Section 2 provides for the commencement order. When does the Tánaiste expect to be in a position to make that order?
Personal Injuries Assessment Board Bill 2003: Committee Stage.
Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
I hope to be in a position to do so in January. It will depend on when the Bill is signed into law but it is intended to have the commencement order by the end of January or early February.
Is everything in place in terms of staffing and resources in order to start moving on it from 1 January?
As the Senator knows, an enormous amount of work has been done by the interim board. It has just completed the interview process for the chief executive and I hope to be in a position to make that appointment in a matter of days. It will then be up to him or her to recruit staff members, which should happen a few weeks from now. However, if the Senator's question concerns when we will be able to deal with the first cases, I hope it will be in February 2004. I want to consult with the MIAB chairperson, Dorothea Dowling, after the legislation becomes law because we do not want to set an unrealistic commencement date. The intention is to have an end-January or early February commencement date, followed by business a few weeks afterwards.
Question put and agreed to.
SECTION 3.
I move amendment No. 1:
In page 7, line 31, after "actions" to insert "other than an action involving a claim for damages arising from a breach of the Constitution or the European Convention on Human Rights Act 2003, or a claim for aggravated or exemplary damages".
Section 3 deals with the claims that will be allowed to go before the board and these amendments deal with some of my concerns. The number of claims before the board is huge, with an estimated 12,000 employer liability claims arising in a year. If the assessment board is staffed by 100 people, they will have to deal with a huge number of claims under that heading alone. If it is extended, as is intended, to motor insurance claims, there will be a greatly increased volume. To provide a catch-all in the Bill could be lazy or could catch every tort that might come down the road. If we intend to provide for certain types of claims, we should do that and not say the board can do whatever it wants and deal with any other civil action that may arise.
In the amendment we specifically refer to the limited number of claims dealing with breaches of constitutional rights and cases that might arise under the European Convention on Human Rights Act where aggravated damages might be appropriate and the courts, if they were hearing the case, would decide that the circumstances of a particular claim were so egregious that such damages be awarded. This would happen where a claimant has been messed about by a respondent or where the circumstances of the case were outrageous and involved civil servants or the Garda Síochána. There have been cases in recent times involving allegations of breaches of constitutional rights as a result of wrongful imprisonment or incidents in the street. Were those incidents to come before the courts and the courts found in favour of the claimants, they would award aggravated damages. The Tánaiste did not intend that such cases would be dealt with by the assessment board and we should be clear about that in the Bill.
I am well disposed to this amendment and have consulted with the Parliamentary Counsel on it. I will come back on Report Stage here or in the Dáil with different wording if we cannot accept that of the Senator. I take the point and we are happy to accept it, subject to legal advice.
I am satisfied with that. Will the Tánaiste address the issue of the volume of claims she expects the board to deal with? Apart from the principle behind the Bill, which my party accepts, we are concerned that the board will have the resources, staff and time to deal with the huge volume of claims which could come before it. Does the Tánaiste expect it will be extended to motor insurance claims at an early date or will that take several years?
When the proposals from the Minister for Justice, Equality and Law Reform and the Minister for Transport are in place, the volume of claims in this area could be reduced over time. We are talking about 27,000 cases per annum.
The Bill proposes that a case must be dealt with within 15 months so 27,000 cases per annum will have to be dealt with. That is an extremely ambitious target. Is the Tánaiste satisfied, based on the staffing put in place by the interim board, that this is achievable?
I am satisfied on the basis of the work that has been done in advance of the statutory establishment of the PIAB that we will have the necessary resources. Whatever resources are needed will have to be applied to the area and since this will be a self-financing board, if additional resources are required they will have to come from the fees that will be levied on respondents, but the organisation will be able to meet the challenge.
I am sorry for going on about it but the subject will arise later so we should deal with it now. Can the Tánaiste give an indication of the staff numbers involved from the start and if regional offices will be part of the arrangement, whether from outside or by transferring existing civil servants?
In the first instance, we are talking about a central office. The board has identified a suitable premises and it is negotiating with the landlord with a view to acquisition. We are looking at a staff complement of approximately 80 to 100 and an annual bill of €7 million to €8 million. These will not be civil servants. Many of them will come from the private sector. Obviously, once employed, they will become civil servants, working for a State body. We envisage that many of the people who come to work in the PIAB will possess expertise from the private sector in this area.
When the Tánaiste mentions the private sector, does she mean essentially the business of insurance assessment?
Yes, and perhaps also people with legal—
Surely not.
—or other expertise. It will not necessarily be just people who work in insurance. Many people who work in insurance and claims assessment would be suitable to work in this area. I know the applications for chief executive came from a wide variety of sources. I do not want to be too specific.
Perhaps if the Tánaiste had asked me in time, I would have applied.
I did not see any Members of the Oireachtas among the applicants, but they came from a wide variety of sources.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Section 3 agreed to.
SECTION 4.
I move amendment No. 2a:
In page 9, between lines 20 and 21, to insert the following definition:–
"‘medical practitioner' means a registered medical practitioner as defined by section 5 of the Medical Practitioners Act 1978".
I welcome the Tánaiste and Minister for Enterprise, Trade and Employment to the House. The words "medical practitioner" occur in section 11(3)(c) and in section 24. Section 11(3)(c) refers to a report from the medical practitioner who is treating the patient. Section 24 refers to those people to whom the claimant may be referred if he or she or the respondent is not happy with the medical report.
I realise that section 24 allows the referral of a patient to someone who is practising outside the State. However, the Tánaiste should seriously consider section 11 and decide who can give these medical reports. When I discussed this earlier, I was told that, in general, it was expected to be the general practitioner, but if it is left as loosely worded as the "medical practitioner", the range of persons who could supply the reports could be very wide and it would not be confined to registered medical practitioners. They could also be people such as chiropractors or those involved in acupuncture, who are all very worthy but may give different types of reports from those that are expected.
It is not illegal to call oneself a medical practitioner in this country once one does not claim to have qualifications. One can treat people although the legal situation regarding animals is much stricter. One cannot go around calling oneself a vet, but one can say one is a medical practitioner. Alternative medicine is becoming more popular with patients so one could get a report from a very wide range of people. We saw reports this weekend of a person who came here promoting herbal medicines having a meeting with the Minister for Health and Children. This may be a valuable area to investigate.
However, even if we apply it solely to section 11, it might be wise to limit it. Otherwise, how could one consider the standardisation of the reports? As Senator McDowell pointed out, there will be a very wide range of reports. If one looks at the way they are framed, from the point of view of the terminology of people involved in osteopathy, chiropractice, physical medicine, as opposed to physiotherapy, and physical therapists, we could run into many difficulties.
The amendment is not necessary. The board would be conscious of the requirement of a proper medical report. If it receives reports from outside the State, the question of registration under the Medical Practitioners Act 1978 would not apply. It would be totally restrictive. The amendment is unnecessary and should not be supported.
I support Senator Henry's concerns. I am not sure if the amendment is the correct one, but this issue appears to be a concern. We have established definite standards in Ireland over the years. One cannot build a hotel, for example, without certain stipulations. We passed legislation relating to opticians a couple of years ago. I am not sure what the answer is, but it appears Senator Henry's concerns should be met. Senator Leyden said that it would not be correct to accept this amendment. However, there is a concern and it should be given consideration.
Before I respond to this amendment, was amendment No. 2 moved?
Amendment No. 2 was withdrawn.
I ask for your understanding and guidance, a Chathaoirligh, because this is partly my fault. I moved amendments Nos. 2 and 3 together. In fairness to the Minister, she intended to address only one of them in her response. The effect in terms of the debate is that we did not deal with the other amendment. I withdrew amendment No. 2 following what the Minister said, but I did not intend to withdraw amendment No. 3.
We have not reached amendment No. 3 yet. We are discussing amendment No. 2a.
I am talking about amendments Nos. 1 and 2.
The Senator withdrew amendments Nos. 1 and 2.
I intended to withdraw amendment No. 1, but I withdrew amendments Nos. 1 and 2. I am not sure if the Minister addressed amendment No. 2.
The Senator withdrew amendment No. 2 when the Minister gave her explanation.
The Minister said she was well disposed to the amendments. I think she was referring to amendment No. 1 rather than amendment No. 2.
My attitude to amendment No. 2 is different from that to amendment No. 1. Amendment No. 2 seeks to remove product liability. If someone sat on a broken chair at work and was injured, it would involve product liability and employer's liability. I would not be as positive about that as I was about amendment No. 1. I do not want any misunderstanding.
I understood the Minister's point.
The Senator withdrew amendment No. 1 before he moved amendment No. 2.
How did I manage to do that?
Both those amendments have been withdrawn and we are discussing amendment No. 2a.
I am well disposed to what Senator Henry is seeking to do. Unfortunately, I do not have any legal ingenuity about how we would do it. We have consulted on it and we may consult further. From time to time it may be necessary to go outside the State to get the type of medical expertise appropriate for specialised injuries. The medics involved, therefore, would not be medical practitioners under the 1978 Act. That is the difficulty. The PIAB would refer medical reports to its own medical panel, which would consist of properly registered members under the 1978 Act. I had a discussion in advance of this with Senator Henry. I will reflect on what she said and consult further with the Attorney General to see if it is possible to do what she wants. If it is not, I assure the Senator that the PIAB will refer medical reports from non-registered practitioners to its own independent medical panel of experts. Perhaps I could reflect on how that might happen and come back to the Senator.
I do not know if it is possible, but could one state that a medical practitioner means what I have stated in my amendment under section 11 of this Bill? That would obviate the problem in section 24. It is only under section 24 that we refer people outside the State, unless we are going to start taking reports from people outside the State, which would be possible. People must have some type of qualification before they give these reports. Otherwise, it could be left incredibly wide open. I am sure there are fine people on the Limerick border giving medical treatment at present. They do not need any qualifications. We could start a cottage industry with local specialists.
I understand that few reports come from the type of persons referred to by the Senator in current personal injuries practice. However, I will reflect on it and consult legally and come back on Report Stage.
The Minister is right in that there are few assessment reports from the type of people to whom we referred. The reason is that one might be faced with having to bring such a person to court where he or she would be given short shrift. When the threat of being exposed in open court is not there, it is perhaps more likely that people would chance their arm by putting in reports from people who do not have the qualifications we might wish.
That report will go to the independent panel, all of whom are practitioners under the 1978 Act. We know that traditional medics, if I can call them that, do not have high regard for the alternative way of doing business. A person would be foolish if he or she did not have someone from what I would broadly call Senator Henry's branch of the profession. I am not being funny when I say that. I doubt if many people will come with non-qualified medical expertise, but if they do, that will go to the independent panel for assessment.
I would like the Minister to reconsider this because the patient might consider that he or she had received better satisfaction from whoever he or she had gone to and that he or she was better off getting a report from that person. This is a new area. One could find that some people rapidly become professionals at giving such reports. I hope I am forgiven for saying it, but I have seen some people, who could be described as hired guns, writing reports which were considered satisfactory. I ask the Minister to look at this overnight. Once the Minister is happy, that will be fine with me.
The word "happy" might exaggerate my state of mind on a permanent basis. However, I want to ensure this works, whether or not I am happy.
Amendment, by leave, withdrawn.
Section 4 agreed to.
Section 5 agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
I ask the Minister to talk me through this section because I am not totally clear about it. It seems that the Bill provides under section 48 for circumstances where both parties can go to the assessment board and that the Bill can be effectively retrospectively applied, but that generally it is prohibited. Perhaps the Minister could let me know if I am wrong.
The Senator's understanding is correct.
I do not understand why it is anticipated that there might be a demand for both parties to apply to the assessment board. Why might that happen and why was a provision made in that regard?
Is the Senator referring to section 6(3)?
It is section 6(2) which states "without prejudice to section 48”. Section 48 provides for both parties, which I presume is by consent, to apply to the assessment board even in circumstances where legal proceedings have been started before the Bill comes into effect.
Yes, if both people agree. It would be more desirable than going through the court system.
It is difficult to see how that could happen.
Why it would happen?
Yes.
If a claimant and a respondent, who currently advocate going through the traditional route but may not go to court, agree to move the case to the PIAB, is there a difficulty with that? They may wish to do so.
I presume that means aborting the issue of liability during the course of court proceedings.
No. This is where liability is not an issue.
It is being parked.
The PIAB will only deal with issues where liability is not an issue.
That is perhaps my only serious difficulty with the Bill. We are parking the issue of liability. We are not saying that liability is not an issue, but that it is not an issue pending an assessment of the damages, at which point either party can revive it as an issue.
Why would someone wish to do that? Why would someone go down that route?
Does the Minister mean to have the damages assessed? The reason is that insurance companies regularly agree and pay damages in circumstances where they do not think they should be liable because they want to get it off their books. It is not unusual for them to pay out even in circumstances where they think they should not pay out without the consent of their insured. They might agree to run it through and if the damages are not high, they will pay it. If, on the other hand, the damages are more than a certain amount, they will take the case to court. I can envisage insurance companies doing that.
In other words, they will contest liability if it—
If it is too much. If it is €5,000, they will pay it, but if it is €6,000 or €10,000, they will go to court.
I understand that cases which have not been settled can be brought before the PIAB retrospectively. Quite a number of people are interested in this area because some cases which are quite clear cut, where there is no question about liability or where liability has been accepted, could be brought before the PIAB for speedy settlement on both sides. This was brought to my attention by an employer who is concerned about outstanding cases which seem to be dragging on. He is anxious to see them brought before the PIAB. I was asked whether the effect would be retrospective and if it would it apply to outstanding cases, as I hope will be the case. If both parties agree to bring a case before the PIAB this should be allowed for in the legislation. Both parties must agree in any case, but employers have said to me that they are anxious to see some cases which have been dragging on for years brought to the PIAB for settlement. The legislation should cover that, with the consent of both parties. Will it be possible to apply the legislation in this way?
Senator McDowell is correct that currently many insurers pay up small amounts because it is cheaper than going to court. A person might accept €2,000 to €5,000, for example, which amount would not obtain much in terms of expert advice. Under the new arrangement all the legislation, particularly the Civil Liability and Courts Bill initiated by the Minister for Justice, Equality and Law Reform, will result in a new regime and we will see respondents contesting cases where they believe somebody is either exaggerating his or her injury or making a fraudulent claim. Cases such as these might have been let go through the system in the past.
