Amendments Nos. 2 and 2a are related to amendment No. 1. Amendments Nos. 1, 2 and 2a may be discussed together. Is that agreed? Agreed.
Hepatitis C Compensation Tribunal (Amendment) Bill, 2002: Committee and Remaining Stages.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
I move amendment No. 1:
In page 4, paragraph (a), line 43, after “paragraph” to insert “(a), (b) or”.
These amendments apply to sections 4(a)(h) and 4(h)(d) and 5(b)(3B)(a) of the Bill as initiated following representations from Positive Action and Transfusion Positive. The section provides that the tribunal would hear claims from the spouses of persons infected with HIV in respect of the loss of consortium of the infected person, including the impairment of sexual relations with that person arising from the risk of transmission of HIV. In sexual relations the medical advice is that the risk of transmission of HIV is significantly higher than the risk of transmission of hepatitis C. Nevertheless, following representations from Positive Action and Transfusion Positive, I accept that the spouses of those who were infected with hepatitis C should be entitled to make such claims in similar circumstances.
Will the Minister confirm that the amendments meet the concerns Deputy McManus and I expressed on Second Stage? I believe they meet our concerns but I ask the Minister to confirm that it is exactly what we discussed last evening.
I welcome the fact that the Minister has accepted the amendments put forward by Deputy Mitchell and me. I expect and hope they will meet the concerns expressed by the represen tative groups, Positive Action and Transfusion Positive. Both organisations raised their concerns with us and generated this response from the Minister.
However, this is not the way to produce legislation. We are rushing this Bill through. Amendments were put down in my name and that of Deputy Mitchell, and in the past hour I discovered the Minister had responded with his agreement on them. We must ensure we produce the best legislation, which is not open to challenge and does not have hidden problems or loopholes. I reiterate my concern about how this Bill has been presented and how amendments have been dealt with. That said, I welcome this response.
Last evening, when I met Positive Action and Transfusion Positive, I undertook to look at the situation overnight. I indicated on Second Stage that I would move an amendment dealing with the issue of loss of society. This morning we tabled an amendment on the issue and examined it before sending it to the Bills Office to ensure precision and that it covered the issues raised. The Opposition Deputies put down a similar amendment and the Bills Office, for the purpose of convenience, lumped the three amendments together. In essence, the amendments propose to do the same thing.
With regard to Deputy Mitchell's concern, the amendment deals with the issues that were raised with us.
I note that the amendments put down by the Minister, Deputy McManus and me coincide. I am happy to see this amendment before the House.
Amendment agreed to.
Mr. Martin
I move amendment No. 2:
In page 4, paragraph (a), lines 44 and 45, to delete all words from and including “the person” in line 44, down to and including paragraph (f) in line 45 and substitute “a person referred to in paragraph (a), (b) or (f)”.
Amendment agreed to.
Mr. Martin
I move amendment No. 2aIn page 5, paragraph (a), line 4, after “of” to insert “Hepatitis C or”.
Amendment agreed to.
I move amendment No. 3:
In page 6, paragraph (c), to delete lines 1 to 7 and substitute the following:
"(c) Where a person infected with Hepatitis C and HIV who has not made a claim for compensation to the Tribunal before the commencement of the Hepatitis C Compensation Tribunal (Amendment) Act, 2002, makes a claim in respect of both conditions after such commencement, then, the Tribunal may, if it considers it appropriate to do so, hear and determine both claims together.”.
This amendment applies to section 4(c) of the Bill and follows representations from the Irish Haemophilia Society. It is common practice in the High Court to join claims and hear them as one where similar circumstances apply to both. This procedure serves to save duplication, delay and costs. The Bill, as initiated, contained a provision to ensure that claimants who were co-infected with hepatitis C and HIV or dependants of co-infected persons who intended to make a claim following the commencement of the Act would make one claim only in respect of both conditions.
