Before we commence I remind the House that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. Each amendment must be seconded on Report Stage. Amendments Nos. 1 and 5 are related and will be taken together by agreement.
Personal Injuries Assessment Board Bill 2003: Report and Final Stages.
I move amendment No. 1:
In page 10, line 44, after "advice" to insert "and legal representation".
I welcome the Minister of State, Deputy Michael Ahern, to the House. I gather the Tánaiste was not prepared to accept my amendment yesterday which was moved by Senator Phelan in my absence. She argued that as the PIAB will not be dealing with legal issues, there will be no need for claimants to have legal representation. She also argued that the PIAB will be a lawyer free zone and will deal directly with claimants.
Two issues arise from her reply. It is a fundamental tenet of our constitutional democracy that people are entitled to seek legal advice. Having access to legal advice is meaningless where somebody is effectively denied legal representation at their own request and expense. The Tánaiste's refusal to give way on this point will be a petard for the PIAB. It will give people the opportunity to claim that the forum and process are unbalanced and that the procedures are designed to minimise the rights of ordinary claimants. She is denying claimants the right of access to representation in circumstances where the respondents will have a full range of advisers available to them. This is not a level playing pitch. Not all members of the public have the same confidence in State institutions as people in business. If they seek to be legally represented, the State and its organs should recognise their right to do so.
It is nonsense to suggest that the PIAB will not be dealing with legal issues or otherwise be affected by the law. Will the PIAB be operating in some sort of legal lacuna where issues of law, which affect everybody, will not apply? Will the PIAB, for example, be determining issues of contributory negligence in reaching assessments? Will it decide who is the proper respondent when a claimant makes a claim? Will it not have to operate in accordance with the law, both in terms of its procedures and with regard to general issues of administrative law? Of course, the PIAB will deal with legal issues. It is nonsense to imply otherwise. The reason that representation should be provided for in the Bill is that it is central to the basic rights of citizens, particularly with regard to a procedure that they will not be entering voluntarily.
The Minister of State is a reasonable person and he will listen to the voice of reason, which I hope I am fairly representing. Given the Irish character and psyche, citizens will always seek advice, regardless of their comprehension of issues. Sometimes it might be political advice, other times advice from a trade unionist but more often than not it is legal advice from their family solicitor. This is a most important point and, on that basis, I propose this amendment.
I second the amendment.
My colleague, Senator Coghlan, is always fair minded in his approach and, as ever, he takes a clear line on this issue. However, there appears to be a misunderstanding. It is important that people understand what is taking place.
Much as I dislike opposing my colleague and fellow Kerry man, I cannot support his proposal. This is not due to anything he said but because the amendment reflects a lack of understanding of how the PIAB will operate. It is precisely for all the arguments made by Senator Coghlan that legal advice is referred to in section 7(1). Many members of the PIAB feel that we should not have dealt with this issue at all but, having listened to the Senator, I am glad this provision is included.
There is no place to be represented in the operation of the PIAB. It is inquisitorial, not adversarial. It works on the basis of paper. Its raison d'être is to see if we can deal with cases without dealing with lawyers. However, the objective is not to keep lawyers out of personal injury claims. Members of the PIAB recognise better than anyone, particularly in regard to fraudulent cases which have been discussed by Members on both sides on many occasions, that top class lawyers will be involved in dealing with such cases. What we are talking about are cases that will not be argued.
The PIAB has drawn up a draft guide on how it will work. One of the questions posed is what will happen after one makes a submission to the PIAB. This is crucial to Senator Coghlan's argument. It states that the PIAB will contact the insurance company, that is, the respondent, and find out if the case involves legal issues on which the court must decide. If the insurance company wants to argue legal issues, the PIAB will say, "It is over, here is a letter, we will have no more to do with it". Senator Coghlan should take this aspect on board. If any legal issue is raised, that is the end of the matter. The PIAB will write to the respondent stating that it is sorry but it cannot deal with the case. It must now go to court and follow the normal processes. In other words, there is no room for lawyers.
There is an implication in the amendment that a lawyer could make a case to the PIAB. No such hearings are provided for under the PIAB. It is more a case of mediation or a sudden arrangement on the steps of the court where people will deal with the issues and come to a conclusion. There is no place for lawyers. On the other hand, the legislation refers to the right of a person to seek legal advice. It might be that when one is making a case and filling in the form, one might feel more comfortable going down to one's local solicitor and asking what he or she would charge to fill in the form. There is nothing to stop one from doing so. However, the PIAB will write back not to the solicitor or lawyer, but to the person who is making the claim.
It is important that people understand this point. It is not a case of screwing the lawyers. A process is being proposed which will allow people to deal with the case in a way Members on all sides of the House hope will keep down costs. Costs can be kept down by ensuring that lawyers are not involved. In other words, a person who has an accident will contact the PIAB stating that he or she wants to make a claim. The PIAB will then ask that person to fill in a form giving information about the accident and the nature of the injuries.
Senator Coghlan will understand this aspect more than most people. He and I have discussed the issue on a number of occasions and we agree with 99% of what is in the legislation. There are no tricks here. If the form is not completed, the PIAB will contact the claimant stating that it was not provided with full information. I want people to be practical. If it is a fraudulent case or a case that will be argued, it is not the type of case with which the PIAB will deal. This is the crucial issue to be understood. When the case goes to the PIAB it will say, "These were the circumstances of the accident and this person broke a limb in three places". It will then contact the insurance company – assuming the respondent is insured – which will ask what is the PIAB's view on the claim.
The PIAB will then set about getting various assessments on the basis of medical evidence and so on. It will reply that it has looked at the claim, seen the circumstances and nature of the injuries and carried out an independent report. The PIAB can seek an independent report if there is not sufficient information. This is not reliant on any legal people. The PIAB will look at the claim and decide if it needs more medical information. If so, it will get an independent medical assessor who has no connection with insurance or anyone else to examine the person making the claim. It will send back a report stating that it has examined the person's claim, there was a serious accident, serious fractures were suffered and the person will have a limp or whatever.
It is important that people understand this. They will look at the levels of claim awarded for that kind of accident in the Irish courts in recent times and on that basis will say that a fair compensation for such an injury is X thousand euro. The next part then becomes important. Both the claimant and the insurance company, by which I mean the respondent, will say that the Personal Injuries Assessment Board assessment is that the person should get X thousand euro in compensation. If either of those two reject the assessment, the PIAB is out of it. If they do not accept the assessment within a certain period, the PIAB will issue a letter to the person making the claim to say the person or the insurance company would not accept it and the insurance company is raising issues of law, that it, the PIAB, is out of the case and one can take one's case to court, as happens in the current situation.
There is no way in which a legal person can get involved but a legal person could advise a claimant on filling in the form. There is no need for this as people will get help from the PIAB if required or they can do it themselves. It will not be complex. If everybody accepts there was a genuine accident that will attract compensation, this is a simpler way of dealing with it than waiting two to five years, as happens in the courts.
I welcome the Minister of State, Deputy Michael Ahern, to the House. The Tánaiste was here on previous occasions. I welcome also Dorothea Dowling, chairperson of the—
One should not refer to anyone in the Visitors Gallery. I have made that point on previous occasions.
We have the benefit also of the views of Senator O'Toole on this Bill. As a member of the interim board, he has a great knowledge of this issue. I suggest to the Minister of State, although he may not be in a position to accept the Fine Gael Party amendment. Senator Coghlan has put forward a reasoned point of view. I received a submission, as did most Members, from solicitors all over the country. I was particularly taken by a submission I received today from a former school friend, solicitor Terry O'Keeffe of Timothy J. O'Keeffe and Company, Roscommon. He put forward a reasoned view that where family solicitors are involved and acting for a family—
The Deputy should not refer to individuals—
I have to give the source of my quotation.
An individual should not be named unless in reference to a public document. Is it a public document?
It came through a central fax machine.
The Senator cannot refer to individuals.
It is very complimentary.
That does not make any difference.
It is clear from my friend's submission that he speaks for most solicitors. I had a discussion with him today in this regard. There should not be an exclusion clause if a person wishes a solicitor to make the case on his or her behalf. I accept Senator O'Toole's comment that it will not be a case of the solicitor going to the PIAB but rather a paper based system. I suggest that any person making a case to the PIAB should seek the advice of a solicitor.
It is up to themselves.
Yes, but there should not be an exclusion clause. Under the Constitution, I question this Bill because I do not think one can exclude a person from their profession. The Minister of State should discuss the matter with his officials and the Attorney General. This raises an important issue, that the right to earn one's living here is guarded in the Constitution. Why should a professional solicitor – acting for a family on every other issue, whether land registry, transfers or making a will – be excluded by this legislation from acting on behalf of a person who has suffered an injury? I do not see the logic of this. When I was a Minister of State, I accepted many Opposition amendments. When former Senator Kennedy – an excellent lawyer – was a Member, he tabled excellent amendments and I was delighted to accept them.