Over the last 18 months I have urged the insurance companies not to take a short-term view of whether it is in their interest to settle something but to pursue those cases which they believe are exaggerated or fraudulent. We have seen a huge improvement in that far fewer personal injury cases are now being taken against insurance companies than was the case 18 months or two years ago. All the evidence suggests there has been a decrease. Much of this is not to do with the legislation, which is not yet on the Statute Book, but with the culture and environment being created by advertising and so on. People are beginning to feel the pressure – they know making a claim is not a costless act.
On Senator Leyden's point, it may well be that some people will slip through the net, although I do not know what point he was making about employers. However, the procedures that will be in place, the PIAB, the change in culture, the book of quantum and so on will make a huge difference. I do not expect the increase in volume suggested by some on the basis that as this is a paper-based system, it will be much easier to obtain a couple of thousand euro. I do not believe that will be the case; anyone who took that view would be very foolish indeed in view of the new regime that will be in place next year.
Question put and agreed to.
SECTION 7.
Amendments Nos. 3, 4 and 19 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 3:
In page 10, subsection (1), line 44, after "advice" to insert "and legal representation".
I did not get a chance to speak on this Bill on Second Stage. I welcome the Tánaiste and Minister for Enterprise, Trade and Employment. It is good, as the Leader said, for the senior Minister responsible to be present in the House. However, I was starting to wonder whether she would be here when I heard her comments last night on television about moving to other Departments.
I cannot answer questions any more without there being a headline.
Stick to the amendment, please.
The effect of this amendment is to provide people with an entitlement to legal representation in their dealings with the PIAB if they so choose. While the PIAB may prefer to deal directly with claimants, there will no doubt be some claimants who would like the assistance and guidance of their family solicitors, for example, in dealing with the board, provided they are prepared to pay for the legal advice personally. We should recognise that there are some cases in which people require advice and support in dealing with the board. As we all know, a great many people have difficulties in dealing with State bodies. They would like to have the possibility of representation in dealing with the PIAB.
It is also important for the sake of balance that individuals have the right to retain advisers to help them in dealing with the PIAB. While insurance companies handling claims through the board will have access to lawyers, actuaries, medical advisers and engineers – a whole spectrum of professionals – an individual claimant is deprived of representation under the legislation and will have no such support.
There is a precedent for this in another agency under the control of the Minister's Department, the Employment Appeals Tribunal, where a similar system of representation has operated successfully for a number of years. Individual claimants appearing before the tribunal are entitled to represent themselves or be represented by union or legal officials. Under the rules of the tribunal, any claimant who hires a lawyer must do so at his or her own expense. There is no evidence to suggest the entitlement for people to hire lawyers to act for them has resulted in the tribunal costing more money or operating less efficiently. If the Minister continues to insist that people are not entitled to be legally represented in their dealings with the PIAB where they are happy to pay for representation themselves, concerns may be raised that the true motivation for excluding representation is to institutionalise the inequality of the parties.
As public representatives we deal on a daily basis with the queries of constituents. It is possible that if representation is not allowed, we may in some way become facilitators of representation for people who are going before the PIAB. They will come to us looking for advice in the absence of the possibility of representation. It is an important amendment and I urge the Minister to consider it.
I do not want to anticipate the Minister's response, but there is nothing in the Bill to obstruct any person appearing before the board from obtaining legal advice. Irrespective of the concerns of the Law Society, most people will seek the advice of a solicitor before going before the PIAB and nothing in this Bill will prevent them from doing that. The one difference is that the PIAB will not award costs to the applicant. The insurance companies will have legal advice all the way through. This concern has been expressed on behalf of the Law Society. To allay people's fears in this regard I will explain that the costs of the insurance companies will not be recouped by the PIAB, but neither will the costs of the person making the claim.
Nothing in the Bill can prevent an applicant seeking advice on completing the forms and preparing the case. There will be little difference from the current system. Most cases – 70% or more – do not appear in court at all, so most of the work is documentation prepared by solicitors on behalf of their clients. Solicitors have done great work in this regard. In most cases the 40% claim would not arise without going to court. It only occurs when barristers and so on are involved, which is not usually the case. If the Minister feels it is appropriate to include that amendment, so be it; but nothing in the legislation could prevent the applicant from obtaining the advice of a solicitor. In most cases he or she will obtain this advice before proceeding with the case but these costs will not be recouped. The applicant will then be in a position to negotiate the fee with the solicitor.
Senator Leyden is correct that it is not possible to prevent people from seeking legal advice. Unless she has had a change of mind, the Minister appears to want to prevent people from using solicitors as agents. If a claimant wants a person to act as an agent and communicate with the board on his or her behalf, the board should at least have the courtesy to communicate with that agent. Members of the Oireachtas find themselves in an analogous position in regularly dealing with Departments of State on behalf of individual constituents. If a Deputy writes to the Department of Social and Family Affairs, he or she does not expect to receive a reply saying the Department will not deal with him or her and will only write directly to the constituent. That would be tantamount to saying it is none of the Deputy's business. If someone chooses to have an agent communicate with the board on his or her behalf, as is their right, it is only right that the board should reply to that solicitor.
The principal point is that those costs are not recoverable. We accept this as do the legal representative bodies. The costs of legal representation will be covered in the award made by the assessment board, assuming it does not go any further. This is what the Bill is about, seeking to reduce costs and specifically legal costs. Where the claimant effectively accepts that he or she has to pay the solicitor, we should not only allow this but also insist that the board should deal with the solicitor if that is what the person wants.
This issue has been the subject of representations received by many Members and I am seeking clarity on it. Is there any real imbalance between the claimant and the company? This legislation seems to treat the claimant and the company as the principals. However, in court cases, the de facto principals are often the legal teams on either side. As I understand it, the principle behind this Bill is to put the lawyers in the back seat rather than having them dominant and in the front seat.
As Senator Leyden said, claimants presumably can resort to legal advice at any stage of the process and if there is an oral hearing presumably they can bring a lawyer with them. Nonetheless, the dealings of the board are with the claimant rather than the lawyer. It is important that this point is cleared up. We are trying to clarify whether there is any substance to the view that this is in some way weighted against the claimant. This is also what the Law Society is trying to establish.
I support what Senator John Paul Phelan and Senator Mansergh said. All Members favour the general purpose of the legislation. It is important that those most affected, the claimants, are happy that their rights are respected in every way and they have full access to the services they require to ensure their claims are fully processed. I accept what Senator Leyden said about the legislation not debarring a claimant from seeking legal advice. Obviously, they have to pay for such advice themselves.
It is important that we ensure the public sees this Bill as providing a level playing pitch. While the legislation does not only deal with the speeding up of claims and hopefully reducing the cost of insurance in due course, it must not be seen to impinge on the entitlement of people to have claims processed fairly and fully. If this requires a minor change of phraseology, such as that proposed by Senator Phelan, it is something the Tánaiste should consider. It is important that the tone is properly set and that people are aware their rights are fully covered even though we are talking about a new style of assessment and basis for decisions on claims.
I want to tease this out further as it is a crucial point in the Bill. It could be more efficient for a claimant to nominate his or her solicitor to take on the responsibility and deal with the book of quantums and how settlements are moving. Claimants may want someone with such gravitas to advise him or her. A client would know that he or she has to pay for this service. This is reasonable; if one hires an architect, one pays a fee.
If a person is not in a position to make a case, will the claimant go to the Minister or other Members of the Oireachtas to complete the application? Will we become the advisers? I am sure Members have had to fill tax forms – they are dreadful.
This does not happen in our party.
It is a dreadful nuisance.
I have filled in farm tax profiles with constituents. It is difficult work and one can spend hours on it. If my constituent does not get tax clearance based on it, I will then advise him or her to visit a consultant that deals with such matters. However, some constituents may insist that I help them out again as I successfully completed the form previously.
Solicitors are professionally qualified and know the position. They need to quickly adapt to this issue and will advise their clients accordingly. Some people will be comfortable with submitting claims themselves. For example, one can register land without the presence of a solicitor. There is no legal requirement to use a solicitor and one can get the forms and maps from the Land Registry and transfer the land themselves. When dealing with transfers of property, most people find it more convenient to use a solicitor. After all, solicitors do this on an ongoing basis and can do it more quickly because it is in their field of expertise.
I went to the District Court once as a friend of someone who had been given a parking fine – I would do anything for my constituents.
While I am loath to interrupt the Senator, are we dealing with the issue at hand or is he simply telling anecdotes?
I am talking about making representations. I attended the court where the judge in question was a solicitor. I told the court that the poor man had simply parked in the wrong place. The judge told me not to be so quick to accept responsibility as he was going to put him down straight away. We settled the case.
I do not have any hang up about solicitors being involved; after all, insurance companies will have legal advisers. The chairman of the insurance company will not deal with this and it will be left to the company's solicitors to deal with it. If companies will have legal representatives, why not allow claimants to have such representatives if they so wish? I am flexible on this issue. While it should not be necessary for a claimant to have a solicitor, they should be allowed to hire one. It is the Tánaiste's call and I will support whatever she decides.
Insurance companies will have the best and most expensive legal advice available to them and claimants, if they so wish, should be able to use a solicitor to deal with the PIAB. That would be a fair way of doing business. There is genuine concern that such people may not get a fair opportunity. There are people who do not even like to fill out application forms and who come to public representatives to help them to do so. I can imagine how such people might feel if they had to face the Personal Injuries Assessment Board on their own and I can envisage them being reluctant to do so. They should be allowed, if they wish, to have a solicitor represent them at a hearing.
I do not support the amendment. I understand there is nothing to stop a claimant seeking legal advice. The Bill tries to avoid having another layer, with its implications for legal costs. If the outcome of the board's assessment is not satisfactory to the claimant, he or she can reject it and go back to the old way. If we set up the PIAB and then put legal representation back into the equation, we will be back to where we started. If the suggested figure of between 30% and 40% extra cost due to legal implications is correct it does not make sense to have a PIAB and legal representation as well.
Senator Leyden referred to people feeling they needed personal representation. This will be a paper-based system so there will be no question of going with a solicitor to a hearing.
I did not say that. I know it will be a paper-based system. The paper would be prepared by a solicitor, who would be in direct communication with the claimant and the board. I realise there will be no personal appearance by the solicitor or the claimant but the paperwork would be dealt with by a solicitor.
There is nothing to stop a claimant having a solicitor to draw up paperwork for him. However, the communication will be directly with the claimant and not with the solicitor, in order to avoid the expensive fees that have added to costs in the past.
I agree with Senator Leyden although it is interesting that his initial remarks were almost directly contradicted by his subsequent remarks, perhaps not for the first time. I also agree with what Senator Quinn said about reducing the delays and costs associated with the existing court system.
People have legal rights and we should not infringe the right to legal representation. We all understand that the new system will be paper-based but some people will have to have legal representation in dealing with the PIAB. All public representatives are familiar with people who come to us for help. I accept that the Bill does not prohibit legal advice. Legal representation will be necessary in some cases because some people will not be able to deal with the PIAB. That is the purpose of the amendment.
I am glad there seems to be widespread agreement in the House regarding these amendments. I understand what the Tánaiste is trying to do and that we are trying to reduce costs. The Employment Appeals Tribunal, where this system currently exists, allows the claimant to pay costs. If such a system were adopted by the PIAB it would be a welcome development. I urge the Tánaiste to accept the amendment.
Senator Mansergh referred to a level playing field. It is unreal to suggest that an individual, who does not have legal assistance or representation, is in the same position as an insurance company, which has a bank of professional advisers, including assessors and legal professionals, available to it in the normal course. Someone in a working class estate in Dublin, Limerick or elsewhere, who may never have gone through the process before, is not in the same position as a PLC which deals with these cases as its primary business all the time. To suggest that such a person could be in that position without the provision of some sort of independent assistance, legal or otherwise, defies belief.
We are all assuming that this will be a paper-based system but the Bill does not seem to state this. The Bill sets out procedures which must be followed but it does not specifically prohibit the board, its representatives or an assessor from dealing with an individual claimant. The Bill does not prohibit an assessor from arbitrating in some way. If, for example, a claimant suggests to the board that his injury is worth €15,000, is it prohibited for the assessor to suggest, in turn, that it might be worth €10,000 and for them to negotiate €12,500? That sort of arbitration or negotiating process does not seem to be specifically prohibited in the Bill, and why should it be? It might be possible for the board to do its business more quickly if there were some sort of informal negotiating process.
I raise this matter at this point because if the Bill leaves open the possibility of some sort of informal negotiating process, there is all the more need for some sort of assistance, legal or otherwise, to be provided for the person making the claim.
We must be clear about what we are trying to do here. If there are legal issues in dispute, it is always important to have a lawyer. If this board was going to deal with legal issues there would have to be legal representation. However, it will not do that. There will be no oral hearings and legal issues will not be a matter for the PIAB. They are a matter for the courts.
A culture has grown up in Ireland where some people, if they have an accident, are more likely to go to a lawyer than to a doctor. If Senators were making the case that the Bill should make provision for medical professionals to be made available and for people to be given money to pay for medical advice or representation, it would make more sense. If someone has a broken leg, for example, it will be the job of the PIAB to assess how much the injury is worth, based on the book of quantum. It is not the job of the board to examine legal issues. There will be no oral hearings and the rules will define the procedure.
If someone wants to have legal advice, he or she will be free to do so. Section 7 makes it clear that "Nothing in this Act is to be read as affecting the right of any person to seek legal advice.". If a claimant wishes copies of correspondence to be sent to his or her legal adviser, that will happen. However, we are not providing for a regime in which the PIAB will deal with lawyers and not with claimants. We are setting up this board in order to reduce the cost of delivering people's entitlements to them. Approximately 40% of the cost of personal injury claims comprises legal fees. In Ireland, barristers are involved in 70% of personal injury cases. The corresponding figure for the United Kingdom is 4%. In Ireland, it takes six times longer to get what one is entitled to than in the United Kingdom. The purpose of the PIAB is to reduce substantially the cost of delivering to a claimant what he is entitled to and to speed up the time in which that happens. The system will be paper-based, unlike the Employment Appeals Tribunal which involves a series of oral hearings. The two situations are completely different.
I hope Senator Leyden is not advising everyone in Roscommon not to pay taxes. We need a lot of money. I know he is an accountant as well as a Senator. He says that when he helps people with forms, they suddenly realise they do not need to pay any tax. If that word gets out he will find a large number of people queuing at his door. Not many people like paying tax.
