Oireachtas Joint and Select Committees
Tuesday, 1 April 2014
Joint Oireachtas Committee on Jobs, Enterprise and Innovation
Role and Functions: Personal Injuries Assessment Board
This meeting is with Ms Dorothea Dowling, chairperson, Mr. Joe O'Toole, vice chairperson, Ms Patricia Byron, chief executive, and Mr. Stephen Watkins, board secretary, of the Personal Injuries Assessment Board to discuss the board's contribution to the economy and opportunities ahead for both citizens and the State. They are all very welcome and I thank them for coming. We had a chance to engage with them during a breakfast meeting earlier in the year.
By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the joint committee. If they directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or an entity either by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.
I ask Ms Dowling to make her presentation to the committee.
Ms Dorothea Dowling:
I would like to make some introductory remarks before I pass over to Ms Byron to give members a summary of the last decade of operations since we opened our doors in July 2004. I thank the joint committee for inviting us back to report on developments since we were last here in October 2008. We rely heavily on the support of the committee which has been so instrumental in securing reductions in the cost of motor and liability insurance of 40% since 2002. Members will recall that jobs were being lost because of the high cost of insurance. We face similar challenges today in job creation, albeit for a different reason.
Establishing the PIAB was one of the 67 recommendations of the Motor Insurance Advisory Board which was a pro bonogroup which worked from 1998 to 2004 on an investigation of the insurance industry. Unlike many other reports, it did a little more than gather dust on a shelf somewhere, although I am told it is a cure for insomnia. There were some fairly explosive findings, not least of which was that for every €1 paid in compensation to injured parties, another 46% was spent on litigation overheads. Not only have these professional fees been tackled in two thirds of cases which do not now need to go into the courts system but, through the injuries board model, people who are injured are receiving compensation in a matter of months - currently, seven months - as opposed to having to wait years in court. This is good for rehabilitation, as well as for the financial consequences.
This is a non-adversarial documents-only procedure which focuses on medical assessments; it does not deal with legal disputes. Almost 250,000 claims have been handled to date. It is likely, therefore, that all members' constituents have either benefited from this approach as policy holders in paying reduced premiums or as injured parties in securing quicker compensation, either by direct early settlement within the first 90 days or through a formal award. Maintaining this major saving in the cost of insurance is vital now more than ever for household budgets which are, as members know, under strain and also for struggling small businesses which are so important to the recovery of the economy, in particular the SME sector. Unfortunately, it seems there is no Minister responsible for ensuring the cost of insurance is equitable for consumers and businesses; therefore, the role of the joint committee is vitally important.
Members know that the establishment of the insurance reform programme arose from a previous economic challenge. As a result of the escalating cost of motor and liability insurance, in 1998 the Motor Insurance Advisory Board inquiry was established. Premium rates had increased by 48% since 1991 when court jurisdictions were last increased, largely because the promised reductions in legal costs were had not been delivered, and it had resulted in long delays in trials coming up in the lower courts. It remains to be seen whether legal costs for litigation cases decreased after the recent increases in limits which commenced on 3 February 2014. I find myself in the unusual position of being in agreement with the Law Society of Ireland that there are reservations about whether this will cause very long delays in the Circuit and District Courts in personal injury cases. These are the cases that would rightfully be in the courts, not the assessment-only cases which are dealt with by the PIAB.
The PIAB has faced repeated challenges by certain small sections of the legal profession. The first judicial review was launched within weeks of opening our doors in 2004. A decision in the case of O'Brien and the Law Society v. the PIAB was ultimately delivered in December 2008, a couple of months after we last appeared at the committee. Members may be interested to know that when the case was over, we were presented with the plaintiff's legal bill for €2 million. Of course, we challenged it and the figure of €2 million was reduced by the High Court Taxing Master to €393,000 in June 2010 - an 80% cut - but he commented that there needed to be some deterrent to the submission of excessive legal bills. I suggest this is a role for the pending legal services regulatory authority.
In the context of questionable injury claims, there are strong deterrents in the Civil Liability and Courts Act 2004 to overstating one's case, with potential fines of €100,000 and jail terms of up to five years.
