On behalf of my colleague, the Minister for Health and Children, I am pleased to bring proposals to the Seanad to provide compensation to HIV-infected haemophiliacs and their dependants. The proposals will also be of benefit to the dependants of people with hepatitis C who have died as a result of receiving blood or a blood product or where hepatitis C was the significant contributory factor to the cause of death.
The Bill has its origins in circumstances which have resulted in much grief, suffering and the loss of many loved ones. The haemophilia community has suffered to a truly extraordinary degree and the loss of fathers, husbands, brothers and sons within that community is a tragedy of immense proportions. The Bill is about compensation and how the State addresses – or to be more accurate, readdresses – this tragic episode with deep and bitter consequences for so many people. The proposals aim to bring closure to the efforts of the State to compensate persons with haemophilia and their families arising out of the consequences of HIV. While financial compensation alone cannot undo the harm done or make up for the loss of life, health or well-being, it is nevertheless one measure which can assist haemophiliacs and their families and ease the burden of what they have suffered and continue to suffer.
The particular circumstances associated with the infection of haemophiliacs with both hepatitis C and HIV have been investigated by the Lindsay tribunal and we have all heard graphic testimony from haemophiliacs who are infected with hepatitis C and HIV. The evidence presented by the families of those who died was particularly moving. We await the report of that tribunal, which will address the role of treating physicians and State agencies which had a responsibility in regard to the treatment and care of such persons.
In 1999, during discussions between the Department of Health and Children and the Irish Haemophilia Society in relation to the terms of reference of the Lindsay tribunal, the society raised the question of compensation for haemophiliacs with HIV. It felt that the 1991 settlement was inadequate and that it did not provide fair compensation. In particular, it pointed out that whereas hepatitis C claims are calculated on the same basis as awards of the High Court, the 1991 settlement did not do so.
In light of the representations made by the society on behalf of its members, in December 1999 the Government accepted that it would be fair and equitable to review the compensation arrangements for HIV-infected haemophiliacs and dependants of deceased HIV-infected haemophiliacs. The Government committed itself to bringing forward proposals to provide compensation for HIV haemophiliacs and their families on a similar basis to those persons infected with hepatitis C, subject to such modifications as might be necessary to take account of the special circumstances of HIV infection. Detailed discussions followed between the society and its legal advisers and the Department and its legal advisers.
The development of compensation proposals was extremely complex. The fact that there had been a full and final settlement in 1991 was one of the complicating factors. Apart from the legal complexities, the preparation of proposals was unavoidably delayed due to the fact that the society and the Department were heavily involved in the Lindsay tribunal. It was necessary for the Department to devote considerable time to its participation at the tribunal which heard evidence over 196 days, completing its public hearings on 28 November 2001. The involvement of the Department in this tribunal significantly affected the timescales involved in bringing forward proposals.
The circumstances of persons infected with HIV and their dependants were the subject of detailed submissions by the society. I would like to summarise for the House the special circumstances relating to HIV which the society outlined. HIV infection in the 1980s and the early 1990s was effectively a death sentence. Those infected became seriously ill very quickly and died harrowing deaths; many died relatively young, including some children. The rapid deterioration of the health of those infected was extremely difficult for the families. The stigma and fear associated with the virus, especially around the time of the bereavement, added immensely to the trauma and suffering of the families. The support and counselling services for the primary victims and their families were inadequate and this inadequacy aggravated the pain and suffering. There was a significant risk of onward transmission of HIV especially in sexual relations.
I am pleased to inform the House that, on behalf of the Government, the Minister, Deputy Martin, has reached an agreement with the society which resolves the issue of additional compensation arising from the HIV infection. The principal terms of this agreement are as follows. Persons who are infected with HIV from the administration of blood products within the State will have access to the compensation tribunal. Dependants of those HIV-infected haemophiliacs who have died will be entitled to claim the general damages, including pain and suffering, to which the deceased would be entitled were he or she in a position to make his or her claim to the tribunal. Dependants will also be entitled to claim for financial loss arising from the injury and death of the person with HIV. A dependent spouse, child, mother or father may claim if they have suffered post-traumatic stress disorder arising from the death of the primary victim. Dependent spouses or children may claim for the loss of society, including the loss of care, companionship and affection of the deceased. A spouse or partner may claim in respect of the loss of consortium, including the impairment of sexual relations, arising from the risk of the transmission of HIV.