Irrespective of what Senator O'Toole or the members of the board might say, there is no reason why the family lawyer should be excluded from acting on one's behalf in making one's case, filling out the forms and dealing with communications from the board, particularly when no such exclusion applies to the insurance companies. All the insurance companies' claims will be dealt with by a solicitor or, more than likely, a barrister and not by a secretary or anybody else, yet the victim making the case is being excluded by the Bill from engaging his own family lawyer to deal with the issue.
No, he is not.
Yes, he is.
People are being encouraged to incriminate themselves in filling out the form—
Did the Senator say "incriminate themselves"?
The Senator is demonstrating a total lack of understanding. He should read the Bill.
I have read the Bill and heard all the Senator's submissions and I also have the report.
Senator Leyden, without interruption.
The completion of the relevant form might seem simple to Senator O'Toole but he should note that it is a very important document. Although I do not have a copy of it, I presume it will state when and how the accident occurred. Furthermore, medical reports will have to be submitted to the board. These will have to be submitted because the board cannot make up its mind on what happened and how and when it happened. The insurance companies will have their lawyers scrutinise the document and will of course state that they will settle the case because they have been advised to do so. They have the benefit of their top lawyers although the victim does not have a similar benefit under the Bill. Of course the victim may consult his lawyer separate to making the submission. The Tánaiste and Minister for Enterprise, Trade and Employment stated yesterday that a copy of the submission would be sent to the solicitors nominated by the victim but this is not provided for in the Bill. It will happen only because of the goodwill of the chairperson and members of the PIAB. They may not even send a copy to the solicitors.
Another point made by my school friend was that an insurance company might admit liability in the course of the discussions and submissions, but if agreement is not reached when discussing the settlement, it can deny liability and go to court. At this stage, however, the opportunity to find witnesses, prepare sketches and obtain engineers' reports will be lost. Who does this suit? It does not suit the victim because it will be more difficult for him to prove his case. I have acted on behalf of victims in the High Court regarding insurance claims and therefore realise it is very important to have one's facts prepared as quickly as possible after the event. If this is delayed for three or four months, the scene of the accident will have gone cold and it will be difficult to find witnesses and prove one's case. The insurance companies have the right to decide not to settle, as does the victim. Senator O'Toole might like to come back on this amendment but he is not able to do so.
He cannot come back on it. He can speak only once and Senator Leyden should know that.
That is what I said. As an Acting Chairman, I realise he cannot come back, but he would like to do so.
I am very supportive of the Personal Injuries Assessment Board Bill, as is the House. I predict that the aspect of the Bill under discussion will be amended in the other House because I know the reaction to it around the country. To make the Bill work, one needs the goodwill of the legal profession and the family lawyers. They will know the procedures and advise their clients to submit their claims to the board as quickly as possible. The board will deal with them. The family lawyers will be paid by their clients.
My advice to all solicitors when this Bill is enacted is to brief their people well on it and on the workings of the PIAB and to co-operate with the PIAB. There is little incentive to co-operate with the board when it is excluded from making a case on behalf of a solicitor's clients or submitting the facts and figures to the company. The amendment is very fair and Senator Coghlan argues well for it. I have no vested interest in the legal profession, either on my own account or that of family members, but we all have a right to make a living. If one excluded engineers and architects—
Was that in the letter?
I am going beyond what was in the letter. I would make it available but they have not gone that far. It is a very reasonable point of view. Bringing forward legislation that excludes a person from making a living is a strange idea. It is extraordinary when one thinks about it.
That is not very relevant.
It is very relevant to solicitors.
We are speaking about the Personal Injuries Assessment Board.
Indeed we are.
We are speaking about amendments Nos. 1 and 5.
Amendment No. 1 would insert "and legal representation" and the section would then read: "Nothing in this Act is to be read as affecting the right of any person to seek legal advice and legal representation in respect of his or her relevant claim and no rule should be made under section 46 that affects that right." That would be the result of the amendment if the Government accepted it. In the other House this will be argued very forcefully and will be accepted when the Minister for Enterprise, Trade and Employment discusses this with the Minister of State. It is very clear. We will see what the other House does and when the Minister of State returns here with this amendment I will say "I told you so." He might have to amend it in other ways – if there is a challenge to this Bill in the High Court he will amend it under duress. Speaking as one who has advocated and worked with this Bill I am making a reasoned argument for amending it now.
It is quite clear in this legislation that no payment will be made to the applicant or the insurance company for any legal advice or assistance given. The person making the claim must pay his or her own solicitor which is quite reasonable. No solicitor has objected to that. It is a normal client relationship with a legal firm. To conclude, and not to labour the point, as Fianna Fáil spokesman on enterprise and trade I cannot vote for the amendment because that would not be appropriate.
How can the Senator say that?
If that is not cynicism on legs I do not know what is.
We are a cohesive Government.
We are not going to waste the time of the House.
We are united in approach. We always have a right to debate things.
I do not see how the cohesiveness of the Government affects this amendment. The Senator has elaborated his point.
I am grateful for that. We have extensive time today to debate this issue. It is not very often we have such an opportunity to go into more detail. To put the record straight, in the greatest political party and national movement we have a right to disagree but when it comes to voting we always have to vote with the party, that is the procedure.
Vote one way and turn the other way.
That is nothing to do with the amendment.
I was just explaining why I will not be able to—
There is not much need for that explanation. The Senator has had fair latitude and there are other speakers offering and I want to be fair to them.
I accept that but I am just making the point that much as I would like to vote for this amendment I am not in a position to do so.
The Senator could abstain.
I appeal to the Minister of State who has been very helpful in many Bills brought through the House and has amended them many times, as has the Minister for Enterprise, Trade and Employment—
That has nothing to do with this amendment.
I thank the Cathaoirleach for giving me such latitude and I support Senator Coghlan's amendment in any way I can.
I support this Fine Gael amendment and I am glad that Senator Leyden supports the underlying principle of the amendment because the Labour Party raised a similar amendment yesterday. I was interested in Senator Leyden saying he expected the Dáil to amend the legislation. What does that say to the Senate about its legislative role?
If we are tabling amendments here we would like them to be considered and the amendments to be made here. I raised this issue yesterday on the Order of Business. Report Stage should have come a week after Committee Stage to allow the Minister, the Minister of State and their Department to consider the amendments and perhaps take them in the Senate rather than wait to take them in the Dáil.
The point about the right to legal representation has nothing to do with solicitors' rights to make a living. Employers and insurance companies make a living, and Senators make a very good living. That is not the issue we should be discussing. There are issues such as solicitors' costs, and competition. As a solicitor I agree that kind of issue should be addressed but that is not the point in terms of people's right to legal representation.
Senator O'Toole said this procedure will not be legal. That is ridiculous.
I never said that.
That is my understanding of what the Senator said.
Of course it is legal.
The Senator said it does not involve legal arguments when it comes before the board. Everything is legal just as everything has a legal dimension. This is supposedly an administrative procedure and there is administrative law. We are removing an area from the determination of the courts and putting it into the hands of the board. Of course it is a legal matter but it may be dealt with in a different way. I support the setting up of the board, which will be valuable. I do not agree that there will be no legal arguments. The Bill acknowledges that a person has a right to legal advice. Why would it do that if there are no legal matters with which it must deal? Determination of liability is not the only legal issue here because courts deal also with compensation.
Like Senator Leyden I hope the Minster and her Department look at putting amendments to the effect of this proposal, and yesterday's Labour Party proposal, when the Bill goes to the Dáil. Although it had some problems with the board the Law Society proposed amendments, and tried to be constructive in supporting amendments some of which I hope will be acknowledged. The Bar Council took a different view. The media has discussed this because there is an issue at stake. The individual going to the board is at a disadvantage in comparison to the other side but people have a right to a fair hearing. As Senator Leyden said, a case will be made and the claimant has a right to it being made as well as possible. The insurance companies and the employers have more access to expertise, legal advice and so on, and to drafting skill which the individual often lacks. That is important and we as Senators have a right to stand up for the individual.
I will be exercising the right to agree or disagree. I listened to the debate yesterday on similar amendments and I fully support the Government position. This Bill is not about solicitors having a right to earn a living. It is about bringing down insurance costs and the costs to the citizen and the consumer. The assumption behind this amendment is that the citizen or the consumer is always at a loss unless totally encumbered with legal help. The very opposite is often the case. I have great respect for the legal profession but we are not in this House simply to act blatantly for a particular vested interest. I have been inundated with letters from solicitors about these points and I have considered the matters carefully. The reason I attended this debate yesterday was to listen to the responses to the points made. I am satisfied with what has been said. One is dealing with the nature of medical injuries. What one needs is a doctor's report and the book of quantum. Obviously, in deciding whether to accept it, one may want to take legal advice and assess one's chances, but with due respect to the solicitors in the House, we have far too many cases in which the solicitors involved sometimes take quite shocking amounts in costs, sometimes as much as 40%, 60%, 80% or even 100% of the money awarded.