If a respondent has any reservations about the genuineness of a claim, he or she can take it to court rather than to consent to it being assessed through our non-adversarial process. It could be said full revision of the non-adversarial process could only be fully exploited since October 2010 when Mr. Justice Sean Ryan dismissed the test cases challenging our refusal to award legal costs under section 44. Despite all these hurdles, the PIAB through the executive management team, many of whom are present, has fully delivered on its statutory remit. We have also achieved a self-imposed, self-funding model.
Additionally, entirely on our own initiative, we repaid the €6.9 million set-up costs for which a cheque was delivered to the Minister's office in December 2011. This financial outcome is in stark contrast to the projections by various notable experts engaged by both the Law Society and the Bar Council in their resistance to the reforms in 2002 but I am pleased that 99% of the profession has embraced the new reality and is working effectively with the board.
The consumer perspective is more important than that of the lawyers. The AA conducted a survey recently and indeed gave evidence to the Joint Committee on Transport and Communications last September that ten years previously the average motor insurance premium in Ireland was twice that of the UK whereas now it is half that of the UK. The CSO has confirmed a 40% reduction in costs, which Ms Byron will address. All this was achieved through the MIAB implementation plan and a Cabinet sub-committee involving this committee and it is a good example of joined-up thinking which I suggest could be used in other areas rather than people operating in silos.
I refer to the long-term future. Because of the increasing internal efficiencies generated by Ms Byron and her executive team over the past decade and the successful defences of the judicial reviews, the board has financial reserves in excess of €10 million, which members will have seen in our published accounts. Those funds were raised in accordance with our legislation solely for the purposes of assessing personal injury claims. This presents the Government with an ideal opportunity to establish at zero set-up cost an alternative to the courts for medical negligence clams, as was originally intended and as was envisaged in the most recent Fine Gael manifesto. This would not only achieve substantial savings for the Exchequer but also relieve the stress of adversarial litigation from injured parties in those cases which should be regarded as assessment only, which was recently commented on by the High Court. This reform is not about the PIAB taking over the role of the State Claims Agency whose position is that of an insurer to any respondent who needs to investigate liability but about extending the option for suitable cases to be resolved quickly without adversarial litigation and costs. In this context, medical negligence includes slips, trips and falls on hospital premises and not just complex medical procedures.
Important people said this could not be done and it would not be done but here we are and we have delivered. We thank the committee for its support.
Ms Patricia Byron:
I am grateful for the opportunity to address the committee. Because it is ten years on, I thank politicians for the cross-party support, which was fundamental; the board, including Ms Dowling and Mr. O'Toole, who have travelled with us on a robust journey; the executive who are present in the Gallery and our staff. It has been truly a combined effort to reach today.
I would like to talk about the context we have emerged from, our results, the impact on society, the reform agenda, which is the at the centre of all the Government is looking at currently, citizen-specific impacts and how to harness organisational capacity and capability for the good of the Exchequer, the taxpayer and society at large.
The board was established ten years ago. It was many years in the making. There was a joint Oireachtas committee report in 1986, a Deloitte & Touche report in 1996 and the MIAB report in 2002, which Ms Dowling chaired. We had cross-party political support. The proposals that were made were seen as sensible and that has proven to be the case. This is recognised today.
Our function is quite different from the State Claims Agency which is a respondent to any claim. We are a quasi-judicial entity akin to the Courts Service. Our specific work is in the delivery of personal injury awards and our mandate was to lower the handling costs, reduce delivery timelines and ensure consumers received the same level of award. We have removed cases from costly litigation which was the key driver of insurance prices and the closure of businesses at the time. The six o'clock news was awash with stories of various businesses closing down because of the cost of insurance just ten years ago. It is important to understand that personal injury claims which have a higher value but the volume of which has lowered, drives the cost of insurance premia rather than, say, the higher volume of property damage claims.
With regard to results, we have made 70,000 awards to date amounting to €1.5 billion in compensation to citizens. The highest award was in excess of €1 million and there is no ceiling to the award we can make. Our timeline for cases is 7.3 months and the legislation requires a nine-month turnaround.
