Limerick East): The purpose of the Hepatitis C Compensation Tribunal 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 contracted hepatitis C within the State from anti-D immunoglobulin, other blood products or blood transfusion and to provide for connected matters.
Before outlining the details of the Bill I should point out that a non-statutory compensation scheme for persons who 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 appeared before it.
The non-statutory tribunal was established to fulfil the Government's commitment to provide fair compensation for women infected by the hepatitis C virus, which is contained in the policy document A Government of Renewal. I published the scheme of compensation in June 1995 and on 5 September 1995 the Government decided to extend access to the tribunal to include blood transfusion recipients. The tribunal has provided an alternative to the court system for persons infected with hepatitis C and has 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 any 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 had. Therefore, 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 has also resolved that the operation of the non-statutory compensation tribunal would not be disrupted or delayed while the legislation was being prepared to put it on a statutory basis. I am also determined that any advantages conferred by the enactment of this Bill will also apply to those claimants who have already had their cases processed by the tribunal or those who in the interim will process their claims. I have made provision for this in the Bill.
Senators 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 compensation 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.
In March this year I made a number of commitments in respect of the non-statutory compensation scheme. These commitments were, first, that it would be placed on a statutory basis, second, that the prohibition in the present scheme on the payment of exemplary or aggravated damages would be removed and third, that there would be a right of appeal to the High Court on awards made by the compensation tribunal. I am glad to inform the House that these commitments are being fully honoured and reflected in the Bill with many other new provisions which improve the scheme for the claimants.
In line with the terms of the motion which was put before and agreed by both Houses of the Oireachtas 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 that motion, the reappraisal of the scheme had also to take account of any necessary legal advice.
The Bill before the House today has been prepared exceptionally quickly, particularly when one considers the many innovative provisions contained in the Bill and the significant legal complexities of many of the issues. 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 has formed the foundation for this draft legislation. The purpose of this extensive consultation process was to ensure that the Government's legislative proposals would take account, as far as possible, of the views of the representative groups. A number of difficult and complex issues were raised during the consultation process and as far as possible the views of the groups have been incorporated into the Bill.
The consultation process commenced in late March/early April. On 16 April 1997 a copy of the draft Heads of the Bill, placing the compensation tribunal on a statutory basis, was presented to the groups. This was followed by numerous meetings with the representative groups who 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 into 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 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 will 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 the claimant to the tribunal or her or his medical practitioner or both — in the non-statutory scheme the tribunal had a 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, at the discretion of the tribunal, evidence 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 before it, that is, more than one tribunal can hear cases simultaneously; and 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. The representative groups played a major role by their attendance at numerous meetings with, and submissions they made to, my Department. I also thank Mr. Justice Egan, chairman of the tribunal, for his contribution to the consultation process.
Section 1 is an 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 Act. Section 3 provides for the establishment of the tribunal on a statutory basis. This section provides that the tribunal may sit in divisions. It also provides for the appointment of members to the tribunal and for the appointment of employees. It provides for the compellability of witnesses and 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.
Section 3 also provides that the tribunal shall determine its own procedures and, in so doing, shall as far as is practicable adopt procedures which are informal. Again, the groups were anxious to ensure that the informality of the procedures of the non-statutory scheme, which has served its purpose well, would be preserved. The section also 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. This section also 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 also deals with the requirement that a claimant may have to compel witnesses or discover documents. The section also extends the time limit from six months to three years 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. Section 4 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 provisions meet key requirements of the groups. This section also 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 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 provide for this in the Bill. Section 5 also provides for the period within which a claimant must accept an award and, 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 empowering 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 also 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 money 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 £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 designed to ensure that, should any difficulties arise in bringing any provision of this Act into operation, the Minister for Health may, by regulation, do what is necessary or expedient for bringing that provision into operation. Section 14 is a standard provision which deals with the laying of regulations made by the Minister under the Act before each House of the Oireachtas. Section 15 is a standard provision dealing with the expenses incurred by the Minister in the administration of this Act. Section 16 provides for the short title of the Bill. A small number of amendments to the Bill were suggested by the representative groups and, when in the Dáil, by the Opposition. These amendments were, where possible, incorporated into the Bill.
I would like 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 awards, lump sum awards and provisional awards; and in two cases no award was made. No award of the tribunal has been rejected. Further hearings have been scheduled up to the end of 1997 with further claims awaiting hearing beyond that date.
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 under 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 £116,481.19p and they 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 am confident that all members of this House will co-operate in ensuring the speedy passage of this Bill which I commend to the House.