Oireachtas Joint and Select Committees

Thursday, 2 March 2023

Public Accounts Committee

2021 Financial Statements of the State Claims Agency: Discussion
Chapter 20: Management of the Clinical Indemnity Scheme of the Report on the Accounts of Public Services 2021

Mr. Ciarán Breen(Director, State Claims Agency) called and examined.

9:30 am

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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The committee is in public session. I welcome everyone to today's meeting. Those attending in the committee room are asked to exercise personal responsibility to protect themselves and others from the risk of contracting Covid-19. Members of the committee attending remotely must do so from within the precincts of Leinster House. This is due to the constitutional requirement that in order to participate in public meetings, members must be physically present within the confines of the Parliament.

The Comptroller and Auditor General, Mr. Seamus McCarthy, is a permanent witness to the committee. He is accompanied this morning by Mr. Ciaran Crowe, audit manager at the Office of the Comptroller and Auditor General. This morning we will engage with officials from the State Claims Agency to examine the 2021 Financial Statements of the State Claims Agency and Chapter 20: Management of the Clinical Indemnity Scheme of the Report on the Accounts of Public Services 2021. We are joined by the following officials from the State Claims Agency: Mr. Ciarán Breen, director; Mr. Cathal O'Keefe, head of clinical risk; and Ms Catherine Tarrant, executive head of claims clinical indemnity scheme. We are also joined from the Department of Health by Mr. Greg Dempsey, deputy Secretary General; and from the HSE, Ms Mairead Dolan, interim chief financial officer; and Ms Orla Healy, national clinical director quality and patient safety. Apologies have been received from Deputy Verona Murphy.

I wish the Department of Health and HSE representatives well in getting Wexford General Hospital back on track. Obviously, what has happened is a catastrophe, with capacity gone from the system, but good work was done. There were no injuries or lives lost, which is the main thing. I wish everybody well in getting the facility back up and running again.

All are very welcome. I remind all those in attendance to ensure their mobile phones are on silent or switched off. I will explain some limitations to parliamentary privilege and the practice of the Houses as regards references witnesses may make to other persons in their evidence. As they are within the precincts of Leinster House, they are protected by absolute privilege in respect of the presentations they make to the committee. This means they have an absolute defence against any defamation action for anything they say at the meeting. However, they are expected not to abuse this privilege and it is my duty as Cathaoirleach to ensure it is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply.

Members are reminded of the provision of Standing Order 218 that the committee shall refrain from inquiring into the merits of a policy or policies of the Government, or a Minister of the Government, or the merits of the objectives of such policies. Members are also reminded of the long-standing parliamentary practice that they should not comment on, criticise, or make charges against a person outside the House, or an official, either by name or in such a way as to make him or her identifiable.

I call Mr. McCarthy to make his opening statement.

Mr. Seamus McCarthy:

The State Claims Agency, SCA, which is part of the National Treasury Management Agency, NTMA, manages legal claims brought against the State and certain designated State bodies. It also has a risk management role, advising and assisting State bodies in minimising their claims exposure. The agency also manages third-party costs borne by the State arising from all categories of litigation, including tribunals of inquiry.

The 2021 financial statements of the State Claims Agency record settlements and associated claim costs totalling €513 million in the year. This expenditure was recovered by the agency from the liable State bodies. The agency’s estimate of the value of claim liabilities outstanding at end 2021 was €4.5 billion. This was more than four times the estimated value of liabilities at the end of 2012. In all, there were 11,408 claims under management at the year end, comprising personal injury claims and third-party property damage claims. Personal injury claims may be further categorised as clinical indemnity cases or general indemnity claims. In addition to the claim costs, the NTMA incurred €29.2 million in administrative costs in the performance of agency services. These administrative costs are charged to the Central Fund of the Exchequer.

In my audit report on the SCA financial statements, I drew attention to a disclosure in the NTMA’s statement on internal control about erroneous payments in 2021 to some of its service providers. Fifteen erroneous payments occurred, with a combined value of €343,000. The payees identified the errors and returned the full value of the payments, so no net financial loss was sustained by the agency. The agency has stated that some of the business processes used in making such payments are manual, and that this was the source of the payment errors. The disclosure notes that the agency has enhanced its controls and procedures to mitigate this business risk.

