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Select Committee on Social Affairs debate -
Thursday, 7 Dec 1995

Estimates for Public Services, 1995.

Vote 41 — Health (Supplementary Estimate).

We are dealing today with the Supplementary Estimate in respect of the Department of Health and I am sure many Members will wish to contribute.

Limerick East): I am pleased to have the opportunity to present to the committee details of the Supplementary Health Estimate in relation to the scheme of compensation for certain persons who have contracted hepatitis C. I welcome, in particular, the opportunity to outline the position in relation to the Government’s firm commitment to fair compensation and, equally, our commitment to meeting the long-term health care needs of those who have contracted hepatitis C from a blood transfusion or blood product.

When the possible link between the anti-D product and hepatitis C was brought to the attention of my Department in February 1994, the immediate concerns were the protection of all future recipients of anti-D immunoglobulin, the identification of any risk for any mothers who received the anti-D product in the past and the provision of counselling and treatment for women who test positive for hepatitis C. The first objective was met by the immediate introduction of a new inactivated anti-D product to all maternity hospitals and units and the second objective was met by the launch by the BTSB of the national screening programme for anti-D recipients. The third objective was achieved by the provision of special consultant staffed clinics for those persons diagnosed positive for hepatitis C under the National Blood Screening Programme.

Some 57,764 women, who received anti-D between 1970 and February 1994, have been screened under the national blood screening programme and 973 have screened positive for hepatitis C antibodies, of whom 463 have tested positive for the virus. Under the Targeted Lookback Programme, 217 living recipients have been traced to date. Some 174 persons have been screened for hepatitis C antibodies and 146 of these have been screened for hepatitis C virus; 63 of these persons have evidence of continuing hepatitis C infection.

Under the optional screening programme which I announced in early September, 6.024 persons have come forward for testing. To date, 30 of these persons have tested positive for hepatitis C antibodies and 12 are positive for hepatitis C virus.

On behalf of my Government colleagues and on my own behalf I express our deep concern and compassion for recipients of anti-D and other blood products who have been infected with hepatitis C by virtue of exposure to the blood product. I wish to state clearly that I and my Government colleagues are committed to ensuring the ongoing availability of the highest quality health care for these people. I fully appreciate their anxieties and their many concerns for their future well-being.

I hope the committee will agree that the openness and generosity of spirit with which the Government has addressed this issue is evidenced in the health care services programme and the amended compensation scheme.

Substantial progress has clearly been made over the last year in meeting the many complex and varied needs of those persons who have contracted hepatitis C. This has been made possible by a process of consultation between my Department and Positive Action — a support group for anti-D women and their families — and Transfusion Positive — a support group for blood transfusion recipients and their families.

Many of the concerns, particularly about future health care arrangements expressed by Positive Action and Transfusion Positive have now also been addressed and are now reflected in the health care document and the amended compensation scheme which were forwarded to both groups on 1 December 1995 and which I have circulated to committee members. I am arranging for copies of both documents to be circulated to all Members this week.

The special health care programme involves an extensive range of services in the following areas: primary health care servcies; secondary health care services; a special research programme; and a statutory monitoring body.

Enabling legislation will be published by 31 December 1995, providing for the following services to be provided free of charge and without a means test for certain persons who have contracted hepatitis C: general practitioner services, including prescribed drugs and medicines; dental, ophthalmic and aural services; independent counselling services; home help services; and home nursing services.

Treatment for those who test positive for hepatitis C is being provided at special consultant staffed clinics at six designated hospitals: St. James's Hospital, Dublin; Beaumont Hospital, Dublin; Mater Hospital, Dublin; St. Vincent's Hospital, Dublin; Cork University Hospital and; University College Hospital, Galway.

The treatment involves both out-patient and in-patient services, as required. The treatment, including prescribed medication, is being provided by the public hospital service free of charge. A sum of £1.8 million was allocated to the six designated hospitals in 1994 for the provision of these services and £1.98 million was allocated in 1995.

It has now been agreed that specific funding will be provided in the Book of Estimates each year to ensure that consolidation and maintenance into the future of a high quality hospital in-patient and out-patient service for persons who have contracted hepatitis C from a blood transfusion or blood product including the anti-D product. The secondary care element of the health care services includes provision for access to in-patient and out-patient treatment; non-payment of hospital charges; appropriate staffing levels and arrangements for staff training; equipment for hepatitis C units; anti-viral therapies and therapy initiation programmes; liver transplantation; treatment outside Ireland where necessary; liaison between the hospital service providers and prompt referral to clinicians for conditions associated with hepatitis C. The treatment services will also be available to children and partners who are hepatitis C positive.

In addition, I am arranging with the Health Research Board for the establishment and funding of a special programme for research on hepatitis C including research projects into hepatitis C as it relates to persons infected through the use of anti-D. Funding will be provided to enable this special research programme to commence in early 1996.

Under the powers conferred on me by the Health Acts, 1947 and 1953, I will by order before 31 December 1995 establish a statutory consultative council to advise me on matters relating to hepatitis C. The functions of the consultative council will include the monitoring of health and counselling services for persons with hepatitis C; the making of recommendations on the organisation and delivery of services for persons with hepatitis C; publication of information on hepatitis C and liaison with the Health Research Board in relation to the special programme of hepatitis C research projects. The membership of the council, which I will be appointing, will include representatives from Positive Action and Transfusion Positive.

The health care programme which I outlined was specifically designed to further copperfasten the Government's commitment to meeting the future health care needs of persons who have contracted hepatitis C from a blood transfusion or blood product. I am sure that Deputies will agree that the Government's proposals are fair and drafted with generosity of spirit, and will meet the genuine concerns of those who have contracted hepatitis C in relation to the continued provision of high quality health care into the future.

In the policy document A Government of Renewal the Government included a commitment to fair compensation for women infected by the hepatitis C virus from anti-D. Earlier this year, the Government decided to establish, as a matter of urgency, a tribunal which will assess compensation on an ex gratia basis in respect of anti-D recipients who are infected with hepatitis C antibodies or virus and the partners and children of these women who are also infected with hepatitis C antibodies or virus. I published the scheme of the compensation tribunal on 20 June 1995 a copy of which was circulated to every Member.