We do not wish the PIAB to become a quango creating an additional layer of bureaucracy which will add costs. The purpose of the Bill is to reduce costs and to speed up the process. In time, I hope the PIAB will become part of the courts infrastructure, where its more natural home will be, when it has been successfully established for a number of years.
The bulk of the staff of the PIAB, around 80%, will be assessors. They will make assessments based on medical evidence using as their guide the book of quantum which the PIAB has also been charged with compiling. This will be important in ensuring consistency and uniformity.
The intention is that awards will be broadly in line with those claimants would receive in court. Our aim is not to try to stop people receiving their entitlements but to give them their entitlement in a much cheaper and efficient fashion, while also removing, in as far as it is possible, lawyers from the process. The statistics make for dismal reading with 70% of cases here involving barristers as opposed to 4% in the United Kingdom. This is an indisputable fact and one of the reasons we have had to go down this route to find an alternative, cheaper way to do business.
On a point of clarification, I was not advising any of my clients not to pay tax but pointing out that in cases in which I have advised on farm tax profiles, the people concerned have found they had no obligation to pay tax. I am sure the Tánaiste also fills out these forms. My point is that public representatives will be brought into the loop by constituents asking us to contact the PIAB and complete the forms. We are frequently asked to fill out other forms for constituents, which we are entitled to do. If constituents do not go to solicitors, they will probably approach public representatives.
To clarify, if one completes a form for a constituent, whether a tax form or another form, one fills it out in full accordance with his or her instructions and takes no responsibility for the outcome, although one hopes the person in question will receive justice and fair play and will pay no more than their obligation. Although I often advise my clients to go to an accountant, sometimes they prefer public representatives to complete the work for them, particularly if they were satisfied with the outcome in the past. This is a major responsibility and, as such, I do not want public representatives to assume the role of solicitors with regard to the PIAB. It is inevitable, however, because we will be asked to complete and submit forms to the PIAB on behalf of constituents. I would prefer if solicitors assumed this role.
Acting Chairman
I am sure the House appreciates the Senator's clarification.
We anticipated that the Tánaiste's response would be that agents, that is, solicitors, would be copied correspondence from the PIAB. It is silly and almost petty to state that while one is prepared to copy a letter, one will not acknowledge that a claimant has chosen to be represented by a solicitor by refusing to send a letter directly the solicitor. If one is prepared to accept that a solicitor is involved in the correspondence, one should be courteous and provide that the board send the correspondence directly to the solicitor.
The Tánaiste did not address the issue I tried to tease out with regard to the paper based nature of the process. I appreciate this is the intention and the PIAB should not entail hearings of any kind. I have not, however, seen in the Bill any prohibition on informal contacts which may amount to informal negotiations. If, for example, a claimant telephones the PIAB and asks an assessor whether, for example, an assessment has been reached, which may or may not be the case, will the assessor entertain the possibility of dealing with the individual claimant in what amounts effectively to negotiation?
By ensuring the assessment is acceptable to both sides, one could expedite the whole process and achieve one's objective, namely, a quick, fair and acceptable procedure which produces a result and does not end up in court. The reason I make this point at this stage of the debate is that by allowing telephone or face-to-face contact to take place between the claimant and the assessor, one creates circumstances in which people may require advice or want to be represented.
The Tánaiste repeated her point about liability being accepted – we will come to the substantive point later – but there are many cases in which liability is not clear cut. For example, someone involved in a road accident may have contributed to the accident and may, therefore, expect the award to be reduced accordingly in court, or circumstances may arise in which a person is concerned about taking a case to court because the evidence is poor – for the sake of argument, there may be no witnesses. To put it in simple terms, there are circumstances in which one would accept a low award for a broken leg, simply because one may be concerned, either for liability reasons or due to a lack of evidence, about the prospect of going to court. If legal advice were available in such circumstances, it is likely a solicitor would advise a client to accept a low award on some occasions. The issue of liability needs to be completely cleared up, otherwise it will remain parked, whether in full or in part, and result in a greater requirement for legal advice than would arise if it were dealt with from the start.
I agree with Senator McDowell's comments. The Tánaiste has not properly replied to his crucial point on levelling the playing field. While we all accept the need to reduce bureaucracy and speed up the process, the great weight of professional expertise will continue to rest with the insurance companies, while the ordinary bloke in the street will try, with the help of legal advice, to represent himself. We are burying our heads in the sand if we think everybody will be in a position to take legal advice. Although this is an option for perhaps 90% of the population, there will be others for whom it is not possible. We should accept and make provision for this fact. I ask the Tánaiste to reconsider her response to the amendments.
Lawyers may not always be of benefit and may be an encumbrance. There are many cases of claims of various kinds in which the legal fees take up a considerable percentage of the award. I concur with the Tánaiste's point that we need to cut down on this and disagree with the notion that the client is not equipped to manage this process or will be at a disadvantage without a solicitor. The principle of the Bill is that the claimant may have additional advantage in many cases. This needs to be borne in mind in the debate.
Senator Mansergh has made a fair point. The purpose of the PIAB is to be a friend, rather than an enemy, of claimants and secure their entitlements quickly, efficiently and inexpensively. One pays for this process through one's premium, by putting one's job at risk or by other means. The procedures Senator McDowell described are more appropriate to the rules than the legislation. One cannot specify in legislation what procedures need to be followed.
The Chartered Institute of Arbitrators is involved, with others, in drafting the procedures. There will be no question of negotiation between an assessor and a claimant or respondent. While the assessor may have contact with the claimant for the purposes of clarifying some matter to which the claimant has referred in his or her claim – this will be provided for in the rules – there is no question of entering into negotiation.
Why not?
The PIAB must be seen to have a fair, objective procedure. Those with good advocates should not receive more than those who do not. This would raise the possibility that those with legal representation would be able to make a better case and convince an assessor. The assessor will make the recommendation based on the medical facts, rather than dialogue or discussion with the claimant.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 11, subsection (2), line 4, after "proceedings" to insert "save that where the claimant nominates a solicitor, the Board shall communicate with the claimant through the solicitor so nominated".
Amendment put and declared lost.
Sections 7 to 10, inclusive, agreed to.
SECTION 11.
I move amendment No. 5:
In page 11, subsection (3)(b), line 39, after “correspondence” to insert “(other than without prejudice correspondence)”.
This is essentially a technical amendment. The section requires that a claimant provide copies of all correspondence or that he or she can be required to provide copies of all correspondence. At present, the rules of court do not oblige claimants, plaintiffs or their solicitors to provide copies of without prejudice correspondence.
It is the practice, when dealing with assessors, insurance companies or between solicitors, to provide that certain correspondence is, as it were, off the record. The courts have taken the view that this should be encouraged because it is a means of settling claims. It is a method by which some certainty can be given to negotiations while at the same time the negotiations can be conducted in a way that will not ultimately be reviewed directly by the court. The amendment provides that if an item of correspondence is expressed to be without prejudice, with a view to encouraging settlements and so forth, it should not be discoverable by the board and the claimant should not be required to provide a copy of it to the board.
Have I clarified the intent of the amendment?
It is not clear.
The section requires that copies of all correspondence between the claimant and the person or those persons with regard to the claim be provided to the board. If an effort has been made in correspondence, typically involving a solicitor at an early stage, to settle a claim or from an assessor in an insurance company, who might offer an amount of money without prejudice or without accepting the claim, the amendment provides that this correspondence should not be discoverable by the board because it would inevitably prejudice the board. Typically, without prejudice correspondence is correspondence in which an offer is made but where it is not intended to be binding and can, effectively, be taken off the table.
Is the Senator saying that if the claimant has something, they should be allowed to keep it and not give it to the board? Is that the purpose of the amendment?
Yes, if it is expressed to be a without prejudice letter where an offer of settlement is made either from the insurance company to the claimant or vice versa.
In other words, this is direct contact between the insurer and the insured?
Or by their agents. It is more likely to be made in a letter from the solicitor.
The documentation in which the PIAB will have an interest is medical advice and medical evidence. I am not sure it will want to have a host of other documentation. Is the Senator saying that if the PIAB becomes aware of this, it is privileged?
Yes. Somebody who intends to make a claim generally goes to a solicitor in the first instance. If there are preliminary negotiations with an insurance company and there is correspondence which discloses an offer being made, generally from the insurance company to the claimant, under this section the correspondence would have to be submitted to the board. The normal process in a court case is that correspondence which is expressed to be without prejudice is not discovered. The intention behind that is to allow people to negotiate without prejudicing any court case that might subsequently occur or any assessment that subsequently takes place. It is essentially a device to encourage settlement. The assessment of the board would or could be prejudiced in circumstances where that correspondence had to be submitted.
Does the Senator mean in subsequent legal action?
Before the board.
I will get legal advice on the Senator's amendment. I am open to accepting it subject to legal advice.
If I understand the legislation correctly, the amendment is not relevant. If the board is deciding according to a quantum book of damages, which is related to the medical evidence, attempts between solicitors to settle on a sum are not relevant. The board is conducting an objective exercise. I do not see how legal correspondence could influence the board if it is simply applying a book of quantum.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 12, subsection (3)(c), line 3, after “injuries” to insert “and whom the claimant proposes to call as a witness in the event of bringing proceedings in respect of the claim”.
This amendment deals with medical reports. Again, I am seeking to replicate the situation that applies in court cases. Under the legislation, the board can require all medical reports or all correspondence between a claimant and his or her doctor or consultant. The amendment suggests that the claimant should only be required to produce those reports or that correspondence on which the claimant would rely if they were in court.
It is not unusual to get an unsatisfactory report from a doctor. Medical practitioners do not see producing reports for lawyers or for claims as a priority. Understandably, they see their priority as patient care. Detailed reports setting out the nature or circumstances of an injury, the prognosis and so forth are sometimes not easy to get. It is not unusual for a claimant to decide not to use a certain report or to get a report from a doctor that is unsatisfactory and have to go back to the doctor to get a satisfactory one. In a sense, that is a reflection on the doctors but I understand their perspective in this regard in so far as they see these reports as something one dictates before breakfast rather than something that is accorded priority in the course of one's day when looking after patients.
Only reports on which the claimant intends to rely in court should have to be disclosed to the board. Otherwise, one could end up with many inadequate reports going to the board.
I reject the amendment. It is inappropriate as the Personal Injuries Assessment Board is not restricting parties' decisions in any subsequent litigation. It is now the exception in litigation for doctors to be called as witnesses since the content of exchange reports are usually agreed.
It is correct that reports are agreed. However, it is not unusual for a particular report to be unused. One regularly gets reports from doctors that are simply inadequate. They do not regard it as their priority, which is understandable. One, therefore, might choose not to use the report. One exchanges the reports on which settlement is based but one would not necessarily exchange every report in the document wallet.
I hope the Minister will reconsider the matter between now and Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 6a:
In page 12, subsection (3)(e), line 3, after “injuries” to add the following:
"; provided that such report shall not be prepared without the informed consent of the claimant".
Matters have changed slightly since the beginning of the debate when I discovered that the medical practitioner does not have to be a doctor. When I discussed this with those who were involved in drawing up the legislation I was told that this person would probably be the general practitioner. There was some trouble here and I was sorry that the Irish College of General Practitioners, the general practitioners' committee of the Irish Medical Organisation or any of the other bodies involving general practitioners had not been consulted about the legislation. They were anxious about the fact that they would have to produce these reports because there was a problem involving a conflict of interest.
The Irish Medical Council guidelines warn doctors that they are not to be advocates for the patient when writing medical legal reports. However, it can be a sensitive matter if the person writing the medical legal report is the claimant's general practitioner. The GP knows the family history, everything that has happened to the claimant, how the accident has affected him or her and the person's history before the accident. There is some conflict in that regard because the general practitioner will want to do their utmost to try to help the patient recover from his or her injuries while at the same time having to judge the severity of the injuries and their impact for a medical legal report.
That is the reason expert reports were frequently sought. It meant that those who were not so intimately involved with the patient could send a report to and give evidence in the court. That the general practitioner does not have to give the report means the patient can be referred to another practitioner or the patient might realise it is better to get somebody other than the general practitioner to produce the report. If someone reads in a report that the injury did very little to make the person's back worse, he or she will go back to the doctor and ask what he or she meant. General practitioners remember the fall from the bar stool in Torremolinos in 1993. It will avoid that type of awkwardness, which will be a good thing. I will pass the information on to my colleagues in the Irish College of General Practitioners and the IMO general practitioners' committee.
Once one begins legal proceedings, confidentiality is waived. Does the same apply here; if one begins proceedings, is confidentiality waived? I was trying to discover the position in the United Kingdom. Under the Medical Reports Act 1988, league reports are exceptional in that no one breaks the law if he or she sends a report directly to the board. It appears from section 11 that the person is supposed to put everything together. As Senator McDowell said, some reports are sometimes considered unsatisfactory.
I understand in the United Kingdom it is considered a good idea by the Medical Protection Society and the Medical Defence Union, including other medical protection bodies, to hand the report to the plaintiff and give him or her 21 days to look at it before handing it in. While consent is implied when people ask for reports, it is considered better practice to get informed consent. I do not know if the Minister had time to read the report, Managing and Protecting the Privacy of Personal Health Information in Irish General Practice, which has been prepared by the Irish College of General Practitioners and the National General Practice Information Technology Group, dealing with the giving out of information. With so much medical information being computerised nowadays, it is far easier to access information. They do not have to read our writing, therefore, it is much easier to get a great deal of information. Sometimes patients do not fully understand when they sign waivers or say they have given one the amount of information that may be accessed. The report states as follows:
Patients and Doctors often do not foresee that information given in the context of a particular consultation might at a later date be accessed or used by others who have a different intent or ‘purpose of use' for that information. Frequently patients give consent to release information concerning their health, without understanding the full implications of their decision.
The Bill states that this information can be passed on to other places, therefore, it would be wise for whoever is providing the report – a medical practitioner in the accepted sense of the word under the Medical Registration Act – to get informed consent. I do not know whether it matters if others such as paramedical staff or social care staff are filling in the reports because we have no legislation in this regard. These people may not need to have concerns about either confidentiality or consent. I must frame my amendment differently, because someone who is registered under the Medical Practitioners Act would need to remember the advice given to them under the various rules of confidentiality and consent, particularly bearing in mind the effect of the Data Protection (Amendment) Act, which was brought to this House in 2002 and which makes the accessing of computerised medical information so much easier.