This legislation gives the citizen or consumer a rare enough chance to pursue a claim and secure the money due without having to pay large amounts of money to lawyers. We should resist attempts to insinuate the legal profession back into something which has been closeted, so to speak, as something which does not involve legal issues.
I urge the Government to stick to its position, which I support. Half the radicalism of the reform will be lost if we allow lawyers to take over the process again.
I am not here to act or speak for any vested interests in the House but to speak in the interests of fair play for any citizen who goes before a State board. I speak as a trade unionist, and in going before many boards, people are represented by their trade unions. Whether we like it or not, many people freeze and are in terror when going before a board of any sort. I am worried about these people getting fair play and representation
They do not go before a board.
I would like to speak without interruption. I will give my tuppence-ha'penny worth, and others can then speak if they wish.
Medical reports were alluded to earlier. When medical reports are presented to the board, in many or in at least some cases these reports by so-called experts do not adequately reflect the injuries or allow for the possible recurrence of symptoms. In many cases, solicitors ask questions about perceived inadequacies in medical reports. The guy or girl who freezes when asked questions in front of a board will not be able to ask questions about medical matters. There should be some representation for such people. Many people will be able to express themselves adequately but others will not.
There are no oral hearings.
I agree with what Senator Leyden said. He is fully in support of the amendment, which is not an unreasonable one. I hope that support will spread across the floor of the House.
Like Senator Mansergh, I sat in the House yesterday and listened to the discussion on the Second Stage of the Bill. My understanding is that if I suffer an accident, I notify the PIAB and inform it of whom I making a claim against. I then have to support my application with medical evidence, and if I want to go to a solicitor to help me complete the application form, I have that right. The only difference is that I, rather than the insurance company, pay the solicitor. It is my understanding that I can choose to go to a solicitor or not. That opportunity and that right is there for me. It is not intended that I would appear before the PIAB.
There is nowhere to appear.
There is no hearing and there are no questions.
There is therefore no point in employing a solicitor or having legal representation because the only representation the solicitor can make is the application form sent to the PIAB. That is my understanding.
Earlier on, the Cathaoirleach told Senator Leyden that Senator O'Toole could not reply to a point he made. While I do not often act as a mouthpiece for Senator O'Toole and will not attempt to do so now, I think what Senator O'Toole would have said to Senator Leyden would have been what we have just heard stated now on Senator Leyden's side of the House.
There is absolutely nothing to stop a claimant consulting a solicitor. Senator Leyden said the legislation would exclude the family lawyer. There is nothing in this Bill to exclude the family lawyer, who can certainly help in completing the application form. Senator Cummins spoke about people going before the board and feeling uneasy because of lack of capability or experience. People will not go before the board. This is a paper-based system. There is nothing to stop a lawyer helping someone to prepare a letter of application.
One of the main objectives of this legislation is to reduce the astronomically high insurance costs for consumers and businesses. Those insurance costs are added to by perhaps 40%, or according to Senator Mansergh, by as much as 100%, in terms of costs additional to the awards. The Tánaiste yesterday gave us the figure of 70% of cases in Ireland requiring barristers, compared to a figure of 4% in Britain.
I am hugely supportive of the objective of this Bill and I am happy to consider any amendments intended to improve it, but the amendment before us will not do so. If one brings lawyers into this, another layer is added to the structure and costs are increased. With lawyers involved, before one knows where one is costs will rise not merely by 40% but by a lot more.
Senator Leyden spoke of the right of lawyers to make a living. I have some difficulty in this area. When I look at the comparison between this country and Britain, the query arises as to the difference in costs, which are very clearly identified as legal costs. The legislation attempts to reduce those legal costs when there is no dispute. If there is a dispute, then one of the two sides will not accept the PIAB estimation and goes back to the initial position. Ensuring that those potentially heavy costs are excluded depends on not involving those costs that are already there in the first place. The Government would be very reluctant to consider amendments which would go against the objective of the legislation, namely to dramatically reduce costs. That objective will be achieved if we leave the Bill as it stands. Any tinkering with that objective would greatly damage the Bill.
Senator Leyden is usually a model of clarity but I was totally confused after he spoke because I cannot find anything in the Bill that says a person cannot consult the family solicitor. Many people will seek advice when filling in the form.
I was concerned by Senator Cummins's remarks about the anxiety of those who appear before the board. No one is appearing before any board, an advantage I pointed out on Second Stage. I find going to the courts as an expert witness nerve-racking, never mind being the plaintiff, and it is a great advantage that people do not have to undergo formal questioning about medical evidence before the board.
Not only the lawyers will be deprived of a living, the medical experts will be as well because not all the costs go to lawyers. The medical experts get quite an amount and we must have some sympathy for them because they will not get as much as they used to.
The purpose of this amendment is to state that nothing in the Act is to be read as affecting the right of any person to seek "legal advice and legal representation" in respect of a claim. The amendment seeks to add "legal representation" and we reject that because the PIAB would then be required to communicate directly with solicitors. The board will always communicate with the claimant so he or she is continually up to date with progress on a claim. If the claimant so requests, the PIAB will copy the correspondence to a solicitor but the board will not determine legal issues. Liability matters will be set aside and the PIAB will assess quantum only. It will not be an adversarial process and the board will make special provision for minors and those of unsound mind. It will also make provision for vulnerable claimants.
On Senator Leyden's reference to constitutionality, extensive discussions have been held with the Attorney General's Office and, as a result, the section was inserted stating that nothing affects the claimant's right to legal advice. The ethos of the PIAB is that a claimant gets what he or she is entitled to, no more or less. Insurance costs are too high and that is partly due to excessive litigation costs which, compared to Britain and other areas, are astronomical. The PIAB will deal with issues of quantum and the amount of damages to be paid in respect of injuries. That will be based on medical and not legal grounds. If parties are not happy, they are free to go to the courts.
No one will appear before any board and there will be no oral hearings. If a medical report is incomplete, the claimant will be asked to attend an independent medical examination. There is no need for legal representation at a medical examination and the medical people will still be able to make a few bob on the side.
People will be able to get legal advice if they so wish but it will not be paid for by the board. If they are not happy with the decisions of the board, they are free to pursue it in another forum.
I accept some of the arguments but there is a fundamental imbalance. Legal advice can be sought, but it is a fundamental tenet of our democracy that a person is entitled to legal representation. We accept the thrust of the Bill, but we must press this issue.
Bradford, Paul.Browne, Fergal.Coghlan, Paul.Coonan, Noel.Cummins, Maurice.Finucane, Michael.
Hayes, Brian.Higgins, Jim.Phelan, John.Terry, Sheila.Tuffy, Joanna.
Bohan, Eddie.Brady, Cyprian.Brennan, Michael.Callanan, Peter.Daly, Brendan.Dooley, Timmy.Feeney, Geraldine.Fitzgerald, Liam.Glynn, Camillus.Hanafin, John.Henry, Mary.Kenneally, Brendan.Kett, Tony.Kitt, Michael P.Leyden, Terry.
MacSharry, Marc.Mansergh, Martin.Mooney, Paschal C.Morrissey, Tom.Moylan, Pat.Norris, David.O'Brien, Francis.Ó Murchú, Labhrás.O'Rourke, Mary.O'Toole, Joe.Ormonde, Ann.Phelan, Kieran.Quinn, Feargal.Scanlon, Eamon.Walsh, Kate.White, Mary M.
I move amendment No. 2:
In page 12, between lines 6 and 7, to insert the following:
"(4) In subsection (3) ‘medical practitioner' means a registered medical practitioner as defined by section 5 of the Medical Practitioners Act 1978.".
I tabled this amendment to the interpretation section on Committee Stage because a medical practitioner is usually described in a Bill. I do not know if it is an innovation not to describe it. It was explained to me by the Minister that she could not accept the amendment because section 24, where the term "medical practitioner" is also used, refers to the possibility of sending patients outside the country for a medical examination. Section 24(4) states: "For the avoidance of doubt the medical examinations which the Board may arrange to be carried out under this section include a medical examination to be carried out in a place outside the State." I hope that happens only in exceptional cases because I hope we have enough expertise in this country. Otherwise, the Bill will be extraordinarily complicated when it is enacted.
I do not want to corner the market for doctors by saying that only people with medical qualifications can give these medical reports. However, it will be the only report in the paperwork which will be available to those giving the assessment. As the Minister of State said when replying to the previous amendment, these assessments will be based on medical, not legal, issues. It is important that we are clear about what we mean as regards this report.