When we opened our doors, it took on average three years from the date a writ issued to somebody receiving compensation. The awards are consistent and we follow a book of quantum, which is reflective of court awards. We continue to get feeds from court data to ensure ongoing consistency. There has been direct savings of €500 million in cases that go as far as a formal award. However, we opened a service centre operating between 8 a.m. and 8 p.m. and we facilitate and support further claims which conservatively deliver savings of another €500 million. That gives a total saving of €1 billion over the ten years.
Our delivery costs are less than 8% of any award we make. Litigation costs at the time we opened were 46% and today run at 58%.
I refer to the impact on society. We deliver the same level of awards as the courts. We are faster than them and we are more effective in delivering these particular type of claims, which are assessment claims. Dispute claims remain within the court system. We have worked hand in glove with the court system to ensure it can deal with contested cases and clear courts for other activities. We have reduced our processing fee. At one stage it was €1,050 but it is now a flat fee of €600 per case. We have reduced the demand on court services and allowed the court rooms and the Judiciary the capacity to hear other cases. We allow people to return to work faster, rehabilitate faster and to contribute to the economy. There is less strain on medical services. Over a three year period on average there were repeat medicals at least every six months but that does not happen anymore. People can process their claims directly with the board or go through a third party but we do not pay legal fees by and large unless a legal issue arises. This is not a legal system; this is an administrative process. Car insurance costs in terms of asset results are down 40% according to the CSO.
With regard to reform initiatives, we have also looked outside the board and we have contributed and participated in the call for reform across the public sector. State employees who were involved in motor accidents and had their salaries paid were not required to include that in their claim for recoupment from the offending party as happens as part of people's contracts in the private sector but that is happening now. There was also no requirement for welfare benefits paid to accident victims to be part of the insurance claim and recouped to the State but that is now required. We are in the process of completing a significant framework tender for back office administration services, document management, financial transactions, medical appointments, registration of claims and other initiatives - high volume, high value triage activities. The framework will not only be open to this board but also to every other State agency. We believe this is true efficiency. There are other pending reform initiatives. We are drawing up a tender in association with the Garda to source general practitioner services.
We are considering a framework tender for medical consultants and very open to working with other entities across the State in driving value and reducing the need for repeated tenders.
With regard to medical negligence cases, we obviously believe there is potential for significant savings, with some €600 million standing in reserves in the State Claims Agency.
On a specific delivery for the citizen, the cost of insurance premiums has reduced. Therefore, if one runs a business or insures one's car or any product bought over the counter, the cost of insurance runs through it. There is no requirement to have an adversarial system. The book of quantum ensures predictability and consistency. From a public interest perspective, we have made many public interest comments on claims harvesting which is being promoted by a number of entities in the public arena in order to promote claims. Obviously, members will have heard our views in that regard. The insurance industry is stating there is a case for increasing the cost of insurance premiums in the State, but we cannot see the need. The industry is on record time and again, through the Irish Insurance Federation, as implying it is the cost of personal injury claims that drives premium costs. If we are reducing the cost of processing — in fact, there is an increase in the volume of claims — we cannot see a case for increasing insurance premium costs.
The board is open from 8 a.m. until 8 p.m. and people may talk to or correspond with it. Obviously, the website is available for 24 hours a day. We have online application forms and launched an app. There is no need for third party representation which adds to the cost of the process. There is no representation during the process. There are no oral hearings, nor is there a mounting of the case. We focus on the facts, medical evidence, invoices and bills, which is what drives an award.
We have a very high customer satisfaction rating. All of our e-services have been in development in recent years. We have a plain language website and a list of frequently asked questions. We also present a variety of case studies. For 2014 we plan to develop a number of portals for those who are doing business with us, through which one can gain access and deliver information.
How have we created this capacity and model? From day one, we segmented core and non-core activities and outsourced. The initiative to which I refer is another to which we have been contributing across the public service in regard to the capacity of the service to outsource more, where appropriate. This allows for a focus on core activities and, of course, one to drive quality. When one keeps the core activities in-house and uses one's technical experts to focus on these activities rather than having them chase paper, telephone calls or general queries, it allows one to meet that objective. One of the key deliverables of the board was outsourcing from day one. This system offers scalability, flexibility and capacity and keeps fixed overheads to a minimum. We have specific capability in respect of outsourced service provision and can take on more work. Our self-funding model obviously speaks for itself. When we opened the doors of the injuries board, we had a set-up grant from the Department of Jobs, Enterprise and Innovation. We paid it back with a cheque of some €7 million just two years ago. The board is entirely self-funding and on a sustainable basis. We can now say that with confidence ten years on. As for the future, the State should be considering more redress schemes, employing a non-adversarial model.