On 12 September 1995 I announced the Government's decision to extend access to the tribunal to include those who contracted hepatitis C from a blood transfusion or blood product. The Supplementary Estimate of £60 million is in relation to the estimated 1996 cost of meeting the compensation awards likely to be made by the tribunal. It is of course accepted that all awards made by the tribunal will be funded from the Exchequer.

At the end of September Positive Action published a draft Bill which encompassed many issues relating to the compensation and health care issues. I am aware that the committee met a delegation from Positive Action on 19 October when it outlined its main concerns. The Government's position in relation to a statutory scheme and the question of an admission of liability by the State was made clear by me on a number of occasions to Positive Action. The Government's position was also set out in detail by me in a letter which I sent to all Members on 13 October.

At the end of October, Positive Action agreed to my request to enter into further discussions. During November further extensive consultation and negotiations took place between Positive Action and Transfusion Positive and my Department, and many of the concerns expressed during the negotiations have been addressed and are reflected in the amended compensation scheme, a copy of which has been circulated to all Members of the committee.

The scheme of compensation approved by the Government offers numerous advantages as opposed to court proceedings. The advantages for tribunal applicants includes: speed, informality, flexibility and privacy; negligence need not be proved; the right of court action is preserved unless and until an award is accepted; proceedings before the tribunal are not excluded from judicial review; the concept of a provisional award, which is not available in Irish law, allows a claimant to return to the tribunal for future specified unexpected consequences of the hepatitis C infection — this is a particularly important option for claimants given the uncertain nature of the infection — and the scheme is optional and imposes no disadvantage.

A tribunal based on a Statute would present many technical difficulties if it were to encompass many of the benefits highlighted above. By its very nature, a statutory tribunal would also be more formal, less flexible, unwieldy, subject to greater delays and with potentially substantial legal costs.

The following are the amendments to the scheme which the Government has approved following my consultation with Positive Action and Transfusion Positive during November: the scheme has been extended to include transfusee claimants who have been diagnosed positive for hepatitis C antibodies or virus; the children and partners of transfusee claimants who have been diagnosed positive for hepatitis C antibodies or virus are also included; the purpose of the scheme has been extended to include that the scheme shall continue indefinitely; the State will not rely on the Statutes of Limitation so that no claimant by virtue of those Statutes may lose their legal right to initiate proceedings against it because of making a claim to the tribunal; the discretion of the tribunal to hear oral evidence has been extended; the making available of medical and other expert reports to claimants is explicitly incorporated in the scheme; a claimant to whom an award has been made by the tribunal shall be awarded the legal costs and expenses associated with the claim; the time within which claimants must apply to the tribunal has been extended from three months to six months; in the case of minors and persons of unsound mind, the claims can be made within six months of the cesser of their legal disability; the reports of the tribunal shall, in so far as is practicable, not identify any claimant.

Notwithstanding these concessions, Positive Action has in recent days reasserted its demand for a comprehensive Statute dealing with compensation or, as a possible alternative; sought further concessions which have already been the subject of extensive negotiations. The Government considers that no further concessions can be made.

It is my intention to formally establish the compensation tribunal without further delay. An announcement will be made in this regard next week and application forms will be made available to potential applicants. I have every confidence that the compensation scheme will operate successfully and thus ensure that the Government's commitment to provide fair compensation for those persons who have contracted hepatitis C from blood products or blood transfusion will be honoured.

Members will agree that this has been a long and difficult process for everyone involved. I am sure that the Members of the committee will agree that the comprehensive health care package, with the amended compensation scheme, represents a clear demonstration of the Government's commitment to providing an extensive range of high quality health care services into the future and fair compensation for these people.

The hepatitis C nightmare has been one of the worst in the history of the State, as acknowledged by all political parties. It has been a nightmare because it was the health system that caused the disease and infected healthy people. Over 1,000 mothers caught hepatitis C from contaminated blood products and contracted a serious and potentially life threatening virus for which there is no effective cure. As many as 500 others have been infected with hepatitis C through blood transfusions. People who thought they were getting a new lease of life with a transfusion of blood were being infected with a serious virus.

Given that the State was responsible for this nightmare one would have expected it would have made every effort to be fair to these people after all their suffering and trauma. However, despite the commitment in A Government of Renewal to give fair treatment, these people have been treated with contempt by the State and at every turn have been double-crossed by the Department.

There has been a catalogue of mistreatment. The Government insisted on doing only a limited "look back" study to see who had the virus. This was the minimalist approach — the agenda of the Department of Health was to find as few victims as possible, or that was how it seemed. The Minister ignored all the calls for a full study involving doctors until he was forced to do so by political and public pressure. In the "look back" study the Department identified some people who had possibly received infected blood or blood products but who had since died. The cause of their death was probably the medical reason for which they were hospitalised but the Department did not contact their relatives, which, as I said in the Dáil, was despicable.

The catalogue of mistreatment does not stop there. When negotiations were still ongoing the Minister unilaterally announced an ad hoc tribunal to hear applications, even though this was the last thing the groups wanted. The Government’s failure to provide a statutory tribunal for hearing the cases is completely unacceptable. The Minister’sad hoc tribunal has been rejected by both groups acting on behalf of the victims, who rejected the Minister’s proposal outright. The tribunal should be established by statute. As proposed by the Minister, it has no permanance in law — the only commitment is that it will continue indefinitely until a Government some time in the future decides otherwise.

Transfusion Positive also has major difficulties with the Minister's proposals. According to the document on health care the Minister will establish special wards or units in hospitals for those with hepatitis C. He wishes to facilitate those seeking to keep their plight confidential but these special units will not be appropriate for them. They will be stigmatised and their right to confidentiality will be breached.

The tribunal document puts those who contacted hepatitis C from transfusions at a major disadvantage in making claims. The Minister's proposals require those applying to prove on the balance of probability that they acquired the virus from anti-D or a transfusion. This is easier in the case of the mothers, who can produce their children as a record, but it is far more difficult for those who had a transfusion. Their medical records could or might have been lost or destroyed by hospitals, some of which have a policy of destroying records after 25 years; so, for example, a person who received a transfusion as a child but not since may now be in her mid-30s but no record will exist from the time she received the transfusion. There is also a problem about the chain of evidence — a person who was infected by a transfusion identifies the batch of blood she received; she goes to the BTSB, who identifies the donor; however, the donor did not give the blood after 1991, when the test for hepatitis C was introduced, so the chain of evidence is broken. Transfusion Positive has sought that the term "balance of probabilities" be dropped and replaced with "as a matter of likelihood".