Doctors generally find their work tedious. Before the debate, I took the opportunity to meet Ms Dorothea Dowling, which was organised by Senator O'Toole. From my conversation with her about the medical reports, I understood they would be done by the patient's general practitioner. I am concerned about that because there could be a conflict of interest. While the general practitioner is like a family friend, in the same way as the family lawyer about whom we spoke recently, we have been warned by the Medical Council – I am glad Senator Feeney is in the House because she could give us advice in that regard – that in medical legal reports we should not act as an advocate for the patient. However, if a medical practitioner is the general family doctor, it could be awkward if the report does not seem to be extremely helpful to the patient. It will take little time for the patient to realise that the assessment hangs on the report, which is what I heard today.
Doctors' secretaries will be grateful if medical practitioners, as we generally consider them, do not have to do such reports because they usually have to chase us to do them. This would be an innovation. Perhaps there is other legislation under which one can get reports by chiropractors, acupuncturists, physical therapists, reflexologists or podiatrists. Those people could say they are involved in the treatment of the patient. One probably would be better to go to a chiropodist or a podiatrist with one's feet than to anyone else. I do not want to see these patients disadvantaged by the status given to their reports when they go before the assessment board.
It is important to remember that we have been looking for statutory recognition for such paramedical specialists for 20 years. Unless we have that – apart from the Incorporated Society of Physiotherapists – it will be difficult to know what standards people have attained in training and examinations. A patient will not know it. He or she may feel that someone from America, for example, who has given them good treatment for their back and who is well qualified as a chiropractor would be the best person to give the report. On the other hand, there are people with only paper qualifications who have not done any training or examinations and have little expertise. It would be wrong if such people were in a position to give reports and if patients then found out they would not be given the same status as those given by a doctor.
I do not know if the Minister of State has seen reports by people such as chiropractors, acupuncturists or reflexologists, but the language is totally different. I realise the board does not have any members with medical or nursing expertise unless some trade union members from such a discipline are appointed. The committees will have expertise. Is it proposed to include people from the disciplines I mentioned on these committees? It could become cumbersome if committees must include specialists in the areas I mentioned. I would be grateful if the Minister of State could explain that when he tells us what he thinks about it.
There is not any question that doctors want to corner the market. This seems to be a major change in the type of medical reports for personal injuries which usually come before the courts.
I second the amendment. Senator Henry explained the reason for the amendment. The objective of the Bill is to reduce the astronomically high cost of insurance and to ensure it is done legally and in a way which is acceptable to both sides. The PIAB probably will only accept the reports it regards as coming from legitimate sources. The danger is that the claimant may believe that he or she has a report which was produced by a legitimate source, as Senator Henry said. However, the board may not regard it as that because the quack may not be recognised as legitimate by the board. That could cause delays because the board would have to write to the claimant to tell him or her that it cannot accept the report and that he or she must get one from a legitimate medical practitioner. That will add to the cost and to the confusion of the claimant.
It would be useful to find some acceptable words. I understand there may be some difficulty with the words Senator Henry proposed in that they may not cover all the areas required. I know the Attorney General probably has been consulted on this matter. The purpose of the amendment is worthy. We should find a way to accept either this amendment or a similar amendment which could reach the standard we hope to achieve.
Like Senator Quinn, I also see merit in Senator Henry's amendment, which I support. The Medical Council believes it would be unacceptable for anyone other than a medically trained person to issue a medical report. That is not being done to get jobs for doctors, but in the interest of the public to ensure safe practice and to maintain high standards. Senator Henry has been led to believe we may have to accept reports from chiropractors, physical therapists and acupuncturists, which worries me. For the reasons she outlined, we have no knowledge of their training or the standards they maintain. Importantly, the public does not know there is no regulatory body governing practitioners such as these and people do not realise there is no comeback for them when things go drastically wrong, as they do in some cases. The patient is the last to know these people are unregulated.
I understand what Senator Henry is trying to achieve in this amendment. However, I heard what the Tánaiste said about this in the House yesterday and I believe there is goodwill and she will try to do something about it. I do not know whether I am out of order in saying this but it would be useful to include this in the list of amendments to be dealt with in the other House so we can have a provision to cover this jurisdiction, the EU and countries outside the EU. There are regulatory bodies comparable to the Medical Council in every other country. I cannot see this posing a problem in most cases, but for the one or two cases that might come from outside the country it would be as well to have this provision bedded down. I support my colleagues, Senators Henry and Quinn, in the amendment.
There is quite a degree of consensus on the amendment and I hope this will be sufficient to persuade the relevant people to consider it. Apart from anything else, this is a question of qualifications. Like many other people, I have received e-mails in the last week or two offering me PhDs in various subjects if I send on my credit card number. One group has awarded me the American Medal of Honor, for which I must pay only €259. There is a financial interest in giving people spurious qualifications. It is important that we have some kind of quality control. Under what circumstances is it envisaged that somebody will be sent abroad for a report? Is it a real possibility? Is there a dearth of expertise in this country which can only be solved by using practitioners from another country? That is something we should consider. Has there previously been any such practice under analogous legislation? If there has been, I am not aware of it.
Senator Henry has made a very strong prima facie case, if not for the precise wording of her amendment then for the spirit of it. I urge the Minister to consider it.
All the points made by Senator Henry and the other speakers are fundamental and important. I am sure the Minister wants to provide that protection in law. I fully support the amendment.
The purpose of this amendment is to ensure that any medical practitioner who provides a medical report in respect of a claim is registered under the Medical Practitioners Act 1978. We need to consult with the Chief Parliamentary Counsel on this matter. With regard to Senator Norris's point about receiving reports from abroad, if a foreign national on holidays here is treated at home, for example in Germany, would this amendment mean the PIAB could not accept a report from that person's doctor in Germany? We need legal advice on this also.
There is an independent medical panel and all its members are registered. Professor Denis Cusack, a medical expert, is on the board. If a medical report from a claimant is incomplete the assessors may refer the claimant to an independent medical examiner. The PIAB will always ensure that medical practitioners who provide reports are appropriately qualified. We will be returning to this issue in the Lower House. I ask Senator Henry to withdraw her amendment on those grounds.
Why can it not be dealt with in this House?
The Minister must obtain advice from the Parliamentary Counsel and further legal advice, which I gather has not been done.
What does the Minister mean when he says the board will ensure people are appropriately qualified?
The board will ensure the medical practitioners involved are appropriately qualified.
There is international recognition of degrees at university level.
These are questions to be considered by the Parliamentary Counsel. This has not yet been completed.
It should have been completed before the Bill was presented to the House.
I am not very happy about that, because I am still worried—
The amendment was only introduced yesterday evening so time has not allowed the Minister to obtain advice from the Parliamentary Counsel.
The Minister wants the amendment withdrawn. I put down the amendment on the interpretation section yesterday morning and this is exactly the same except that I have narrowed it to include only section 11 to avoid the problem of what is said in section 24. I am not happy about the Minister's statement that the board will make sure practitioners are appropriately qualified because, as I explained yesterday, one can call oneself a medical practitioner once one does not say one has an MB or an MD from a university. I am not happy about the Minister saying "appropriately qualified". The nub of the problem is that people from whom the board may be prepared to take reports do not have the responsibility that medical practitioners under the 1978 Act do, in that they can be hauled before Senator Feeney and her colleagues on the Medical Council. I am not happy about the Minister's reply at all.
How stands the amendment?
It is being pressed.
Bradford, Paul.Browne, Fergal.Coghlan, Paul.Coonan, Noel.Finucane, Michael.Hayes, Brian.Hayes, Maurice.Henry, Mary.Norris, David.O'Toole, Joe.Phelan, John.Quinn, Feargal.Ross, Shane.Ryan, Brendan.Terry, Sheila.Tuffy, Joanna.
Amendment No. 3 is in the name of Senator Coghlan. Amendments Nos. 4 and 7 form an alternative proposal. Amendments Nos. 3, 4, 6 and 7 will be taken together, by agreement. Is that agreed? Agreed.
I move amendment No. 3:
In page 14, to delete lines 1 to 6.
I see the two amendments to sections 16 and 32 as being central to the core of the PIAB. I do not believe it to be equitable that an insurer can compel a claimant to go to the PIAB and then reject the assessment issued by the board in order to take full-blown legal proceedings dealing with both liability and quantum. This is unjust and unfair and amounts to double jeopardy for claimants. The Tánaiste rejected both amendments yesterday on the basis that she did not believe insurers would abuse the PIAB system in circumstances where they were paying for the PIAB. If she is so confident on this point, then let the legislation reflect it. If a respondent compels a claimant to go to the PIAB and subsequently rejects the assessment of the board, that respondent should be fixed with liability. This does not prevent the respondent from subsequently challenging the extent of any assessment through the courts.