The Bill is extremely complex and contains a number of novel provisions. It provides that the dependants may claim for the general damages, mainly pain and suffering, that the deceased would have been entitled to if he or she had survived. This is a significant departure from the civil liability provisions which exclude dependants from claiming the pain and suffering of the deceased. The Government approved this provision because those who died were not in a position to make a claim on their own behalf before death. In addition, under the Civil Liability Acts, dependants may only claim from the date of death of the deceased and not from the date of injury. We have included a provision which will allow the dependants claim for financial loss from the date of injury. This will enable dependants to be awarded compensation, for example, where the deceased was unable to work because of his or her illness and the dependants lost out financially.
It should also be noted that, while the Bill is primarily aimed at resolving the issue of HIV compensation, the benefits will also extend to persons infected with hepatitis C and their dependants. A number of amendments were agreed in the Dáil yesterday to ensure parity of treatment of persons suffering from hepatitis C or HIV. These amendments were made following representations made to the Minister by Positive Action and Transfusion Positive.
I now turn to the detailed provisions of the Bill. Section 1 defines various terms used in the Bill. I draw attention to the definition of "relevant product" which is defined as a blood product or blood component used to treat persons with haemophilia or other blood clotting disorders in respect of those conditions. The use of such products has been implicated with the transmission of HIV to members of the haemophilia community here.
Section 2 provides for a change in the title of the compensation tribunal which in future will be known as the Hepatitis C and HIV Compensation Tribunal. The references in any Act or regulation to the tribunal will be construed accordingly.
Section 3 provides for two technical amendments of section 3 of the 1997 Act. Paragraph (a) provides that certain notices which may be issued by the tribunal may be delivered to the place where a person to whom the notice is directed carries on any trade, business or profession rather than delivering it to his or her home address. Paragraph (b) inserts a new provision in the 1997 Act which provides that certain requirements of the tribunal may be enforced by the High Court. These may require a person to attend the tribunal to give evidence or produce documents to the tribunal. The compensation tribunal has received full co-operation from all relevant State agencies, doctors and others. Nevertheless, it is considered desirable to make such provision now that we have an opportunity to do so.
Section 4 provides for a series of amendments to section 4 of the 1997 Act. Paragraph (a)(i) is a technical amendment to clarify the intention of section 4(1)(c) of the 1997 Act. Paragraph (a)(ii) amends the provision in the 1997 Act in relation to carers of persons with hepatitis C. The existing provision enables a carer to make a claim for financial loss or expenses that he or she has incurred. This is now being extended to include financial loss or expenses which he or she will incur.
Paragraph (a)(iii) extends the categories of persons who may apply for compensation to the tribunal to include persons affected by HIV infection. The new provisions are at paragraphs (f), (g), (h), (i) and (j). Paragraphs (e) and (k) already appear in the 1997 Act and are being repeated for drafting reasons. Paragraph (f) refers to a person who has been diagnosed positive for HIV as result of receiving a relevant product within the State. Paragraph (g) refers to children or spouses of such a person who have themselves been infected with HIV. Paragraph (h) refers to a person who is married to or cohabiting with an infected person and enables that spouse or partner to make a claim for loss of consortium, including impairment of sexual relations arising from the risk of transmission of HIV or hepatitis C. Paragraph (i) enables a person responsible for the care of an HIV infected person to make a claim for the financial loss or expenses that he or she has incurred or will incur. Paragraph (j) enables dependants of HIV infected persons who have died to make a claim for compensation to the tribunal.
Section 4(b) inserts a new provision after section 4(2) of the 1997 Act which section provides that a person is not entitled to make a claim to the tribunal if he or she has received an award from any court or a settlement arising out of the circumstances which could give rise to a claim at the tribunal. The new subsection (2A) provides that this prohibition will not apply to any person who has received a payment under the 1991 settlement or an award from any court, including an award from a court on appeal from the tribunal, or a payment in respect of an action against a party other than the State or a relevant agency. This provision is necessary to ensure the persons who received payments under the 1991 settlement or in settlement of litigation against the pharmaceutical companies are not debarred from making a claim to the tribunal. It will also ensure persons infected with both hepatitis C and HIV will not be debarred from making a claim in respect of their HIV condition where they have previously received an award in respect of hepatitis C.
