, Limerick-East): I move amendment No. 1:
To delete all words after "That" and substitute the following:
"Dáil Éireann, being of the view that—
(i) the Amended Scheme of Compensation published by the Minister for Health on 1st December, 1995, which will continue indefinitely as an alternative to court proceedings will serve the best interests of persons who have contracted Hepatitis C from Human Immunoglobulin Anti-D, blood transfusion or other blood products; and
(ii) the proposals set out in the Health Care Document published by the Minister for Health on 1st December, 1995, in relation to the long-term health care needs of persons diagnosed positive for Hepatitis C provide statutory guarantees in respect of the future provision of health care services,
approves the Amended Scheme of Compensation and the Health Care Document published by the Minister for Health on 1st December, 1995, copies of which have been sent to each Deputy and placed in the Dáil Library on 11th December, 1995.".
I am pleased to have the opportunity to move the Government's amendment to the Fianna Fáil Private Members' motion on the scheme of compensation for certain persons who have contracted hepatitis C. I welcome the opportunity to outline to the House the Government's firm commitment to fair compensation and to meeting the long-term health care needs of those who have contracted hepatitis C from a blood transfusion or blood product. There is a serious responsibility on Members to ensure that people with hepatitis C listening to the debate do not have their anxieties and concerns increased by inexact information or statements which are not in accordance with the facts. I compliment Deputy Geoghegan-Quinn for sticking, by and large, to the facts but unfortunately I cannot pay the same compliment to her young colleague.
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 product, the identification of risks for 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 virally inactivated anti-D product to all maternity hospitals and units while the second objective was met by the launch by the BTSB of the national blood 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.
A total of 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 look-back programme, 217 living recipients have been traced to date, 174 persons have been screened for hepatitis C antibodies and 146 of these have been screened for the hepatitis C virus. Sixty-three of these persons have evidence of continuing hepatitis C infection.
It is not true that the targeted look-back programme is minimalist or was introduced in response to public pressure. Several of the statements put on the record by me indicated that we would follow this strategy and the hepatitis look-back programme being currently undertaken targets recipients of blood transfusions prior to 1991 by tracing the past donations of donors now identified with evidence of hepatitis C virus following the administration of anti-D and who subsequently became blood donors. The look-back programme also included donations given prior to 1991 by donors identified as hepatitis C positive following the introduction of routine screening of blood donations in 1991. In addition, the Blood Transfusion Service Board has asked a pathologist and other medical practitioners to advise it of patients with a diagnosis of hepatitis C where blood transfusion may have been the source of the infection. When a potentially infectious donor is identified by this route their previous donations are also included in the look-back programme.
The targeted look-back programme has two phases. The first phase has identified, and will continue to identify, donors who have tested positive for hepatitis C, the product, whole blood, red blood cells, platelets or plasma, the hospital to which the product was issued and the recipients. The second phase will trace the recipients with a view to offering tests. Phase two of the programme is well under way and contact is being made with recipients through their general practitioners with a view to assessment and obtaining blood samples for testing for hepatitis C. The programme will identify those people who are known to have received a potentially infected blood transfusion. It, therefore, offers a screening test for hepatitis C to any individual who has received blood or blood products from donors who are potentially infected with the hepatitis C virus.
This is not a minimalist programme, rather it is unprecedented in its scope. Even though similar problems have arisen in other countries, no similar programme has reached this stage of advancement. Deputy Geoghegan-Quinn was incorrect to say a minimalist approach was adopted, it was slip shod or forced on us. This programme was always part of the strategy and it was introduced as soon as possible on the basis of the information available to us. I know the Deputy did not intend to mislead the House by saying it is minimalist but it is very important to ensure that the facts are put on the record. We do not want to raise anxieties based on wrong information.
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 while 12 have tested positive for the hepatitis C virus. I wish to express the Government's 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 my Government colleagues and I are committed to ensuring the ongoing availability of the highest quality health care for these people. I assure them that I fully appreciate their anxieties and concerns for their future well-being. I hope the Dáil will agree that the open and generous way the Government has addressed this issue is evidenced in the health care services programme and the amended compensation scheme.