The Tánaiste seems to believe the insurance companies are the good guys in all of this and that they would never have impure motives. Part of the reason the current mess has arisen is that insurance companies have been lax in defending cases or settling them early on. There is no doubt the legal profession has a case to answer, but the insurance industry has a fair degree of culpability. The insurance sector must not be allowed to abuse the board and forum shop at will. The Tánaiste should not invest too much hope and confidence in the insurance industry delivering cheaper premiums without some element of compulsion or shame. By refusing to compromise on these amendments she is helping to create a board that will be subjected to general concerns about its fairness. Her unwillingness to compromise on these basic issues will come back to haunt her in 12 months time. However, as she indicated, she may perhaps have moved on at that stage.
I second the amendment. The Labour Party raised a similar issue yesterday. This feature of the legislation is a major catch-22 for the individual claimant. It is another aspect of the legislation that disadvantages the claimant relative to the respondent. If the claimant is not happy with the board's determination, he or she is faced with the prospect of having everything reviewed again at a court hearing. That will be a disincentive to a claimant in terms of going to court even though he or she might think there is a case to be made and that his or her unhappiness with the board's determination is well-founded. A claimant might decide it is better to settle for the PIAB offer rather than face the uncertain outcome of court proceedings. My colleague, Senator McDowell, mentioned yesterday that time will have elapsed at that stage and the prospect of making a good case in court will have diminished accordingly. This is a fundamental problem with the legislation. Fine Gael is suggesting, as is the Labour Party, that if a case goes back to court where the claimant is not happy with the board's decision, then liability should not be an issue. It should be simply an issue of assessment. I would strongly agree with that.
I oppose these amendments because they would make the entire Bill unworkable. The Opposition spokespersons seem to think that the insurance companies are the parties involved; it is actually the business person or the respondent who is paying for the insurance. It is in the best interests of the claimant that this provision is in the Bill and that this amendment should not be accepted. I do not see the point of these amendments; I oppose them.
The claimant probably will get legal advice, even if they are not represented and there is no direct contact with solicitors. The claimant can also withdraw and undertake legal proceedings if he or she does not accept the settlement. If the insurance company admits liability and a settlement is being made but for some reason the company withdraws, it might be on the basis of a fraudulent claim which comes to light during the proceedings. In those circumstances it would have a right to withdraw its admission of liability. I cannot support the amendments as they would hamper the effective operation of the Bill.
This is fundamental to how the PIAB will work. There must be a clear understanding of how this legislation will work. The Bill is the result of a demand from every lobby involved in this area. That includes business people, representatives of workers, representatives of people who are buying insurance, whether they are young drivers, people starting businesses or people just going to work, and the representatives of employers. Unions, employers, workers and consumers have sought this legislation.
Why have they sought it? Let us say this Bill has been passed and somebody has an accident in which they break a leg. They will then write to the PIAB and explain what happened in simple terms. I am anxious that people understand the simplicity of the system. The earlier debate showed that some who have spoken on the Bill have not taken the time to look at how it will work and it is important that they do so. The claimant will put in the claim. They will outline how the accident occurred, for example, they slipped or fell down the stairs in their place of employment and fractured their leg in three places. They will then explain that they will be out of work for X number of weeks which will cost them Y amount of money. Then they will attach their medical expenses and outline what the expected ongoing medical expenses will be and include the relevant documents. That is the basis of the claim – the accident, the loss of salary, medical expenses and any other out of pocket or incidental expenses that have arisen. It is that simple.
I spoke earlier about legal representation. A person can go to a lawyer and seek their help in filling out the form before sending it in. The reason there is no legal representation is that if a lawyer becomes involved, he or she will be dealing with it and will get the correspondence, including the cheque. They will take their payment out of the cheque before the claimant gets the money. That is the reason we speak of legal advice rather than representation. That is how the system works and it is crucial that it is understood.
My colleague, Senator Coghlan, raised a specific point about the settlement. As was said earlier, 90% of cases never go to court, notwithstanding the lawyers telling us, with regard to this legislation, that there will be no public settlement. They are settled on the steps of the courts. As far as I know, all these cases are settled without acceptance of liability. The defendants say they have listened to the case and they will pay the money. There are many reasons for that, one of which is that in many cases the person who puts in the claim has no money. Let us say they are claiming €9,000 or €10,000. The insurance company and its advisers know that the company will win the case but that it will take three or four days in court. The cost of running the case is €60,000 even if the company will not be obliged to pay the €10,000. The company is better off making an offer of €7,000 or €8,000 and finishing the case, but it will not accept liability. That is one of the reasons for not accepting liability. Another reason might be that people are unsure. Nobody will accept liability in the PIAB when they are faced with the possibility that the case might still go to court. They cannot and they would be mad to do so. Legal advice would not allow them. That is the reason Senator Coghlan's amendment cannot be accepted.
Senator Coghlan made another crucial and fair point. He asked why the insurance companies would settle. The Tánaiste said yesterday that they would settle because they are paying for the PIAB and they would not continue to pay for something that does not deliver. That is just a minor reason. I will outline the main reason for settling. They will look at a case such as the one I outlined earlier. They will contact the owner of the business, the employer or the people involved and find out what happened. The insurers might be of the opinion that if they go to court, they will lose the case because the claimant has a fair claim. People must focus on that point because insurers make this judgment every time.
The insurers always ask: "Will we win or lose this case?" The possibilities are that they will lose it, win it or it is a 50/50 case. If they believe they will lose it, why would they go to court? Why would they want to settle rather than go to court? The reason is, as Senator Quinn pointed out, that 70% of cases in this jurisdiction attract barristers. Let us say they go to court, rather than settle, in a case which they have assessed they will lose. The first thing they will have to do is pay two firms of solicitors. That is two people. Then they have to pay two junior counsel and two senior counsel, which brings the total to six people. The next item is to secure medical experts. Unlike lawyers, there is no limit on the number of medical experts. There could be four medical experts to give evidence in a case. The one certainty is that for every medical expert one side brings forward, the other side will bring forward another. This all adds up.
I have spoken to people with huge experience in this area. All sides tell me that any one of them can go down to the courts before the start of a hearing of an injury case, look at the witnesses and, without knowing the case, point out the witnesses for the claimant and the witnesses for the respondent. That is how clear it is; they know the ways of thinking. It is a game and the claimant is in the middle, thinking that these famous people are coming to the court on his or her behalf when, in fact, they are just earning a living at the expense of all the other people. That is what we are trying to avoid.
The insurance company can avoid paying the costs of up to ten medical experts, two or more senior counsel, two junior counsel, two firms of solicitors and all attendant costs if they lose the case. Why would an insurance company go to court when it believes it will lose the case or that the assessment is within what was projected and that it could afford to pay much more while still saving a huge amount of money? The only reason for doing so is if the case is fraudulent. This is the meat of the issue.
We should not lose sight of the reason we began this. It is to ensure that the genuine claimant gets his or her money, the fraudulent person is exposed and personal injury lawyers do the job for which we respect them, which is to expose fraud and to fight the case where the insurance company is wrong. The effect of the PIAB is to clear away the cases that are clogging the courts and taking up to six years to reach a hearing. The person with a genuine case puts in their claim, the insurance company accepts its validity and writes the cheque. The PIAB moves on to deal with the next one.
It would hamstring insurance companies if they had to accept liability before deciding to accept the assessment. The legislation could not work on that basis. I would like people to see the issue in that context. Senator Coghlan's argument was reasonable but it will not work in the wider context. It sticks a piece of metal in the flywheel and stops the whole thing moving, and the engine that drives it stops. The point Senator Coghlan made is correct, without goodwill the PIAB will not work. If people on both sides, whether the injured or the insurance companies, do not have trust and confidence in the PIAB system, then it will not work. If people must take the high jump or walk the gangplank by saying they accept liability, then it will not happen. Therefore, I do not agree with the amendments.
As always, the case was put very eloquently by Senator O'Toole. It is clear from reading the Bill and from yesterday's debate that this is a wrecking amendment. There are only very exceptional circumstances in which people will accept liability. This enables people to explore without prejudice the consequences and then have the right to reject. Perhaps in many cases liability could be contested but it would be somewhat doubtful and a bit dubious. One could play through the scenario, see what is the result and then make a judgment on whether it is worth contesting liability and expenses. I agree that the amendment would clog up the process.
I must express surprise at the debate on this and previous amendments. While the Fine Gael and Labour parties expressed support for the legislation, they are now tabling amendments which would effectively wreck the Bill. It appears this is being done primarily at the behest of the legal profession. Whatever about Fine Gael, I am surprised at the position of the Labour Party on the issue.
I do not support the amendment. However, I find it distasteful that members of the medical and legal professions are being denigrated in the House, which is unfair. There are, of course, hucksters and good people in every profession. I am sure there is the same range of human nature and human response in politics. Senator O'Toole's contribution might be considered eloquent but I thought it was tendentious.