Chapter 20 of my report on the accounts of public services examined the agency’s management of clinical indemnity claims. At the end of 2021, the estimated outstanding liability for such claims was €3.4 billion, or 75% of the total outstanding liability. The estimated average liability in clinical indemnity cases is heavily influenced by a small number of high-value claims involving cases of catastrophic injury. Cerebral palsy claims, which predominantly occur within maternity services, accounted for approximately 40% of the estimated liability at end 2021, but represented just 4.5% of the total number of active claims. State bodies within the agency’s scope are legally required to report identified incidents that could lead to a claim, using an online system called the national incident management system, NIMS. The agency has stated there is evidence that high levels of incident reporting and a culture of learning are associated with lower levels of litigation. However, the agency’s analysis has identified a number of hospitals that have a poor incident reporting record. I recommended a programme of measures be adopted to bring their reporting of incidents to an acceptable level.

The agency disseminates comprehensive advice and provides assistance to State bodies on the management of litigation risks, and the enhancement of the safety of service users or patients to minimise the incidence of claims and the liabilities of the State. While the agency’s legislative remit allows it to evaluate the adequacy of the measures adopted by State bodies to address identified risks, it does not routinely carry out such evaluations.

The HSE reimburses the State Claims Agency for claim settlements and associated costs on behalf of its own hospitals and section 38 hospitals. It also reimburses the agency in respect of Tusla claims. The reimbursement is reported as a charge in the HSE’s annual financial statements, which also include a contingent liability note in respect of the estimated value of outstanding claims. Individual health bodies covered by the clinical indemnity scheme are not required to disclose details of any settled or outstanding claims related to their activities in their own annual financial statements, or even to acknowledge the occurrence of serious adverse events in their financial reporting.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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As set out in the letter of invitation to Mr. Breen, he has five minutes to deliver his opening statement.

Mr. Ciar?n Breen:

I thank the Chairman and members. I will concentrate on one or two things that arise from the opening statement.

I will address a couple of things that are really by way of tort reforms, which are set out in the opening statement. One is to do with the periodic payment orders and what has been happening on that. As members know, the statutory scheme ultimately failed in a particular court hearing where the index was deemed not to be appropriate. Only six such statutory periodic payment orders were made. That has been in suspension since then and we have been unable to use those.

I will draw attention to the pre-action protocol. As the Chairman possibly knows, I have said on many occasions in this venue in the past that if there was one thing that would improve the management of clinical negligence litigation, not just for us but the families of persons involved in clinical negligence events, a pre-action protocol would be a considerable game changer in easing the more adversarial elements of such litigation.

On the figures referenced by the Comptroller and Auditor General, I will point out some idiosyncratic points in the overall figures. We have 11,204 active claims as of the end of 2022. There are 7,329 claims on the general indemnity scheme and 3,875 claims on the clinical indemnity scheme. The combined outstanding liability in respect of those is €4.95 billion. This is broken down as follows: €3.85 billion against the clinical indemnity scheme and €1.1 billion against the general indemnity scheme. Some of the more idiosyncratic points here relate to maternity services. There are 914 active claims, which is 24% of the portfolio, accounting for 63% of the outstanding liability of €2.4 billion. On what we paid last year, 54%, or €200 million, related to paid maternity claims. Catastrophic injuries represent a particular challenge for the scheme. We have 365 active catastrophic injury claims, which is approximately 9% of the active claims portfolio but accounts for €2.8 billion or 73% of the outstanding liability.

I will mention mass actions because these are a particular volatile category. We have 1,795 mass action claims.

Of those, 535 relate to the clinical indemnity scheme and 1,260 to the general indemnity scheme. The total estimated cost of those is €550 million.

In anticipation of a question from members or the Chair as to how we fare with a comparator, I thought it would be useful to make contextual reference to the NHS Resolution in the UK, which is the equivalent of the State Claims Agency. Maternity-related claims represent 70% of the UK’s body’s overall £128 billion, while 60% of the annual cost of £13.3 billion relates to maternity care. Comparison of our outstanding liability with theirs shows a favourable position for us, even taking into account the population difference and so on.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Mr. Breen mentioned a figure of £13.8 billion for the outstanding liability in Britain?