Acting Chairman
Is the amendment being withdrawn?
It would be rude to withdraw it before hearing the Minister's reply.
What we are talking about here is the medical report the claimant will submit to substantiate the claim. Clearly the claimant will ask, seek or inquire of the doctor whether he or she will give a report on their medical condition. I would have thought it a form of consent if one asks a doctor to give a medical report. The doctor gives the report to the claimant who then makes the application to the PIAB. Obviously if one is making a claim, the respondent must be given a copy of the report. It would be unreasonable not to do so. Under current law as defined by the Supreme Court on 24 July 2003, the plaintiff who sues for damages for personal injuries, by implication, necessarily waives the right of privacy he or she would otherwise enjoy in regard to a medical condition. This is in the Michael McGrory v. ESB case which was adjudicated upon.
I am not sure I understand the point Senator Henry is making. Is she suggesting that in some sense the patient is not aware he or she has given consent for the report? People would have to ask the doctor for the report and submit it. It is not the doctor who submits the report, but the claimant who submits it with the application.
When one seeks a report, there is implied consent. However, we have been warned by the Medical Protection Society and the Medical Defence Union to get informed consent from the patient. In other words, it must be explained in one syllable. The report Managing and Protecting the Privacy of Personal Health Information in Irish General Practice states:
. . it is appropriate that the medical practitioner (or some other clinical member of the practice) should be present to clarify any aspects and to permit any concerns of the patient to be discussed and resolved.
One is not just supposed to give over the report. These people may have sought legal advice but they may not be sure the report they are now giving can go on and on, and that it is totally in the public domain once they have given over the report. This is why one must get informed consent.
The assessor and respondent gets the report, but that is not quite the public domain. The PIAB assessor will have the report to make the assessment and the respondent will have a copy of it. That is currently normal practice. Doctor-patient issues are a different matter.
I thought the Bill states that the report could be seen by other people.
It can be seen by the respondent.
I understood the Bill states that the reports are not private.
I will try to explain. If the claimant makes a claim with the medical evidence, it goes to the assessor. It may go to the medical referees who work for the board. Obviously it will have to go to the respondent. It would be totally unreasonable and very unusual if a claimant claimed he or she sustained particularly injuries and the respondent was not aware of the medical allegations being made in regard to the claimant's condition. I would not describe that as being in the public domain because the matter will not be reported in the newspapers or anything like that.
What will be the position regarding data protection legislation? Will people be able to access the workings of the board?
Is the Senator referring to a freedom of information request?
Will the wider public be able to access the workings of the board?
Not the medical evidence of a particular claimant.
What about the medical reports?
I will clarify that matter. It would not be acceptable to do a freedom of information request to find out if Mary Harney made a claim and to see her medical evidence. What we are talking about is making the information available to people who need it in order to carry out their job. The information will not go on the website or be published.
Acting Chairman
Would I be correct in saying the Minister has addressed the amendment, irrespective of the other issues she raised?
I will have to consider the issue but in the meantime I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 11 agreed to.
Section 12 agreed to.
SECTION 13.
I move amendment No. 7:
In page 12, subsection (1), line 28, after "practicable" to insert "and, in any event, within 14 days".
Section 13(1) says that as soon as practicable after receipt of the application the board serves a notice on the respondent. We want to put in a time limit of 14 days. As the Tánaiste rightly points out, the whole purpose of the Bill is to speed up the process of dealing with claims. It should be possible to put in time limits at the start of the process, with which there would no difficulty in dealing. The first amendment to this section in the name of the Labour Senators seeks to insert a requirement that notice should be served by the board on the respondent within 14 days.
I do not think it is reasonable to stipulate a time like 14 days. "As soon as practicable" is used in most Bills, and in fairness to the workings of the board it would have to ensure a quick response. This would have the effect of tying the board down. Someone might object if they do not get a reply within 14 days and this could create difficulties. The wording is fair, but from my dealings with the chairperson, she may process cases in seven rather than 14 days.
Concerns have been expressed by the legal profession that in principle these proposals are totally open-ended as to the speed with which cases are dealt with. I accept that in practice the board will deal with matters speedily, but will the Tánaiste say what obligations exist other than "as soon as practicable"? Is she satisfied that is sufficient obligation to ensure expeditious dealing with claims or whether something specific should be put in place, as Senator McDowell has proposed, or some alternative to that?
Under the current regime it takes a great deal of time for one to get one's entitlement and six times longer than in the UK. The whole purpose of the Bill is to expedite the delivery times so people can receive their entitlements much more quickly. There are specific time limits in the Bill. We are talking about a period of 15 months from the time the claim is made. The claimant has a year in which to make the claim. We are reducing the Statute of Limitations to a year. We have to be practical, however, as regards what we do. When a claim is made, in the first instance, the PIAB will have to identify the parties. It might not be clear as to who is the respondent. For this reason, to set a limit of 14 days is unreasonable. We do not want to tie the board's hands behind its back. As with the next amendment, many of the issues raised can be dealt with in the rules and procedures. To prescribe them by statute is unreasonable. If the PIAB gets a claim from an individual it then has to satisfy itself as to the claimant's identity, check the social security number with the Department of Social and Family Affairs and find out who is the respondent. I believe 14 days is too short and therefore the words "as soon as practicable" after receipt of the application is fair. There are strict limits, in any event, both on the time the PIAB has to make up its mind and that taken by the respondent and indeed the claimant to reply to an assessment.
This amendment seeks to insert a time limit at the start of the process so that when the claim is initiated the respondent has to be told within 14 days. While I accept it might be difficult further down the line to constrain how the board deals with cases as regards time limits, depending on how things develop, it does not seem unreasonable to put it right at the start of the process.
The Tánaiste said something interesting in response when she indicated it might be necessary to determine who is the respondent. Will she elaborate on that? Does she anticipate the board will have a role in helping to determine who the respondent should be? Or will there just be a form indicating that it is unclear who the respondent is and therefore the board cannot deal with the case? She seems to be suggesting the board would aid the process in some way by determining, for example, that a particular insurance company might be involved or the identity of the respondent and by making preliminary investigations into the claimant's identity through checking social security numbers and so on. Does she see that as standard preliminary procedure?
If the Senator is referring to the legal issue as to who is responsible for a particular case I am not getting involved in that. The entire working of the PIAB is based on simplicity of approach. Form filling will be simple and clear. The PIAB will itself be involved in educating the public and disseminating information as to procedure. It is about doing things in a consumer friendly way. I do not anticipate there will be complicated documents or that the application form will be complex. If a claim is made by an individual the social insurance number and identity of the claimant must be confirmed. The claimant may not be sure who is the insurer. Fourteen days is a short period and could be unreasonable if, for example, it coincided with a holiday period. What we want is something workable and practical, speedy but done in accordance with the board's rules rather than written into the statute.
There are significant references to time limits later in the Bill. These are time limits for the respondent to respond to the assessment and for the claimant to respond, within which the claim must be made and on the PIAB as well as extensions in certain circumstances. There are many time-related limits in the Bill for good reasons, not just for efficiency, but as regards the claimant's rights under the Constitution. One has to ensure the claimant is not denied the right to proceed to litigation perhaps at a subsequent stage if he or she is not particularly happy with the PIAB's assessment. Such a process should not be unduly delayed. That is why there are the type of time limits as proposed in the Bill.
I wanted to seek clarification. The Tánaiste, in her original reply, referred to 15 months. How is that made up?
There is an initial period of nine months and then a further period, in certain cases, of six months.
Is it 15 months from the claim being made to a decision being given?
That is the idea.
Acting Chairman
Is the amendment being pursued?
It is not. I accept the principle that it is something that could and should be dealt with in the rules. It would not be the first time we set up a process that was intended to be simple and fast. I have in mind the process to the Ombudsman's office, which is intended to be simple and fast. The reality is that it takes a long time in many cases, far longer than originally intended, simply because of the volume of work. It proved to be a successful and popular process which attracted far more cases and claims to be decided on than had been envisaged, or for which there were not the resources with to deal with. It is not difficult to envisage, given the volume of cases we currently have to deal with – the Tánaiste mentioned 27,000 as a likely annual figure – that time limits will slip quickly. That being so, we should include, if not in primary legislation, an obligation in the rules that at least simple things such as the initial notification should be dealt with in a relatively short period.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 12, subsection (2), line 36, after "notice" to insert "(being a period not greater than 21 days)".
It is of a similar kind. It does have somewhat more implications. It requires the respondent to respond within 21 days when he or she receives the initial notice from the board. This relates to another issue, which will be dealt with shortly in greater length, that is what the response of the respondent amounts to.
My contention, which is shared by the Fine Gael Members, is that the response of the respondent should amount to an acceptance of liability. Where it allows a case to go before the board it should be required to accept liability. It is in that context that we propose imposing a time limit. I assume the Minister will say much the same as she said to my last response so perhaps we should keep that argument for the substantive issue in a couple of minutes.
Amendment, by leave, withdrawn.
Section 13 agreed to.
SECTION 14.
I move amendment No. 9:
In page 12, subsection (1)(a), line 39, after “states” to insert “in open correspondence to the claimant that the respondent accepts liability for the claim and states”.
Perhaps the greatest fault in the Bill as it stands is that it does not deal with the issue of liability, as the Minister has suggested this afternoon. It is in effect parked or set aside. Either party can revive it at the end of the process so that if one party dislikes an assessment, if it is too high for an insurance company or too low for a claimant, that party can go to court, not just to assess the value of the claim but to look at the whole claim anew, including the issue of who is at fault.
Two issues at least arise. First, if the assessment process takes 15 months as envisaged here, it is possible that the claimant or the plaintiff in court will be seriously prejudiced by then having to go back and look at the issue of liability. If people take the spirit of the Bill and the process seriously, regarding this as a lawyer-free zone where legal advice is not required and as a simple up-front process by which they can go to the board to have injuries or loss of earnings assessed, it is possible that they will think the issue of liability is accepted and covered. Unless they go to a lawyer they are likely to think that because that is how the Minister and others are selling it publicly.
The claimant may behave in a fashion that will not help him or her if he or she ends up in court in a year's time. For example, he or she might not accumulate witness evidence in the way that he or she might otherwise do. If one knows that something is likely to end up in court or if one wants to allow for the possibility that it will, one ensures that one knows the witnesses and where they live, and gets their statements in so far as possible at an early stage while they recall what happened. One asks an engineer to look at the scene of an accident and document it. In other words, one accumulates evidence with a view to maybe establishing one's case. It is part of one's armoury when in court. If this Bill requires that process to be delayed for up to 15 months, and if a claimant has to start again perhaps 18 months or more after an accident occurred, he or she could, and very likely will, be seriously prejudiced. It is also quite likely that he or she may have been, through ignorance or through malign influences, misled into thinking an issue which he or she thought had been dealt with, namely liability, was not in fact despatched.
Conceivably, insurance companies will play the system. They may not do so in every case but they may do so with relatively small cases such as those worth €10,000 or €15,000 which they will put through the system, knowing that delay is likely to help them rather than the claimant, with the intention all along of going through the court system at the end, or if the assessment is not to their liking. The assessment will to some extent at least flush out the claim and the claimant, and the sort of evidence likely to be available to them. The Minister will no doubt say that is not admissible in court and of course it is not. In theory nothing that happens during the assessment process is admissible in court. The very fact of a delay and of the insurance company knowing in advance how much it is going to cost does inevitably prejudice it and gives it more bullets in its locker than is fair if the company has not been obliged to accept liability in the first place.
I ask the Minister to consider this problem so that if people are encouraged to go down this route, as they should be, they should do so in the knowledge that fault has been dealt with and cannot be revised at the other end. In that way if an assessment is not acceptable it can go to the court only on the issue of quantum and not to revive an issue which the claimant thought was dealt with in the first place.
I agree with Senator McDowell and the Labour Party amendment. It goes to the nub of the Bill and I urge the Minister to look at it. There is a great case to be made for accepting and dealing with the issue of liability at the start of the process rather than leaving it there as a last chance saloon for the insurance industry if it seeks to reject the ruling of the board. It goes to the heart of the Bill and will change it. However, in order to make it more effective and to deal with the problem that the establishment of the PIAB aims to resolve the Minister should accept the amendment.
I certainly cannot accept this and if I do the PIAB will be killed before it starts and everyone knows what will be the effect of that. There are times when the respondent may have full indemnity, for example if an employee falls off a chair at work, the respondent may decide to pay the compensation and then to sue the chair manufacturer. We cannot have a situation whereby in order to use the PIAB one has to put one's hands up and admit liability and pay all. There may be others involved.
Both Senators know that the result of not parking liability or of the respondents admitting liability would be that this board would never happen. The respondents will be paying for this service. The insurance companies will effectively pay for the PIAB. The idea that they would run things through it, pay the associated costs and then go to court is unacceptable. The argument has no credibility. Obviously, we cannot say there is no evidence for it as it has not started yet but I would be amazed if somebody who will pay the bill at the end of the day would decide to take this route and then at the eleventh hour as it were, decide to pursue the matter through the legal process.
Could the Minister deal with the issue of delay that arises where a claimant is prejudiced by virtue of the delay so that he or she has to go back and deal with an issue which he or she thought had been dealt with, and accumulate the evidence?
Does the Senator mean after the 15 months has elapsed?
Yes.
Currently it takes a couple of years for a claimant to get a case into court. Only about 10% of cases end up in court, 90% are settled either in advance of the hearing or at the door of the court. Even under the current system very few cases go to court. My Department has received strong legal advice from the Attorney General on this legislation. The kind of safeguards that we would all want to see for claimants in our society are not in any way undermined by the establishment of the PIAB. On the contrary, claimants will receive their entitlements more quickly than is the case under the current regime. Some of the amendments being suggested do not apply at all under the current regime, which is a very slow cumbersome procedure from the time one makes a claim to the day one is heard in court if one is not satisfied with what may or may not be offered. It takes many years. Under no circumstances will this board add to that time. With the PIAB in place there will be fewer cases in the courts and because of the mediation system which the Minister for Justice, Equality and Law Reform is bringing in through his legislation, and other changes even with PIAB, people will be able to get into court much more quickly than they can under the current regime.