Unlike other Members, I have not done the honours course in this but I do not think the issue is simple. One cannot just fill up a simple form, say one has a straightforward broken leg which has cost one a certain amount of money and ask for the cheque to be put in the post. My broken leg and another person's broken leg might be altogether two different things. Let us not hold out the promise to people that everything will be open and shut and simple. I favour a system which reduces the amount of activity that enables quick, easy and equitable settlements to be made where there is no contest of liability. I am not talking about cases where there is admission of liability. The amendment would make this very difficult.
Underlying all of this is a point which concerns some of us. On the one hand, there are the insurance companies or their clients and, on the other, there are individual claimants. When one takes out an insurance policy, one hands oneself over, by and large, to the insurance company, and God help anyone who makes a settlement that breaches the policy. No doubt the PIAB will try to maintain a balance between these two positions. I worry about the possibility that an insurance company might string the matter along, allow the complainant to produce whatever he or she needs to produce and then say, "hard luck, we must start again in the courts". This is something which must by avoided either by way of rules of the organisation or rules of procedure, if not by statute.
The purpose of amendment No. 3 is to remove a section which provides that a respondent's agreement, or inferred agreement, to a claimant's submission for PIAB assessment shall not constitute an admission of liability nor shall it be used in any other manner to prejudice legal arguments in subsequent court proceedings. Therefore, I reject the amendment. Both parties can reject the assessment. For fair procedures to be followed, both parties must have an unfettered right to reject the award without being prejudiced in any subsequent litigation.
Amendment No. 4 is related to amendment No. 6 in that section 32(4) is a proposed new section, the insertion of which we are rejecting. The text proposed here is, therefore, not required.
On amendment No. 6, section 32 refers to provisions where a claimant is authorised to take legal proceedings if a PIAB assessment is rejected. The purpose of the amendment, that is, the addition of a new subsection 32(4), is that where a respondent rejects an assessment and proceedings commence, the respondent will not be able to deny liability. I reject the amendment. Where a respondent consents to assessment and he or she does not admit liability, the issue of liability is set aside. Nothing in the PIAB process will prejudice either party in the event of subsequent proceedings. The PIAB will not deal with legal issues.
I reject amendment No. 7. This is related to amendment No. 6, which I am opposing. The PIAB will not deal with liability issues. They will be set aside. Liability issues will not arise during the PIAB process. Senator O'Toole summed up the matter well. If respondents had to accept liability the system would not work. The PIAB will not disadvantage claimants. The interests of claimants will be fully represented on the board.
I accept the good intentions of the PIAB. All we are trying to achieve here is equity and fair play, which both sides should accept. Senator Hayes was correct when he asked why the process should be allowed to start again. If the respondent rejects the assessment, liability should be fixed with them and they should not be allowed to start again. They will have a whole panoply of advisers available to them which the claimant will not have. This process lacks equity and fair play.
I move amendment No. 5:
In page 21, line 31, after "advice" to insert "and legal representation".
I move amendment No. 6:
In page 23, between lines 11 and 12, to insert the following:
"(4) Notwithstanding the provisions of this Act, where the Board arranges for an assessment of a claimant's claim as a consequence of the provisions of section 14(1), and the respondent subsequently refuses to accept the assessment made by the Board under section 30,the effect of an authorisation issued under this Section shall operate in any subsequent proceedings, to preclude a respondent from denying liability for the claimant's claim in such proceedings, but shall not prevent a respondent from contesting the quantum of any damages (including any award for costs) that the claimant may seek in such proceedings.”.
I move amendment No. 8:
In page 29, line 23, to delete "9" and substitute "6".
The effect of this amendment is to reduce the period in which the PIAB must consider a claim from nine months to six months. The reason for this amendment, as outlined yesterday, is to ensure claims are dealt with expeditiously and effectively. While recognising the time limits are shorter than those which currently apply in the court processes, it is important that the PIAB is ambitious in regard to the targets it has set itself. It is important also that the statutory obligations on the PIAB are supported by adequate resources from the State. These resources are more likely to be given if tight timescales are adopted.
The Bill will shortly establish the PIAB. Given that 27,000 claims have to be processed, it would be impractical to reduce the time limit to six months. Every effort will be made to settle these cases as quickly as possible. Most of the cases will be settled in weeks rather than months. The volume of work will be so great that the hands of the board would be tied if this amendment were accepted. I do not support the amendment.
That Senator O'Toole sits on the interim board gives him a tremendous insight into the workings of the board and shows the advantage of Oireachtas Members being on interim or semi-State boards. I am pleased the legislation does not preclude their membership of the board. His knowledge of the Bill will be a great advantage to the PIAB. He would make a tremendous chief executive if ever he were to decide to leave this House.
I will contest the next election. On a point of order, I have some sympathies with Senator Coghlan in regard to amendment No. 3. I am never quite sure what side to take when the Cathaoirleach puts the question, "That the words proposed to be deleted stand" or "Those in favour say Tá".
That is a matter for the Committee on Procedure and Privileges.
I have been caught in that situation regularly.
I made the position clear.
I accept that. Every member of the Personal Injuries Assessment Board would agree with the points made by Senator Coghlan and that the time limit should be six months. However, Senator Leyden's point is relevant. It would be possible to process the cases in six months if there were sufficient staff and everything else was in order. A person can have an accident today and make a claim within a couple of weeks. If it is a straightforward injury that heals, that is fine. I fractured my wrist in August last and have not yet finished with physiotherapy. That was a simple injury. The problem is that in the event of a more substantial injury where a person has to go to rehabilitation and have all types of physiotherapy, the medical profession would not be in a position to make an assessment within the period allowed. It would be a fair objective to try to get the majority of claims dealt with within six months. It is my understanding, and certainly the chairperson of the PIAB, Dorothea Dowling, has indicated time and again that it would be the intention to get claims through in that period. She made a strong case to have claims dealt with in a short period for the reason which Senator Maurice Hayes mentioned, namely that people could be allowed to drag on matters.
As I said on Second Stage, we have a list of every claim that has come before the courts in the past four to six years showing the date of the accident, date of initiation of legal action and the date of conclusion, which in some cases runs to six years. The objective is to reduce the period for conclusion of cases but this is impractical. Some medical personnel are prepared to give a complete medical report, an assessment and conclusion and in those cases it should certainly be done within six months. I reassure Senator Coghlan that none of those I know who are involved in the PIAB is happy that it should be beyond six months but the irrefutable evidence before us suggests it will not be possible to get medical assessments for many injuries within that period. One can wait six months before lodging a complaint. If one waits for the limit each time before lodging a claim there are ways in which it can be spread out. It is not possible to have all the information necessary to conclude an assessment and sort a claim within six months. That is impractical. There is no objection, in principle, to the points made by Senator Coghlan; it is just impossible to make it work.
I worked for a while as an ombudsman and limitations such as that are difficult because on particular occasions one has to ask people to extend the limitations. Senator O'Toole's point is well made. There is a certain irreducible minimum but if one has to exchange documents and information and gather the material, it is very difficult. However, as an example of good practice the board should begin to set a series of matters and after a while it may be able to typify or generalise cases. The pressure should be to complete the case, provided this is done properly and with equity. I recall when I first went into the ombudsman's office asking how long it took to deal with a case. It was as long as a piece of string. If one continues with that sort of attitude there should be pressure, benignly, to deal with cases as expeditiously as possible. An issue that arises from the difficulty here is mixing the court system and the PIAB in the sense of giving people two bites at the cherry. Is it possible to differentiate between the medical consequences, which may take some time to assess and to evaluate, and people's loss of earning power? Is it possible to make interim payments which would be taken into account if a case ever went to court? The staffing of the board should be sufficient to allow it to deal with the cases in the time allowed. This is one reason it is important to have a series of thresholds and deadlines, or benchmarks by which productivity can be measured.
I welcome the fact that there is a time limit. One reason I, as a Labour Party member and solicitor, support the legislation in general and the setting up of the board is that many people who are entitled to awards do not make compensation claims after an accident. They are deterred by the prospect of going to court and the time it will take. There are many aspects of the board that I welcome in this regard, including the fact that it will, I hope, speed up the process and make it less intimidating for prospective claimants. Moreover, it will ensure transparency in many ways.
Section 49 deals with the time limits within which the board will have to deal with claims. Amendment No. 8, which I reject, seeks to reduce the timeframe in which cases must be dealt with from nine to six months. The time limits are reasonable and premature assessments could be grossly unfair to a claimant whose medical condition is evolving. Time limits refer to statutory duties but the board will have the objective of settling cases at the earliest possible time. This, however, is dependent on when a stable medical prognosis becomes available. One reason behind the establishment of the board is to provide a speedier method of dealing with claims and it is not in its interest to delay a case.
Senator Maurice Hayes raised the issue of interim payments. I have been advised that no provision is made in this regard in the court system. If it were, the board would possibly be able to consider it as well. Perhaps the Tánaiste and Minister for Enterprise, Trade and Employment will examine the Senator's suggestion.