Mr. Ciar?n Breen:

No. The total outstanding liability is £128.6 billion but the annual cost is £13.3 billion.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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That is okay. I thought there was a discrepancy there.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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I thank all the witnesses. Mr. Breen will be aware that last week we had representatives from Revenue, the Central Bank and the Department of Finance with us in pursuit of our examination of the insurance compensation fund, ICF. The NTMA Act of 2000, as amended in 2018, provides that the State Claims Agency carry out certain functions in relation to that fund, including due diligence of claims and the making of an application to the High Court for payment from the ICF.

The main question last week concerned the substantial sum of €27 million provided for security of costs in the Quinn Insurance case. There was alarm in the room at the lack of clarity around the decision to provide that sum. I do not think anybody in the room suggested that was not a good legal strategy from which, ultimately, the State might benefit. However, the governance and, therefore, the constraints put on providing that sum were not clear to members. The witnesses present were not able to provide that assurance. They will have another opportunity later in the month to do that, but it is fortuitous State Claims Agency representatives are here today because, ultimately, that agency makes the application to the High Court for withdrawal of funds. Who authorises the State Claims Agency to make an application to the High Court for payments out of the ICF?

Mr. Ciar?n Breen:

In order that the Deputy will understand exactly what our remit is in respect of the insurance compensation fund, it is by virtue of the Insurance (Amendment) Act 2018. Where an insurer goes into liquidation, the appointed liquidator is obliged to notify the insurance compensation fund. If the liquidator is in a member state and is authorised to carry on business here, our function is twofold. One, we look at the body of claims which form the application to the President of the High Court to make a payment out of the insurance compensation fund. Having carried out due diligence and provided a report, we are then, under the Act, obliged to make the application to the president for payment of the claims.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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Mr. Breen is suggesting there is an automatic obligation in the legislation to provide that.

Mr. Ciar?n Breen:

Yes, since 2018. It changed in 2018. That is when we became involved.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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The case in question is difficult without all the details before us, but it involved two private parties, namely, Quinn Insurance Limited and PwC. It did not specifically involve an injured party seeking the benefit of the fund. It was clear the security of costs was requested by one party and public money was used to provide that security of costs. Mr. Breen can understand our concern to understand why public money was used in a private case. Who were the decision-makers in making that €27 million available?

Mr. Ciar?n Breen:

That predates our involvement. We were not involved in making that application. The administrators of Quinn Insurance Limited were the applicant party in respect of that. That predates the involvement of the State Claims Agency.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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My understanding was the drawdown happened after the 2018 amendment, and therefore during the time the agency administered it.

Mr. Ciar?n Breen:

That is absolutely correct but, given it was not covered in our remit, it is separate from anything we are involved in under the insurance compensation bond.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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It was, if I remember correctly, in the year 2020 that somebody made an application to the High Court to withdraw €27 million. I imagined it was the State Claims Agency.

Mr. Ciar?n Breen:

No. That is the point I am making. It was an application to the High Court between PwC, on one hand, and the administrator answering that, on the other hand.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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That is useful to us in pursuing this. Mr. Breen is saying the State Claims Agency had no role in making an application for the drawdown of funds for that security case.

Mr. Ciar?n Breen:

That is correct. We were not involved in that application.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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It is difficult to ask the next question but I will ask it. Is Mr. Breen aware of any public official or body involved in that decision?

Mr. Ciar?n Breen:

I do not know because we did not make the application but I presume the Central Bank and Department of Finance would have an involvement.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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That is the great difficulty the Committee of Public Accounts has: we are also presuming but have very little evidence before us. There is a glaring hole of governance around this fund which is not primarily for Mr. Breen but, as he is the person who makes applications to the High Court to draw down money from the fund, I alert him to the huge concern in the committee. The real concern is that guarantees were not sought to prevent a non-disclosure agreement. It appears the committee will not be told the final settlement of that case. The reason for that is there may have been a non-disclosure agreement and the reason for that is the State, when providing the colossal sum of €27 million, put no guarantees in place that the public and insurance customers, who provide that sum, would get transparency regarding that money. I say that to Mr. Breen because of his role in making applications and because this may not be limited to this case. There may be other cases he is now involved in. A greater degree of governance is needed. Does Mr. Breen have any comment on that?