The Irish Haemophilia Society has told me that in some cases because of the complexity of the issues involved it would be preferable that the tribunal would hear the hepatitis C claims separately from the HIV claims. In view of this, I am moving this amendment which will allow the tribunal to decide whether or not it would be appropriate to hear the claims separately. This amendment will ensure that the same rules will apply to claimants who intend to make claims in respect of both hepatitis C and HIV following the commencement of the Act, as will apply under section 4(c)(d) of the Bill to those who have already made a claim of hepatitis C but have not had that claim determined and intend to make a HIV claim following the commencement date.
Amendment agreed to.
Amendments Nos. 4 and 5 are alternatives to amendment No. 3a in the name of the Minister and the amendments may be discussed together by agreement.
Mr. Martin
I move amendment No. 3aIn page 7, paragraph (h), lines 27 to 30, to delete all words from and including “the person” in line 27, down to and including “of HIV” in line 30 and substitute “a person referred to in paragraph (a), (b) or (f) of subsection (1), including the impairment of the sexual relations with the person, arising from the risk of transmission of Hepatitis C or HIV”.
This amendment is consequential on the early amendments, amendments Nos. 1 and 2, which involved the extension to hepatitis C victims of the issue of loss of consortium and also the period of time within which to apply.
Will the Minister confirm, given the technical nature of these amendments, that in essence his amendment No. 3a meets the concerns expressed by the amendments in the name of myself and Deputy McManus, that is, amendments Nos. 4 and 5?
Yes, it does.
I am willing to support this amendment. There was a significant issue for the people suffering from hepatitis C in relation to a possible discrimination against them and it appears to me that this amendment resolves the inequity between the two particular groups. I do not have any other concerns.
Amendment agreed to.
Amendments Nos. 4 and 5 not moved.
Section 4, as amended, agreed to.
SECTION 5.
Amendment No. 6 is an alternative to amendment No. 5a in the name of the Minister. The amendments may be discussed together by agreement.
Mr. Martin
I move amendment No. 5aIn page 8, paragraph (b), lines 50 to 51, to delete “the person referred to in section (4)(1)(f), including the impairment of sexual relations with that person,” and substitute “a person referred to in paragraph (a), (b) or (f) of section 4(1), including the impairment of sexual relations with the person”.
This is a consequential amendment providing for the burden of proof on the spouses of persons infected with hepatitis C when seeking claims for loss of consortium.
The amendment of Deputy McManus and myself involved the insertion on the same line of "(a), (b) or”. The Minister's more comprehensive proposal would appear to subsume what we were inserting in amendment No. 6. From my point of view, that is acceptable.
Amendment agreed to.
Amendment No. 6 not moved.
Carlow-Kilkenny): Amendment No. 7 is an alternative to amendment No. 6a. The amendments may be discussed together by agreement.
I move amendment No. 6aIn page 8, paragraph (b), line 55, after “of” to insert “Hepatitis C or”.
This amendment is consequential on the earlier amendments dealing with the issue of loss of consortium.
Does it have the same meaning as amendment No. 7?
It does, yes.
It is a slightly different wording.
It is exactly the same, only the other way around.
It is a drafting issue.
It is not a drafting issue; it is nit-picking.
Our amendment states "or Hepatitis C" and the Minister's states "Hepatitis C or".
But "or" is being inserted anyway.
It is a nil-all draw.
Amendment agreed to.
Amendment No. 7 not moved.
Acting Chairman
Amendments Nos. 8, 9, 10 and 11 are related and may be discussed together by agreement.
I move amendment No. 8:
In page 8, paragraph (b), lines 56 and 57, to delete all words from and including “section” in line 56, down to and including “person” in line 57, and in page 9, lines 1 and 2, to delete all words from and including “who” in line 1, down to and including “where HIV” in line 2, and substitute “paragraph (e) or (j) of section 4(1) is the child, spouse or parent of the person who died (‘the deceased') as a result of having contracted Hepatitis C or HIV, or where Hepatitis C or HIV”.