Section 4(c) inserts a new subsection (6A), paragraph (a) of which requires a claimant to advise the tribunal whether he or she has previously made a claim to the tribunal or received a payment under the 1991 settlement. In the case of claims by dependants, the dependants will also be asked to indicate whether the deceased person had previously made a claim to the tribunal or received a payment under the 1991 settlement.
Paragraph (b) authorises the Minister to furnish the tribunal with particulars of the 1991 settlement if the tribunal requires this in order to process any claim. Paragraph (c) provides that where a co-infected person has not made a claim before the commencement of this Bill, the tribunal can choose to hear and determine together the claims in respect of HIV and hepatitis C. This will enable the tribunal to consider all aspects of any case and help to eliminate duplication and delay. Paragraph (d) is a transitional provision which ensures that where there are claims pending before the Bill comes into force, the tribunal may deal with these and any fresh claims from the same claimant at the same time if it considers this appropriate.
Section 4(d) is a cross-referencing adjustment. Section 4(e) sets out the proofs which persons making claims related to HIV infection will be required to satisfy on the balance of probabilities. Briefly, a HIV-infected person will be required to show that his or her infection resulted from the use of a relevant product within the State. A child or spouse infected by an infected person will be required to show that this was the source of his or her infection. A carer will be required to show that the HIV-infected person he or she is looking after was infected following the receipt of a relevant product while dependants will be required to show that the deceased was infected following the receipt of a relevant product.
Section 4(f) provides that in making a claim for aggravated or exemplary damages a claimant may rely on the facts found in any report of the Lindsay tribunal. Section 4(g) is a cross-referencing adjustment.
Section 4(h) sets out the time limits within which claimants must bring claims arising from the infection of persons with HIV. These follow the format used in the 1997 Act for hepatitis C claims. In summary, the time limit is three years from the date of the relevant event, for example, the date of injury or date of death, or three years from the date of commencement of this Bill, whichever is the later. Section 4(i) and (j) are cross-referencing adjustments.
Section 5 of the Bill provides for the amendment of section 5 of the 1997 Act, which sets out the basis on which awards are to be calculated by the compensation tribunal. Generally, the tribunal is required to apply the principles governing the measure of damages in the law of torts and relevant statutory provisions, including Part 4 of the Civil Liability Act, 1961. It provides for a series of important and, as I have mentioned, novel modifications of the usual rules governing personal injury actions and fatal claims which will be of significant financial advantage to the dependants of deceased persons.
Subsection (2A)(a) provides that damages in a dependant's claim will accrue from the date of injury of the deceased rather than from the date of death of the deceased, which is the usual rule. Subsection (2A)(b) enables the tribunal to make an award to a dependant consisting of an amount equal to the amount of general damages, including damages for pain and suffering which the deceased suffered during his or her lifetime, to which the deceased would have been entitled had he or she survived and brought a claim for compensation to the tribunal. Normally, damages for pain and suffering can only be recovered by the primary victim, not by his or her dependants. However, the situation we are dealing with is unique and it has been decided that the usual rules should be set aside in this instance.
Subsection (2A)(c) allows the tribunal to make an award to a dependant in respect of aggravated and exemplary damages if the dependant can establish that the deceased would have had a legal entitlement to such damages against a relevant agency or the Minister had he or she survived. This is another significant departure from the existing law, under which aggravated and exemplary damages are only payable to the primary victim, not to his or her dependants.
Section 5(b) makes special provision for the children, spouses, fathers or mothers of persons who died as a result of contracting HIV or hepatitis C or where either of those conditions was a significant contributory factor to the cause of death. The tribunal is being empowered to make an award to such dependants for any post-traumatic stress disorder or nervous shock they suffered arising from the death of their loved ones. I have already alluded to the graphic testimony given at the Lindsay tribunal and also the Finlay tribunal of the devastating impact that such deaths have had on family members. This will allow the tribunal to make awards of damages for post-traumatic stress disorder, also known as nervous shock, in appropriate cases.
Section 5(b) inserts a new section 5(3B) in the 1997 Act. Paragraph (a) will enable the tribunal to make an award in respect of the loss of consortium, including the impairment of sexual relations, suffered by a person who is married to or the partner of an infected person arising from the risk of transmission of HIV or hepatitis C. Paragraph (b) allows certain dependants of persons with HIV or hepatitis C, that is children, spouses or parents, to make a claim in respect of the loss of society of the deceased including loss of care, companionship and affection. The new subsection (3C) defines “spouse” for the purposes of subsections (3A) and (3B).