Mr. Ciar?n Breen:

All I can say is the work we do under the insurance compensation fund is open and transparent. I have figures with me regarding payments made under our interactions by virtue of the Insurance (Amendment) Act.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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These are payments the State Claims Agency has made.

Mr. Ciar?n Breen:

Yes, these are applications on behalf of insurance companies which were in liquidation.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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Are none of those currently under the agency’s remit of a similar nature, where security of costs is being sought?

Mr. Ciar?n Breen:

No. That did not and does not arise.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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If a similar request was made now, does Mr. Breen believe the State Claims Agency would make an application?

Mr. Ciar?n Breen:

It is very hypothetical. We would have to look at the facts at the time. Security for costs rarely arises. In my 22 years in the State Claims Agency, I cannot remember a case where that arose. It is a very particular feature of litigation and very sui generis.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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In a scenario where security costs were being sought, and I am not pinning Mr. Breen down to a hypothetical situation, would he agree that certain criteria or guarantees around the transparency of any outcome of that case would be an appropriate thing for the State Claims Agency to take on board if it was to apply for security costs in the future?

Mr. Ciar?n Breen:

In answer to the Deputy, I would say that everything the State Claims Agency does is transparent. The State Claims Agency tries to make everything it does as transparent as we possibly can.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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For somebody who was not party to the decision, Mr. Breen has been very helpful and the committee members will use the information going forward. There is so much within Mr. Breen's remit that we need more than 15 minutes to explore it and I have unfortunately used a good chunk of it already on last week's committee meeting. I have two questions. Legal costs are always a controversial issue. For cases that have a small settlement and where legal costs may outweigh the final settlement, are there cases where legal costs exceed the settlement that might be provided to the person under the clinical indemnity scheme?

Mr. Ciar?n Breen:

It is very rare that the State Claims Agency has a case where the legal costs exceed the level of compensation. That is largely because we do not have many small cases per seif you know what I mean, or cases that are not at the catastrophic injury level or at levels below that. The cases involve an average quantum from €250,000 the whole way up to the kind of figures such as the more than €30 million we paid in an individual cerebral palsy case. Having said that, there is no doubt but that legal costs are a problem for us. If we look at the cost of both schemes, legal costs are a particular issue there.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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Is it correct that the 2020 figure was €40 million?

Mr. Ciar?n Breen:

I will come back to the Deputy on that figure in a second, I will look for it. There is one feature of legal costs which I would like to bring to the committee's attention. It is a very unusual feature which is that by reference to section D, for example, if one is a plaintiff's solicitor and is preparing one's bill of costs, not alone are we paying the bill of costs but we are actually paying a sum in respect of the preparation of that bill of costs, which can often run as high as 10% of the actual bill of costs. For example that is literally akin to somebody having a meal in a restaurant and being presented with the bill and someone says that, by the way, there is a charge for presenting them with the bill as well. These are features that add to the costs and they are problematic for the State Claims Agency.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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In the carrying out by the State Claims Agency of its own legal strategy, there may be times it will settle a case.

Mr. Ciar?n Breen:

Yes.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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Mr. Breen gave me an answer that legal costs very rarely exceed the settlement amount. Can Mr. Breen provide a breakdown to the committee to assist it in evaluating that? For example, if legal costs are three quarters of the final settlement it could still be worrying, if he knows what I mean.

Mr. Ciar?n Breen:

Maybe I could give some general figures from my notes.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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Yes.

Mr. Ciar?n Breen:

In 2022, the State Claims Agency's legal and expert costs in respect of the general scheme amounted to €23.07 million. The plaintiff's legal costs in respect of that were €36.5 million. In respect of the clinical scheme in the year 2022, the total agency and legal costs were almost €31 million and the total plaintiff's legal and other costs were €53.93 million. That gives an idea of the size of the costs.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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Does Mr. Breen believe that the size of the legal team the State Claims Agency has - for example there might be two senior counsel on its side - sometimes obliges the other side to match that and have two senior counsel on their side? Has the agency looked at how those costs might contribute to the overall increase?