This amendment applies to section 5(b)(3B)(b) of the Bill, as initiated, following representations from the Irish Haemophilia Society, Positive Action and Transfusion Positive. The Bill, as initiated, provides that certain dependants, children and spouses of those HIV infected persons who have died as a result of their HIV infection could make a claim to the compensation tribunal in respect of the loss of society of the deceased, including the loss of the care, companionship and affection of the deceased. Following representations from the society I am extending these claims to apply to the parents of those HIV persons who have died. In addition, following representations from Positive Action and Transfusion Positive, I am extending the provision to the children, spouses and parents of those hepatitis C infected persons who have died. I indicated that last night in my Second Stage speech and this is the amendment which covers the issue of loss of society.
Amendments Nos. 9 and 10 seem to be covered by the Minister's amendment. I am not quite sure that amendment No. 11 is covered by it. I might just dwell on this for a moment. The Minister's amendment inserts "the child, spouse or parent of the person who died (‘the deceased') as a result of having contracted Hepatitis C or HIV, or where Hepatitis C or HIV", whereas the amendment in the my name and that of Deputy McManus reads "where Hepatitis C was a significant contributory factor to the cause of death, the Tribunal may make an award to that dependant in respect of loss of society of the deceased including the loss of the care, companionship and affection of the deceased as a result of the death". Are the broad proposals in our amendment encompassed by the Minister's amendment or does his amendment reduce in any way the effect of the amendment we are proposing?
Absolutely not. We are not taking out those phrases. It does not reduce the impact which the Deputies' amendment would involve.
Amendment agreed to.
Amendments Nos. 9 to 11, inclusive, not moved.
Acting Chairman
Amendments Nos. 12 and 13 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 12:
In page 9, paragraph (b), lines 19 to 23, to delete all words from and including “Tribunal–” in line 19, down to and including “(ii) may” in line 23 and substitute “Tribunal may”.
This amendment, which applies to section 5(b)(3D) of the Bill, results from representations from the Irish Haemophilia Society. The section, as initiated, provided that the tribunal would be enabled, but not obliged, to consider any previous award made to a claimant when determining the additional compensation due. The intention here was to ensure there is no duplication of compensation in respect of the same heads of damages and this is in line with the principles of tort law as followed in the High Court. However, we have taken legal advice on the matter and I am satisfied that section 5(1) of the principal Act, which provides that the awards made by the tribunal shall be made on the same basis as awards of the High Court calculated by reference to the principles which govern the measure of damages in the law of tort, will achieve the objective intended in the original section and dispenses with the necessity to include it in the amending legislation.
I have been advised that there was little doubt that if it is a matter to be dealt with in the High Court, the personal injuries action in that court would proceed on a similar basis – that is to say that the court would take into account previous awards of compensation where the second infection has aggravated the loss and damage already caused by the first. It would be only where the independent and different tortfeasors caused separate the distinct injuries that the courts would not have regard to the earlier awards. As the principles form a clearly established part of the existing law governing the award of damages in personal injuries, I consider that sections 5(3D)(a)(i) and 5(3D)(b)(i) are unnecessary. It is a matter for the tribunal and ultimately the High Court to determine the issues.
Has the Minister discussed these matters with Transfusion Positive, Positive Action and the Irish Haemophilia Society? Have any objections been raised as a result or are there any implications for these amendments in light of the concerns expressed by any of those organisations?
This is not for the other organisations. This relates to co-infected persons who contracted both hepatitis C and HIV.
I welcome the amendment. It was an issue for the Irish Haemophilia Society, which was concerned about the matter. It certainly accepted that the principle of the law of tort would still prevail, but it was concerned about the way this Bill was framed in terms of other previous payments. I welcome the fact that the Minister is proposing to change the Bill. I understand that the Irish Haemophilia Society accepts that this proposal improves the Bill.
Amendment agreed to.
Mr. Martin
I move amendment No. 13:
In page 9, paragraph (b), lines 26 to 33, to delete all words from and including “Tribunal–” in line 26, down to and including “(ii) may” in line 33 and substitute “Tribunal may”.
Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."