I wish to outline the health care services I am putting in place through my Department, the health boards and the acute hospitals and which, as Deputy Geoghegan-Quinn said, have been welcomed by Members on all sides of the House and the two organisations negotiating on behalf of affected people. Substantial progress has been made during the past 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 about future health care arrangements expressed by Positive Action and Transfusion Positive have been addressed and these are now reflected in the health care document and the amended compensation scheme forwarded to both groups on 1 December last which I have circulated to all Members. The special health care programme involves an extensive range of services in the following areas: primary health care services, secondary health care services, a special research programme and a statutory monitoring body.
Enabling legislation which will be published on 31 December next will allow 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. Today the Government cleared the text of the legislation which will be published as soon as the printing arrangements are made. The legislation will be brought before the House as early as possible after the Christmas recess. I hope all parties will give these arrangements the kind of parliamentary permanence they have requested by supporting the legislation.
On the question of secondary health care services, treatment for those who test positive for hepatitis C is provided at special consultant staffed clinics at the following six designated hospitals: St. James's Hospital, Dublin; Beaumont Hospital, Dublin; Mater Hospital, Dublin; St. Vincent's Hospital, Dublin; Cork University Hospital and University Hospital, Galway. The treatment involves both out-patient and in-patient services as required. On Committee Stage Deputy Flood asked why the services were confined to these hospitals. The expertise available dictates the locations. I would like a facility in Limerick but unfortunately the expertise is not there at present. The above hospitals have provided the services and will continue to do so.
The treatment, including prescribed medication, is provided by the public hospital service free of charge. In 1994 a sum of £1.8 million was allocated to the six designated hospitals for the provision of these services and £1.98 million was allocated for them this year. It has now been agreed that specific funding will be provided in the Book of Estimates each year to ensure the consolidation and maintenance into the future of high quality hospital in-patient and out-patient services 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 of 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.
I am arranging with the Health Research Board for the establishment and funding of a special programme of 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 early in 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 on the special programme of hepatitis C research projects. The membership of the council, which I will be appointing, will include representation 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 generous and will meet the genuine concerns of those who have contracted hepatitis C in relation to the continued provision of high quality health care in the future.
Deputies will have noticed also that they are either being enacted in statute with the Bill to which I referred which will be published shortly or already covered by statute under the health Acts, such as public provision in hospitals, or covered under regulations or orders statutorily based on sections of the health Acts. The arrangements for the ongoing health care needs of persons with hepatitis C are being put on a permanent basis, which is a major issue in this House.
Deputies referred to the compensation scheme in detail. The Government in its policy document —A Government of Renewal— 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-virus and the partners and children of these women who are also infected with hepatitis C antibodies-virus.
I published the scheme of the compensation tribunal on 20 June 1995, a copy of which was circulated to every Member of the Oireachtas. On 12 September 1995 I announced the Government's decision to extend access to the tribunal to include those who had contracted hepatitis C from a blood transfusion or blood product.
The Supplementary Estimate of £60 million which was discussed in committee and which is before the House 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.
There was never any doubt about what we were doing in committee last week — we were making a provision for the estimated costs of compensation through the tribunal in 1996. I also made it quite clear that I was setting up the tribunal immediately and that the £60 million would cover the administrative costs in 1996. Certainly, some of the administrative costs have already been incurred in 1995 on salaries, premises and so on. I do not think the tribunal, which we will set up next Friday, will have handed down any awards by the end of the year, but I made that point clearly last week on committee. However, it is true that if we had reached agreement on the tribunal when it was published during the summer, significant awards would have been made this autumn because much less lead-in time is needed for a tribunal rather than the High Court to make awards. In response to Deputy Kenneally, it is on record that there is no question of a cap on £60 million. The £60 million is an estimate of what we may spend next year but the liability, no matter what it is, will have to be met next year, the year after and if it costs more than £60 million next year, I will be coming into the House with a Supplementary Estimate to cover the extra costs.
At the end of September, Postive Action published a draft Bill which encompassed many issues relating to compensation and health care issues. The Government's position on 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 and in this House. The Government's position was set out in detail by me also in a letter I sent to all Members on 13 October and at the end of October, Positive Action agreed to my request to enter further discussions.
During November further extensive consultations and negotiation with Positive Action and Transfusion Positive took place with 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. It is not true that there was foot dragging by the officials of my Department. My Department's senior officials worked late into-the night and at weekends and members of Positive Action and Transfusion Positive can vouch for several meetings held outside normal office hours. At the risk of embarrassing my officials it is worth noting that the Civil Services grades entitled to overtime are limited and all senior officials do not get anything extra even if they work all night. There is no recompense for civil servants at the senior level involved in this work for working weekends or at nights and a small bit of appreciation is appropriate now and again.