The Department and the Minister have failed to listen to the real concerns of infected women in connection with the ad hoc tribunal scheme he is putting forward. The scheme that is continually promoted by them is flawed in that it fails to give infected persons, their partners and children fair play.

Throughout the debate it must be remembered that the BTSB caused 1,000 women to be infected with the life-threatening hepatitis C virus. The women were mothers who gave birth and required the routinely administered anti-D, but the product, made in Ireland by a State board, was contaminated and the expert report released earlier this year showed how basic donor selection practices were ignored.

Now a tribunal scheme is offered by the Government to get it out of the responsibility it bears for this major health scandal — I am not speaking of this Government alone. The fact that the Government is committed to paying compensation is a correct acknowledgement of its obligations but it is ignoring the concerns of those infected for basic fair play. The tribunal scheme is on the table because it gets the Government out of the mess and deals with this health scandal quietly and behind closed doors. It is unacceptable that the spirit of generosity — which I acknowledge — that led to the establishment of the tribunal has failed to carry through in its framework.

The Minister referred to the Positive Action members who addressed this committee some weeks ago, who promoted their own draft Bill seeking the establishment of a statutory tribunal. They did so because it would have given rights to persons infected with hepatitis C and would have admitted State liability for the wrong. At the weekend, members of both organisations met and said the Minister's ad hoc scheme would be acceptable if it addressed essential points. My understanding is that the Minister failed last night to take on board those basic issues, which will in no way affect the awards made by the tribunal but will give women, their families, partners and children confidence that they will see justice done.

I compliment the Minister, Deputy Noonan, on introducing a comprehensive health package which has been welcomed by all those infected and is a huge improvement on what was proposed initially. I am glad he listened not only to those infected by hepatitis C but to those involved in their health care and to Members on both sides of the House who made strong suggestions and representations to him. However, it took months of tough talking to get the Department eventually to commit to paper all the promises of quality health care made by the Minister in the Dáil. I welcome the document but, as the Minister will agree, it is no more than those who have been infected deserve.

The main flaws with the Minister's ad hoc scheme are as follows. As to its permanence, the only acknowledgement the Minister makes of the concern that such a scheme could be abandoned in the future is to provide that the scheme should continue indefinitely. That is not acceptable because as the Minister will know, having been a member of many Governments, no Government can give commitments or guarantees on behalf of any future Government to spending programmes. The representative organisations of those infected by hepatitis C have suggested that on acceptance of a tribunal award people should be given a limited contract but that has been ignored.

A key attraction of the Minister's tribunal is that it enables victims to get a provisional award. This is the payment scheme, which allows any person affected to return if her health deteriorates and to receive compensation. Hepatitis C is an uncertain condition because no one can say whether cirrhosis or liver cancer will develop. An adequate provisional award system is vital but, under the Minister's scheme, a person may opt for a provisional award but it may be denied her — perhaps the Minister will correct me if I am wrong. The tribunal can, at its direction, give the person a lump sum and then he or she has no other choice and no appeal against the tribunal decision. However, the Minister said that proceedings before the tribunal are not excluded from judicial review — if that could be put in a positive rather than a negative way it would be much better.

The presentation of cases is another aspect of concern to all those infected with hepatitis C. Under the present scheme a claimant may seek to have her doctor give evidence at the tribunal but there is no guarantee the tribunal will agree to that. As we know from the women from Positive Action who spoke to us, hepatitis C is a condition which has many side-effects such as extreme fatigue and rheumatoid arthritis. The ill-health suffered by these people goes back 18 years in some cases. To ensure each case is presented properly those infected must have the confidence that their doctors will be heard and must know that the tribunal can compel doctors to attend.

As I said earlier, the possibility of judicial review must be put in a positive rather than, as here, a negative way. There must be a sentence in the document which confirms the tribunal decision is open to judicial review.

While I welcome the huge strides made in putting together a health package to guarantee quality health care in the future for those persons infected with hepatitis C, the Minister cannot commit any future Government to continuing this.

All Members agree it has to be continued, we would not under any circumstances if we were in Government agree to withdraw the scheme now in place, but in 30 years' time, for example, when a child who is now five years of age is to appear before the ad hoc tribunal the Minister is proposing and a different administration is in place, very few Members of the present Dáil are likely to be Members of the Dáil then, let alone members of a Government administration.

None of us here, from any political party, can say that in those circumstances the Government at that time will continue this kind of scheme. We can have all kinds of aspirations in relation to it. We all agree that in our lifetime in the Dáil we would not under any circumstances let the ad hoc scheme be stopped, but unless the tribunal is established on a statutory basis we cannot commit any future Administration to it. There is always huge pressure on Government Departments at this time of year in relation to Estimates. The Department of Finance always looks for an easy option, and might at some stage decide we do not need this any more and decide not to fund it any longer.

I warmly applaud the Minister for the huge strides in relation to the health care aspect of this issue. Fianna Fáil will strongly support any amending legislation the Minister brings to the Houses to put that in place but I urge him to once again look at putting the tribunal on a statutory basis. Will there be a chance to ask a number of questions later, Chairman?

I welcome the opportunity to debate this issue. The Minister has issued two documents, the health care document and the document setting up the tribunal. In common with the previous speaker I welcome the health care document. Its provisions are excellent and well thought out and my party and I fully support them. The Minister is to be commended for that and has our full support in respect of that element of what he has achieved. It is no small achievement and has gone some way at least to allay the fears of the innocent victims — and their families — of this horrible happening.

However, I take issue with the terms of the tribunal. I met some of the women from Positive Action last night after their meeting with the Minister and they were distraught and very fearful for the future of the hepatitis-C positive women who have put trust in their negotiating skills; they are innocent victims of gross negligence on the part of the State agency. The women from Positive Action were very fearful for the future and legal rights of such women in regard to the terms of the tribunal being set up.

