Mr. Ernest Cantillon:

I will start with what Deputy Kelleher asked. He inquired about the adversarial system. It is an adversarial system and it would take a mindset to change that. There are pros and cons of it. Those, such as Ms Bríd Courtney, can have their cases advocated in a strong sense. Some of the patients feel that getting their say out there publicly and having persons publicly accountable for what has happened to them in the court setting has a positive effect in trying to balance the scales. It comes at a cost.

The principal focus on the costs that we have been considering here is the late occurrence of the settlement and how can we bring that forward. The fact that it is not brought forward means that there is a significant human cost to people, such as Bríd and her parents, but there is a significant financial cost. There is a problem. Those on the defence side will tell one that the doctors themselves have difficulties in accessing hospital records, the doctor wants his or her position vindicated, etc. The defend and deny policy has overridden all of those. I see, day in, day out - Deputy Ó Caoláin stated that he sees it on the "Six One News" - parents coming out of the Four Courts stating that their daughter was born five, ten or 15 years ago and they miraculously settled it two hours earlier. What were they doing for the past 15 years and what light shone on them that illuminated them in the Four Courts that could not have been shone into the risk management department of the hospital so many years previously?

The key to this is to obligate the medical people to tell what happened. In fairness to the Medical Council, it has brought this in as a professional guideline, but we do not have it in the legal arena.

In some cases, a doctor may want to admit liability but is told by the risk management department of a hospital not to do so as it could prejudice the hospital's defence. This is a nonsensical approach because any liability issues will come out. In that case, why not bring them out at the outset?

On Deputy Ó Caoláin's point on the Statute of Limitations, the statute was reduced some years ago at the behest of the Medical Protection Society, MPS, and State Claims Agency, SCA, from three years to two years. People such as Ms Courtney do not come running to their solicitors the day after an adverse event occurs. They first try to cope with the consequences of the event, which may take a year or two. The case then has to be investigated. The Medical Protection Society and State Claims Agency complain about cases being taken late in the day. Meritorious cases are being taken late in the day and it is opportunistic to try to deny people justice if their cases are meritorious. On the other hand, if a legitimate defence can be made on the basis that the staff nurse in the hospital has died or some other prejudice can be shown, that is fair enough and there may be some argument for prohibiting such cases. However, the use of the mere passage of time, without there being any prejudice, seems to be an opportunistic attempt to exclude people from justice.

To respond to Deputy Healy's point, it is an unequal struggle and scales, as I stated, need to be recalibrated. This can be done by the doctors in question making an admission as to what occurred.

The Deputy asked what is the experience in other countries. Studies have been done in this area. Dr. Timothy McDonald of the University of Illinois, who addressed the Medical Injuries Alliance in the past year or thereabouts, has introduced a duty of candour, under penalty, at the university. If a doctor does not admit he has had an adverse event, he may have six months' salary deducted or may be held back if he is in the progression from junior doctor to senior doctor. This approach has resulted in the number of adverse incidents being reported multiplying. However, while the number of adverse incident reports may have increased from perhaps 100 to 1,000 per annum, the number of claims has declined because patients were dealt with fairly and honestly. In addition, those patients who proceeded to litigation were easier to deal with and settled their cases easier. Dr. McDonald's statistics on the issue are startling. There is evidence throughout the world to show that the defend and deny approach, such as we have here, is costly, whereas the alternative process works.