The new subsection (3D) provides that in considering a HIV claim, the tribunal may consider any previous payment made under the 1991 settlement. Section 5(c) provides that an award arising from the infection of a person with HIV will not serve to revive claims discharged or waived under the 1991 settlement and is also without prejudice to indemnity given under that settlement. Sections 5(d) and 5(e) are minor technical provisions.
Sections 5(f) and 5(g) provide for the extension of certain time limits. The latter provides that a person making a claim may decide whether to seek a single lump sum award or a provisional award up to the conclusion of the hearing, rather than at the commencement of the hearing as is currently the case. Paragraph (g) enables the Minister to extend by regulation the period of one month within which awards by the tribunal to minors must be submitted to the High Court for approval. Provision is made for extension of the time available to a claimant who is a minor to decide whether to accept an award. It has been argued that the special circumstances applying in respect of awards to minors mean that the period of one month may be too short. This Bill will enable the Minister to extend the relevant period.
Section 6 amends section 9 of the 1997 Act, which enables the Minister by regulation to extend the class or classes of persons who may bring a claim for compensation to the tribunal. The existing provision was used some years ago to allow certain relatives of hepatitis C-infected persons who had become infected to apply for compensation. The main effect of the new pro vision will be to enable the Minister to make similar regulations for persons infected with HIV.
Section 7 amends section 10 of the 1997 Act, which provides for the establishment of a special account to fund awards made by the tribunal. Regulations were made in 1998 to enable funds from the special account to be used to pay awards made by the High Court on appeal from the tribunal. The provisions of those regulations are being enshrined in primary legislation.
Section 8 provides for amendments to section 11 of the 1997 Act, which established a reparation fund from which an additional amount equivalent to 20% of the tribunal's award is paid to persons in lieu of aggravated or exemplary damages. The 1998 regulations were used to enable payments from the reparation fund to be made in a case of awards by the High Court on appeal from the tribunal and the provisions of paragraph (a) will consolidate that in primary legislation. Paragraph (b) is designed to remove any possible ambiguity relating to the interaction of sections 5(7) and 11 of the 1997 Act. It makes clear that a claimant who has received a provisional award and returns to the tribunal for further compensation under section 5(7) will be entitled to have a 20% top up payment from the reparation fund. This will also apply in the case of awards from the High Court on appeal under section 5(7).
Section 9 provides that if difficulties arise during the first 12 months of this Bill's operation, the Minister may introduce regulations introducing measures which appear to be necessary or expedient. In normal circumstances one would hesitate at including such a provision in legislation, but a similar provision in the 1997 Act proved its worth. It is desirable that such a facility should be available in the event of difficulties during the first 12 months of the operation of the new legislation.
Section 10 provides that nothing in this Act or in section 5(10)(a) of the 1997 Act shall prevent a person from instituting or continuing proceedings for damages by a party other than the State and the other parties to the 1991 settlement. This will ensure that there is no interference with ongoing litigation between certain haemophiliacs and certain pharmaceutical companies.
Section 11 contains the usual provisions in relation to Short Title, collective citation, construction and commencement. The Act will come into operation on such day or days as the Minister may fix by order. It is the intention that the Act will come into operation at a very early date and as soon as the Bill is passed, the Department will make contact with the compensation tribunal to agree a timescale for the commencement of the legislation.
It was both the Government's and the society's priority that a Bill would be brought before the House this week. This objective has been achieved as a result of considerable and exhaustive efforts by staff in the Department and the Attorney General's office. I record the Minister's appreciation of the substantial efforts of all of those involved. I acknowledge the co-operation of the House in facilitating the discussion and in ensuring the Bill has a speedy passage.
I have been asked by the Minister to put on the record of the House an extract from the statement which was made on his behalf at the Lindsay tribunal:
The Minister and the Department very much regret the pain and suffering caused to all of those who have been infected by blood and blood products and acknowledge that the impact on the haemophilia community has been particularly devastating. The toll in human lives has been great and the loss of so many children is a tragedy of immense proportions. That such an immense tragedy should befall citizens of this State whilst availing themselves of State health services is a matter of profound regret.
I commend the Bill to the House.