Mr. Ciar?n Breen:

There are two things about that, Deputy. The first relates to our own barristers. The State Claims Agency procures its barrister panels, which we did both last year for our senior panel and this year for our junior panel, and that is a very particular procurement process. The reason we do that is to make sure that we control our costs. We rarely use more than one senior counsel in an individual case. There are times when two are needed. It is normal, particularly in clinical negligence cases, for there to be two senior counsel representing a plaintiff. However at the moment normally we only pay one senior counsel. Having said that, we are seeing more and more, particularly at legal costs adjudication, that where there is an application to have two senior counsel for a plaintiff in a case, they are making allowances for that at the legal costs adjudication end. If that was to become a feature, where there are two senior counsel paid for by the State in these cases, that would add to costs significantly.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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That is something I have been alerted to as well. I have one last question. That panel of legal experts the State Claims Agency procures, is it correct that it also uses those same people to carry out the mediation process?

Mr. Ciar?n Breen:

Yes. What happens normally, pretty much but not exclusively, is that senior council are mediators.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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I am being blunt because of the time. It is accepted that barristers operate on an independent basis per case and so on, but it does raise a concern that if an individual is in mediation with the State Claims Agency and the person who is mediating that case is somebody who receives significant income from the State Claims Agency procurement panel, one can imagine how there might be a perception of imbalance there.

Mr. Ciar?n Breen:

Can I give the Deputy a little bit of reassurance on that? First, it is the case that sometimes, a mediator is someone who is on our panel as a senior counsel. However in any event both the plaintiff and the defendant have to agree on the choice of mediator and we are relying on that independence. By the way, there are many plaintiff's counsel who act as mediators that we accept in cases as well. We rely on their integrity and independence to conduct a mediation not favouring any one party but doing it on an objective basis.

Photo of Paul McAuliffePaul McAuliffe (Dublin North West, Fianna Fail)
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I am out of time. I thank Mr. Breen and I might come back in the second round.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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From the outset, I should state I believe in the State Claims Agency as regards the process by which it has to operate. It was actually my party that set it up. However I have a number of issues which are of concern to me. I will hold all of my questions regarding CervicalCheck, which will not surprise many people. My first question is for Mr. Dempsey. How stands the civil liability amendment Bill?

Mr. Greg Dempsey:

I do not know off the top of my head. I believe that question would be for the Department of Justice, as I think it is bringing that forward.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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No, actually I wrote to the Minister for Health and have raised it many times. I sent the current Minister a draft Bill, which I had produced myself, for the first time in September 2020 and he was to revert to me. This Bill is absolutely critical. We really have no choice as legislators but to bring this forward. It is really through the Department of Health, working with the Department of Justice as the lead, that it will have to be done. In the Ruth Morrissey Supreme Court judgment what the Chief Justice said regarding that and following on from that has never been implemented by this State and it is a bloody disgrace. People have to choose, when they are terminally ill, to go forward with cases because they know that if they do not, their children cannot sue if the person passes away in advance of a judgment and settlement. After all we have been through in this State that is wrong. Will Mr. Dempsey revert to the committee on the status of this in writing because I am sick and tired of the Government bluffing on it?

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Can I ask for some information to be provided before the end of the meeting? That would be helpful, as it is a critical question.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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My second question is for Mr. Breen. I presume he remembers the famous letter he wrote to Mr. Stephen Brophy, principal officer of the clinical indemnity unit at the Department of Health on 6 November 2020.

I will read it out. It states:

Dear Stephen,

The State Claims Agency will not raise any objection should a Claimant/Applicant at the CervicalCheck Tribunal, seek to sue the HSE as sole Defendant. However, the Agency will seek to join the laboratories, in such circumstances, as third parties, with the agreement that the third party action will be heard at the same time as the claim against the HSE.

The Agency affirms its commitment to use mediation, wherever possible and in co-operation with the laboratories, to seek to resolve CervicalCheck cases.

Has that letter been honoured in all cases? Has the agency honoured that letter in every case that has been taken?

