Limerick East): I move: “That the Bill be now read a Second Time.”
The purpose of the Bill is to provide for the establishment of a tribunal on a statutory basis to be known as the Hepatitis C Compensation Tribunal to award compensation to certain persons who have contracted hepatitis C within the State from anti-D immunoglobulin, other blood products or a blood transfusion and to provide for connected matters. A non-statutory compensation scheme for persons who have contracted hepatitis C from the use of anti-D or other blood products within the State has been in place since December 1995. It is acknowledged by the representative groups, Positive Action, Transfusion Positive, the Irish Haemophilia Society and the Irish Kidney Association that this scheme has been effective in its objective of dealing sensitively and efficiently with the claimants who have gone before it.
The non-statutory tribunal was established to fulfil the Government's commitment to fair compensation for women infected with the hepatitis C virus as contained in the policy document, A Government of Renewal. I published the scheme of compensation in June 1995 and on 5 September of that year the Government decided to extend access to the non-statutory tribunal to blood transfusion recipients. The non-statutory tribunal has provided an alternative to the courts system for persons infected with hepatitis C and alleviated many of the anxieties which might arise if claimants only had recourse to the courts which are adversarial by their nature.
As with the non-statutory tribunal, the Bill provides that the making of a claim to the tribunal does not involve a waiver of a right of action. It is only if the claimant accepts the award made by the tribunal that he or she is required to waive a right of action which he or she may otherwise have. Should a claimant not be satisfied with the tribunal award made to him or her the claimant can initiate or continue court proceedings.
The Government resolved that the operation of the non-statutory tribunal would not be disrupted or delayed while the legislation was being prepared to place it on a statutory basis. As I stated previously in the House, I am determined that any advantages conferred by the enactment of the Bill will also apply to those claimants who have already had their cases processed by the non-statutory tribunal or those who in the interim will process their claims. I have made provision for this in the Bill.
Deputies will be aware that following the publication of the report of the Tribunal of Inquiry into the Blood Transfusion Service Board the Government embarked upon a full reappraisal of the non-statutory tribunal. The reappraisal was required principally because the state of knowledge was significantly altered by the publication of the report. For this reason the Government has decided to place the compensation scheme on a statutory basis.
When I spoke in the Dáil on 20 and 25 March I made a number of commitments in respect of the non-statutory compensation scheme. These were that it would be placed on a statutory basis, that the prohibition on the payment of exemplary or aggravated damages would be removed, and that there would be a right of appeal to the High Court on awards made by the tribunal. I am glad to inform the House that these commitments are being fully honoured and are reflected in the Bill with many other new provisions which improve the scheme for claimants.
In line with the terms of the motion agreed by both Houses of the Oireacthas on 25 and 26 March, I engaged in a process of consultation with the four representative groups and the chairman of the compensation tribunal in relation to the reappraisal of the compensation scheme. As set out in the motion, the reappraisal had to take account of any necessary legal advice.
The Bill has been prepared exceptionally quickly, particularly when one considers its many innovative provisions and the significant legal complexity of many of the issues involved. The positive experience of members of the representative groups at the hearings before the non-statutory tribunal and the extensive consultation process on the Bill formed the foundation for the draft legislation.
The purpose of the extensive consultation process was to ensure the Government's legislative proposals would take account of, in so far as is possible, the views of the representative groups. A number of difficult and complex issues were raised. As far as possible, the views of the representative groups have been incorporated in the Bill.
The consultation process commenced in late March, early April. On 16 April a copy of the draft heads of the Bill placing the compensation tribunal on a statutory basis was presented to the representative groups. This was followed by numerous meetings with the representative groups which made submissions, both oral and written, to assist my Department in preparing the Bill. The representative groups put forward suggested amendments to the draft heads of the Bill.