It is a pity the Minister did not give those women a better hearing. They have been through the experience, they do not know what the future holds for them. They should have been given a much better hearing. By the nature of this disease, nobody knows for certain how it will develop in the future. The only certain thing about it is its unpredictability. We have no idea how the disease will develop and in that situation we must make doubly sure that these women will have access to a tribunal which will be open, flexible and permanent enough to meet demands that we cannot anticipate or specify now but which may very well emerge in the future.

The single biggest flaw in the tribunal is its lack of permanence. The women in question must not be fobbed off with a once-off payment. At a minimum each woman involved needs to have a written contract with the State which will guarantee her long term needs and which will make provision for her as yet unanticipated needs. Women who receive an interim award must have the right to re-enter their claim at any time if the need emerges, no matter how much later that happens and the tribunal must be there for them. Some kind of contractual right must be put in place now to safeguard the future health care of these women and innocent members of their families.

The Minister should reconsider his position, take into account the points made by the previous speaker and the points I am now trying to make in respect of the status of the tribunal. A tribunal with a greater level of permanence than at present exists is needed. The concept of a tribunal that is there indefinitely is too vague in law and does not meet the seriousness of the situation. We must have a tribunal with statutory standing, one that then puts in place clear contracts with the women in question so that they will have clear contractual rights and the State will have clear contractual obligations in the years ahead.

I appeal to the Minister to bring the order setting up the tribunal before the Dáil next week so that at a minimum, all parties within the Dáil can be committed to supporting the concept of a permanent tribunal. I take the point that no one Government can be committed to a certain course of action after it goes out of office; that cannot be done in law. The Government can only commit itself for the duration of its own term of office, but at least by having this matter discussed in the Dáil, the Minister would be morally committing all parties, some of whom might make up future Governments, to make proper ongoing provision in law for these women.

Having this discussed within the Dáil, to commit all parties in a very formal way to honouring the future obligations of the State to make proper provision for these women, is the only way to give any kind of long term assurances to these women because as they read the terms of the tribunal proposed by the Minister, they have long term anxieties. We need to give them long term assurances that as the situation develops — differently for different women — they can at any time go before a permanent statutory body where matters that are dealt with now can be reopened and re-entered to meet an emerging situation. That is the minimum to which all parties should commit themselves and it should be written into Statute.

The matter of the presentation of their cases is also of extreme concern to women. It is unclear, and the Minister may clarify this in our question and answer session, how women are entitled to present themselves at the tribunal, whether they can be representated by their GPs or if compellability of witnesses is written in from the start. Will the Minister clarify these matters and give women the assurance that they can be represented by their GPs, who best know the case history of each victim and the family in question, any member of whom may very well be infected in the future? It is imperative that GPs are present when evidence is given to ensure that proper provision is made in every case. That has not been made clear but I hope the Minister can clarify it for us.

There is also an absence of a built-in appeals mechanism. If women feel they need to come back to the tribunal, it is unclear as to how they can re-enter a case. It is a great weakness and flaw in this tribunal if a proper, built-in appeals mechanism is not there at the start. The Minister has already made a strong case for a tribunal as opposed to the open courts and I support that argument. Women who have gone through this experience should not be dragged through the open courts with the ordeal that presents. A tribunal is the proper forum in which to deal with these people. However, I see no evidence of an appeals mechanism allowing women to reopen and re-enter a case in the tribunal and I ask the Minister to take that on board.

The Minister must revisit the tribunal question, acknowledge that what is in place is too weak and vague and will not meet the real and genuine concerns of women, put the tribunal on a different basis and have the matter fully and openly debated in the Dáil so all these concerns will be fully considered before it is finalised. I have three key requests for the Minister: permanence of the kind that will be underpinned by law. There must be a statutory tribunal and each woman should be issued with a contract that will give her the assurance she needs and meet her long-term needs; a system of compellability of witnesses and an appeals mechanism.

I am pleased with the health package; it has been well worked out. Women who have been badly wronged and the victims of such gross negligence ought to be facing this Christmas with less worries than they have at the moment. We should end this year with an assurance they have not had since this issue arose. These women are grossly unhappy with this provision. The Positive Action committee must go back to its members and tell them that in spite of the strong case made and the near unanimity among its members for having this kind of permanence, its reasonable demands have not met with success. That adds to the worries of these women and puts them in a weakened position. I am disappointed the Minister has not listened to the convincing and compelling case made by these women for better legal provisions in terms of the way their compensation needs can be met as they face an uncertain and unpredictable future.

That concludes our statements. We will now begin the question and answer session on the Supplementary Estimates and I remind Members we are dealing with a Supplementary Estimate subhead and not the terms of the commission.

I fully understand your clarification, Sir, but this is far more than a Supplementary Estimate on the provision of health. It is not a Supplementary Estimate to allow, for instance, a health clinic to continue for a further month or the appointment of a hospital consultant until the budget is prepared. It covers a sensitive issue.

I appreciate what the Minister has put before us because it involves more than just a Supplementary Estimate. In many ways, the amount of money involved is only part of what we are trying to address. I found this document on compensation for certain persons affected with hepatitis C the most comprehensive of its kind I have ever read. The Government has received much negative publicity on this matter. However, I have seldom seen such a quick or comprehensive response to any disaster of this size. If anyone thinks it is less than a disaster, they are fooling themselves and it will have long-term consequences, not only for the women involved but for their immediate and extended families.

My only problem with it is why this comprehensive package, which has been the quickest response I have ever seen from any Government to any disaster, could not have been put on a statutory footing. What extra costs would have been involved? I fully understand the concerns felt by these women — I was nearly affected myself — as some of them have young children. While the Minister has responded in a quick and caring way in this case, that response may not be forthcoming in the future. There are no guarantees when budgetary and Estimate pressures are involved. What will the extra costs be in putting this package on a statutory basis? People would understand if a large amount was involved. Why can this package not be made available on that basis because it is comprehensive, good, positive and all encompassing? What is the difference?

Will the Minister agree that the provision of the hospitals to provide secondary health care services is a little lopsided in that there are four in Dublin and one each in Cork and Galway? Would it not have been possible to have had a more even spread throughout the country, including places like Limerick, Cavan and Sligo? I do not have the figures for the numbers affected and where they reside, but I presume it is evenly spread around the country. The Minister could have done better on this matter.