With regard to insurance, there should be greater transparency associated with the data insurance companies provide for the State, customers and shareholders as they consider their options.
I thank Ms Byron. The work the board has done for the past ten years has led to impressive results. Ms Dorothea Dowling, as chairperson of the board, her board members and Ms Byron, the chief executive, have done great work. They are flagging very important issues on which we must work in the future. The results speak for themselves. As a committee, we should certainly be taking the advice of the board. This hearing is to decide how we should move on and take the next step. I compliment the delegation on the results achieved and a job well done.
I endorse fully the remarks of the Chairman. I pay tribute to Ms Dowling, her executive team and the board. I welcome back Mr. Joe O’Toole who is now on the other side of the fence. The work done is really impressive. Those who doubt public sector reform can be achieved should note this model.
We had a good briefing with the board a few weeks ago in Buswells Hotel and the representatives have furnished us with this presentation. I have since been doing some work in comparing the board with the State Claims Agency which in 2013 paid out €85 million in legal fees under various headings. The average lifetime of the various claims from the date of lodgment with the State Claims Agency to completion is three years for public liability claims. For employer liability claims, it is 2.7 years. For clinical claims, it is four years. The fast and efficient model of the PIAB compares favourably with these figures. Would the delegation dare to suggest different models? Would the PIAB have suggestions on how the State Claims Agency could up its game and, perhaps, look to the board to do its work more efficiently?
Will Ms Dowling clarify the position on the management of health claims, including claims related to slips and trips? If I went into a hospital today and fell over a mat, I would have to go through the State Claims Agency, in the same way I would have to with a negligence claim. It should really be dealt with by the PIAB.
The delegation mentioned redress. Has the board ever been consulted by the Department of Justice and Equality or any Department that has established a redress scheme in the past ten years on involving the board or its model in such a scheme?
Ms Dorothea Dowling:
I will deal first with the question on policy issues from a board perspective. We have made numerous submissions to our parent Department and, in turn, the Department of Justice and Equality on taking from the courts some of the cases that would be appropriate to our non-adversarial documents-only medically focused system. Thus, they could be assessed quickly and at a low cost. This has nothing to do with how the State Claims Agency handles claims. That agency's role is to investigate the liability and talk to the various individuals who might be involved. The difficulty is the way in which legislation was formed in that if the agency considers its client needs to answer a case, it must take the litigation route. We are suggesting there be an option for claimants who happen to have a fall, slip or trip that is being dealt with by the State Claims Agency. We believe they should have the same redress option as any other claimant, that is, to use the non-adversarial PIAB system. I wonder whether it is even constitutional for somebody to be required to go through a litigation system. If one were to fall in a supermarket, one could go through the non-adversarial system.
The board secretary was very much part of our team at the time we were organising all of this, that is, before there was a board. When the legislation was being drafted, an unfortunate coincidence was that the enterprise-wide liability system for the medical sector was being negotiated. There was a slight exception clause inserted into the legislation that stated the medical negligence aspect would not be catered for at the time because it was under discussion. However, it was always intended that we would be covered. The idea of the enterprise-wide liability system in respect of medical negligence cases and the idea of the new system that the Judiciary is calling for mean that it should not matter to the injured party whether the doctor, nurse or hospital is involved where there is a case to be dealt with. There is no point in 60% of the State's money being spent on sorting out who takes what percentage when, in fact, the person injured may have to fall on State services in the meantime. I refer to periodic payments, in accordance with the Medical Insurance Advisory Bureau's recommendations, rather than one lump sum, and to circumstances in which one's care costs would be dealt with annually on the basis of care as the needs arises. The other side of the current system is such that someone who receives €6 million or €10 million may not know how to manage it for the entirety of their lives. Perhaps their life expectancy is not as great as originally anticipated. Such circumstances should be compared with those of somebody else who may be in deficit over a similar period.