The scheme of compensation approved by the Government offers numerous advantages as opposed to court proceedings. The advantages for tribunal applicants include 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. I reiterate that proceedings before the tribunal are not excluded from judicial review. As I said in reply to a question from Deputy Geoghegan-Quinn, the proceedings of the tribunal may be reviewed judicially if we want them in a positive rather than a negative way. 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; the scheme is optional and imposes no disadvantage.
There is nothing in the tribunal which prevents persons from taking their case to the High Court. There is nothing in the tribunal which prevents persons from rejecting an award if they think it is inadequate and then proceeding to the High Court. The intention in setting up a tribunal was to provide an alternative to the High Court. The High Court provides a statutory way in which to process compensation claims. It was as clear as crystal at the start that the alternative would be informal and non-statutory. We did not need a statutory scheme because the statutory route to dealing with compensation claims is through the High Court. It is important to stress the concept of a provisional award as this is not available in Irish law, it is in English law, and is not available in the High Court. I repeat it would not be possible for me either legally or politically to bring in a statutory scheme to provide for provisional awards in respect of persons to whom the tribunal will apply as I would be forced into extending it across the range of compensation claims. Members know the length of time it takes to draft legislation and then to secure its passage through this House. Deputies will appreciate that if we had to extend a statutory tribunal that can make provisional awards and payments by instalments, it would apply to every case of compensation that goes through the courts whether as a result of a motor car accident or falling into a pothole. Deputies will appreciate that one of the primary reasons I am not going the statutory route is that I can provide a much better facility to those who are claiming compensation by going the non-statutory route. It is very difficult when acting in the best interests of persons involved to be accused of being slipshod, penny-pinching, uncaring and not taking people's views into account. There is none of that; I have no doubt that this is the direction to follow and it is in the interests of applicants.
I should say also that I have a responsibility to members of Positive Action and Transfusion Positive. My primary responsibility is not to members of any particular group but rather to individuals who have hepatitis C or antibodies. It must be left to individual choice whether to take one route or another; I must offer individuals that choice after the conclusion of appropriate negotiations. I cannot hold up a scheme indefinitely which is to the benefit of so many individuals who must also be given a right to process their claims.
As I said, a tribunal based on a statute would present many technical difficulties — I mentioned one — if it were to encompass many of the benefits I highlighted. Of its very nature a statutory tribunal would also be more formal, less flexible, unwieldy, subject to greater delays and would carry potentially substantial legal costs. We are all familiar with the issue of costs vis-à-vis the Tribunal of Inquiry into the Beef Processing Industry. I am not contending that this tribunal would be a replica of that body. I am saying that the legal profession, above all others, knows how to charge and how to devise schemes carrying legitimate charges if it can render them complicated. Being aware of the amount of money being claimed for the production of a Private Members' Bill, I would advise Deputy Geoghegan-Quinn that, based on her work as Opposition spokesperson on Health, she is worth approximately £250,000 annually if she were paid the same rates. Let us call a spade a spade. I am not going to be placed in the position in which a proportion of taxpayers' money — which we are dedicating to process legitimate claims, through which we want fair compensation to be paid to persons involved — may be frittered away, with several millions of pounds expended on many totally unnecessary processes. That is the cost issue and there is no saving to be had by following the compensation or High Court route in terms of compensation. This compensation cannot work unless the tribunal pays the equivalent High Court rate because, if they attempt to pay a lesser rate, people will be advised that that rate is not on a par with that of the High Court, awards will be refused and claimants will resort to the High Court. That is why we are taking this route.
With regard to the permanence of the Government's compensation scheme, Positive Action has sought a statutory tribunal on the basis that a statute would guarantee the permanence of such a tribunal. A statutory scheme offers no such absolute guarantee of the permanence of a tribunal, as every Member knows, because any Government can change any statute drawn up by itself or any of its predecessors.
However, there are a number of safeguards against the abolition or future amendment of the Government's scheme to diminish the rights of applicants to the tribunal. These include: the terms of any award made under the Government's scheme would be enforceable before the courts; and any abolition or future amendment of the Government's scheme to the effect of diminishing the rights of applicants to the tribunal would be subject to judicial review.