With regard to primary heath care, on which the Minister touched this morning when he gave guarantees on counselling and waiting time for counselling and so on, these guarantees are not there for the provision of dental, ophthalmic and aural services. We know that in certain areas, the dental services are overstretched at present. Will there be additional funding to cope with the demand in this area? If not, will it impinge on those who are already on waiting lists for services, or will we involve the private sector, especially in meeting the needs of people concerned with the matter we are discussing?

Home help and home nursing services have been overstretched for some time and may not be able to respond as quickly as the Minister would wish, unless he designates a specific response time, which he has chosen to do with regard to counselling.

This is an important issue. It is all very well to say that a service is available free, but if it is not available when it is needed, it becomes a real problem to those who need urgent and immediate access to it. In this regard, I detect a difference between the guaranteed availability of counselling services within a specific period of time, and the guaranteed no more than one hour waiting time at clinical appointments. Why could the same provisions not have been extended to the other areas, which are very important in so far as they specifically relate to home services and to other important services required? Perhaps the Minister is making arrangements to give such guarantees. They are part and parcel, and probably no more, or no less, important than the counselling services and the guaranteed provision of those services within a specific period of time.

We met the Positive Action group and discussed this matter approximately four or five weeks ago. At that time there was a huge distance to be covered between those involved and the Minister. We had a full debate on the health issues involved, in addition to the question of the nature and status of the tribunal.

It appears that a great deal of progress has been made on the health side. In the context of the Minister's comprehensive package for health care proposals, he indicated he will produce legislation at the end of the year to enshrine the primary care entitlements. The permanance and security of the provisions provided in this way or via the tribunal is the crunch issue which divides the Minister and the action groups. Is there any means of enshrining statutorily the other medical rights here? As I understand it, they depend on the goodwill of the Minister for Finance and the Minister for Health in every year they will be required. Must this be an Estimate allocation per year?

I welcome the proposal on the council. Will it be an ad hoc council? On what kind of basis will it be set up? Does it have permanance to ensure that it will be around to chastise publicly in the future? What is its status? In terms of responding to any social problem in the past, the non-existence of an ongoing monitoring interest body is a major and glaring absence. For example, under our children’s laws, there is no national children’s council body or ombudsman. The existence of such a council can be a very important element in ensuring that the issues continue to be given attention. What will its status be, and can it be reasonably permanent or assured into the future?

With regard to the tribunal, an issue was raised about the question of medical representation. Is there a specific provision that one's doctor may attend if it is adjudged desirable by the tribunal? I realise some people have difficulty with this, as it leaves it open to question, but, as I understand it, there is a provision to this effect.

The Minister summarised his objections to the question of making a statutory provision regarding the demands of the action groups on the basis that it would be more formal, less flexible, unwieldly, and subject to greater delays and potentially substantial costs. Deputy Lynch asked the Minister to deal specifically with the legal costs. Perhaps he would expand more on these, and on the other elements, as to why this last, small gap has not been bridged and why he believes so strongly that it should not be bridged?

I compliment the Minister and welcome the comprehensive health package. It reflects the discussion which took place here earlier and the consultations he had with the affected women. Any of us involved with infected people know their fears, not just now but for the long term. To a large extent, the Minister is putting at rest the immediate fears of people.

However, the nature of the illness is such that those affected do not know what the future holds. I hope that for many the situation may not be too bad, but for others it will be very poor. The Minister is aware of this and is trying to make arrangements accordingly.

Why is it that those involved are holding out for permanance? It is because they are the people infected, and they and their families need reassurance about the long term future. It is probably true that they are satisfied with what is happening now, and with what the Minister is doing for them at this stage. However, they need this permanent reassurance.

It is important that members on both sides of the House — and the Minister — look at the position of innocent victims. We need a device or a mechanism which will give them long term reassurance. Whatever way it is done, it will have to be included, because it is a crucial element.

The Minister appears to have a good administrative scheme in place. We should get it on some kind of statutory footing where those concerned can be assured that the Oireachtas is behind them for the long-term future. It is the kind of assurance they need. I am aware that the Minister may have his own technical difficulties and problems to overcome, but this is the essential element as far as they are concerned. The Minister should reconsider the matter and again consult the Government on it.

It is probably hard for Government members to understand this aspect unless they have been dealing directly with the individuals concerned. When a woman sits in front of us at one of our clinics, the one thing that comes across is that she has been wronged, not only because this happened, but that the Department of Social Welfare has told her she is not ill and that she cannot have disability benefit. She has been put through a horrendous situation over the years where even her husband may have begun to wonder if she was slightly out of her mind because medical checks did not show anything. This is the kind of thing she has been facing and she does not know what she will face in the future.

Will the Minister look again at this aspect? He is making substantial initial provision, which we welcome on this side of the House. With regard to the health package, could the Minister appoint somebody as a co-ordinator in this area to ensure that not only is the good intention there but that there is also quality in delivery of the service? At an early stage I asked the Minister specific questions and he gave assurances which I know he meant. However, it did not happen for a long time and it took much negotiation by local representatives and the bodies representing the women concerned to get things to happen throughout the system. There is a problem in that respect. The Minister is providing an excellent package and he wants to see it go through so that he might consider appointing somebody to co-ordinate that work on his behalf or on behalf of his Department so people will be reassured.

The Minister has given an assurance of a one hour waiting period throughout the service. I will not quote direct experiences but early this week it was three hours and last week it was three hours. Frequently it is monthly. I am involved with people who, because of transport difficulties, are helping people to get to hospital for the service and there is a real problem with waiting times. Successive Ministers have made efforts to solve this but it is still a major problem for people attending the major hospitals in Dublin. There is a question over that aspect of delivery of the package.

This Estimate clearly and specifically covers the compensation in the tribunal. It provides for compensation on an ex gratia basis for payments to a special account in relation to a scheme of compensation tribunal. The purpose of this under subhead G3 is to provide compensation on an ex gratia basis for a list of categories of people and for the administration of that compensation scheme. The Minister mentioned a sum that was provided this year for the delivery of the service. There must be a quantification of that sum for next year, based on this year’s experience. There must also be a hard and probably more substantial figure included in the Estimate for next year if the delivery of the package is to be real. The Minister might look at that separately — the comprehensive Estimates will be dealt with soon, we hope — and we would support him in that.

There is a six months' limit on applications. Does the Minister have a view on how long processing will take? There is nothing to go on but what is his hope regarding the speed of processing by the tribunal?