On Second Stage last night, I raised the issue of the Minister's reference to "as a result of the death". Are persons who suffered but did not die being excluded under this section – people who may have been denied the care of another person or their society or companionship? Are they encompassed by this section?
In terms of the loss of society?
Yes.
The loss of society applies to the dependants of those who died.
Question put and agreed to.
Sections 6 and 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
On section 8, the Minister undertook to send me a note about the fund. I think the same thing applies to section 7, which amends section 10 of the 1987 Act. In respect of the fund, I asked the Minister on Second Stage if he would send me a note on the matter. He said he would, but I have not received it.
I will send it. I will put the note on the record of the House. It might cover issues that Deputy McManus raised last evening as well. First, I will address the concerns raised by Deputy McManus in respect of the funding of compensation awards. I want to reassure the Deputies that funding for tribunal awards is provided for under the 1997 Act. This funding is ring-fenced in my Department's Vote each year. In compliance with section 10 of the Hepatitis C Compensation Tribunal Act, a special account has been set up from which the tribunals awards are paid and its administrative costs are met.
Subhead G2 of the health Vote encompasses payments to this special account in respect of the general awards and administrative costs of the tribunal, while subhead G3 provides for payments into the reparation fund established under section 11 of the 1997 Act.
As the Deputy will appreciate, expenditure under these subheads is essentially demand-led. This expenditure is not discretionary. Awards of the tribunal and of the High Court on appeal or statutory entitlements must and will be paid.
Will the Minister tell the House what amount is in that subhead at present and does he envisage introducing a substantial Supplementary Estimate or will it be left to me and Deputy McManus, as his successors, to do it shortly?
Not really. I do not know what amount is under that subhead at the moment. I have been the Minister for two and a half years and there has not ever been a difficulty. As the bills fall due, they are paid.
What was the amount?
I can get the figures for the Deputy. I can get him a full breakdown in terms of the compensation paid to date under the Act.
Is it not in the Estimates?
It would form part of the Estimates.
Is there not a subhead? Subhead—
Subheads G2 and G3. The Deputy can look at those.
Almost 1,500 hepatitis C claims have already been determined by the tribunal. The amount paid out would have been about €388.64 million, plus an additional €52.54 million in respect of legal fees. There are 400 to 500 claims awaiting hearing, which will obviously add significantly to those figures.
That was over a period of years.
I suppose it was over four or five years, since 1997 or earlier. It takes place over a period. As claims are made to the tribunal it takes time for awards to be paid out.
Question put and agreed to.
Sections 9 and 10 agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
I asked the Minister last night if he would confirm a matter pertaining to section 11(3) in respect of the orders to be made for the operation of this section. He said the days would be fixed by order. However, I asked that that would come about within 30 days. Will the Minister confirm that he is thinking about such a time frame and not in terms of three or six months, but in terms of a couple of weeks or a month at the most?
Once we pass the Bill today, and tomorrow in the Seanad, my officials will make immediate contact with the compensation tribunal to agree a time scale for the commencement of the legislation.
A very short-term time scale.
It will be very soon afterwards. I do not want to give the exact day.
Question put and agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I am happy to let this Bill pass without dividing the House. I do not think making legislation in this way is proper constitutionally. I hope we have not given a hostage to fortune. I hope that, in the legislation we are passing, we are doing what we intend to do and that the Bill does not contain provisions that will give rise to any doubt at a later date. We are heading into a general election and there will not be an opportunity to raise this matter in the House for some time so I hope the Bill addresses the concerns we raised.
I record my appreciation of the work done by Transfusion Positive, Positive Action and the Irish Haemophilia Society. The latter has been very active in terms of keeping in touch and I admire the professionalism with which its members handled their task. If any of them have any free time, I have a constituency campaign to organise in Dublin South Central and I would welcome that sort of professionalism.
This is a good day's work and it shows that participative and representative democracy can work hand in glove. I hope that what we have done here today goes a long way towards amending the wrongs that were done in the past and that it is the commencement of a new beginning for those who have suffered for too long.