I accept there will be fewer cases in court, otherwise the process will have been a complete failure and we want it to work so that will not happen. However, the Minister did not deal adequately with the point I am making about delay. As she knows I have a practising certificate but it is some years since I have dealt with this kind of case and I aspire to keep it that way for some time to come, until my current project is exhausted.
I will have plenty of work for the Senator. He need not worry about that.
I gather the Tánaiste is contemplating a change of job sooner than I am. As a solicitor I would not like to be in a position where someone approached me 15 or 18 months after going through the lawyer-less process of the PIAB and informed me of an accident 18 months or two years previously which he or she thought was dealt with through an acceptable settlement, but then found that the insurance company would not pay up. One would then have to reconstruct a case from the start, from perhaps 18 months or two years previously. That is a genuine difficulty, something that does not currently arise.
I accept all the Tánaiste says about delays in the current process, but one thing that is done quite promptly is that the initial evidence is charted and the statements are taken in at the start of the process. The way in which the PIAB is being promoted will certainly induce some claimants to avoid going through that initial process because they will think that a case pursued through the PIAB is quick and easy, with liability sorted, and with no need to go through the business of witnesses being contacted for statements and so on. One will end up having to reconstruct cases 18 months or two years down the road, and that is not fair.
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
Amendments Nos. 10 and 11 not moved.
Section 14 agreed to.
Section 15 agreed to.
SECTION 16.
Amendments Nos. 12 and 21 are related, and amendment No. 24 is consequential on amendment No. 21. All three amendments may therefore be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 12:
In page 14, line 1, to delete "Neither" and substitute "Subject to Section 32(4) neither”.
This amendment is tabled under section 16 and is relevant only if the Tánaiste does not agree to delete section 16.
She will not agree.
I am taking that as a given.
The Senator may discuss the amendment and the section together.
Fine Gael has a problem with this section. As Senator McDowell pointed out, many people have a problem with section 16. Concerns have been expressed in this House during the Second Stage debate on the PIAB that there is a risk of adding to the bureaucracy and the costs if the matter is not dealt with correctly. There is a fundamental flaw in the PIAB which has not been addressed to date. Under the Bill as proposed, the claimant is obliged to take a case before the PIAB if the insurer so directs.
If the law, and not the insurer, directs. The law will direct it if liability is not being contested.
The insurance company ultimately decides whether the case goes before the PIAB. However, as I understand the legislation, if an insurance company is not happy with what emerges from the PIAB, it can reject the assessment and proceed to deny the liability in subsequent court proceedings. We have discussed this issue while considering the amendments tabled by Senator McDowell.
As I said before, this gives the insurance company two bites at the cherry. The company can compel the claimant to go before the PIAB but can reject the PIAB assessment if it does not like it, and put the claimant through a fully defended set of legal proceedings.
There is a strong case to be made for obliging the insurer to accept liability if it directs a case to go before the PIAB. There must be a potential penalty for an insurer with regard to the PIAB ruling. Otherwise, there will be a serious risk that insurers will cherry-pick the forum and effectively force claimants to go before the PIAB and subsequently before the court. I know the Tánaiste does not envisage that happening but it could well happen in a number of cases, if not in the majority thereof.
If the PIAB is to reduce costs and streamline procedures for the delivery of compensation, then parties appearing before it must see an incentive for dealing with the body and accepting its recommendations. If an insurer agrees to send a case to the PIAB, that amounts to an admission of liability by the insurer. Accordingly, if parties are unable to accept the assessment produced by the PIAB, the matter should then go to a court hearing, but only to discuss the extent of damages, not the question of liability. That is the nub of amendment No. 12. If the Tánaiste does not agree to delete section 16, this amendment provides for the provisions of section 16 coming under the new section 32(4), on which I will speak later.
We are all in broad agreement as to the thrust of the PIAB and what it is trying to bring about, but there is an element of the insurer having it both ways that we must try to counteract. The purpose of this amendment is to ensure that if a case comes before the PIAB, the issue of liability will not be discussed in any subsequent hearings and that those hearings would deal only with the issue of the amount of damages to be awarded.
There is a misunderstanding here. It is not the insurance companies, but the law in the first instance, which will compel claimants to go to the PIAB. Both parties will be free to reject the PIAB settlement. I do not understand the point being made by Senator Phelan. Is he suggesting that it should be mandatory for someone to accept the PIAB assessment?
The point goes back to liability. The insurance company must accept that if a case is brought before the PIAB, liability will be dealt with at that stage, and not parked and possibly brought up again in any subsequent court case. I understand what the Tánaiste said. Perhaps I did not make my point very well; she will have to forgive me. My colleague, Senator Coghlan, was to deal the issue but had to withdraw this morning. The Tánaiste was not the only one in doubt about attending this House. I too was in doubt.
The insurance companies appear to have the option of an each way bet. We have already discussed at length the weight of professional help that lies with the insurers rather than the claimant. That brings us back to the point raised by Senator McDowell regarding liability, and whether it is parked or dealt with at the outset of the process. That is the issue.
Having listened to the Tánaiste's reply to a previous amendment, it is clear that this amendment would in effect emasculate the process. Explicit admission of liability obviously forecloses options. If an issue is not contested, one could argue that that is a de facto admission of liability, but effectively this is allowing people to play out a scenario on the assumption that for example, liability is accepted, with supposedly unclear results, and both sides then free to accept or reject the result. To go the route the Opposition wants would remove the flexibility and pragmatism and, as a result, effectively stymie the entire operation of the PIAB.
Senator Mansergh put it very well. I dealt with the issue of liability in the previous amendment. We will kill the legislation before it starts if the issue of liability has to be resolved.
Why would the Tánaiste say that?
In the first instance, we would need a plethora of lawyers and all the other individuals necessary to deal with liability issues, which are a matter for the courts. The legal issues are not a matter for the PIAB. It is being set up to assess what people are entitled to and ensure it is paid to them as quickly as possible. That is its whole function and purpose. The issue of liability does not arise in many cases.
Senator Coghlan apologised privately to me for being unable to attend as he had an engagement in Northern Ireland. It is unusual for either House to meet on a Monday and I understand he could not be here. I am not in a position to accept his amendment. Both parties to a dispute are free to reject an assessment and to proceed to have the matter determined through the courts.
Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
I move amendment No. 13:
In page 14, subsection (1), line 12, to delete "be required to".
Section 17 deals with those circumstances where the board has discretion not to deal with a particular type of case and sets out four or five such circumstances. This amendment, in my name and that of the Labour Party Senators, removes discretion from the board. It is self-evident that the board should not deal with cases of the kind set out in this section. Our amendment proposes that the words "be required to" be deleted. That, in effect, would make it mandatory for the board to decline to deal with cases where, for example, the issues are particularly complex, there is an insufficient body of case law available to provide guidance or the book of quantum is inadequate to deal with them. Rather than giving the board discretion to decline cases, we suggest the Bill should require it to decline to deal with cases of the kind set out in the section.
We need to give discretion to the board. What may be declined in the first few months of the existence of the board may be something the board is capable of handling in time. We are talking about unusual cases where perhaps the medical evidence is uncertain. The Senator said that there is not much case history available. That will change over time. What may be unsuitable for the board in its infancy, either because the law in the area is not well developed or medical evidence is not clear – matters which are more appropriately dealt with in a court scenario – could change over the first couple of years of the board's existence. There is rapid change in this area. The most effective way to facilitate the changes that happen in this area is to give the discretion to the board. That is fair and reasonable. The board will not take on work it cannot deal with fairly.
I will not go to war on this but there is an issue. The draftspersons obviously think there are certain types of cases with which the board should not deal. There is no oversight of the issue and if the board makes a decision, that is the end of the matter. The board can then deal with a case with which the Tánaiste and those who drafted the Bill think it should not, such as a case dealing with psychological damage. Nothing prevents the board from doing that if it so decides, although it may decline. I assume the purpose in framing the section in this way was to take such cases out of the ambit of the board. If that was the intention, the Tánaiste should go the whole hog and remove the discretion from the board's ambit.
The issue must be looked at on a case by case basis which is where the matter of discretion arises. The removal of discretion could remove from the board a host of activity with which it is capable of dealing.
It is wise to leave the discretion to the board and it would be wrong to tie its hands. The board must be let carry out its responsibilities without being restricted. It is very hard to word or frame the type of restrictions to which the Senator refers. I recommend the section be left as it is and support the Tánaiste on that point.
Amendment, by leave, withdrawn.
Amendments Nos. 14 and 15 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 14:
In page 14, subsection (1), lines 41 and 42, to delete "in case the relevant claim arises out of a trespass to the person,".
My purpose in proposing this amendment was to find out what this subsection intended to capture. It seems, perhaps, that it intends to capture cases of physical or sexual abuse or something of that kind, but that is not explicit in the Bill. I am interested to hear what the Tánaiste had in mind with subsection (iii) (III), particularly cases which "would not respect the dignity of the claimant".
This involves trespass cases only and is included at the insistence of the Parliamentary Counsel.
Did the Parliamentary Counsel have cases of sexual abuse in mind or why is it included?
It is to cover trespass in its broadest sense and could include assault.
Was there a specific intention to exclude sexual abuse cases from the ambit of the board? There is a cogent case to be made for excluding it, but I wonder was that intended.
The intention would be that those cases be dealt with elsewhere, subject to discretion.
I do not think we will get much further on this issue. It would be worthwhile to have a more explicit statement on the record as to whether cases of sexual abuse will be excluded from the board. They should be excluded.
I am advised that liability is almost always an issue in those cases and for that reason they would automatically be excluded. It is unlikely there would not be an issue of liability in a sexual abuse case. Is that not so?
Yes, but that brings us back to the issue we discussed earlier. A person could seek an assessment of damages and then contest liability or could seek an assessment and then, where not acceptable, take an alternative route.
The central issue is often the liability issue which is much more appropriately dealt with in a court.
We are at one on this point. I understood, when I read the particular subsection, that it was probably intended to deal with sexual abuse. If that is the case, it should explicitly say so.
It could include assault which does not involve sexual abuse.
Yes.
Amendment, by leave, withdrawn.
Amendment No. 15 not moved.
Section 17 agreed to.
Sections 18 to 21, inclusive, agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."
Will the Tánaiste give us more detail about the intended regime? This is the section which allows for charges to be imposed. Would she see it as routine that a charge would be imposed on both sides, claimant and respondent? If so, would it be a flat fee or would it be related to the nature of any assessment?
A small fee will be imposed on the claimant which will be returned in the event of a successful claim.
Will it be a flat fee?
I presume it will. It will be done by way of regulation or secondary legislation. That has not been discussed but the fee will be low. It would be wrong if there was no fee at all but, essentially, it will be paid for by the respondents.
What level of fee will be imposed on the respondent? Would it be comparable to court fees?
The respondents will have to pay the cost of running the organisation, the cost of assessing the cases.
Would that be comparable to the amount they would have to pay if the case was heard in court or will it be less?
It will be substantially less than going to court. We are talking about 27,000 cases costing around €7 million or €8 million per year. I do not know the current costs but they are substantially higher than that.
Is it the intention to relate the cost to the level of the assessment?
It will be related to the level of work, a simple factor that can be assessed quickly. The same fee would not be imposed on a straightforward case as on one that requires more work or consultation with more expertise.
Would a different fee be imposed on an assessment which led to an award of €20,000 than on one of €40,000? Will it be related directly to the amount?
It will be related to the volume of work the board has to do.
So there will be a discretionary element, not a flat fee?
It will be related to the volume of work and the cost to the board. This will be self-financing, we will not make a profit on the operation of the PIAB. The small fees paid by claimants will be returned when they are successful and the only fees that will be held will be those where the claimant does not get an award. The insurance companies will pay the €8 million.
I must discuss the detail of the operation because until now I have been concentrating on getting the legislation right. It will not be on the basis of the award, however, it will be on the basis of the cost to the insurance company. If something is simple and can be assessed quickly, even if there are large damages, it would be unfair to level the same costs as on a more complicated case that requires more work or the recruitment of outside expertise.
Question put and agreed to.
Section 23 agreed to.
SECTION 24.
Amendments Nos. 17 and 18 are related to amendment No. 16 and they will be taken together.
I move amendment No. 16:
In page 19, subsection (2), line 13, after "more" to insert "registered".
This is the point made by Senator Henry earlier. The amendments would insert the word "registered" before "medical practitioner". We discussed the issue at length earlier.
I will get advice on this matter. I agree with the principle except for those people outside the State. I will return on Report Stage with a positive amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 17 and 18 not moved.
Section 24 agreed to.
Sections 25 to 28, inclusive, agreed to.
SECTION 29.
Amendment No. 19 not moved.
Question proposed "That section 29 stand part of the Bill."
I would like to hear any speaking note the Tánaiste has on the specific duty of care the board has towards vulnerable people. It appears to provide for legal advice in certain cases and I would like to hear the circumstances and how such advice will be delivered.
If it appears to the board during the process that a claimant or respondent is not fully aware of the legal consequences of any action or inaction by him or her under the Act, it shall be the duty of the board to do one or more of the following: To advise the claimant or the respondent, as appropriate, of the desirability of taking legal advice regarding the process; to advise the claimant or respondent, as appropriate, of the legal consequences of an action or an inaction during the PIAB process; and to provide such reasonable assistance to the claimant or respondent, as appropriate, to enable them to carry out the necessary steps. Section 29(3) provides that the board shall inform the respondent or claimants, as appropriate, of the fact that any actions set out by the board have been carried out. This places a legal requirement on the board to satisfy itself that vulnerable persons are fully protected. We deal with minors in another area, as the Senator knows, but this deals specifically with other categories of citizen.
The Tánaiste's comments are interesting because the section deals with vulnerable people but people who are not obviously vulnerable might make a mistake during the process. Even the relatively simple business of filling out forms can become confused and people might not realise if they get two medical reports that the second one has to be passed on because they do not appreciate its importance. They could end up with an incorrect assessment because they have not given the best possible evidence to the board.
The section envisages that if the assessor realises this is happening, he will contact the claimant and tell him or her to submit the best possible evidence. In normal cases involving a claimant who is not transparently vulnerable, there should a reminder process that need not deal with legal advice where an assessor will tell that person that he has not submitted the best possible evidence or medical reports and that it is in his interest to do so.
This goes back to the question of legal advice. Most people making an application to the PIAB will get legal advice when completing application forms. It is clearly indicated that there will be some cases where people will be advised to get advice. It is self-explanatory.