I thank the Deputies who contributed. I am glad there has been a strong welcome for the health care package, although there are some outstanding concerns about the compensation scheme.

We all have responsibility in this matter and one is to ensure that women listening to this debate who have hepatitis C or antibodies will not have their anxieties increased by inexact information or claims which are not in accordance with the facts. That applies to everybody who has been involved in this discussion both in committee and outside the House. A series of questions have been asked. I will go through the questions raised in the initial statements and continue to the Deputies' questions. If I miss anything a Deputy can intervene by way of supplementary question.

I appreciate Deputy Geoghegan-Quinn's welcome for the health care package and her acknowledgement that it is appropriate. I also welcome her acknowledgement that there are innovative aspects to the compensation scheme that were not in any previous compensation scheme. The only analogous compensation scheme is the Stardust scheme with which Deputy Woods is familiar. Looking at both schemes one can see that this is a far more sophisticated scheme and more tailored to meet needs. Everybody learned from the experience of the Stardust tribunal and this scheme is the most sophisticated tribunal scheme to have been introduced since the foundation of the State. It has aspects which are not even available in the courts. I suggest it is better, in terms of processing a claim, than the courts.

There is no compulsion in implementing the findings of the tribunal. At the end of the day, if we agree that the health care package is satisfactory, we are asking a judicial body to adjudicate on what would be the appropriate amount of money to be paid by way of compensation to persons involved. We are setting up a tribunal because it has advantages because of the nature of the events and the large number of people involved but that does not mean that anybody must go to the tribunal. All the normal rights of citizens to process compensation claims through the courts remain. Those rights are only waived when a person who goes before the tribunal accepts an award. If somebody goes to the tribunal, is happy with the process and is awarded an amount of money which they consider to be inadequate or unsatisfactory there is no tie in on that, legal or otherwise. They can say: "We tried this, we went through it in a couple of months, we do not like what we got so we are now going to court".

A number of Deputies asked whether an award could be appealed. The only appeal available would be to a court and if somebody does not like the award that person can simply refuse it and go to court anyway. While it is not an appeal system in the direct legal sense, it is de facto the same process. There is no waiver of rights; it is simply an alternative to the court system which has many advantages.

Deputy Geoghegan-Quinn said that the persons involved have not been treated well by the Government and the Department. We approached this matter with openness and as comprehensively as we could. We did not take a minimalist approach. I doubt there has been a precedent for the effort that has been exerted and continues to be expended on, for example, tracking down those who might have been affected through the look back programme. There is no precedent anywhere for a Lookback programme along the lines we have pursued. It is a complex and difficult approach. As Minister for Health, on this issue alone I have expended more time than on all other issues put together, if not on a daily basis certainly on a weekly basis. I am not saying that the issue did not deserve that treatment. My officials have worked late into the night and at week-ends, so there was not a minimalist approach.

The question of permanence has been raised. I will leave the health package aside and look at the tribunal. One of the amendments we inserted since the first document was produced states that the tribunal will continue indefinitely. How could we achieve permanence? Deputy Quill suggested this could be done by a positive motion in the Dáil and I would like to discuss if this is possible. Such a motion would give the tribunal a certain moral strength and would provide a strong commitment.

It is proposed that the Government should establish a statutory scheme. Statutes are changed by the Dáil all the time; this is its function. A Government with a majority can change a statute as quickly as it can discontinue a scheme. This could be challenged in the Dáil by way of a Private Members' motion; we are all familiar with the process.

There are misunderstandings with regard to the permanency of the scheme. There are a number of safeguards apart from the fact that we have provided that the tribunal will last indefinitely. There are safeguards against the abolition or future amendment of the scheme to diminish the rights of applicants. The terms of any award under the Government's scheme will be enforceable before the courts.

There will be, in effect, two types of awards. There will be lump sum payments of full and final settlement. Any person who is awarded such a payment and is satisfied has no interest in the permanence of the tribunal as it will deal only with the issue of compensation. They have an interest in the permanence of the health care package, which is in place and with which everybody is satisfied. We are now concerned only with the permanence of the compensation system.

Permanence is an issue only for those who receive provisional awards. The tribunal will agree to provisional awards and measure compensation up to a certain point of prognosis. If a person's health deteriorates beyond the point, she may come back to the tribunal. Once the tribunal makes such an award, it will be enforceable before the courts. Any future Government could not walk away from a situation where a tribunal had agreed a provisional award in the full knowledge of both sides that a reentry for a subsequent award was part of the agreement.

The permanence is contained in the way the system works in law because the courts will be able to enforce awards. If the Government were to abolish the scheme or amend it to diminish the rights of applicants, this would be subject to judicial review because in law we cannot ask people to accept legal arrangements where everybody acts in good faith and subsequently unilaterally takes away the rights we agreed they should have. It is important that we explain the position so that we do not create unnecessary anxieties. There is permanence because awards are enforceable by the courts and any diminution of rights would be the subject of judicial review.

It has been agreed during the negotiations involving legal personnel that the State or the Minister would be contractually bound to preserve the claimant's rights to apply for future compensation in accordance with the terms of the first award. A contractual position would be entered into if a provisional award was made. There are no legal circumstances in which the Government could unilaterally pull out of its obligation to allow the tribunal to adjudicate again on a second entry of claim for a person who had received a provisional award.

Transfusion Positive did not like the phrase "the balance of probabilities" in terms of proving the connection between a blood transfusion and having hepatitis C; it suggested the phrase "a matter of likelihood". In criminal cases proof must be decided beyond reasonable doubt and in civil cases proof is decided on the balance of probabilities. The meaning of the phrase "balance of probabilities" is understood by every legal person. The phrase "a matter of likelihood" has no legal basis in Irish law. I am also advised that this has exactly the same meaning as "the balance of probabilities".

Deputy Geoghegan-Quinn argued that it should be expressed positively that the tribunal will be subjected to judicial review. It was expressed negatively in response to points raised by Positive Action. I have already confirmed in a reply to a parliamentary question asked by the Deputy that the tribunal will be subject to judicial review. The reply contained a positive statement to this effect and nothing hinges on the negative way this was expressed today. The negative statement was in reply to questions put to me.

