Vol. 479 No. 3
I move amendment No. 1:
In page 4, line 9, after "Board" to insert "or a health board".
There was a misunderstanding about this matter on Committee Stage in terms of whether it would impose a charge on the Exchequer. The words "or a health board" should be included in the definition. Will the Minister accede to this?
Limerick East): I apologise for not being briefed on this matter in advance. I was informed it had been ruled out of order but it has now been established that was not correct. Transfusion Positive brought to the attention of the Department that in some emergency cases in rural areas the donor is bled in hospital and the donation used immediately. In such circumstances, blood would not be sourced through the BTSB and Transfusion Positive is concerned the Bill would not cover a person infected by such a donation. The Bill does not refer to the source of blood, it simply refers to blood received within the State. There is no need for wider definitions in this section. It includes all blood and blood products transfused to recipients within the State regardless of the source of supply. I understand Deputy Cowen was responding to representations from Transfusion Positive in this regard, but the amendment is not necessary.
The Minister stated that if people are infected with hepatitis C through an emergency transfusion they would not be entitled to claim.
(Limerick East): They are entitled to claim. We do not need an amendment to preserve the entitlement. They are entitled to claim under the provisions of the Bill.
Even if they receive it in an emergency.
(Limerick East): Yes.
I presume that has been communicated to Transfusion Positive.
(Limerick East): I understand it has been informed, but if there is a doubt about that we will communicate with it again.
I am prepared to accept the Minister's assurance that emergency cases are covered.
As amendments Nos. 2 and 3 are related, I suggest, therefore, that we take them together.
(Limerick East): I move amendment No. 2:
In page 8, between lines 24 and 25, to insert the following:
"(2) Notwithstanding subsection (1) of this section and section 2(2) of the Civil Liability (Amendment) Act, 1996, section 49(1)(b) of the Civil Liability Act, 1961 (as amended by section 2(1)(a) of the Civil Liability (Amendment) Act, 1996) shall have effect in respect of a claim made pursuant to section 4(1)(e) of this Act.".
On Committee Stage I said I would submit a suitable draft on this matter on Report Stage. The amendment takes account of the views expressed by a number of people outside the House, but in particular the views expressed by Deputies Cowen and McDaid in the House, that the Bill does not put a cap of £7,500 on awards to defendants. Under the Bill the cap will be £20,000 per family. The Civil Liability Act caps the award for mental distress at £7,500 and £20,000 from December 1996 per family. There may also be a payment for loss of support to a dependant under this Bill. The cap under the 1996 Act relates to families. Under this Bill we retrospectively raise the amount to £20,000 in accordance with the provision of the 1996 Act. The provisions of this Bill will apply retrospectively.
I am pleased the Minister accepted the principle argued by people inside and outside the House. Members of families died from hepatitis C before they had an opportunity to go before a tribunal or a court to litigate in regard to the wrongdoing perpetrated against them. While we do not suggest this will fully meet the compensation required for the trauma from the loss of a family member, we are somewhat circumscribed by the Civil Liability Act. The position prior to this amendment being accepted was that relatives of those who died before the enactment of the Civil Liability (Amendment) Act, 1996, would not have been able to get more than £7,500 for mental distress.
While retrospective legislation should be introduced carefully on principle, the Minister has shown an ability to reach out to meet the case made by those people. The additional £12,500 is not a lot of money but the recognition is important, as is the fact that we are prepared to do what we can within the limited room for manoeuvre under law. That sends a positive signal to those people that they are not forgotten as we set up a tribunal to have their claims considered.
I also express my gratitude that the Minister has accepted this. The problem has been going on for some time and because I have some cases, I see the suffering of these people in three dimensions. They felt excluded because their loved one had died and they had gone through the worry those now receiving compensation are suffering. The Minister should clarify that those dependants are still able to take a case for loss of earnings if the deceased was the wage earner.
(Limerick East): Under the provisions of the Bill, a payment may be made by the compensation tribunal in respect of loss of support to a dependant. That would be additional to anything paid in accordance with the provisions of this amendment.
I welcome this amendment. It provides extra compensation for the limited number of families which were left out because their loved ones died before their entitlement to £20,000 was increased by the Civil Liability (Amendment) Act. There is justice in this amendment and, as the Minister said, it is for a limited number of people who have good cause for it. I welcome the amendment.
(Limerick East): I move amendment No. 3:
In page 10, between lines 31 and 32, to insert the following:
"(c) apply to the Tribunal for the adjustment of any award made by the non-statutory scheme Tribunal to an award to which she or he would have been entitled had section 2(1)(a) of the Civil Liability (Amendment) Act, 1996, been in force at the time of the making of the award,".
I wish to ensure that some typographical errors are corrected. In section 4, subsections 15 and 16, in each case "period" should read "periods". These are consequential amendments on amendment No. 5a.
In amendment No. 5a after "aware", instead of "or", it should read "of" in the third line of paragraph (a).
In amendment No. 9b to section 6, the new paragraph (b) reference to a "non-statutory Tribunal" should be a reference to a "non-statutory scheme Tribunal".
These are typographical errors.
(Limerick East): We discussed the provisions to preserve privacy, confidentiality and anonymity within the new statutory compensation tribunal. I said if this could not be done in accordance with the terms of the Constitution in High Court cases, we should consider whether High Court cases in respect of hepatitis C victims should be taken in camera. I have had this examined and have been advised that we would not be in a position to bring forward an amendment on this tonight. It would need considerably detailed examination from a legal and constitutional perspective.