It comes back to the question of the role of solicitors in the PIAB. I would advise people to seek advice before going before the PIAB to ensure the claim is in order and they do not disadvantage themselves by submitting a claim that is not fully comprehensive.
This deals with the duty of care to vulnerable people and the Senator is satisfied with that. It puts an onus on the board. The board will operate an information help line and if the claimant makes an inadequate claim, there will be a requirement on the board to get all the information. This will operate as an inquisitorial regime where the assessor will have to find out the nature of the injuries, what exactly happened, the extent of injuries and if they need to be assessed by the medical referees. I do not know how many cases will see all evidence of injury being referred to the medical referees, that is a matter for the assessor, but if the board does not do things fairly and appropriately, and does not establish credibility, it will always be open to legal challenges. I do not think the Senator needs to worry about the board's or the organisation's determination to get it right and to make sure that where there are deficiencies they are put right, leaving no gaps in the information the assessor needs before he or she makes a determination.
While the note in the margin of the section refers to "vulnerable parties", the section itself does not specify "vulnerable persons" at all, unless I have missed it. It simply refers to a situation where the board considers it to be a reasonable inference from the manner in which a case is being pursued that it is not being done properly, which could apply to not just vulnerable parties, even though one would have thought vulnerable parties would be a small minority. If the board forms the view that somebody is not progressing their own claim properly, do they have an obligation to contact that claimant and tell them they are not doing it properly and that they need to get their act together?
If the information is incomplete they will have to go back to the individual and put the information together.
It does not actually say "incomplete". It is possible that it would be incomplete. It is possible that somebody may have an initial medical report but does not go back for a subsequent report and should do so. If they were receiving advice from anybody, they would be advised to go back and get a second medical report. They may go to a doctor three or four weeks after an accident. They may get a particular prognosis that could change. They should go back to the doctor six months later and provide the board or the assessor with a subsequent medical report. This section seems to envisage that an assessor, who would very likely see that this is the case, should contact the claimant and tell them they are not doing themselves any favours and that they need to know the up to date position. Does the Minister foresee that happening?
Yes, I do, and obviously I foresee informing the person of the desirability of seeking legal advice.
Thank you.
If one takes the example of employer liability insurance, the first cases to be dealt with will be the ones affecting employees. Many of them will be members of trade unions and I have no doubt there will be advice available to them from many quarters. I do not envisage them acting as solo players. Where there are deficiencies and the assessor is not in a position to stand over it and make a clear determination, the onus will be on them to get all the information they require from the claimant, including medical evidence. I am not certain that there will be many cases where the initial medical advice following the first couple of weeks of the injury will be the final advice on which the assessor will base his or her assessment. It may well be that there will be subsequent advice. That is why the time lag is 15 months rather than the very short period of three, as one has got to see what medical advice becomes available some time after the accident and not just in the immediate aftermath. The recovery and the prognosis for the individual's future are relevant matters. Clearly, it will not be decided on the basis of one letter from one doctor. In many cases there will be much medical advice, no doubt, accompanying applications at different stages in the process.
All I wanted to establish was that the Tánaiste and Minister for Enterprise, Trade and Employment envisaged that there would be an intervention in a number of cases to inform people that they should get advice of whatever kind. I am glad that is on the record.
Question put and agreed to.
SECTION 30.
I move amendment No. 20:
In page 22, between lines 6 and 7, to insert the following new subsection:
"(2) A notice under this section shall not contain any particulars relating to the Board's opinion of the claim other than the amount of the assessment and in particular shall not disclose any information obtained by the Board pursuant to sections 26 to 28.".
This deals with the notice the board issues when it has made an assessment. We are simply saying that any such notice should contain the quantum of any assessment and should not give any opinion beyond that or any details that might be used or relied on in any subsequent court case, if one was taken. In other words, an assessment should be a straightforward number without the benefit of further opinion which might prejudice a court case.
The Senator is suggesting that the board should just give the assessment. It is important the board gives the basis on which they made the assessment. In fact, that was one of the things asked for most frequently by many of the groups that came to see me in respect of this legislation. A note prepared for me on the basis of legal advice says the PIAB needs to explain the basis of the assessment to all the parties in line with their procedures, including details of what the assessment is comprised of and how it was arrived at. It would be very unreasonable to just get a letter from the PIAB, either from the respondent's perspective or from that of the claimant, saying they are being assessed and they should just get X amount without being given some idea of how that amount was arrived at. I do not see how that could prejudice any court hearing in any way. Why would it? In any event, I would have thought it would be desirable in any potential court hearings that the assessment of the PIAB and the basis on which it reached that assessment was available.
I find the Tánaiste's argument persuasive.
Amendment, by leave, withdrawn.
Section 30 agreed to.
Section 31 agreed to.
Amendment No. 21 not moved.
Sections 32 to 34, inclusive, agreed to.
SECTION 35.
I move amendment No. 22:
In page 24, subsection (2), line 27, after "requires any" to insert "lodgement, tender or".
This is essentially a technical amendment. Subsection (2) refers to any enactment or rule of court which requires a settlement to be ruled. I am advised by the party's legal people that this is most likely to arise in the case of a lodgement being made and that the court rules to deal with lodgements. That is what we should cover in this section. The whole regime of lodgements, as the Tánaiste and Minister for Enterprise, Trade and Employment knows, is basically that if a certain amount is lodged in court, the plaintiff can only recover costs if the lodgement is beaten and the court subsequently awards more than the lodgement that is being made in court by the insurance company. I am told the rules referred to in this subsection should be the rules that relate to lodgements.
We have consulted the Parliamentary Counsel in relation to the amendment and he has advised that it is already covered. I will have him look at it again in respect of the point the Senator is making.
It is a technical issue.
Amendment, by leave, withdrawn.
Section 35 agreed to.
SECTION 36.
Amendments Nos. 23 and 28 are related and will be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 23:
In page 25, between lines 16 and 17, to insert the following new subsection:
"(5) For the purposes of proceedings which are brought subsequent to an authorisation under this section, a decision of the court under subsection (1) refusing to approve an assessment shall be deemed to be a decision of the court in which the proceedings are brought refusing to approve a lodgement in the amount of the assessment.".
Again, this concerns a technical issue. Cases where an assessment arising out of a recommendation of the board in an infant case would still have to be ruled on by the courts so the judge could assess whether it was adequate. We are saying that in circumstances where the judge decides it is not adequate the effect, for the purposes of any subsequent court case, should be as if that had been made as a result of court proceedings and not as a result of the board's proceedings, because currently as the Bill is drafted the ruling of the court arising out of an assessment of the board would not stand for the purpose of further court hearings, and I am advised that it should do.
Does the Senator mean in respect of that case or other cases?
I mean in respect of that case.
The advice I have been given is that we cannot trespass on the jurisdiction of the courts, which is what the Senator's amendment would do.
That is not the intention.
I know what the Senator is saying, but it is different to my advice. Perhaps it is something I will refer to the parliamentary draftsperson if that is in order.
I thank the Tánaiste and Minister for Enterprise, Trade and Employment.
Amendment, by leave, withdrawn.
Section 36 agreed to.
Amendment No. 24 not moved.
Sections 37 to 39, inclusive, agreed to.
SECTION 40.
I move amendment No. 25:
In page 26, subsection (2), lines 30 and 31, to delete "but not section 22 of the Courts Act 1981".
I am not sure why the provision is in the Bill under section 40, but the Bill prohibits the payment of interest on awards that it makes. I want to know why the Tánaiste and Minister for Enterprise, Trade and Employment has chosen to take this particular route. It may be simply a cost-cutting exercise on her part. It does not seem logical to apply different rules to judgments of the court than are now going to be applied to the assessment of the board. If one pays interest on court judgments why not pay interest on the assessments of the board?
The advice we have been given from the Attorney General's office is that this wording was inserted at their request. The advice says it deals with the award of interest where payment of the award is not made or is delayed. The treatment of an order to pay must be consistent with that of a court order, in other words, they are arguing that this has been put in to make it consistent with a court order. However, I will seek legal clarification on what the Senator has said.
It seems to specifically exclude the application of that section of the Courts Acts which deal with interest. Perhaps I am wrong because I do not claim to have expertise in this matter.
I will clarify that point.
Amendment, by leave, withdrawn.
Section 40 agreed to.
Sections 41 to 43, inclusive, agreed to.
SECTION 44.
I move amendment No. 26:
In page 27, subsection (3), line 41, after "are" to insert "any charge imposed on the claimant under section 22(1) and any other”.
This amendment deals with the same issue of court interest.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 27, after line 44, to insert the following new subsection:
"(4) Where a claimant or his or her solicitor disputes the amount of fees and expenses specified in a statement under this section, that amount may be the subject of review by the person or authority which would have jurisdiction to review the fees and expenses had they been incurred in proceedings to recover damages amounting to the value of the assessment.".
This amendment allows me to tease out the issue of costs which the Minister envisages will be recoverable under the section. Section 44 deals with expenses incurred by the claimant in preparing the claim and it envisages that costs will be awarded. My amendment specifically seeks to create a review mechanism where that is not agreed. I am more interested in the Minister's view about what expenses will be allowed in the first instance. Does she envisage, for example, that legal expenses incurred before the claim was submitted will be allowable? If someone gets the assistance of a union representative or agent of any kind in preparing a claim or the additional letter of claim, will that be allowable? What expenses does the board have discretion to award to a claimant?
It is envisaged that medical expenses would be repayable. In the case of a minor, where the court will have to determine whether the award is satisfactory, legal expenses will be paid by the respondent. As regards the claimant, we are talking about medical expenses. That may sometimes involve people travelling outside the country for medical assistance or advice. We are talking about expenses which are regarded as having been reasonably incurred in defence of the claim.
That does not include the cost of any advice received before a claim is initiated.
Does the Senator mean legal advice?
Yes.
No.
Are expenses recoverable if, for example, a person goes to a solicitor who does some preliminary work and then suggests that the person must go to the assessment board?
The Senator knows that if we cover legal expenses, a lawyer will be involved in every case.
That may be true. However, the section explicitly accepts the principle that expenses incurred in mounting the claim are recoverable. The Minister seems to suggest that only decent expenses are recoverable and not the indecent expense of getting advice from a lawyer.
Before I am accused of suggesting lawyers are not decent, they are decent. That is not what we are talking about here. It would be reasonable to cover medical expenses. There may be other expenses as well.
The Minister seems to suggest that as a matter of principle it is not reasonable to cover any type of legal costs.
Certain categories are covered. Legal expenses in the case of minors, for example, are covered by the respondent.
The Minister would not pay them either, if she could get away with it.
I would. This is about being friendly to the consumer, not about trying to stop people getting that to which they are entitled.
I accept the general principle, but we can take the principle of lawyer bashing too far. It is still likely that one of the first ports of call by someone involved in an accident will be the legal profession for legal advice. To say we should not pay this as a matter of principle because it is going down the slippery slope of making it a court related or legal process rather than a claim or an insurance based process is going too far. However, I sense I will not get any joy from the Tánaiste on that matter.
We will agree to disagree. Sometimes the medical advice in these cases is more important than the legal advice.
When a person is injured at work, he or she does not appreciate that liability is an issue in many cases. Many people do not realise that we have a fault based system which requires a person to establish that the employer or someone driving a car is at fault before he or she can recover money for injuries sustained. Many people do not know such basic facts which we take for granted. To say, as the Minister has said in such a dismissive fashion, that a medical report or advice is the only thing that matters is ignoring a serious level of ignorance among the public about their rights in certain circumstances and about the nature of our compensation system.
There is a growing belief that if a person is injured, he or she is entitled to compensation. However, that is not the case. A person must establish that someone is at fault. If people are under the impression, as many are, that they can recover in all circumstances, they may not take certain basic steps, which they should take, such as gathering evidence or getting witness statements at the start of the assessment board process. They should be told by someone that the matter may end up in court and that they should get an engineer, for example, to look at the equipment in work which injured them before it suddenly disappears. That would be basic advice to give to someone who was injured as part of an accident at work. People should be told to take a photograph of the machine and to get an engineer to look at it. A doctor will not tell a person such things.
This is only part of the jigsaw to solve insurance problems; it is not the full picture. The Minister for Justice, Equality and Law Reform will introduce the Civil Liability and Courts Bill which will include a requirement on claimants to set out the basis for their case. The purpose of establishing the PIAB is to provide a consumer friendly mechanism for delivering compensation. This is not an anti-consumer organisation; it will be a consumer friendly organisation which will help claimants and be involved with them. We want to create a culture where the first port of call for a person who has received a personal injury will be the PIAB, not the courts. I envisage the PIAB as the place where 95% of personal injury claims will be resolved. I hope its credibility will be such that few people will feel the necessity to take the court route. Its credibility, success and future depends on establishing itself as a consumer friendly organisation, which I do not have any doubt it will be, driven by a dynamic board. I am conscious that there are people in the environs of the House in the Law Society of Ireland and the PIAB.
We have developed a system and a culture in relation to insurance which is unsustainable. That is the only reason we are going down this road. I remember when former Deputy Des O'Malley was Minister for Industry and Commerce, people discussed the notion of putting something similar in place. However, for one reason or another, it did not happen. If we had not arrived at this crisis, we would probably not be doing it now either. I do not want people to think that this is about taking from genuine claimants and those who merit appropriate levels of compensation. This is about helping them. If most normal people, particularly those I know, were given a choice, they would not go down an adversarial court route. They would prefer this type of mechanism to give them that to which they are entitled. When we put together informal non-adversarial ways of settling disputes between parties, whether through the Labour Court or the LRC, they work extremely well. This will also work well.
As a legislator with legal expertise, Senator McDowell is right to question the premise of the legislation. However, there is an underlying view among those with a legal background that this will collapse in the first month and that it will not get off the ground because it is unfair and no one will want it. At the end of the day, the consumer will decide whether it works. If it does not provide satisfaction for claimants, it will not be a success and will not last. It is as simple as that.
Somebody in the House asked on Second Stage whether there would be a review after five years. We will not need one because if the board is not successful, it will not be able to sustain itself financially. There is a huge onus on the PIAB to establish itself as a consumer friendly organisation with fair procedures that can not only stand the test of time, but stand the test put to it by any court proceedings. I have no doubt that early on in the life of the organisation somebody will take a judicial review of some of the assessments. The board will operate on the basis that everything must be totally above board – i's must be dotted and t's crossed. It will not try under cover of night to sneak a small award into one's bank account which is much less than that to which one is entitled because that clearly will not be acceptable.