I accept the Minister of State's statement that the board will try to be expeditious at all times and that it will be its intention to have cases settled within six months rather than nine, which is the period specified in the Bill. In view of the remarks of the distinguished former ombudsman, Senator Maurice Hayes, I withdraw my amendment. Time limits might not be helpful and there is a difference of only three months in the time limit I proposed and that specified in the Bill.
I move amendment No. 9:
In page 32, between lines 16 and 17, to insert the following:
"(d) 1 shall be a person nominated for such appointment by the Law Society of Ireland (or any successor of it)”.
This amendment provides that a nominee from the Law Society of Ireland should be permitted on the board. I advance it on the basis that while some solicitors and ambulance chasers have contributed to the problem of high litigation costs, there are doubtless many worthwhile, earnest and serious practitioners who would have something positive to contribute to the board. Given that the board is to be given new powers to review legal procedures and associated processes, it is also important that a representative of the Law Society of Ireland would be able to have a positive input into such a review. The Minister of State is a very fair-minded man and I am sure he accepts this point. I strongly urge him to consider my amendment further.
I second the amendment. I am a member of the Law Society of Ireland. It was very unfair of Senator Mansergh to state the amendments have been tabled on behalf of vested interests. It is true that similar issues have been raised by the Law Society of Ireland or the Bar Council, but this does not mean they are not valid. Senator O'Toole mentioned legal practitioners making a living at other people's expense—
I did not say that. I quoted another Member of the House—
However, Senator O'Toole expanded on it and talked about people lining up and making a living on the day of a court case. My sole way of making a living is as a Senator and that does not mean that I or Senator O'Toole cannot advocate on behalf of people and draw attention to their rights. Similarly, the legal profession is an advocate of people's rights. I thank Senator Maurice Hayes for his intervention in this regard because the debate has focused on the role of the legal profession. I would be as critical of the legal profession as anybody else and totally disagree with the practice of solicitors who take money from personal injuries cheques when they have already been paid by the insurance companies for their costs. Something concrete should be done about this rather than just telling solicitors they should not engage in this practice. However, as I stated before, costs, competition and the regulation of the profession are separate issues.
Another purpose of this legislation, apart from reducing legal costs, is to reduce the cost of awards. This may well be good in many ways but individual claimants may be disadvantaged. The amendments were tabled to protect against this and Senator Mansergh should note that this is a legitimate thing to do. The Law Society of Ireland, like other bodies, should have representation on the board and, therefore, I support the amendment.
I certainly do not support the amendment because I believe there are solicitors on the interim board and that they will be on the board when it is fully established. If the Law Society of Ireland nominated an individual to the board, would that individual be answerable to the Law Society of Ireland or to the board? Members of the board would have much more flexibility if appointed by the Minister, as would solicitors appointed in their own right. I believe that Senator Coghlan argued yesterday that the Bar Council should also have a nominee. This would not be very beneficial.
On the point about cheques being held by solicitors, maybe it is a bit unfair to say that they hold the cheques, take their fees therefrom and then send them on to the claimants. It could be part of the form itself that the cheque would be sent directly to the claimant and not to his or her solicitor. This would be an easy amendment to make, but that is neither here nor there. The Law Society of Ireland is very well represented on the board and this will continue to be the case because the board will need good legal advice. I am sure there will be some solicitors on the board to provide balance.
I am at a bit of a loss having heard Senator Leyden's remarks. I am not quite sure which members of the board will have legal qualifications. I suppose they could easily be from the Irish Insurance Federation, the Irish Business and Employers Confederation or the Irish Congress of Trade Unions. I pointed out earlier that there will be nobody with medical qualifications on the board, such as nurses, unless it appoints someone useful in this respect from the Irish Congress of Trade Unions.
There is a certain amount of merit in Senator Coghlan's amendment. The Minister of State might consider it given that he will consider mine in the Lower House.
I do not carry any particular torch for the Incorporated Law Society but I see no reason for Senator Leyden's assertion that a member nominated by the Law Society of Ireland might have a difficulty in deciding whether he was a member of the board or a representative any more than a person nominated by the Irish Insurance Federation, who would surely face the exact same ethical dilemma. Surely the same ethical dilemma will chase it too? I support this amendment chiefly because the Irish Insurance Federation should not be represented on the board. It is parti pris to the process. One can think of there being a lawyer as of right as a balancing mechanism because with all respect – this applies less to the trade unions than to anyone else – neither IBEC nor the IIF has ever struck me as a shining apostle for human rights and the rights of the individual. It is no harm to have someone involved who has some grasp of the concepts of natural justice and equity.
Saying that the Minister might appoint a lawyer among other members is fine because the present Minister will take an enlightened view of this and do so but her successors cannot be bound in this way. There is merit in saying that if there is to be an insurance person, then there should also be a lawyer of some sort. I hope that in making the other appointments, the Minister might have regard to the desirability of representatives from groups which advise on such matters, for example the Citizens' Advice Bureaux or the free legal advice centres. If the Cathaoirleach will permit, this enables me, perhaps slightly irrelevantly, to say that when we spoke about advice on Second Stage, I expressed the hope that the Minister would take the opportunity to secure increased funding for advice groups which perform a very important function for inexperienced or illiterate applicants in preparing cases.
A number of important points have been raised which require our consideration, for example, the positions of the Law Society and the Bar Council and the question of earning a living. There is no problem in a person earning a living but it breeds cynicism in me if I receive a multi-page document from one of those bodies explaining why this Bill should be rejected, without having Senator Tuffy's honesty and saying they also have a right to earn a living. I disagree with the vintners in their stand on the ban on smoking in the workplace but at least they put it up straight in front of us. There is no mention in any of the submissions from the Law Society or the Bar Council about earning a living. That is where the cynicism arises.
The other issue regarding the legal profession is that the PIAB spent a great deal of time trying to get advice from significant bodies of these people and they would not engage. They adopted a head in the sand policy to avoid addressing it. I am long enough in public life to have grown accustomed to being criticised every day but some of the comments members of the legal profession have made about members of the PIAB and the people behind it are unprintable. In that situation, it is up to people like me to recognise the validity of the case people make on questions of human rights and otherwise and that most lawyers do a job for their clients and, in many cases, go out on a limb and do it for nothing. That is the other side of the story of the ambulance chasers and is the case in any profession.
This is a question of making a distinction, which is easily made. In response to Senator Tuffy, it is the difference between lobbying and advocacy. I have often been guilty on this count and have had to pull myself up, or others had to do so, when I represented teachers, to ask whether I was making the case for pupils or teachers. In a representational capacity, it is very easy to fall on the wrong side of that line, failing to distinguish between advocacy and lobbying. This is the issue for the Law Society. I have no objection to the society. If the members of the PIAB have no involvement in deciding who should be a member of the board and if the Government or the Minister decides to appoint a lawyer, I will not argue against that. However, more support might have been given to this concept at an earlier stage.
Independent Newspapers carried a story last week about a judge who reprimanded a legal team for advising a client in a claim about whether he could play golf, which no doubt many people read. That is the kind of case, which occurs daily, with which we are trying to deal. On the other hand, we are also trying to deal with people who want to look after their clients fairly. I am not defending insurance companies; I have spent most of my life fighting them and in the course of this debate will continue to do so but the people who oppose them are not necessarily cleaner than clean, as we know. Senator Tuffy gave an example of the cheque from which the lawyer takes his or her fee before passing it to the claimant. The Law Society could have dealt with these issues before now and many issues that could have been dealt with over the years have not been resolved. There is a general perception that large sums of money are flowing through all this and that it is not just about making a living but about the rest of us paying for people to make a living in an unfair way. It is not intended to stop people earning a good living or making a profit.
I and all the members of the board receive letters from people who could not afford to start a business, those running small businesses who could not afford to stay open because they could not get insurance or are running businesses without insurance and losing sleep as a result. From 1 June 2004, the PIAB will deal with motor insurance and will receive letters from people saying that a young driver in the family cannot afford to pay for insurance. These cases have been outlined previously in this House and this is an attempt to deal with them. If the Law Society nominates someone who is committed to working on this and making it work, I have no great difficulty. I am not jumping up and down with enthusiasm as the society has not shown any great support for this to date. Perhaps it will in the future. I agree, however, with Senator Maurice Hayes' point about the capacity of a person nominated. The Chairman of the PIAB, Ms Dorothea Dowling, has reiterated to the board that its members are not there as delegates or representatives, they are nominated by virtue of their backgrounds and are expected to bring their experience to bear while acting for the board, not to be there as advocates for one point of view or another. If they are perceived to be acting in that way, the process will fall apart. That is not a difficult distinction. Fair-minded people can go in with a job to do, focus on that job and do it well.
On a point of information, I have been discussing the proposal to establish a personal injuries assessment board but Senator O'Toole seems to be talking about a pre-existing board and uses the pronoun "we". Which is the case? If there is a pre-existing board doing all these things, what is the point in our having this discussion at all?