Deputy Lynch asked about the difference in costs between a statutory and a non-statutory scheme. The advantages of a tribunal are not cost based. We did not approach this on the basis that we could provide a scheme which would cost less than courts awards. The tribunal will work only if its awards are at least as good as those available in the High Court. In terms of the cost of compensation, there is no difference between the costs of a tribunal as opposed to the cost of court awards.

The sum of £60 million is an opening position. We are estimating that the tribunal will process a quantum of business in 1996 which will cost this amount. The cost might be more or less. If it is less, the savings will be used in 1997. If it is more, we will have to introduce a Supplementary Estimate. I expect the tribunal's primary activity of making initial lump sum and provisional awards to continue during 1997. It will last indefinitely and its first business will be to deal with every applicant.

I do not know what the final cost will be but my estimate would be that it will be significantly in excess of what we are allocating this year. The fact that we are providing £60 million this year does not mean that at a future date we will say there is no more money for the scheme. Whatever the tribunal decides is the appropriate level of compensation awards in individual cases will be met by the Exchequer. The Supplementary Estimate today provides money for 1996.

I will review briefly the advantages of an informal tribunal as opposed to the courts. We already have a statutory system for adjudicating compensation claims which involves the courts. We approached the issue from the basis that there are advantages in having a non-statutory system. There is not much purpose in having the advantages of informality and then turning the scheme into a statutory system. This would, in effect, set up an alternative courts system.

The first advantage is one of speed. The delays which are experienced in processing compensation through the courts will not be experienced in the tribunal. If the initial document, which is being significantly amended now, had been accepted and if I had been in a position to set up the tribunal in September, a significant number of awards would already have been made, whereas there will now be a long wait for awards in the courts. Other advantages are informality, flexibility and privacy.

The other major advantage is that if a person went to court they would have to prove negligence in the High Court. Negligence does not need to be proved in the tribunal. All that must be proved is the link between the infected blood and the fact that a person has hepatitis C. The circumstances must be measured after that by the tribunal. Negligence does not need to be proved.

If one is dissatisfied with an award, all one's rights to go to the High Court remain. Rights will not be taken away until someone accepts an award as a satisfactory settlement. The proceedings before the tribunal will be subject to judicial review.

Deputies will be aware of what we call normal compensation actions before the courts in respect of motor car accidents, negligent claims, etc. The court is limited at present in that it must have a lump sum award by way of full and final settlement. There is no mechanism in Irish law for provisional awards or for the method of payment by instalment, which is in the tribunal. We can include them because it is an informal non-statutory scheme.

If I tried to put the provisional awards scheme, which is novel and appropriate to our needs, on a statutory basis, Members know what would happen in the House. It would be difficult to confine it to this class of action. Persons who have motor car injuries may not know what their health will be in five or ten years' time. It would be impossible to ring fence it by statute. If one took a claim against a hospital, it would not be reasonable or legally possible to have under statute a system where provisional awards and payment by instalments are available to the category of person we are dealing with here, but are not available to other categories of persons. That is a major difficulty in this area. People may opt to go through the court system.

As regards costs, there is no advantage to the Exchequer or to the Department of Health in terms of the total compensation awards; the rate must be paid. However, there is an advantage in terms of legal costs. I am strongly of the view that we should not allow a situation to develop like that which developed in other tribunals where the legal profession became the substantial beneficiary of a system which was directed at the needs of a particular group. If there is a complicated statutory scheme, the opportunities for increasing legal costs multiply.

We have written into the scheme that costs will be awarded at the tribunal. A person will make a claim and the costs will be awarded. They will then present the bill to the Chief State Solicitor and if they are unhappy with him, they can appeal it back to the tribunal. This mechanism shows fair play. I am not saying that legal people should not get their just financial rewards for the work they have done; Deputies know what I have in mind. If there is a complicated scheme on a statutory basis, there is a danger that we will be run ragged in terms of the legal expenses, not on the level of claims.

Deputy Flood mentioned the six hospitals and the bad regional distribution. However, the expertise is available here and these hospitals are being used at present. If the expertise was available on a wider basis we could have a wider distribution.

As regards primary health care — dental, aural and ophthalmic — we have an ongoing informal arrangement at present, particularly for members of Positive Action but also for Transfusion Positive. Difficulties arose in respect of counselling. We are explicitly writing in tighter commitments on counselling and on the waiting time for consultation, which was also an issue. That does not mean we are treating the commitments in the ophthalmic, dental or aural areas more lightly. The other two issues were highlighted because of women's experience who felt — I hope I am not misconstruing the position — that the two issues of counselling and waiting time for consultation should be explicitly stated in the scheme.

I accept the point as regards home help. We will check with the health boards to ensure that the services to which we are committed will be provided.

Deputy Flaherty welcomed the health package and mentioned legislation. Everything I am doing is either covered by statute already or can be dealt with by way of regulations through the Health Acts, with the exception of the provision for free access to general practitioners. That legislation will be published before the end of December. It will allow certain categories of persons, about which we have been talking, free access, without a means test, to general practitioners. I will then put the aural, dental, ophthalmic, home help and counselling areas on a statutory basis. That will be by way of primary legislation and statutory regulation.

As regards the availability of health care in public hospitals, under the Health Acts there is a statutory right to free hospitalisation for the persons concerned. Under the Health Acts I cannot set up consultative councils. The Deputies will be most familiar with the consultative council on the aged which is statutorily based under the Health Acts.

The health package is tied in by way of regulation, existing law or is already covered by the Health Acts, with the exception of the general practitioners arrangement and the other benefits associated with that. Free access to general practitioners without a means test requires primary legislation, but the same legislation will also contain a provision where the Minister for Health, by way of regulation, may give guarantees on the dental, aural, home help and nursing areas. I will publish this legislation before the end of December and I will present it to Government at the Cabinet meeting next Tuesday. The debate in the House will not take place until we return on the last week of January. I will then take into account what Deputies said about a parliamentary commitment from the other parties.

I dealt with the permanence of the tribunal, which Deputy Flaherty also mentioned and with the statutory provision under the Health Acts and the advisory council. A reference was also made to the ongoing position of Positive Action and Transfusion Positive. I have funded some of the administrative costs of Positive Action from national lottery funding available to the Department of Health on a six months basis for 1995. There is a need to meet the representational needs of persons involved even when we have announced these packages. I intend making a similar arrangement for Positive Action in 1996 on a 12 months basis so that their ordinary administrative costs as an organisation can be met. They are a group of people who have come together for good and justifiable reasons and they have worked extremely hard. They need some professional administrative help and have an employee in place. It does not stop there and those costs will again be covered next year as adequately as we can.