It is not a case of our setting ourselves up in competition with the State Claims Agency. We have very different roles. What we are saying is that, rather than having all cases dealt with by the State Claims Agency enter the old litigation system, claimants should have an option of using the non-adversarial system operated by the PIAB. It seems that if there are slips, trips and falls in a hospital, they are all within the ambit of medical negligence procedures.
In regard to the issue of redress, we have not been consulted on many relevant matters to the extent that we might have liked, but Ms Byron has been in discussions on some of them. She will elaborate on the issue.
Ms Patricia Byron:
We were asked by the Department of Justice and Equality to consider some redress schemes, but it did not work out.
We think primary legislation would have been involved.
In relation to medical negligence, a document was examined by the Departments of Health and Jobs, Enterprise and Innovation, but we found that the boxes to be filled in did not account for the timeline to delivery, outcome and processing costs. We considered it to be a fundamentally flawed approach not to consider these.
Regarding medical negligence per se, intentionally or unintentionally, people tend to confuse cause and effect. With regard to cause, one must identify if we are in the circle of the State and whether it has caused an offence. The question of whether we gave the wrong tablet can be easily identified, but the output could be a complex injury. There is no difficulty in assessing the injury which is what we do, as members can see from figures for the past ten years. As with motor accident and workplace and public place claims, in the medical negligence sphere there must be an option to save the taxpayer more money. Prompt investigation in a hospital, akin to prompt investigation of workplace claims, which we do, should identify quickly whether the State has caused an offence. This does not apply to all claims but to a large volume of them. Thereafter, there is an assessment of the value of the award. We follow medical reports and make the award. Some say the nine-month timeline in primary legislation is unsuitable in medical negligence cases. I agree, but that does not mean that members cannot change the primary legislation on medical negligence claims. If there is a sum of €600 million in reserve and we take out €200 million and allocate half of it, €100 million, to legal costs, what can we do with the savings? Conservatively, €50 million is not a high figure. There are huge opportunities in that space, but I will not become overexcited by that alone. The culture of looking at redress in a non-adversarial way will yield much more for the citizen and the State.
I welcome the delegates, particularly my ex-colleague, Mr. Joe O'Toole. I remember very well how he held our hands.
It does not seem ten years since the legislation was finally passed, but it took a number of years to get it through.
What a great success story. Doing something in a period of seven months rather than what it used to be, three years, is deserving of congratulations.
My query concerns negligence cases. In my experience in the supermarket business, there were a number of occasions when people sued us because they had fallen on the floor in the supermarket. They assumed that, because it had happened in the supermarket, we were liable, but the judge found we were not negligent in that we had done everything that was expected. I am thinking of one particular case in which a woman slipped on a grape and injured herself, but we were able to prove we had two well trained cleaners on duty that day who had done what the judge described as all that could be expected. It does not make sense that it becomes a case of medical negligence because someone slips on the floor in a hospital. I do not know how one goes about solving this problem.
Will the delegates explain what is meant by shared services and the extent to which it is possible for the Personal Injuries Assessment Board to share services with other State boards? Perhaps the Personal Injuries Assessment Board does this already. Ms Dowling spoke about joined-up thinking and it seems that is what we need. If there is an ability to share services with other boards, it is a huge opening. Is this something the Personal Injuries Assessment Board is already doing or is it taking the first steps towards it? Does the board need legislation to facilitate it?
Ms Dorothea Dowling:
Ms Byron will respond on the question of shared services, but I suspect our track record of success is one of the reasons I have been appointed as one of the triumvirate to report to the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, on strengthening Civil Service accountability and performance. I suspect there is great scope for outsourcing within the Civil Service system. We have reforms elsewhere in the wider public service and need to drill down into them. Shared services are separate from the negligence issue.
On the issue of slips, trips and falls, it is supposed to be the law that those who lose cases have costs awarded against them. It should not be a risk-free journey. My suspicion is that in the case referred to by Senator Feargal Quinn an insurance company was involved; such companies tend not to pursue recovery of costs actions, as they are very time-consuming and take a long time. The general message is that people might as well have a go and that there is no downside. The first two recommendations implemented from the Motor Insurance Advisory Board, MIAB, included a ban on advertising by solicitors with the words "no foal, no fee". It is false advertising because there is no such thing as "no foal, no fee". Suing someone in the wrong means accusing someone in the wrong and an order for costs will be made. In the insurance industry where the concern relates to the underwriting cycle and closing files quickly in order that firms get their pricing right firms are not prepared, much like the members of the self-insured task force in the State sector, to pursue matters by taking €5 a week. It is very annoying and does not seem to be cost-effective, but it has an electrifying effect on those who might be thinking about having a go without a proper basis for doing so.