Mr. Ciar?n Breen:

There is no case that I can personally recall where we have not advocated mediation as-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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That is not what I asked. It is Mr. Breen's letter I am reading by the way.

Mr. Ciar?n Breen:

I understand that.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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That is not what I asked. I asked Mr. Breen if the agency has honoured that letter. It is not about the mediation either.

Mr. Ciar?n Breen:

Will the Deputy be clearer in his question about what the issue is?

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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Basically, the letter states that the State Claims Agency will not raise any objection should a claimant applicant at the CervicalCheck tribunal seek to sue the HSE as sole defendant. Has the agency honoured that?

Mr. Ciar?n Breen:

I believe we have.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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In recent weeks, there has been a number of cases before the tribunal. Cases were taken where the State Claims Agency did consent. However, the laboratories did not consent. As a result, the State Claims Agency withdrew. Not only did it withdraw, but it challenged those women on statute, as being statute barred. This is despite the fact that the Minister had extended it twice. I flagged this issue countless times. They were in statute at the end of January 2022. They have met the requirements. However, in the correspondence from the State Claims Agency, they were claimed to be challenging statute. The first question is, why? Second, how can Mr. Breen say the letter stating they can solely sue the HSE was honoured? When the laboratories withdrew from those two cases the agency not only withdrew but, shockingly, it also challenged both ladies, who are of limited means, on their costs. I would love to hear the explanation for this.

Mr. Ciar?n Breen:

We did honour our commitment, in the first instance, in the terms of that letter. We agreed that if we were the sole defendant, we would do that, and then join the laboratories if necessary. What happened in the cases referred to by the Deputy was that we were absolutely committed to going before the tribunal. We would be before the tribunal on any issues relating to the finding by the Supreme Court on the primary liability issue, but not being vicariously liable for the laboratories, and that we would be there, therefore, if there was, for example, an issue arising in relation to non-disclosure. If, however, in the context of the matters before the tribunal, the laboratories separately raised issues on the statute or, indeed, on any other point, we could not be left in the situation-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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The-----

Mr. Ciar?n Breen:

If the Deputy will bear with me-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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I only have a certain amount of time.

Mr. Ciar?n Breen:

Yes, but I have to give the explanation because he has asked me, and he has described it as shocking. I want to tell him that we do not do shocking things to anybody, particularly vulnerable plaintiffs. However, in the particular case we had to default out due to the fact that the laboratories were raising those legal issues.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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On 11 May 2018, the Taoiseach appeared on "RTÉ News: Six One" and stated that the women would not have to pursue the laboratories. I watched it live, and I saw what he said. I found what he said to be unbelievable. That this would be honoured had to drift through this letter, to the State Claims Agency. I believe that anybody reading this letter, and hearing what Mr. Breen has said, would see this as splitting hairs. It is insulting. The agency has guaranteed in writing that it will not raise any objection should a claimant applicant at the CervicalCheck tribunal seek to sue the HSE as sole defendant. We know there is a small amount of cases in the first place. It then goes on to state it will add the laboratories as necessary. In the spirit of what came from Government and from that letter, what Mr. Breen has just said is not fair for the women and families affected. It is not appropriate, nor is it in the spirit of how the agency should be acting.

I am close to a number of these cases. As far as I can see, the issues we have seen with strategies pursued in relation to disabilities, nursing homes and so on are still being pursued. Liability is admitted to try to avoid court, the case is run right up to trial and then causation is denied in defence and there is usually a refusal to apologise. For all of the cases the State Claims Agency has been defending in the tribunal or the courts, will Mr. Breen provide me, in tabular form, the date on which the court cases were first due in court and the date on which mediation commenced? Amazingly, on most occasions it will be shown that it was quite close to the actual case. If the spirit of mediation were appropriately acted on, it would have been dealt with long ago.

There is a lady currently going through the 11th day of her case. The idea that the State Claims Agency is acting in an expedient manner to try to deal with these cases quickly is just not true. I am conscious of that because I am aware of so many of these cases. Why would these women, who are going to the High Court and, separately, to the tribunal, in many cases enter mediation when we end up in a scenario where the strategies being pursued are so vehement and rigorous, almost to the point of being shameful? Why would they enter mediation when they have to go through that sort of process each time? Why is the spirit of the letter sent by the SCA not being honoured?

