, the State required her lawyers to specify the occasions on which she contracted hepatitis C or those on which she became aware that she had contracted such a serious condition. It was not unreasonable to do so and it would not be unreasonable for the State to take such action in any case. However, that has been twisted and made to look like something it was not.

With regard to the issue of anonymity, it is a matter of constitutional law that a person is entitled to know the identity of the individual suing them and there is precedent in case law to support this. The question of anonymity in Mrs. McCole's case was heard by Justice Mary Laffoy who stated that it was not possible to take a case anonymously before the courts because the Constitution did not allow it. While everyone appreciates that this constitutional protection of civil rights can be very onerous on persons such as Mrs. McCole, the State could not waive the matter because a judge decided in open court that the name had to be provided.

I indicated on numerous occasions that the State did not deny Mrs. McCole an early hearing. The President of the High Court granted an early hearing and it is important that I place on record the events surrounding his decision. Allegations have been made that the State opposed the granting of an early hearing in the late Mrs. McCole's case. I reiterate that Mrs. McCole's initial application for an early hearing was withdrawn by her lawyers and, when it was ultimately re-entered on 26 April 1996, it emerged that the case would not be ready for trial in June as her lawyers had requested. The President of the High Court adjudged it should proceed on 8 October 1996. He stated that in exceptional circumstances the court could give priority to cases and fix an early trial date but that this power must be exercised sparingly as it affects other litigants. He also stated that the defendants had met the plaintiff's claim fairly and indicated that they would be in a position to go to trial in October. The judge added that the rights of both parties had to be weighed and he considered it relevant that, should Mrs. McCole's condition deteriorate, a compensation tribunal was available to her. The tribunal indicated a willingness to sit at short notice to facilitate the claim if that was the desired option.

Mrs. McCole's lawyers were able to substantially amend her statement of claim on two subsequent occasions because the case was put down for hearing in October. They were also able to make a considerable number of interlocutory pretrial applications to the court for reliefs considered necessary in the late Mrs. McCole's case, even during the period leading into the summer vacation. While the State indicated that the case would not be ready for trial in June, it is clear that the case on behalf of Mrs. McCole was also not ready because several amendments were made in the period to which I referred.

A new issue in the case which caused controversy, and which the tribunal of inquiry subsequently investigated, was the Therapeutic Substances Act. Senator Honan raised this matter in the House on a previous occasion. This issue was introduced by Mrs. McCole's lawyers by way of an amendment to the statement of claim on 23 July 1996. Accusations have been made that the State obstructed Mrs. McCole and would not grant her an early hearing in June but this matter was tried before the President of the High Court. While the State indicated its case was not ready to be heard in June, it is clear from subsequent events that Mrs. McCole's case was also not ready to be heard at that time. However, Mrs. McCole was given an early hearing in October.

This is an unfortunate affair and I have no wish to engage in further arguments about it. However, I want to make a final attempt to set the record straight because what is being recited as fact is not fact. I have been accused of things which did not happen. Another accusation that has been made is that there must have been collusion because in the final letter of settlement there was the issue of the costs of the State, and the National Drugs Advisory Board was included.

In any situation every lawyer and barrister in both Houses knows precisely what would happen. I do not wish to make invidious comparisons but if, for example, a person is injured in a three car accident, he or she is advised to sue all three drivers and if one driver or his insurance company admits liability, the other two drivers can make a claim against the plaintiff for being wrongfully sued and may recover their costs. This does not show collusion with the State on the issue of costs; rather, Mrs. McCole's lawyers would have insisted that the BTSB would cover the costs of the State and the NDAB for fear that they would subsequently proceed against her for costs because they had not admitted liability — that would not have happened but it is theoretically possible. In a case with three defendants, one of whom admits liability, the plaintiff, Mrs. McCole in this instance, would have to be protected against claims for costs from the other side. Every lawyer in the Houses knows that but I cannot get the message across. No matter how often I correct the record it is still recited in interviews; on "Morning Ireland" experts will say this is what happened when it did not happen at all.

I do not intend to raise the temperature of the debate. The Seanad debates have been helpful to me in these unprecedented circumstances. I appreciate the public and private advice from many Senators, including Senator Henry, Senator Honan, Senator Maloney and Senator Manning. I have received much support on these issues. This is a great tragedy and I hope we can move on.

Putting the tribunal on a statutory basis makes it a more sophisticated vehicle for awarding compensation claims than the informal tribunal. If I were to do it again, starting from two years ago, I would still set up an informal tribunal because it gave me the flexibility to make amendments as circumstances changed. This was unprecedented and we did not know how the tribunal would work. On a number of occasions I could tell the Government there was a difficulty and if I needed to amend the terms of reference I was able to do so at the stroke of a pen. If primary legislation had been required, we would not have been able to get it through the House with such rapidity. Now, however, the position has been clarified — 327 people have had their claims processed satisfactorily, we have a good idea of the position, we can set this in statute and add extra provisions as necessary. Even so, I have provided in section 13 that the Minister may by regulation amend anything which is not working properly. It is a catchall provision to retain flexibility.

The informal tribunal had two great features, the flexibility and ease with which one could amend the terms of reference if it was not working properly, and the informal manner in which it operated under Mr. Justice Egan's wise chairmanship. I wish to retain both those features, even though we are putting it on a statutory basis. I do not want the Bill to make this a rigid scheme where, if we run into difficulties, we will not be able to amend it. I agree with Senator Maloney that there is an advantage in bedding the compensation tribunal in law so that my successors can make changes when less public attention is given to these matters or where there is pressure, perhaps of a financial nature, on the State in years to come. Persons who receive a provisional award will have the right to apply far into the future. We want to ensure it is bedded in law now and that substantive changes can only be made by one of my successors by way of amending legislation passed by both Houses of the Oireachtas.

The Seanad is a good place to explain issues and have a debate. I thank all who contributed.

Question put and agreed to.
Agreed to take remaining Stages now.