On the theory of negligence, I am addressing a conference in Limerick on 24 May. The level of duty of care is an international issue, but it is not the responsibility of the Personal Injuries Assessment Board to influence it in any way. We must respect the law of the land in that regard.
Ms Patricia Byron:
It has been recognised that the Personal Injuries Assessment Board has the capacity and the capability to have shared services. We have been working closely with the Department of Public Expenditure and Reform and spoken at many conferences. Our framework is almost complete and includes three major companies. People can draw down very quickly and choose from 60,000 calls to be answered in a crisis or 1 million pieces of paper to be triaged or scanned. Our portals will be available to bring the work through. We have positioned ourselves in regard to providing capacity. That is what I was referring to in respect of scale and flexibility which we can bring to the table across the public service. After that, public servants are in a position to act as technical experts. In my office in Tallaght our technical experts focus on making quasi-judicial awards, whereas our outsourced service centre in Cork brings in the paperwork, uploads it and encourages people to use online services. We do not see any paper in Dublin. We are endeavouring to bring the shared services model across the public service. It is there for the taking and harnessing, but I am not sure it is being exploited or recognised.
With regard to negligence cases, things have changed enormously. The law requires that investigations be carried out within 90 days. The clarity of the case where it is truly defendable can become clear to us and we allow it to go straight to the courtroom for a full defence. Where the inquiry identifies that someone spilled some orange juice, for example, and a lady was injured as a result of the supermarket's negligence, the latter must consent to our process and we will make the award within a matter of months.
Mr. Joe O'Toole:
In terms of the way we present it, outsourcing and shared services are interrelated. We read in the media about blunderbuss outsourcing, where people cut down jobs and have things done elsewhere, but that is not what we mean by outsourcing. It means keeping our staff doing what we want them to do and creating employment in other places by obtaining a service. We are talking about other arms of the State being able to do what they are doing more efficiently by sharing the service. It is probably done outside the Department or organisation concerned and there is huge potential in this regard.
Ms Patricia Byron:
There are internal shared services, as seen in the human resources services in Clonskeagh. This has been done very successfully by the Department of Public Expenditure and Reform.
In respect of external shared services, the State should not continually invest in the technology that is changing, not just by the month but by the day. We can buy or drop the services and connect with these external suppliers, as we wish. We have been doing this for ten years and we have the capacity to do and grow it. A common framework could be put in place for all State registrations and paperwork which could then be brought into the technicians. Although the quality of the public servants who have been appointed is very high, maybe they should not administer general queries on paper and so forth.
I welcome the witnesses and compliment them on their work. I recall when the cost of insurance premia and how to reduce it was the topic of the day but that is no longer the case.
What is the rationale for saying the PIAB should not take over medical cases? Ms Byron referred to litigation costs in 2004 of 46% and 2013 of 58%. Does that represent the fact that the PIAB now deals with the easier cases? Are those lawyers’ litigation costs?
Ms Patricia Byron:
When we started out, litigation costs were 46% as established by the Motor Insurance Advisory Board, MIAB. Those are not our litigation costs. That has nothing to with us. We do not deal with litigation. A case that went to litigation ten years ago would have cost 46%. In the interim that has gone up to 58%.
Ms Dorothea Dowling:
The Deputy is making the point that the 46% or the 58% relates to the whole body of the work but we have taken out the more straightforward cases, therefore everything that is left is complicated. That is an estimate because there is nobody in the business of finding out what it should be, which is a discussion for another day. It is largely based on analysis by the National Consumer Competitiveness Council of the cost of doing business in Ireland, and the rate at which legal costs have gone up where all other professional fees have come down since 2006.