The following are the amendments to the scheme which the Government has approved following on my consultation with Positive Action and Transfusion Positive: (i) the scheme has been extended to include transfusee claimants who have been diagnosed positive for hepatitis C antibodies/virus; (ii) the children and partners of transfusee claimants who have been diagnosed positive for hepatitis C antibodies/virus are also included; (iii) the purpose of the scheme has been extended to include that the scheme shall continue indefinitely; (iv) 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; (v) the discretion of the tribunal to hear oral evidence has been extended; (vi) the making available of medical and other expert reports to claimants is explicitly incorporated in the scheme; (vii) a claimant to whom an award has been made by the tribunal shall be awarded the legal costs and expenses associated with the claim; (viii) the time within which claimants must apply to the tribunal has been extended from three months to six months; (ix) 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; and (x) the reports of the tribunal shall, in so far as is practicable, not identify any claimant.
On the preservation of legal rights the scheme to compensate certain persons who have contracted hepatitis C does not provide for an appeal against the award made by the tribunal. However, if a claimant is not satisfied with the award made, it can be rejected. It is open to such person to initiate proceedings or continue proceedings in the courts. By making an application to the compensation tribunal, a person's legal right to pursue a case arising from the same circumstances is not in any way diminished. In any event, if an appeal system from the award made by the tribunal was to be included in the scheme of compensation such would be an appeal to the High Court. As I stated, a person's legal right to pursue a claim in the courts is preserved in the event that a person rejects an award made by the tribunal. While not a formal appeal, whenever someone rejects an award, he or she will still have recourse to the High Court, which means it has the same effect.
On the question of oral evidence, the discretion of the tribunal to hear such has been extended beyond what was contained in the original scheme published by the Government in June last. While the tribunal will rely primarily on written medical reports, having considered such reports, it may notify the claimant that oral evidence of some or all of such reports will not be required. However, upon receipt of such notice, the claimant may inform the tribunal in writing of any reasons he or she considers that such evidence should be heard orally and the tribunal, having considered such reasons, shall notify the claimant of its decision to receive such evidence orally. If it refuses to hear such evidence orally, it will have to be sure that it acted in accordance with the rules of natural justice. If somebody does not like such a refusal, their legal representative can appeal it for judicial review. This means that a claimant's position is preserved in the manner in which we have structured this compensation scheme.
The discretion of the tribunal in relation to provisional awards was inserted in case an applicant chose a provisional award when a lump sum award clearly would be in his or her best interests. The Government considered this necessary, lawyers in Ireland not being familiar with the concept of provisional awards which are not available in Irish law. In English law, the courts have discretion in relation to making provisional awards when a claimant chooses to apply for such an award. The Government considered it to be of benefit to applicants that the tribunal should retain its discretion in this regard. That provision was incorporated deliberately, not in the interests of the Government, the Exchequer or the Department of Health but rather in those of the applicants in case that lawyers, unfamiliar with the provisional award system — as they all are in Ireland because it does not exist — would advise an applicant to proceed in a certain direction which would not be in his or her best interest. The tribunal will oversee that provision.
In the generality of cases, whenever somebody applies for a provisional award the tribunal will agree but a very small number of circumstances could arise in which somebody was badly advised to apply for a provisional award when they should have gone for full and final settlement. For example, if somebody is advised to opt for a provisional award in circumstances in which the medical prognosis shows that their state of health will not change, there is no point in opting for a provisional award because they would be cutting themselves short and would be much better obtaining a larger award in full and final settlement; that is all that is involved there.
The tribunal will be presided over by a very senior judge of the Supreme Court. It is not as if we were appointing people who did not understand compensation issues; that is the manner in which it will work in practice. It is very frustrating when some provision, included for the benefit of applicants, is turned around and used as a stick with which to beat me, as Minister, as if I were endeavouring to subtract from their rights whereas I am endeavouring to give them additional ones.
Notwithstanding the many concessions which I have outlined, 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.
Many of the concerns expressed in relation to the Tribunal make it quite clear that there is a degree of misinformation and misunderstanding about the compensation scheme. A number of these concerns are misplaced. I would strongly suggest that individual claimants discuss their particular circumstances with their solicitor.
It is my intention to formally establish the compensation tribunal later this week. An announcement will be made in this regard and application forms will be made available to potential applicants. I have every confidence that the compensation scheme will operate successfully, thus ensuring 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.
The House will agree that this has been a long and difficult process for everyone involved. I am sure that the House will also agree that the comprehensive health care package, taken together 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.