The same will apply to Transfusion Positive which is a more recently established organisation. Its range or activities is not yet clear so we are not fully conversant with its funding needs, but some funding will be available.

Deputy Flaherty asked about the six months period. Originally the intention was that applicants would have three months to apply but has been increased to six months. The speed of process will depend on the tribunal because neither a Minister nor a Government can set up a tribunal and then put ties and spancels on it. The tribunal will have to exercise its functions independently and will be very careful to get it right in the initial awards.

The medical position of people who have had the antibodies but did not develop the full infection is the same over a whole range of people even if the social circumstances might be different. I envisage a situation where, once the thing got up and away, there might be settlements without hearings. When the patterns are established and if it is going satisfactorily I would see legal advisers asking if it is all right and the tribunal saying that it is the level of award. They would authorise the awards.

I think it will start slowly and then proceed fairly rapidly. A lot will depend on what the awards are and the applicants' satisfaction with them. Eminent people involved will have full authority to manage the tribunal as they see fit in accordance with the scheme laid down, and they will not have to refer back to me.

Deputy Woods spoke of the fears of people involved. I think we have done an awful lot to allay their health fears because all that, in one way or another, will be on a statutory basis when the legislation comes into effect. They will obviously have anxieties about their health but in so far as we can ensure the permanance of the health care we are providing, it is being done.

On the question of compensation and fears for the future, for somebody who accepts full and final settlement by way of lump sum that is the end of the matter. They should not have any further concerns about the tribunal. I hope that the commitments and explanations I have given here about the permanence of the arrangement for persons who are awarded provisional awards, will allay any anxieties persons might have that if they took a provisional award it would be possible for a future administration to back out of the arrangement and say they now have a different view. They cannot do that because the courts will not let them — no matter who is in Government — because there will be a contractual position that they can come back in again.

Deputy Woods stressed that the Oireachtas was also behind it. Perhaps we could talk informally when we come back with the Bill in late January or February about what we could do. I would like the support of the Opposition parties, which has been freely and strongly given, to be put on some kind of formal basis so that there would be a record in the Dáil of the views of everybody in the House. That might help to alleviate any fears.

Deputy Woods also talked about the issue of a co-ordinator looking after these things into the future. For the last 12 months a team in the Department has been fully dedicated to resolving the problem and they have ensured co-ordination. The Deputy will have seen a proposal for a consultative council in the proposed health package. Part of that council's terms of reference will, inter alia, be to monitor the health and counselling service, and to make recommendations as well as the organisation and delivery of service. The organisations representing the persons involved will be on that. I see the monitoring function being transferred from the Department systematically into the consultative council which will be set up by regulation under the Health Acts and will be permanent.

I thank the Minister for the assurances he has given even though I still retain some concerns. I am glad that he has said the matter will be discussed in the Dáil because that will give an opportunity for a more reflective response in the light of what we now know as the result of what he said here. I raised the concern women have about how they present their case at the tribunal. The report says that the tribunal will rely primarily on written medical reports. A number of women would like to have the assurance that — if they so felt, and the need was there — their GPs would be there to testify. There should be a clause for some element of compellability whereby their GPs would be there to testify on their behalf at this very difficult and delicate stage for women. The Minister should consider that and respond to it, perhaps not now but later when he is framing the law.

Limerick East): My initial response is to refer you to section G1 of the scheme where it says that “in considering individual claims the tribunal will rely primarily on written medical reports. The claimant must, no later than six weeks before the date fixed by the tribunal, etc”. If you go down to part 2 there, you will see that the tribunal has discretion to allow oral evidence. This comes back to my primary point about the manner in which the tribunal should work.

A Supreme Court judge, Mr. Justice Egan, will be chairing it and eminent legal people will be on it. I cannot have a situation where they have to refer back to me. They have to be independent in exercising their functions. In many cases the medical evidence will be straightforward and in others it will be more complicated. Judge Egan has extensive experience of the law of tort and compensation claims. An application will be made for oral evidence and legal people representing individual applicants at the tribunal will raise this. The tribunal will then decide whether to concede. Quite clearly we are not talking about people who have not done this work before. We are talking about an eminent judge who has the good sense to know when oral evidence should be allowed and when it need not be.

Remember that because of the nature of the tribunal it will have to operate in accordance with the rules of natural justice and will be subject to judicial review. Therefore, you can take it that an adjudication on an application by a person to have medical evidence submitted orally would be taken very seriously by the tribunal. Its decision would be taken against a background of the rules of natural justice and the fact that their actions would be subject to judicial review.

Irrespective of the level of compensation given, will they be entitled to free medical care for the rest of their lives? From speaking to those involved or with the Department, has the Minister any idea what percentage will be prepared to go through the tribunal process?

The health package is separate from the compensation one and the commitments we will make there are independent of what the compensation tribunal or the courts may subsequently award. I do not know how many people will opt for the tribunal. Over the past couple of months many people and their solicitors have pressed us to set up the compensation tribunal so that they could process their claims and they looked for application forms.

I understand that Positive Action, with which I hope I still have a good relationship, when expressing its concerns about the scheme said it will leave it to its members to decide whether to go to court or to the tribunal. It is not an "either-or" situation. A person may go to the tribunal, refuse an award and then go to the High Court.

Report of Select Committee.

That concludes our consideration of the Supplementary Estimate for the Department of Health. I thank the Minister, his officials and Members of the committee for their valuable and constructive contributions. I propose the following Draft Report:

The Select Committee has considered the Supplementary Estimate for Public Services for the year ending 31 December 1995 in respect of the Department of Health. The Supplementary Estimate is hereby reported to the Dáil.

Is that agreed?

Report agreed to.

Ordered to report to the Dáil accordingly.

Our next meeting will be at 2.30 p.m. on Tuesday, 12 December when we will deal with Committee Stage of the Voluntary Health Insurance (Amendment) Bill, 1995.

The Select Committee adjourned at 1.15 p.m.

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