Mr. Ciaran Breen:

I am not sure whether Deputy Kelleher asked a specific question of the agency. Deputy Ó Caoláin queried whether the State Claims Agency has a disposition to approach cases on a deny and defend basis. I can understand why he might have that view. We see tragic pictures of catastrophically injured children before our courts and we read the reports in The Irish Timesand other media, which make it look like we exist always to deny, defend and delay. I do not ever forget there is a badly injured child in these cases or the tragedy for the family involved. Deny and defend is not what we are about.

Some of these cases are very complex from the point of view of causation. All Deputies and Senators would understand that where we are paying out sums of up to €30 million, it would be remiss of us if we did not forensically examine those claims and the complex issues that lie at the heart of them. Often, one of the real difficulties in these cases is that while the length of time from when the child was born to the date the claim is resolved is an extraordinary period of time, it does not correspond with the period from when the claim was made to the claim resolution. However, I accept these cases take too long and this is why we have advocated reform in the form of the pre-action protocols. I and others have worked hard in the medical negligence working group to try to get these on the Statute Book so they can guide our behaviour in our engagement on these cases in a more meaningful way.

In regard to notification of adverse events, there is a statutory duty on all hospitals to notify their adverse events to the State Claims Agency and we analyse those events. Where issues are arising from the adverse events, we try to feed back to the enterprises in the form of risk management solutions. On the question of open disclosure and the legal duty of candour, unequivocally, we support open disclosure and the duty of candour. In fact, we led with the HSE and the Medical Protection Society on a project which originally began at two sites, in the Mater and Cork University Hospital. This is being rolled out to many hospitals and is an ongoing issue for us. In this context, a significant issue that needs to be dealt with concerns how we protect the apology in terms of any legal battle that might ultimately ensue. This needs to be sorted. If it was sorted in the form of a statutory measure, open disclosure would become much more a feature of hospitals than it is currently.

Senator Burke asked about the 2,840 claims and the €1.159 billion and over what period these moneys would be paid out. These claims are in a cycle evolution, from recent ones to older ones, and will be paid out over a number of years. The average payout we have had over the past number of years in a single year has been in the order of between €100 million to €125 million. We expect the figure next year to increase significantly. One of the reasons we expect this gross increase is because of the absence of periodic payment order legislation. We worked hard in the medical negligence working group on this, but it has not come onto the Statute Book. The courts are indicating the temporary arrangement we had, where we were paying periodic payments to families and where families had to come back to court, is a cause of stress which is not good for families. They have said they are going to revert those periodic payments into lump sum payments, which will certainly affect our cashflow in the years ahead.

Senator Colm Burke asked about the possibility of the State Claims Agency taking over indemnity insurance claims for private consultants from what we might call the ground up. I expect it is his intention that they would pay a premium to the agency. It is a policy issue for the Department in the first instance as to whether it should take on such a responsibility. Once the decision was made, I can assure the committee that we would do so, as we have done in the past in the case of any business the Government decided to delegate to us to handle. We always have capacity to take on what we believe to be new work on behalf of the State.

I assure Deputy Mary Mitchell O’Connor that on a look-back basis, in terms of the clinical negligence profile from 2002 until now, as distinct from the non-clinical negligence profile, we never had a case in which we would have said it was fraudulent.

In response to Senator John Crown, specifically on the question of whether we are seeing a greater number of claims, from 2008 we had 426 claims in one year; in 2009 there were 400; in 2010, 457; in 2011, 544 and in 2012, 772. Many of the claims in the latter year related to De Puy hip implants.