I am glad to support the passing of the Bill. The circumstances in which the Bill is to be enacted are so distressing and disturbing that there is consensus among all the parties that justice must be done for these unfortunate people. Since I entered politics I cannot think of any other set of experiences that have been so disturbing to me and to many others than listening to the testimony given to the Lindsay tribunal. I hope the lessons have been learned and that we can say that some good has come out of this terrible series of events that blighted so many people's lives and ended the lives of many others. I am glad the Minister has accepted that there was inherent discrimination in the Bill. The changes we have made now will ensure that there will not be discrimination among different groups, which is a good development.
We all wanted to reach the point where we could deliver a fair compensation scheme to these people but this is not the way to bring legislation through the House. I am deeply uncomfortable about the fact that I have participated in bringing legislation through the House which was not carefully considered and on which I have not had time to reflect or get proper legal opinion. I compare this experience to the experience in relation to a shorter Bill to introduce a constitutional amendment on abortion which required, unnecessarily as it turned out, much energy and commitment from the Government to convince the people to change the Constitution. In this case we are trying to ensure that the needs of a vulnerable group of people who were literally poisoned by the State are met, yet we are unable to give this Bill the consideration it deserves.
The Minister will stand up and defend the Government's position, as all Ministers do, but it would be appropriate for him to admit that this is not best practice. We are always talking about best practice for others but let us talk about best practice for ourselves. It is not best practice to find amendments fluttering into our pigeon holes five or ten minutes before we begin Committee Stage of a Bill. I am uncomfortable about that procedure and I hope that everything will turn out right on the night. In my experience there is no guarantee that even the most finely crafted legislation does not contain hidden flaws. In this case, not only is it not finely crafted but we have not had a chance to examine how well or otherwise the parliamentary counsel have done their work.
I am glad to have participated in the passage of this Bill through the House but I am not at all happy with the way we have carried out that process, and I hope it does not happen again.
Last night I acknowledged the co-operation of the Opposition spokespersons in terms of the passage of the Bill. This is the first Government in the past decade to decide to reopen the compensation issue for people infected with HIV—
Two and a half years ago.
—and establish a tribunal of inquiry into how that happened. As Deputies McManus and Mitchell said, all of us were affected by what transpired at that tribunal and by the testimony of those who gave evidence to it. There were complex legal issues surrounding that decision and the Bill, and we entered into discussion with the Irish Haemophilia Society in that regard.
The Bill represents a substantial scheme in terms of compensation. It breaks new legal ground and, by its very nature, one can see the difficulties that arose in advance of it. We had intense discussions on the Bill because those outside the House were anxious that we would bring this issue to a close in this Dáil session. We had the option of waiting until after the next general election—
The Minister would have come back in a taxi.
—but I would have been attacked and pilloried across the floor of the House for bad faith and I would have been accused of this, that and the other. Once we got agreement on the scheme, we moved mountains to get the legislation published and passed through the House. I always said I would not impose a scheme on those involved and on the society in particular, that this was not a take it or leave it situation and that I would seek consensus on the legislation.
I thank the Irish Haemophilia Society for its contribution to the scheme and to the discussions that took place. Its members have experience of the issues that people here or outside this House do not have, and that experience was very valuable. I also thank Transfusion Positive and Positive Action whose members contacted us yester day and whom we met quickly following that contact. They identified their concerns to us and we moved on those concerns with the agreement of the House.
I acknowledge the point that we would have liked more time but this is a substantial scheme by any standards which breaks significant new ground because of the unique set of circumstances that gave rise to the need for it and the amendment of the principal Act of 1997. In that context, I pay tribute to my officials in the Department of Health and Children who have worked consistently in recent weeks to get the Bill ready. I thank also the officials in the Attorney General's office who were very helpful and co-operative, particularly on the legal issues which required certain teasing out given that this legislation was breaking new ground.
I thank the Opposition spokespersons for their co-operation. I acknowledge and understand the difficulties they have had with the Bill but I am pleased that they facilitated its passage through the House.
Question put and agreed to.