Mr. Ciar?n Breen:

We are probably at disagreement about that particular aspect. The Deputy says the spirit of the letter is not being adhered to. It is. By the way, I want to clarify on the record that we have never pleaded the statute against any-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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Is Mr. Breen saying that it has never been in any defence that the agency would argue against statute?

Mr. Ciar?n Breen:

No, it has not been in our defence. The laboratories may have done it.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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This is a very interesting point. How many cases are there? Why are there so many cases at the moment? There is an 11-day court case currently ongoing. The main defendant is the laboratory, MedLab.

Mr. Ciar?n Breen:

Yes.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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It is pursuing everything. The State Claims Agency is kind of sideways involved. Is that right?

Mr. Ciar?n Breen:

Yes.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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Mr. Breen can continue to say "Yes". That is fine and it might categorise the agency differently but it does not help the women. It does not deal with how the State said it would honourably deal with them. MedLab, or whatever laboratory it is as it is not just one, is going to pursue this so rigorously that the controls and the human aspect of the State will be withdrawn because the State Claims Agency is not going to be there. The agency will not be leading or be directly involved. The laboratory will be doing that. That defeats the spirit of this too.

Mr. Ciar?n Breen:

Deputy Kelly can understand that the laboratories and their insurers are independent parties.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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I understand that.

Mr. Ciar?n Breen:

They have to make up their minds about the liability position as they see it. We are there in a very different guise, as the Deputy pointed out. There is, therefore, only so much influence we can bring to it.

In every instance, and there is not a single instance in which we do not, we advocate mediation and try to get into mediation.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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The State should be more involved, given everything that has happened. Mediation is coming just before the cases. Mr. Breen's tabular report that will come to us will demonstrate that. We may have a disagreement on the following, which is fair enough, but Mr. Breen must take it back. I am just a public representative, but anybody looking at the spirit of this letter would say it is absolutely not being honoured.

Mr. Ciar?n Breen:

One of the things the Oireachtas has charged us with is always to make sure that, if there is a third party that has a liability that clearly it should discharge, then it should discharge it and the State should not discharge the liability of another party.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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However, the Taoiseach of Ireland went on national television and said something quite the opposite of that.

Mr. Ciar?n Breen:

He did, Deputy, but as I was-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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Was that an error? Was he wrong?

Mr. Ciar?n Breen:

As I recall matters, he corrected that statement-----

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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No, he did not correct it.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Thank you.

Mr. Ciar?n Breen:

I believe it as a matter of record he did.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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Mr. Breen's letter was the correction

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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The point is, the third party was contracted by the State and it was in the hands of the third party, which is how we wound up in this situation, which was unfortunate for the women and their families.

Mr. Ciar?n Breen:

As the Cathaoirleach knows, they are contractually obliged to indemnify the State under the contracts.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I understand that, but it has been hard on the women who have finished up in this situation.

Mr. Ciar?n Breen:

I understand.

Photo of Alan KellyAlan Kelly (Tipperary, Labour)
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A different strategy is needed.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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On the sheer scale of this, we see clinical cases settled, with news features and people standing outside the court who very often feel tortured by the length of time it has taken to get through the courts system and, indeed, sometimes just to get a mere apology. The human side of it cannot be calculated, but we can calculate some of the costs. We can do an estimate on costs, particularly in regard to clinical cases and catastrophic damages at birth. We are told the total estimate is about €5 billion. There is significant under-reporting or maybe a lack of recognition of damage at birth. If an actuarial assessment were to be done of the actual number as opposed to the reported number of cases, what would be the actuarial assessment of the overall potential liability?

Mr. Ciar?n Breen:

Does the Deputy mean live births and the rate of cerebral palsy?

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Yes.

Mr. Ciar?n Breen:

I do not believe we have ever calculated it on that basis. We can only deal with it on the basis of known liabilities or incurred but not reported liabilities.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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From experience, Mr. Breen will know there is under-reporting.

Mr. Ciar?n Breen:

I am genuinely not aware there is under-reporting, particularly of cerebral palsy cases. The reason I say that is it is such a challenging thing for a family if it is a negligence event.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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What about under-reporting generally in regard to clinical cases?