I will not delay the House, but I want to rebut the suggestion by the Tánaiste that I am challenging the premise of the Bill – I am not doing so. I accept the premise of the Bill. There is a need for a simpler, quicker process. Many of the criticisms the Tánaiste has levelled at the current system are entirely justified and fair. I am only seeking to ensure one thing. There will still be many people who do not understand the quicker system and will need some assistance to get through it. It is not unreasonable for them to rely on lawyers and others for that assistance.
Amendment, by leave, withdrawn.
Amendment No. 28 not moved.
Section 44 agreed to.
Sections 45 to 47, inclusive, agreed to.
SECTION 48.
Question proposed: "That section 48 stand part of the Bill."
An Leas-Chathaoirleach
Senator McDowell indicated his opposition to this section.
We dealt with that earlier, a Leas-Chathaoirligh. I withdraw my opposition.
Question put and agreed to.
SECTION 49.
An Leas-Chathaoirleach
Amendment No. 30 is an alternative to amendment No. 29 while amendment No. 31 is related. Amendments Nos. 29 to 31, inclusive, may be discussed together. Is that agreed? Agreed.
I move amendment No. 29:
In page 29, subsection (2), line 23, to delete "9" and substitute "6".
I was interested in what the Tánaiste said about the last amendment. She expressed her desire that at some stage up to 95% of claims could end up being dealt with through the board, which would be a marvellous achievement for the Tánaiste. If we are to move in that direction we must ensure that the target dates are such that they will provide an incentive to claimants and insurers to use this facility. I concede that a target date of nine months is reasonable, but as we set out on this new road we must try to be more daring.
A six month timeframe would be advantageous from two points of view. It would clearly show insurers and claimants that we are serious about making this board work effectively, efficiently and transparently and making it the normal route for the majority of claims. It would also put an onus on the Department and on the State to ensure the board has the resources and staff to make the system work. All our targets and aspirations will come to naught unless this happens. The board will need significant resources to ensure its work is done properly. If we provide for a six month timeframe, it puts pressure on everybody to deliver. As we develop this new approach, we should set the bar high. A six month timeframe would be a positive step in this direction.
In a sense I will speak against my own amendment, which seeks to shorten the time within which the board must deal with an assessment. Nine months would be perfectly adequate for this, but I have a difficulty with one aspect, which is why I tabled my amendment. As matters stand, section 49 provides that if something is not dealt with within 15 months, having been prolonged in the first instance by six months, it is open to the board or the assessor to go back to the claimant and ask him or her to consent to prolonging the time further. It is not difficult to imagine this happening frequently. If we were being pessimistic we would say that in three to six years, if the board is as successful as we would like it to be, it will be regular and commonplace for the assessors to ask claimants to prolong the time.
I would be happy to allow the nine month timeframe to stand, provided it is an absolute deadline or the circumstances in which consent would be sought for prolonging the time were seriously limited, so that it would not become routine for the board to prolong cases beyond the nine month or 15 month period. As matters stand, where the Bill states nine months or 15 months, it is in fact open-ended. There is no limit provided the claimant consents. There should be a limit within which the board will be absolutely required, unless there are exceptional circumstances, to make a decision.
When the heads of the Bill were published we did not have such deadlines. These time limits are the duty of the board; they have been written into the legislation. It is the intention of the board to deal with things more quickly, but sometimes it could be unfair to a claimant to deal with a case quickly because the medical evidence could be evolving. It is often six or nine months after an injury, sometimes longer, before the evidence is available. That is why there is a provision that where the board feels it cannot make an assessment within a reasonable timeframe, it will issue an authorisation to the person to go through the courts.
The timeframes set out here are reasonable in all circumstances, as Senator McDowell acknowledges. The intention is to deal with things even more speedily, which will be possible in the simpler cases. In many other cases, however, the proceedings will take this long. Telling the claimant that the board cannot make the assessment in this period and giving him or her a date by which it might be able to do so will be the exception rather than the rule.
Can we specify that in the legislation? At present, section 49(5) states that if the assessment is not made before the date specified, unless the claimant consents in writing to the board continuing to deal with the matter, there is an authorisation to go to court. Perhaps we should specify that the board will only seek the consent of the claimant in exceptional circumstances.
Does the Senator want to prevent this from becoming the norm?
I want to prevent the assessor asking for prolongation as a matter of routine. At the Freedom of Information Commission, for example, the time limits are meaningless because the consent of the person seeking the information is forever sought to prolong the time. The claimant in that case knows well that if he or she does not consent, the request will be refused.
There was much legal advice from the Attorney General on these provisions.
Many concerns were expressed to me by those in Senator McDowell's profession about the time limits for making a claim, the point being that in certain instances people hope an injury will get better but it does not – or it gets worse – and sometimes assessing the scope of an injury within a relatively short period is difficult. Further, in other types of legal suits, companies have much longer periods in which to make claims.
As I said, the heads of the Bill that were published did not have these specific timeframes. We have moved in this direction after receiving legal advice from the Attorney General to ensure we do not unnecessarily delay somebody's constitutional right to take a case before the courts. I am advised that in many cases the longer the gap between the accident or injury and the litigation, the more unfavourable it is to the respondent rather than the claimant. One can argue either way about this point.
We must ensure that we have a framework that works and is practical. As the Senator and others have acknowledged, the medical evidence does not always become immediately clear. We are talking about mandating an organisation where the practice will be to deal with cases quickly. The PIAB intends to operate differently from almost any other State organisation. It will operate six days a week and will have much longer hours of work than is the norm to service the needs of those who use it. It will offer information, layperson guides and helplines. If one is a genuine claimant, the board is there to help, not to try to stop one from getting one's entitlements.
Based on the advice I have received, the timeframes are appropriate. It may be unfair on the claimant to assess what he or she is entitled to within the first month or two. Whatever the injury, it may be that one has not recovered as anticipated and the initial prognosis may have been mild or it may be discovered later that the injury is more serious than first realised. For those reasons, the nine month timeframe, extending to 15 months, is appropriate.
I understand the points the Senator raised about the legal profession. Under the current regime it can take forever for one to receive one's entitlements. With the PIAB, claimants will get their money more quickly in the vast number of cases. I envisage only a small number of cases going to the courts. The organisation will not be able to sustain itself if it does not have that level of credibility among claimants.
Some injuries may not become fully apparent for two or three years after the accident. In such circumstances, will people have the freedom to bypass the PIAB and have recourse to the courts? This may only relate to a minority of cases.
Is the Senator talking about someone making an application to the PIAB?
If someone's injury does not become apparent for two or three years and it is attributed to the accident, will this person have to take the court route because the PIAB time limits have been exceeded?
If someone has a personal injury they must make an application to the PIAB within 12 months. The Statute of Limitations for personal injury cases is being reduced from three years to one year both in this Bill and in the legislation the Minister for Justice, Equality and Law Reform is introducing. The PIAB has a certain timeframe to make an assessment and the individual can accept or reject it. If one has not made the application within the timeframe, one cannot do so. The other issue which arises is that of reopening the case. This cannot be done with the PIAB.
Can this be done via the courts?
While I do not know the answer, I presume one's court entitlements are not affected. I will have to take advice on this point. When the PIAB issues its determinations and the claimant accepts it, it is closed. If something unknown were to arise later, I do not think it could be reopened. I will seek legal advice on what court rights claimants will have in such circumstances. I will examine whether claimants have forfeited all their court rights as a result of accepting an assessment from the PIAB.
We earlier dealt with the issue of the PIAB sending cases to court or giving one an authorisation to do so as it cannot deal with the case. However, I do not think this is the type of case Senator Mansergh is talking about. If the PIAB realises it is not a case it can deal with, perhaps for reasons of the medical consequences, the board will send the case to the courts. The Senator is talking about a different type of case. I do not know what currently happens—
One of the ironic benefits of the current system is that because it takes so long to get the case to court, it is unlikely anything will happen subsequently that will require a reapplication to court. However, I do not think this was intended. If the speed with which the PIAB deals with cases is such that some effects of the injury have not become apparent, the case Senator Mansergh makes is not unimportant.
Can a case be reopened if a claimant has settled a case but further injuries subsequently arise?
Most cases have full and final settlement. This is intended to be the end of the matter unless one has a settlement that allows for review. This is extremely unlikely as insurance companies would not agree to it. The court case is final in all cases unless it specifically states otherwise.
I am sure the same will apply here. I will inform the House of the Attorney General's advice on what one's constitutional rights might be on something that emerges after one agrees to a settlement. While I would imagine this could not be reopened through the courts, I will confirm it.
Amendment, by leave, withdrawn.
Amendments Nos. 30 and 31 not moved.
Section 49 agreed to.
SECTION 50.
Question proposed: "That section 50 stand part of the Bill."
Is the Minister aware whether her colleague, the Minister for Justice, Equality and Law Reform, intends to shorten the period provided for in the Statute of Limitations? The heads of the Courts (Amendment) Bill were published during the summer and it indicated that the intention was to shorten the period. Is this still the case?
Yes.
Question put and agreed to.
Sections 51 and 52 agreed to.
SECTION 53.
I move amendment No. 32:
In page 30, subsection (1), line 29, after "as" to insert "Bord Measúnaithe Díobhálacha Pearsanta or in the English language".
While I confess that I did not draft this, it is our best effort to translate "Personal Injuries Assessment Board" into the first national language. We came up with "Bord Measúnaithe Díobhálacha Pearsanta" and I challenge the Tánaiste's officials to come up with better.
I do not dispute the translation and I am sure it is correct. Obviously, we will have to comply with the Official Languages Act. The board is generally known as the Personal Injuries Assessment Board and that is the way it should be.
Does the Minister for Community, Rural and Gaeltacht Affairs intend to provide that the Official Languages Act applies to this area? Will it be incumbent on the board to have staff available that can deal with people using the Irish language?
I think the answer is "Yes".
Amendment, by leave, withdrawn.
Section 53 agreed to.
SECTION 54.
Question proposed: "That section 54 stand part of the Bill."
I invite the Minister to make some comments on the preparation of the book of quantum. This is the only reference in the Bill to the book of quantum and it does not spell out in any great detail what it does. It only states that it will contain general guidelines as to the amount that may be awarded. The impression is sometimes created that these are relatively simple things and in certain cases that is the position. Particular types of disabling injuries can matter more to some people than to others. For example, if my right hand were disabled I would have a serious problem because I can do very little with my left hand. Others may have a different view or be more ambidextrous. A particular injury could be much more serious for a person who does one job rather than another. Someone who requires to be dextrous and active and does physical work may be substantially more disadvantaged by a particular injury than someone who has a desk job. Does the Tánaiste foresee that the book of quantum will deal with issues of that sort?
The interim board is now in the process of getting tenders for the preparation of a detailed book of quantum from specialists in this field, taking into account the tradition in Ireland and elsewhere regarding compensation for different injuries. We will have to leave it in the hands of the board to come up with the book of quantum, which will be broadly based and will take into account detailed research in Europe into damages arising from various injuries.
The book of quantum is a guide, it is not a bible. The impact of an injury on someone's capacity to carry out his professional work would have to be borne in mind. I understand that much information has been made available by the courts service. Tenders will shortly issue for someone to compile the book of quantum and IT systems and so on are being developed for that. The book of quantum will simply be a guide. One must take into account the different circumstances in different cases, as would a court.
Among the public who have heard about the Tánaiste's proposals in this regard, a view is setting in that there will be set awards for most injuries. I am sure things will not be as simple as that. A simplistic way of considering the book of quantum would be to look at recent court awards and to calculate an average of typical awards for a broken arm or back injury, for example, taking account of individual circumstances. Notwithstanding the fact that a percentage of each award relates to legal costs – that is a debate in itself – does the Tánaiste consider that present levels of awards are generally fair, compared with awards in Britain and Europe?
Is Senator Bradford asking if I think people get too much? In genuine cases I do not think that is so. When I attended a meeting of the Joint Committee on Enterprise and Small Business a couple of months ago almost every person at the meeting, from all parties, felt we should cap awards. I was surprised, but the view of the joint committee was that awards were excessive.
The purpose of this Bill is not to reduce awards but to pay what someone is entitled to, or might normally expect to get through the courts process, in a different way. One of the difficulties that arose in the past – I speak from my political experience as opposed to my ministerial experience – was the huge inconsistency in court awards. I understand there is greater clarity and consistency now than there might have been in the past. I have heard various accounts of judge A awarding Y amount and judge B awarding Y plus 10% or 50%. Of course, every case is different but if there are discrepancies based on the personality of the presiding judge rather than on the merits of the case it can cause difficulty and confusion from time to time.
The legislation is not about capping awards. It is about delivering compensation in line with what could be expected in the courts. The issue of capping awards will be for another day and another forum. I understand that some Members of the House would wish us to go down that road. That would require a very different process. It is not one I have given any thought to or necessarily support.
Question put and agreed to.
Section 55 agreed to.
SECTION 56.
An Leas-Chathaoirleach
Amendments Nos. 33, 36 and 37 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 33:
In page 31, subsection (1), line 43, to delete "and the chief executive".
The amendment proposes that the chief executive, while he or she should be entitled to attend a board meeting, would not be a voting member of the board. This issue has arisen with other State boards. It is a normal provision that the board directs and the chief executive is an employee who acts on the direction of the board. While he or she must attend meetings to know what the board wants, there should be a separation of powers between the two. The chief executive should not be a member of the board.
In most public companies and charitable organisations the chief executive, while subject to the board, is also a voting member. The chief executive has, presumably, by far the greatest knowledge of any person on the board and should have a right to participate in decision making and in the instructions the chief executive is given to carry out. I do not agree with the amendment.
For the board to work the chief executive must have an important role and be a member of the board. It is reasonable that someone of that calibre should be a member of the board. It lessens the chief executive's effectiveness in dealing with the board if he or she is not a full member of it.
I compliment our colleague, Senator O'Toole, who is a member of the interim board. I note the Bill does not include a provision to exclude Oireachtas Members or local authority members from membership of the board, which is unusual. Other Bills have excluded Members of the Oireachtas and local authority members from the boards of statutory bodies. If such people are suitably qualified and are nominated there is no reason why they should not be there. Members of this House, for example, who have the relevant experience would be most suitable for membership of the PIAB. I compliment the Tánaiste on not excluding her Oireachtas colleagues from membership of the board.