The following are some of the more notable amendments which have been incorporated in the Bill which were not included in the non-statutory scheme of compensation, many of which have been included at the request of the representative groups: provision for aggravated or exemplary damages to be assessed by the compensation tribunal and that a claimant may rely on the facts found in the report of the Tribunal of Inquiry into the Blood Transfusion Service Board or any other fact in relation to their case for such damages; provision for the establishment of a reparation fund from which 20 per cent of the total amount of an award of general and-or special damages or 20 per cent of the settlement of a claim be paid to applicants; provision for a claimant's right of appeal of any decision of the tribunal to the High Court; provision for oral evidence by a claimant to the tribunal or his or her medical practitioner or both — in the non-statutory scheme the tribunal had discretion in this regard; provision for a person who has had a claim for compensation determined by the non-statutory tribunal to apply to the tribunal to hear evidence, at its discretion, which was not made available to the non-statutory tribunal in calculating the award made to that person; provision for the Minister to make arrangements to provide for the settlement of claims in respect of general and special damages; provision for a claimant to compel a witness to attend and give evidence; provision for a claimant's right to discover documents; provision for the tribunal to sit in divisions to hear claims, that is, more than one tribunal can hear cases simultaneously; provision for a dependant of a person who has died as a result of having contracted hepatitis C or whose hepatitis C was a significant contributory factor to the cause of death to make a claim to the tribunal.
I pay tribute to the work of the four representative groups and thank them for their assistance which has significantly contributed to the expeditious preparation of the Bill. They played a major role by their attendance at numerous meetings with, and the submissions they made to, my Department. I also thank Mr. Justice Seamus Egan, chairman of the tribunal, for his contribution to the consultation process on the Bill.
I turn now to the detailed provisions of the Bill. Section 1 is the interpretation section and defines the terms used in the Bill. Section 2 is a standard provision which provides for the establishment day for the purposes of the Bill. Section 3 provides for the establishment of the tribunal on a statutory basis. It also provides that the tribunal may sit in divisions, for the appointment of members to the tribunal and for the appointment of employees. It further provides for the compellabillity of witnesses and the discovery of documents by the tribunal on its own behalf or at the request of a claimant. This provision is to meet a particular request of the representative groups.
The section provides that the tribunal shall determine its own procedures and, in so doing, shall as far as is practicable adopt procedures which are informal. The groups were anxious to ensure that the informality of the procedures of the non-statutory scheme, which has served its purpose very well, would be preserved. The section further provides for hearings to be held in private and that written reports which the tribunal is primarily relying on will be made available to claimants. The section precludes the cross-examination of any claimant.
Section 4 defines the categories of persons who may make a claim for compensation to the tribunal and provides that negligence need not be proved by the claimant in respect of his or her claim for general and special damages. It also provides for legal representation for the claimant at the tribunal and deals with the requirement that a claimant may have to compel witnesses or discover documents. It extends from six months to three years the time limit within which a claimant can make an application to the tribunal. This extension to the time limit was a requirement about which the representative groups expressed strong views. The section also provides that a claim to the tribunal does not involve the waiver of any other right of action by the claimant.
Section 5 provides for awards in respect of aggravated or exemplary damages. It provides that an award of the tribunal to a claimant shall be made on the same basis as an award of the High Court calculated by reference to the principles which govern the measure of damages in the law of tort and any relevant statutory provisions and including consideration of an award on the basis which reflects the principles of aggravated or exemplary damages. This section also provides that an appeal shall lie to the High Court by a claimant in respect of any decision made by the tribunal and such appeal may, if the claimant wishes, be heard in private. Both of these provisions meet key requirements of the groups.
The section provides for the making of a provisional award which heretofore has not been available under Irish law. This gives the claimant the right to return to the tribunal in a situation where her or his hepatitis C condition has deteriorated. While this provision is a feature of the non-statutory scheme, the payment of a provisional award is at the discretion of the non-statutory tribunal. The groups requested that a claimant should have the absolute right to a provisional award if she or he so requested an award on that basis, and I am now providing for this in the Bill. The section also provides for the period within which a claimant must accept an award and that, if the claimant so chooses, the tribunal may direct that the award be paid in instalments. In addition, it provides that reasonable costs and expenses incurred by the claimant will be awarded by the tribunal.
