A fair amount of work has been going on in the Department on this issue in the overall context of medical indemnity cover. What was publicly stated by one of the masters has been said before and it is an issue which we need to resolve.
Experts have been consulted by the Department, including Mercer Limited, actuaries and insurance consultants. Officials have also met Professor Jeffrey O'Connell, professor of law at the University of Virginia law school. Professor O'Connell has written and lectured extensively on no-fault schemes and has helped draft no-fault statutes for brain-damaged infants in Virginia and Florida. Officials have also met Mr. Randall Boubjerg, principal research associate at the Urban Institute, an independent think tank based in Washington DC. He is joint author of a number of articles on no-fault schemes with Professor Frank Sloan of Duke University. Officials keep in contact with Mr. Boubjerg on developments in this area.
The Department has also been in touch with people in the Harvard law school, such as Professor Paul Weiler and a colleague who are experts in compensation for medical injuries, including no-fault schemes. We have also been looking at no-fault schemes in New Zealand, Virginia, Florida and Scandinavia. Much work is being done to try to devise a method of dealing with the problem in the manner suggested by the Deputy.
There are arguments in favour and against such a system. Arguments in favour include: removing the need for parents to sue for negligence to secure care for the affected child; saving on the huge legal costs associated with such cases; allowing settlements to be tailored to need; looking after the care needs of children in cases where negligence could not be established, an important feature in the consideration for a no-fault scheme and helping prevent obstetrics from becoming an unpopular speciality because of its association with high cost and high profile claims.
The difficulties which arise from such a scheme include: it would be difficult to define the precise group of children to whom it might apply; there would be serious boundary problems in including or excluding particular cases; developments in medical research will always threaten the effectiveness of any boundary based on clinical definitions; there would be constant pressure to extend the scheme to infants with similar needs who have not suffered from a birth-related injury, such as those suffering from organic diseases or accident injuries; most no-fault schemes either have a statutory bar on litigation where the infant falls into a clinical category covered by the scheme, or include a provision that parents forfeit their rights under the scheme if they sue. Either prohibition would be difficult to enforce in Irish circumstances; the State might not be able to guarantee the delivery of an appropriate level of care for the lifetime of the children and such a scheme would be expensive and involve compensating children who do not receive awards under the current system.
A great deal of work remains to be done. I am prepared to examine how, if at all, we can see whether such a scheme can be appropriately incorporated into the general overhaul of medical indemnity cover being undertaken.