Ms Dorothea Dowling:
In the debates on the Courts Bill, which introduced the jurisdictional increases from 3 February, it was stated that the various independent inquiries conducted subsequent to the MIAB found that in personal injury claims, unlike commercial cases, the costs were proportionate to the award, regardless of complexity, court jurisdiction and of the effort put into the case. It was X% regardless. I have in mind three of those inquiries: the Competition Authority; the Haran report on legal costs and one for the Miller report on the implementation of legal costs
Ms Patricia Byron:
On the rationale for not proceeding down the non-adversarial route for medical negligence, there seems to be ongoing confusion about cause and effect. The effect can be quite a complex injury but that is for the medical people, not the lawyers, to determine. We would make an award when the medical reports were submitted, if we were handling that. Finding the cause is akin to investigating in a shop, an office or any other very determined environment. We also deal with public liability claims and if there is a hole in the street we have to establish whether, for example, Eircom, ESB or Bord Gáis opened it up. Those claims go through our board.
If one is in a hospital environment these people are in the hospital’s employment, and it has health and safety obligations to report and record. It is more a question of duty of candour where the culture does not position people to say they were in theatre and used the wrong implement or that there was a lack of oxygen for five seconds. The outcome of that cause can be very complex but that is for a medical person to determine and it is for us to put the figure on it. Cases where there is dispute over whether it was the implement used, the skill of the technician, the surgeon, the nurse or whoever, can be released to the courts, as now similar cases in respect of motor, public place and workplace claims are released.
At the moment the State uses its insurance company, the State Claims Agency, under motor, public place and workplace claims to go to litigation for contest cases, those it feels it can and should defend. For other cases, where it has identified itself as being in the circle, it uses the PIAB. Why would it not use that system for medical claims, especially when it has reserves of €600 million?
Ms Dorothea Dowling:
I will try to give Deputy Kyne a more direct answer to that question. I spoke to an Irish Timesjournalist before Christmas about remarks made by a High Court judge about the way some cases had been dealt with and how they could have been dealt with differently. The judge’s article was discussed in that interview and I received a letter from the State Claims Agency telling me to withdraw my opinion. It said the basis for that was that, "Over the past number of years the agency’s proactive and efficient management of clinical claims has made significant savings in respect of the independent, actuarially predicted spend on clinical negligence litigation".
That just focuses on the outliers. Our point is that there are other straightforward matters in there. The injuries may be quite serious but the case may be straightforward because, for example, the doctor said to the woman after a delivery that there would be no cover-up, that they made a mistake and would deal with it. However, the woman then finds that it takes years to deal with it on the basis of full defence and is told she will have to pay costs. Unfortunately, I did not have a chance to respond to the letter because I was dealing with the public sector reform programme for the Minister for Public Expenditure and Reform, Deputy Howlin. The State Claims Agency has sent that letter to all members of the board.
Ms Dorothea Dowling:
The difficulty I have with my soon to be former colleagues - because we must all leave on 12 April and unfortunately will not be around for the tenth anniversary on 22 July - is that it was addressed to my place of employment rather than to the PIAB. The fact that I did not get around to answering it means that the board members will have to deal with it at my final board meeting on Thursday. I find that a bit intimidating. I will deal with it in due course.
It needs to get out beyond rather isolated institutions like this. One does not now hear the word “compo” and other clichés. The PIAB has transformed a significant sector of legitimate public interest, which is saving the State a lot of money.
It is a credit to the witnesses and it is timely to hear from them given the changes in the board due in the next couple of weeks.
In following up we always consider presentations and see what areas on which we can focus. There have been some very good suggestions and we need to push forward on them. It is our job to see if we can put on a bit of pressure, along with the witnesses, to have these changes implemented. This is a useful forum in which to tease out those issues. We can revert with helpful suggestions.
Ms Dorothea Dowling:
The recognition would mean something to the Personal Injuries Assessment Board. We were set up at a time of crisis. There was an employment control framework at the time from which we were exempt and as we do not draw a cent from the Exchequer and have repaid the set-up costs of €7 million, we feel very strongly that we should not be curtailed by the employment control framework in not being able to replace people who leave for various reasons, including retirement. That just means the work must go somewhere else at a greater cost. No case has successfully been made for us to be exempted from the employment control framework. As I depart from the chair, I am aware that Ms Byron's team has performed under extreme pressure, and there is a point beyond which cost cutting does not continue to pay.