I agree with Senator Mansergh. It is now the custom and practice in both public and private bodies for the chief executive officer to be part of the board. It is good from the point of view of corporate governance and the smooth running of an organisation that the chief executive officer is given equality of treatment with other board members. A chief executive officer is placed in a difficult position if he or she must attend board meetings merely on the basis of informing the board of what might be happening in the organisation. From every perspective it is a good thing for the chief executive officer to be an equal member with others. He or she will, after all, be charged with running the organisation on a day to day basis.
Arguments could be made for and against that practice. Some feel good corporate governance requires that the chief executive officer is not a full member of the board. However, I think it works well if he or she is a full member. To the best of my knowledge, in all the organisations under the remit of my Department the chief executive officer is a full member of the board. I think it works well and is good practice. In the past, the role of chief executive officer and chairman were sometimes performed by the same person or the chairman's position was an executive function, which is not good practice. It is correct procedure to have an independent chairman and a separate chief executive officer.
The Tánaiste correctly anticipated the point I was about to make. I had in mind a particular State board whose chairman was also its chief executive officer. It is now generally accepted that this practice should be avoided on State boards. In a sense, we are seeking to go a step further by ensuring the chief executive officer could not be a voting member of the board and would be permitted to attend ex officio only. While it is clear the Tánaiste does not intend to accept the amendment, the proposal deserves further consideration not only in the context of the Bill, but of State boards generally. If it is not good for the chief executive officer to be a chairman, he or she should not have a vote in the first place. I will withdraw the amendment.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments Nos. 34 and 35 are related and may be discussed together by agreement.
I move amendment No. 34:
In page 32, subsection (5), between lines 9 to 10, to insert the following new paragraph:
"(a) 1 shall be appointed jointly by the Law Society of Ireland and the Bar Council,”.
I give way to Senator Bradford.
Senator McDowell's amendment is slightly more inclusive than amendment No. 35 in the name of Senator Coghlan. I am suspicious as to the reason Senator McDowell is passing the buck. Unfortunately, I was not present for the debate on Second Stage when many of the speakers stated that the purpose of the Bill was not to bash the legal profession. The small minority of legal practitioners, whom Senators have at times blamed for contributing to the high cost of claims, does not reflect the full picture in terms of the legal family.
When establishing a board to make decisions which, I admit, relate simply to claims where liability has been conceded, we should nevertheless have room for people who can bring legal expertise to the work of the assessment panel as questions requiring legal input or interpretation will arise from time to time. In appointing representatives from a broad spectrum of fields, it would be inappropriate to exclude representation from the legal field. The amendment tabled by Senator Coghlan calling for representation on the board from the Law Society, as well as the addendum by Senator McDowell as regards the Bar Council, is worthy of the Tánaiste's consideration.
My reluctance to speak to the amendment arose from a certain diffidence in proposing that an organisation of which I am a member should be represented on the board. Nevertheless, the case in favour of doing so stands up. Irrespective of whether we like it, members of the Law Society and the Bar Council have significant experience of the type of business which will be dealt with by the new board. In addition, their perspective, namely, the rights of claimants, would not necessarily be shared by everybody else on the board. It is correct and reasonable, therefore, to expect that perspective to be reflected on the board.
As I stated on Second Stage, the impression being created is that the assessment board is a creation of the insurance industry and that its function is basically to carry out insurance assessments under a different guise with State imprimatur. The fact the legislation is being dealt with by the Department of Enterprise, Trade and Employment lends to this impression and it is important that it be corrected. One way of doing this would be to ensure the legal bodies are represented on the board. I commend my amendment and the Fine Gael Party amendment to the House.
I would be surprised if the Bar Council or Law Society wanted to have a representative on the board, given the level of opposition they have mounted to the legislation among Oireachtas Members. Both organisations put a strong case against the board being established. I do not know whether the Senator wants Conor Maguire of the Bar Council to be appointed to the board. In that case, who would represent the Law Society? I understand lawyers and barristers will be appointed to the board in any case but that they will not represent the associations of the legal professions directly. The difference is that representatives of the profession would take instructions from their respective organisations on the management of the board. It is important the PIAB is independent and seen to be independent. While it might appease the Law Society and Bar Council to appoint their nominees to the board, I do not believe the Tánaiste is inclined to do so.
I remind Senator McDowell that I am also the Minister with responsibility for consumer affairs. The PIAB will serve consumers, insurers, employers and employees, rather than barristers and solicitors. Professor Denis Cusack, a member of the board, is both a barrister and a doctor, while Frances Cooke, another member of the board, is a member of the Law Society who works as a lawyer with the Revenue Commissioners. These two members of the board have been appointed because of their professional expertise on an independent basis, rather than as representatives of either the Bar Council or Law Society.
I do not know whether I should read anything into the proposal by Senator McDowell to appoint a representative to represent the Law Society and the Bar Council.
He is being futuristic.
I am agnostic on that matter.
I would love to see how the person would be selected. I will not accept the amendment because the board has not been established to have representatives of either branch of the legal profession. The PIAB will have in-house legal expertise and its board will have legal expertise. If Senator Henry was here – I hope I am not misrepresenting her – she could argue that the Irish Medical Organisation or the Irish Nurses Organisation should be represented on the board, while engineers could argue they should be represented on the board.
The Irish Insurance Federation is represented on the board. The Tánaiste has no problem with having the Irish Insurance Federation represented on the board ex officio. It is specifically mentioned in the legislation.
We are dealing with insurance as opposed to legal issues.
Insurers are on one side of the equation. Claimants are the other side.
We have several people on the board representing the Irish Congress of Trade Unions and employers.
These matters have traditionally been pursued by lawyers as people who seek to uphold the rights of their clients. As a result, they have a fair degree of expertise in dealing with these kinds of claims and, as such, it is not unreasonable to reflect this on the board.
Lawyers have been appointed to the board, not in a representative capacity but as individuals who form part of an overall team. They have not been appointed to represent a particular branch of the profession as this would not be desirable.
I would be more open to the Tánaiste's argument if the Irish Insurance Federation was not represented on the board.
I will not accept the amendment and I do not believe Senator McDowell expected me to do so.
Amendment, by leave, withdrawn.
Amendments Nos. 35 and 36 not moved.
Sections 56 to 64, inclusive, agreed to.
SECTION 65.
Amendment No. 37 not moved.
Question proposed: "That section 65 stand part of the Bill."
As the Leas-Chathaoirleach correctly pointed out, we have discussed amendment No. 37 already. I do not wish to delay the House but ask for his indulgence since I did not argue in favour of the amendment earlier in the debate. The reason for the amendment was to remove the gagging order. It is fairly routine when setting up a State board that its members or, at least, its chairperson is obliged to uphold Government policy when appearing before a committee of the Oireachtas or elsewhere. In this case, there is no cogent reason this obligation should apply as the board is not carrying out Government policy in any serious sense. It is, therefore, unreasonable to impose the traditional gag in these circumstances.
This obligation is fair in that it offers protection for the chief executive officer from being drawn into commenting on the policy of the Government on a day to day basis. He or she is there to account for the running of the organisation.
It is possible the chief executive officer would appear before a committee dealing with the Tánaiste's Department and it is likely that he or she would be asked to comment—
This relates to the Committee of Public Accounts. It relates to accountability for the organisation.
Does it apply to all committees of the Oireachtas?
No.
It states "by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine .".
The provision refers to the Committee of Public Accounts.
It is not clear but perhaps that is what is intended.
Subsection (1)(a) refers to “. audit by the Comptroller and Auditor General that the Board is required by this Act to prepare,”. He or she comes before the committee in connection with that aspect.
My argument would be more cogent in the context of the enterprise and employment committee. Nevertheless, even in the context of the Committee of Public Accounts, the type of question that is likely to be asked would be about the nature of claims, the type of claims being processed and whether, for example, it would be reasonable to ask the chairperson of the board if the aims of the board had been met.
This is the chief executive officer, not the chairperson. There is no limitation on the chairperson. The chairperson has been talking openly and freely. She is not the type of person one could gag even if one wanted to.
She is not demure.
No.
As a general rule, more flexibility should be given to people on State boards to be open, even at the risk of criticising Government policy. We should be slow to go the usual route of imposing gagging orders, which is what we do routinely. I tabled this amendment with that in mind. This is a good example of a board that is not implementing Government policy. It is not like CIE. It would not have been asking too much to give the chief executive officer the authority to respond to whatever questions they wish to answer.
The provision states that "the chief executive shall not question or express an opinion on the merits of any policy.". It is not like when one criticises the editor of The Irish Times that one might be sacked. It does not provide that the Minister will sack—
That is all settled. He is back.
Excellent. I hope I played a role in that. I thank the Leader for that information.
The Senator raised the matter in the Seanad.
I raised it on the Order of Business. He is a fellow Roscommon man, from Castlerea. I am delighted that before Christmas the "Old Lady of D'Olier Street", and I am not referring to the editor, has a heart and is not like Scrooge.
This section does not provide that the Government will actually dismiss the chief executive officer.
The Senator's work for his constituents knows no bounds.
He wrote Jiving at the Crossroads for myself and former Deputy, Seán Doherty. We are mentioned in it, fairly or unfairly.
The provision does not provide that the Government would dismiss the chief executive officer if he or she made a comment at a meeting of the Committee of Public Accounts. The chairperson, Dorothea Dowling, will not be gagged by anybody. She is most effective in her work and I wish her every success. We want her to be forthright and open. I am delighted she is on our side of this argument as far as the PIAB is concerned.
I, too, am pleased with the news we have just heard. A clause such as this is a rather blunt instrument. One does not want a chief executive opposing or undermining Government policy in a systematic fashion. On the other hand, there should be a degree of freedom, given the development of an ethos of constructive contribution to the development and evolution of policy in various areas. It may be the case, in certain circumstances, that something has to be said which would be a measured, implied criticism of some aspect of Government policy. In practice a good deal of this probably happens already.
The provision smacks just a little of the ethos of a more authoritarian age of government which we have largely left behind. I urge the Tánaiste to look at the possible rewording of such clauses. I accept that one does not want conflict between chief executives and Government but this provision, at least in form, is a blanket ban on expressing anything. A chief executive could make a positive and constructive contribution, from everybody's point of view, to the development of policy and public debate on an issue. In practice, they often do. I am not entirely happy with this type of clause being standard in legislation. Perhaps it could be looked at again and, while providing adequate protections, formulated to be a little more nuanced in its expression.
The Members have made reasonable points. It appears to be a standard provision in legislation such as this and I might look at it again before the Bill is passed.
Question put and agreed to.
Section 66 agreed to.
SECTION 67.
Question proposed: "That section 67 stand part of the Bill."
Are the staff of the board civil servants?
They are public servants.
Question put and agreed to.
Sections 68 to 80, inclusive, agreed to.
SECTION 81.
Question proposed: "That section 81 stand part of the Bill."
There is a reference to offences in the section. I did not see any offences in the Bill. To what offences does the section relate?
It relates to the non-disclosure provisions. Under those provisions a member of the board or of the staff of the organisation cannot reveal, for example, medical records or other data to individuals other than those prescribed. Sections 71 and 73 cover the offences. Penalties are mentioned in sections 71 and 72. They relate to confidentiality and disclosing information.
The fines are quite low.
Something has not been clarified and it is most important that it is clarified. Senator Scanlan brought it to my attention.
An Leas-Chathaoirleach
In what section?
Section 70, but it is important that it is clarified. I stated in the House that Senator O'Toole is a member of the interim board. I said there were no exclusion clauses and the Tánaiste did not disagree. However, there is an exclusion clause. I do not see why staff should be excluded when they become members of a local authority.
That is a standard provision in legislation.
Question put and agreed to.
Section 82 agreed to.
Title agreed to.
Bill reported without amendment.
An Leas-Chathaoirleach
When is it proposed to take Report Stage?
Tomorrow at 2 p.m.
As the Tánaiste may not be here tomorrow for Report Stage, I thank her for her time and attention and for bringing the Bill before the House. I wish the Bill well. I thank the Cathaoirleach and the Tánaiste in particular for the tremendous personal attention she has paid to this important legislation. It will be important to have it implemented and, if she goes to fresh pastures, it will be one of her big successes.
With perhaps one or two exceptions, I do not intend to table on Report Stage all the amendments we dealt with today. It appears entirely pointless to repeat the argument tomorrow. The Tánaiste suggested she will consider some of the points we raised. I am sure she will do so during the debate in the Lower House, therefore, I do not intend to raise the issues tomorrow afternoon.
I will certainly give much thought to some of the issues raised, particularly the issue of the chief executive. It is difficult to defend some of the issues one ends up defending. We will omit that aspect unless there is some legal implication involved. I presume it is a policy issue, therefore, I do not understand why a board which will be financed by non-public funding should have such a stringent requirement. There are aspects relating to medical registration, including other matters, on which clarification is required. I anticipate the Bill will come back to this House after the other House has dealt with Second Stage, Committee Stage and Report Stage.
I thank Members of the Seanad for their agreement to take the Bill so speedily. I am in Leinster House 26 years and I do not recall the Seanad ever meeting on Monday. Certainly, the Dáil never met on a Monday.
That is benchmarking.
The huge numbers of Senators who attended here today has been fantastic. I thank in particular the Leader of the House and I apologise to her for the rush involved. She went out of her way to facilitate the taking of the legislation last week and again today. I am deeply indebted to her and to all the other Members who put so much time and effort into preparing their contributions. It is a good Bill which has broad support. There are issues around legal representation and so on, but apart from that the Bill has broad support from all parties in the Oireachtas. The legislation is just a small aspect of this matter. The credibility and effectiveness of the board will determine its success or failure. There is a group of very determined people on the board, including a Member of this House, Senator O'Toole. These people will be driven by an outstanding chairperson, Ms Dorothea Dowling, who will make sure the legislation works effectively to drive down the cost of insurance and deliver claims to genuine claimants.
I will not be present tomorrow because I must travel to Brussels in the afternoon. The Minister of State, Deputy Michael Ahern, will be here to take Report and Final Stages.
Report Stage ordered for Tuesday, 25 November 2003.
An Leas-Chathaoirleach
When is it proposed to sit again?
At 2 p.m. on Tuesday, 25 November 2003.