An interim board was appointed in the last year and has been operating.
A proper board will be set up as a result of this Bill.
A proper board.
The current board is provisional.
I do not see any particular necessity for this provision. There is a danger in this House, and in the profession to which we all belong, that we pussyfoot around issues and make sure that we do not tread on any toes and so on. I was subject to the most intense lobbying by way of letters and other communications, seeking my views on this Bill in order that their authors could inform my constituents. People might like to say this is purely altruistic-type advocacy or lobbying, or one could take the view that there are interests involved. The core objective of this Bill is to take some of the insurance cases out of the courts along with the associated legal costs. I am perfectly within my rights in commenting on certain amendments which appear to me to be going contrary to that intention and indeed towards ensuring that practically everything stays with the courts and does not go to the PIAB. I make no apologies for opposing amendments with that purpose, whether this is intended. I value the input of the legal profession to our society and I have many friends in the profession. I am quite certain there will be more than enough business for them without the business directed to the PIAB and that they can continue to earn a very good living.
Section 56 deals with representation on the PIAB board. This amendment seeks to make it mandatory for a member of the Law Society to be on the board. We reject the amendment. The Law Society is not an interest which the PIAB is mandated to represent. The PIAB does not represent solicitors, but consumers, employers and employees. The board deals with claimants and respondents, so it is just and proper that they should be represented on the board.
Under section 56, which deals with the composition of the board, each member of the board "shall be a person who, in the Minister's opinion, has experience in a field of expertise relevant to the board's function." The interim board has on it a qualified barrister, Professor Denis Cusack, and a solicitor, Francis Cooke. The PIAB will also have staff with legal expertise, so there will be plenty of legal expertise available both at board and staff level.
I fully accept the goodwill and good intentions of the Minister of State and of those who have spoken against the amendment. I accept what the Minister of State says about the legal advice available to the board. However, if the PIAB is to be given the powers under this legislation to review legal procedures and processes, then the presence of a Law Society member on the board could have been viewed as a balancing mechanism, as Senator Maurice Hayes suggested, because one could raise a question about someone from the Insurance Federation of Ireland being on the board.
It would be beneficial and useful for someone with experience as a member of the Law Society or the Bar Council to be a member of the board, acting independently. We should not continue to run down the legal profession, although I do not think we are doing so. Senator Mansergh noted his appreciation of the profession and we all appreciate it. I accept that there is good and bad in every segment of society.
It was for these reasons I thought this amendment would be useful.
Is the amendment being pressed?
I thank the Tánaiste and the Minister of State, Deputy Michael Ahern, for attending the House, as well as their senior officials. I wish the PIAB chairperson, Dorothea Dowling, and all the board members every success with the PIAB. This is excellent legislation. It has tremendous potential for reducing insurance costs.
The Joint Committee on Enterprise and Small Business, of which I am a member and of which Deputy Cassidy is chairman, played a very important role in the presentation of all the facts and figures. Senator Coghlan, as a member of the committee, knows that we brought out a report this year, having worked on it during the summer months too. If a worthy contribution was ever made by Oireachtas Members and the Government working together, this Bill is it.
We are moving forward on the issue of the insurance industry and trying to reduce insurance costs. That is the Bill's objective. As the Tánaiste said, if it does not work within five years it will no longer exist. The Tánaiste made this Bill one of her priorities during this term of Government and she has done the country some service in bringing the Bill forward. As Tánaiste, she brought the Bill to the Cabinet in times which were difficult for raising the moneys necessary for bringing in such a new semi-State body, which represents a major commitment. This is a very worthwhile exercise. I thank the Cathaoirleach for his co-operation in moving this Bill through the House as quickly as possible and I wish it a speedy passage in the Lower House.
Senator Moylan brought one further matter to my attention.
We cannot discuss the Bill's contents at this stage.
According to section 70, a PIAB member who accepts a nomination from the Seanad must resign.
We have dealt with all that.
I appreciate that, but I did not get an opportunity yesterday to make the point.
The Senator had numerous opportunities.
I was going to say that. He did great talking.
As the House is aware, I gave this Bill a substantial welcome on Second Stage. We have now fully expressed our reservations and we will leave those with the Minister of State who may take them further, if possible. We wish the PIAB every success. I wish every success to its chairperson Dorothea Dowling and to our colleague, Senator O'Toole. The latter is an excellent appointment to the interim board and I look forward to seeing him on the statutory board. I thank the Minister of State and his officials for their unfailing courtesy and patience.
I thank the Minister of State for the courtesy with which he has addressed this Bill. We all hope it will succeed. One big difficulty I pointed out early last week was that it is not even a week since this Bill of 82 sections was published. I know this is not the Leader's fault. We welcome legislation into this House, but we like to go through it thoroughly. I hope that as the Minister of State said, the amendment I tabled will be addressed in the Lower House.
The remarks made by the Minister of State today about suitable qualifications were not very satisfactory. It was said to me once again that my amendment was tabled only yesterday evening when it was actually there yesterday morning; it was impossible for me to table amendments on Saturday and Sunday and we took Second Stage on Thursday. We are being put under considerable strain when these important Bills are going through. They should be published as far in advance as possible before we debate them.
This Bill is very important and we all want it to work well. I am quite sure that the Tánaiste, my constituent, will give me credit in the Lower House when she brings forward her own amendment regarding the definition of medical practitioner or the question of by whom medical reports can be brought forward. I would not like to see people disadvantaged because of reports coming in from people considered more likely than others to produce favourable reports.
I thank the Minister of State for his work with us today, and the Tánaiste for her work with us on Second and Committee Stages. As I said to her, with legislation as substantive as this it is better if Committee Stage precedes Report Stage by a week. In that way, when we table amendments, it gives a chance for the Government side to consider their merits. We have said a number of times in the House today that hopefully our amendments might be reconsidered in the Dáil, but it would be nice to see amendments accepted in this House. That happens sometimes, and one feels a sense of achievement as a Senator if one's amendment is accepted. The Labour Party and I have welcomed this legislation and the new board. We tabled amendments to improve the legislation. I am a solicitor but the amendments are political and were put down to ensure all issues were aired. It is important that all aspects are debated, even if they are wrong. I hope that when the Bill goes to the Dáil, the Government will re-examine some of the issues raised in the Seanad.
I thank the Minister of State for his attendance and compliment the Tánaiste and her staff for the work they put into this Bill. The Tánaiste was interviewed on television six weeks ago and was asked when the Bill would become law. She indicated that it would be enacted before Christmas and I considered that to be wishful thinking at the time, but I was wrong.
This Bill will mean that young people from rural areas who are lucky enough to have a job, but cannot get to work and have to leave home to live in flats and apartments, will be able to get cheaper insurance and travel home to their parents every night. Small businessmen who employ four or five people had their backs to the wall trying to pay public liability insurance and employers' liability insurance in the last three years and this Bill will help them.
I wish the PIAB well. I know Dorothea Dowling will do a good job as chairperson of the board and I congratulate Senator O'Toole on his appointment to the board.
This was a very important Bill and we were pleased to deal with it in the Seanad. I thank the Tánaiste, the Minister of State and the staff of the Department for their hard work on it.
I take Senator Tuffy's point about a gap between Committee and Report Stages but we worked hard to ensure there was ample time to debate the Bill. On Thursday, the Second Stage debate lasted two and half hours less than the time allotted to it because some were silent on it. Yesterday, Committee Stage lasted over three and a half hours, a comprehensive debate during which everyone got a hearing, and the Tánaiste was here the entire time. If Report Stage had not been taken today, the Bill would not be law before Christmas because the Tánaiste will be dealing with it in the Dáil on Thursday.
I take the point made by Senators but I would like to make it clear that this Bill was not rushed. I sat down in my office and considered how it could be fitted in to the best possible extent. We have been honoured by having the Bill put through this House – we wanted it and we got it – because otherwise the debate would have been squeezed into a half day sitting at the end of the session and I did not want that to happen.
I thank everyone who put such effort into this Bill. The Tánaiste told me after yesterday's debate that she is keen to implement some of the ideas put forward in amendments in this House. Like Senator Tuffy and Senator Henry, I would like our amendments to be accepted.
I was taken with what Senator Scanlon said about young people from rural areas who find it difficult to get to work. This Bill is historic and will herald a better deal for consumers in the insurance industry.
I thank Senators on all sides who contributed to the debate. Senator O'Rourke mentioned that she looked forward to the day Seanad amendments do not have to be dealt with in the other House. Excellent amendments were proposed here that have improved the Bill, but hopefully the day will come when they can be accepted here. I am sure that will be achieved under the leadership of Senator O'Rourke. I thank all those who have been involved in this debate – Senators, the staff of the House and the staff of my office – for their assistance.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.
The Seanad adjourned at 5.25 p.m. until 10.30 a.m. on Wednesday, 26 November 2003.