Ms Sarah Moorehead:

I will deal first with Deputy Buttimer's questions, which lead in to Senator Burke's. It always strikes legal practitioners that the model of a commercial court that everyone would have heard of, a court that shows it is possible to expedite a trial, is only available for commercial practitioners and not for people in circumstances like this. That is not to denigrate what an excellent model it is, but there are many days where the rest of us regret that we are not commercial law practitioners. If one went into commercial law court in the Four Courts when Mr. Justice Kelly was there and or now, when Mr. Justice McGovern is there, on the day one is listed, there are pre-action protocols, there are time limits and everything moves on.

Mr. Cantillion and Mr. Boylan can tell of days even when their cases have been specially fixed, meaning there is supposed to be a judge available for them, and they have waited up to seven days for the case to come on. Those who have been down to the Four Courts know that facilities are not great. That is a dreadful experience not only for the plaintiffs, but also the medical professional involved, for whom this is a very traumatic time. It is also a ridiculous waste of hospital resources, because one cannot schedule witnesses or have any idea what is going on. Medical negligence, and many other areas of law, should be treated in the same model as the commercial court, namely, judges should be assigned to significant cases from the outset, directions should be given from the outset, there should be a designated judge, and there should be a guarantee to all parties that when their case is listed for hearing, it will come on and be dealt with. That is a resources issue and, like every other sector of Irish society, the courts' resources have been significantly diminished. It is hard to explain to people how big a stress it is for somebody to come down, having psyched themselves up for their case to come on, and there have been cases which do not get on at all.

That is probably the most immediate thing that could be done in the absence of reform, but we urge reform from the side of both parties. It is in no one's interest, whether the doctor or the patient, that this process should be delayed. If there is a case to answer, it should be dealt with earlier. I do not want the message to go out that the Bar Council does not believe there are many cases to be defended, because there are. If there are cases to be defended, each doctor is entitled to the best representation and robustness in the system. At the moment, in the absence of pre-action protocols, early exchange of liability reports between the parties may help, so that if there is something there, or an issue to be identified, everybody knows what they are talking about - early mediation, as Mr. Boylan said. Mediation is very important for two reasons. It involves the lawyers in the compensation issue, but it is also a major opportunity for people to get answers, to go into a room with the doctor involved and have a chat, ask the questions they were too overwhelmed to ask at the time. In my experience, that can have a huge effect on the settlement of a case, because many people come to court. Many doctors are very willing to come to mediation to explain their position.

Mediation does not have to mean settlement, although it often does. It can often assist in the process thereafter.

To answer Deputy Mitchell O'Connor's question on the Statute of Limitations, which I appreciate is confusing, for an adult the Statute of Limitations was reduced from three years to two years from date of knowledge. A child is permitted to bring a claim throughout the currency of his or her infancy, that is, to the age of 18, and for a period of two years thereafter. With regard to the ten year limit for a brain injury, irrespective of the Statute of Limitations, by the time a child is aged ten, he or she should not be entitled to bring a claim. As Mr. Boylan pointed out, in the early years of many cases parents are so overwhelmed by the nature of what they are dealing with that the last thing they are speaking about is taking action.

Many of these cases are not about negligence. They are actually about causation. It struck me that the Medical Protection Society, MPS, report stated a new law would have to be introduced to deal with causation. Most practitioners would state that negligence is often very obvious but causation is often very difficult because something could have happened to the child in the womb before the negligent act. This is a huge issue. Getting doctors to deal with the question of causation is often very difficult.

To answer Deputy Regina Doherty on the question of insurance, I do not claim to be an expert on it. The point of the State Claims Agency taking over was, to a large extent, to absorb all of the insurance issues for many doctors, and this should have happened. Many doctors are now represented by the State Claims Agency, unlike previously, but there are doctors who have separate representation. As I understand it, in some cases they may choose to do this and in others it may be because it involves their private work. Undoubtedly, there may be ramifications for them in the private area. I do not know. There certainly should be fewer ramifications than previously because of the introduction of the State Claims Agency and the clinical indemnity scheme, which was introduced so that irrespective of the apportion of liability between the hospital, nurses, consultants and registrars, there would be a joint approach which would result in an earlier settlement. Unfortunately, this has not proved to be the case.

It is also a resources issue for the State Claims Agency and the doctors. It is tremendously expensive to investigate medical negligence. They end up with the same difficulties as the plaintiffs in terms of commissioning expert reports. An issue one hears often from the State Claims Agency is that it has very short time limits for investigation. Late admissions of liability are often because much of the period involved will have been spent continuing to investigate, and by the time a formal defence must be entered, this investigation will not have been completed. For the avoidance of doubt, just because a case is settled for significant money, this amount may not be the full value of the case and there may be significant issues which made it legitimate for the defendants to defend it up to a period of time. There is a level of commercial reality. What we are speaking about with regard to early admission of liability are very straightforward cases and there are some whereby it is inexplicable to people that it took three or four years to do so.