Section 6 provides for the dissolution of the non-statutory tribunal on the establishment of the statutory scheme. It also provides that the tribunal may hear evidence of a claimant which was not available to the non-statutory tribunal in calculating that claimant's award and also that such claimants may apply to the tribunal for aggravated or exemplary damages or for an amount to be paid to her or him from the reparation fund.
Section 7 is a general provision which empowers the Minister to make regulations. Section 8 provides that the Minister may make arrangements for the settlement of a claim in respect of general and special damages by a claimant. The Government has decided that mechanisms for settling claims be devised in co-operation with the Attorney General and this will be facilitated by the provisions of section 8. Section 9 provides that the Minister may, with the consent of the Minister for Finance, by regulations extend the class or classes of persons who may make a claim for compensation before the tribunal.
Section 10 provides for the establishment of a special account, to be funded from moneys provided by the Oireachtas, to be used to pay awards made by the tribunal, statutory and non-statutory, and to pay their administration costs. A supplementary estimate provided for £60 million under the Appropriation Act, 1995. A further £50 million will be included in the Estimates for 1997. Section 11 provides for the establishment of a reparation fund to enable payments to be made to claimants as an alternative to applying to the statutory tribunal to assess aggravated or exemplary damages. The amount paid out of the fund to a claimant will amount to 20 per cent of the total amount of the award of general and-or special damages or 20 per cent of the settlement of a claim. The fund will contain £22 million in the current year.
Section 12 provides for the submission of reports by the tribunal to the Minister and the laying of these reports before each House of the Oireachtas. Section 13 is a standard provision which deals with the laying of regulations made by the Minister under the Bill before each House of the Oireachtas. Section 14 is a standard provision dealing with the expenses incurred by the Minister in the administration of the Bill. Section 15 provides for the Short Title of the Bill.
A small number of amendments to the Bill have been suggested by the representative groups and the Opposition. These amendments are being actively considered and I will, as far as possible, take account of them on Committee Stage.
I wish to take this opportunity to update the House on the non-statutory compensation scheme. To date it has received 1,686 applications, of which 1,530 are primary claimants, 87 are dependants and 69 are carers. Since it commenced hearings in January 1996 — regular hearings commenced in March 1996 — it has made 326 lump sum and provisional awards, while no award was made in two cases. No award of the tribunal has been rejected. Further hearings have been scheduled up to end 1997, with further claims awaiting hearing beyond that date.
In order to reduce the waiting period for a hearing at the tribunal the Government has decided to expand the tribunal to include a second division. In this regard, I have recently appointed two additional ordinary members to the tribunal. As already stated, the Bill provides that the tribunal may sit in divisions to hear claims before it. The Government has also decided that mechanisms for settling claims be devised in co-operation with the Attorney General and this will be facilitated by the provisions in section 8. I have always believed that claimants should have speedy access to the tribunal and these measures will undoubtedly reduce the waiting period for hearings.
The total amount of the awards made to date is approximately £38 million, excluding administrative and legal costs. The average amount of awards made to date is £116,481.19, while the awards have ranged from £15,200 to £453,904. A claimant to whom an award is made is entitled to the legal costs and expenses associated with the claim.
I thank the officials of my Department who have worked tirelessly on all matters in relation to this issue. I very much appreciate their hard work. The priority over the past four-five weeks of the small section of my Department which has the expertise to deal with these issues has been the legislation which is before the House tonight. They and the staff of the Attorney General's office and the parliamentary draftsman's office, who have assisted them, are to be commended. I am confident that the Opposition parties will co-operate in ensuring the speedy passage of this Bill. I commend the Bill to the House.