The preliminary advice is that it cannot be done in the timescale available if it can be done at all. However, I will pursue this and write to the Minister for Justice and indicate that an appropriate Courts Bill sponsored by her Department might be able to make a provision along the lines suggested. That might have wider import than that suggested by the Deputy in respect of these cases and might include further categories of cases where the issue of privacy would be paramount.
I welcome what the Minister has said. This is an issue where there is a slight inequality of treatment between those who go to a tribunal and those who go before a court. Anonymity is guaranteed in the tribunal but not in court. The purpose of the tribunal is to provide an alternative and that does not close off the court option. The loss of anonymity in going to court is a major factor for those opting for the tribunal. It is important that people be allowed vindicate their rights in whatever forum they choose and that they be facilitated in whatever choice they make.
I accept the Minister's statement that it cannot be dealt with in the timescale of this Bill. It can be dealt with in the Seanad and I accept his assurance that the Minister for Justice will be asked to take this on board with even wider ramifications than the limited number of cases that are the subject of this Bill.
We are on Fifth Stage, and it is the end of a long road for a lot of people in terms of ensuring State recognition of the need to confront the wrongdoing done and facing the facts established by the Finlay tribunal. I recognise the difficulties the Minister has contended with. There have been many criticisms, some of which will remain until this matter has been cleared up to everyone's satisfaction. In relation to this matter, he and his officials have worked under great pressure to come forward with a proposal for a statutory tribunal. The criticism is that he did not go down that route far sooner. He has argued his case as to why he did not and we will have to respectfully differ on that. In a case such as this, there was clearly no contributory negligence on behalf of individuals and, unfortunately for the State, 100 per cent liability had to be admitted by an agency under the Department's aegis. That is because of the incomprehensible failure to confront the mistake made initially and the fatal compounding of that error by suggesting the situation would somehow go away or that subsequent ramifications would not develop.
This has been a major tragedy for all concerned, the BTSB, the Department of Health and those involved in the profession. The State in many respects is seeking to recover from the shattering blow this debacle has represented. The Blood Transfusion Service Board is under new management. Since I have taken up the health portfolio I have been careful to ensure that we do not lose confidence in our blood supply which is a prerequisite for the provision of a modern health care system. I have been quick to point out the deficiencies of the past and the need for us as a democratic institution to put right the wrongs that were done and perpetrated in the name of our citizens, to confront that issue, to be manly enough — or whatever is the proper politically correct term — to stand up and admit an error and set about constructively putting it right. This statutory compensation tribunal has been sought by the victims for a long time.
I remind the House that at this Stage it is normal that Deputies make a brief comment on what is in the Bill.
I apologise. I am coming to that point. The Bill has sought to cover all the angles to meet the demands of those who have suffered. It provides for the setting up of the tribunal, its manning and resourcing, the need to provide flexible procedures and to ensure there is a speedy route to justice and compensation so that people can try, in so far as they can with their families, to pick up their lives and face the future with some degree of fortitude. The statutory compensation tribunal is a good attempt by the State to provide the legal framework now available which recognises in law formally through the enactment of legislation by the Oireachtas, rather than simply on an ad hoc fashion, that this issue is being put right in a just and fair way and seeks to give compensation for the wrongdoing perpetrated in the past.
I congratulate the people in the background and, having been a member of Government, I know how hard they work. We have great expertise available to us and are lucky to have those people. The amendments tabled this evening were technical in nature and some were substantive, but the general body of legislation proposed after the consultation process has, in fair measure, sought to address the magnitude of the issue which confronted the State, the Government and the Minister.
(Limerick East): This complex Bill was produced under a certain degree of time pressure. We consulted the interest groups, produced the heads of the Bill, negotiated settlements and produced the text of the Bill. I very much appreciate the help of Deputies Cowen, McDaid and O'Donnell tonight. On the second last day of this Dáil, this House has been seen to work as it should with Deputies on both sides combining to give thorough scrutiny on Committee Stage to complex legislation. They combined their efforts and talents to improve the Bill in circumstances where it was produced during a short timeframe and the skills and talents of Deputies on all sides were necessary to do that. We have done a good evening's work.
I thank Deputies Cowen, McDaid and O'Donnell for their work here and over the years. Deputy Cowen is new to his position as spokesperson on health, but he is an experienced and well respected figure. I wish all my colleagues, including Deputy Michael Ahern, who is waiting for a final shot to get that last 50 votes by raising a matter on the Adjournment, every success in the forthcoming election.
We are at the end of a saga in terms of the genesis of this Bill. The matters with which we were concerned were unprecedented in terms of public administration and the challenges they posed to it and for politics. They were very traumatic for all concerned, the victims and their families and the politicians who had to deal with those matters in the Dáil. The debate from the beginning has been marked by a certain amount of trauma and acrimony and the fact that Dáil Éireann was unable to discover the full facts of what happened is depressing for our parliamentary democracy. We had to establish an independent tribunal of inquiry to discover facts that were at all times in the possession of the State. We now have a situation which is to the satisfaction of the victims and that is what is most important. This statutory tribunal will adjudicate and compensate adequately the persons who have been so affected by this tragedy.
Monetary compensation will only go a certain way; it will take a long time for the wounds to heal, as we saw recently in a display of emotion by one of the victim's families. All the families affected have individual tragedies and stories. It will take more than law and this legislation to help them recover. I commiserate to a certain extent with the Minister for being in charge of this portfolio at this stage in our political history. His officials have worked hard with him to get it right and I congratulate them on that work and putting up with all the trauma which is part of the cut and thrust of the political process in dealing with a matter as serious as this.
I also thank Deputy Geoghegan-Quinn for the work she did on this matter in tabling motions and calling for the establishment of the compensation tribunal on a statutory basis. Work on that has been ongoing for a long time and people have contributed to that work here tonight.
