Mr. Ciarán Breen:

I welcome the Chairman and members of the committee for giving me the opportunity to set out the State Claims Agency's approach to managing claims against the 146 State bodies that fall within the remit given to it by the Oireachtas. I am joined by my colleague, Jenny Foley, solicitor and clinical claims manager, and we will be happy to answers members' questions shortly.

It is important that I set out the details of the agency's role in the Vicky Phelan case. This is clearly a tragic case that has had dreadful consequences for Ms Phelan and her family. I assure the committee that at every stage of our involvement in this case, we have been acutely aware of the consequences, trauma and pain Ms Phelan and her family have suffered and continue to suffer. In carrying out our statutory role in managing this case, we have been mindful of the need to ensure that, wherever possible, nothing that we did would add to the suffering of Ms Phelan and her family.

In managing personal injury litigation taken by persons against the State, we never forget that our work frequently involves the management of difficult, complex and traumatic cases taken by persons who have suffered injury, sometimes of a catastrophic nature. We have a duty, when managing personal injury claims, to manage any individual claim in a humane, ethical, professional and sensitive manner.

Our role in Ms Phelan's case arose because one of the parties she took a case against was the Health Service Executive, HSE, which is one of our clients. The HSE was not the only party. Ms Phelan's case was also against the United States laboratory that had carried out her smear test. It was called Clinical Pathology Laboratories. In every case with multiple parties, each party conducts its own defence independently of the other parties. We managed the case on behalf of the HSE but the US laboratory had separate legal representation and a separate legal strategy.

The primary legal issue in this case centred on the alleged misreading of Ms Phelan's original smear test. The US laboratory accepted that legal liability for that issue rested with it alone and that the HSE was not legally responsible for the misreading. As part of the US laboratory's defence of this issue, its lawyers sought a confidentiality clause that would have restricted Ms Phelan from disclosing details of the settlement or the case. The State Claims Agency opposed the use of a confidentiality clause in Ms Phelan's case and no such request was made by our agency. The request by the US laboratory was not supported by the agency. Our view is that the US laboratory's insistence on a confidentiality clause was a significant factor in the failure to resolve the claim through mediation. Mediation is our preferred route for resolving cases of this nature as it would have eliminated the need for court hearings or a contested court action. A settlement, consequent upon mediation, would have made it unnecessary for Ms Phelan to go to court, personally give evidence and experience all the stress and anxiety that a court hearing entails.

A total of 98% of all cases managed by our agency are resolved without the need for a contested court hearing. It was not possible to resolve this case through mediation, but that was for reasons outside our control, and I have referred to those reasons.

I would like to make a number of points about the way we manage cases. I am conscious that the committee asked us here today specifically to discuss this issue. In Ms Phelan's case, it has not been reported by the media generally that the presiding judge, Mr. Justice Cross, praised the manner in which the case was managed by the State Claims Agency and the other parties. While some cases can take up to between two to three years to be concluded, Ms Phelan's case was settled within ten weeks of the summons being lodged. The judge said the case was handled in an efficient and humane manner, with all sides pulling out the stops to get the matter ready for hearing quickly.

We have heard commentary from some observers in recent days suggesting that the State was in some way trying to place obstacles in the way of settling this case. The judge's comments, being those of an independent party, demonstrate that the opposite was the case.

I will now update the committee on the current number of cases we are managing which are similar to Ms Phelan's case. In addition to Ms Phelan's now concluded case, we are managing nine other similar cases, and we are aware of one additional case where a formal claim has not yet been made. We have received an indemnity from the independent laboratories in three of the nine cases to date and we have sought indemnities in all others. We will manage all of these cases in the same way we managed Ms Phelan's case, namely, carrying out our statutory role by placing a high priority on treating the people who have made the claims, and their families, with the dignity and compassion they deserve.

We have no intention of mounting a full defence in any case of this nature where responsibility is substantially or completely that of the State. In any such case, we will pursue other options, including mediation or settlement.

We have a statutory duty to act in the best interests of the taxpayer. We also have a duty, however, towards injured persons who have suffered a medical negligence related injury, including following a misdiagnosis, and who take legal actions against the State or State bodies. We never lose sight of the fact that in many cases the injured parties, together with the families, have suffered significant trauma and pain. Recognising this, the agency aims always to act fairly, ethically and with compassion in its dealings with these people and their families as well as in the management of all cases which fall within our remit.

In cases of medical negligence, our policy is to admit liability as soon as the expert medical evidence becomes available to indicate there has been a breach of duty. The agency takes every step it can to ensure that litigation is handled sensitively to ensure no additional distress is caused to the person who has made the claim or to his or her family. The agency is required, however, to operate in accordance with its statutory mandate to investigate claims thoroughly and to manage litigation in a professional manner. I am not suggesting to the committee that it is an easy task to get this balance right when carrying out our statutory role, knowing the often devastating personal consequences for persons who have suffered injury, nor would I suggest that we always get this balance right to the satisfaction of all the parties in the case. However, we make every effort to do so. I hope the facts, such as those put on the court record by Mr. Justice Kevin Cross in Ms Phelan's case and by the same judge in two other cases last week bear this out.