Mr. Ciar?n Breen:

In regard to under-reporting of clinical cases generally, we say that roughly one in four adverse events, if you put it that way, ends up as a claim. That is the general statistic.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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What would the potential figure be if claims were made for 100% of adverse events? What would the actuarial assessment be if it was full reporting?

Mr. Ciar?n Breen:

It obviously would be much higher. However, we would never calculate it on that basis. We always do it on the basis of actual liability.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Based on the rate of 1 in 4, we can do that calculation ourselves.

Mr. Ciar?n Breen:

Yes.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I will move on to the way in which it is handled. Six hospitals account for 59% of the outstanding liability and 56% of the damages in regard to cerebral palsy. Essentially, what we all want to achieve is that we reduce the liability by reducing the incidents. How are hospitals held to account? Of those six hospitals, for example, it could be that one has a very high or much higher incidence. It could be that one particular consultant has a higher incidence among the patients he or she is looking after. How do we get to the point where we get the accountability needed to change a situation so that we get best outcomes? How can that be done without actually seeing information provided on that individual hospital level?

Mr. Ciar?n Breen:

There are two issues in that. One is, if we take the major maternity hospitals in Dublin, they obviously get cases that are straightforward and then there are cases that are far more complex, having regard to different issues. There is a great mix of cases. It is therefore hard to look at it in isolation. The second point is-----

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Do they do this in other countries? Do they do it at an individual hospital level in other countries? How can we get better clinical outcomes if we do not position accountability? I completely accept that the large teaching hospitals will get the more complex cases. I understand all of that. How do we do it and where do we compare there?

Mr. Ciar?n Breen:

To go back to a point the Deputy made earlier so as to put it to bed, we rarely if ever see, especially in obstetric medicine, that it is down to a particular single event. Normally, it is a concatenation of different events before delivery that causes the problem.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I am really looking for the comparators whereby better outcomes are attained. Value for money is not just about what we spend; it is the services that are provided, in this case, the safe services that are provided. How do we do that if we do not look at it at an individual hospital level and have a comparator there in order that there is accountability?

Mr. Ciar?n Breen:

We look at it in terms of our risk management approach, because we have the data on the individual hospitals. We look at them to see what is happening. For example, our cerebral palsy rate is not out of line with all the international comparators. The statistics I gave earlier for our nearest neighbours in the UK show they have exactly similar problems in obstetric medicine. One of the initiatives we have-----

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I have very little time.

Mr. Ciar?n Breen:

One of the things we have done with the HSE is there is new group in operation called the national neonatal encephalopathy group, which looks specifically at what is happening, why cerebral palsy is a feature of obstetric medicine, and tries to make those claims less over a period of time.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I return to an issue about which I asked Mr. Breen previously and on which we had a good engagement the last time he was before the committee, which is that there was a change in how cases were dealt with during Covid-19 and the unavailability of the courts meant the legal process was pursued differently in regard to mediated processes at a much earlier stage. Has that changed since the courts have become more available or is it being seen there has been a change in how cases are being pursued? In the region of 24% of the costs of these claims is accounted for by legal or other costs.

Mr. Ciar?n Breen:

The good news is that, although it has fallen off slightly from the figures I supplied on mediation during Covid-19 when, on a force majeurebasis, mediation was used more frequently, we are still up at levels in excess of 30% for last year.

For example, in relation to where compensation-----

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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How does that compare to other countries?

Mr. Ciar?n Breen:

It compares pretty favourably. The last time I looked, there was very little difference between our statistics and the English statistics, except that England has the pre-action protocol. A particular feature of that protocol is the mediation aspect. In other words, the parties get together at a much earlier time. They net out the difference between them in the context of clinical negligence and then move very quickly to alternative dispute resolution, which is mediation. We heartily endorse that. It is absolutely the way we should be going. I would love to be here to tell the committee we are doing 70% or 80% of our cases through mediation. There are cases in which we offer mediation and, unfortunately, for whatever reason, a plaintiff might not accept. Our default position is that we would like mediation in all our cases, particularly clinical negligence cases. It is the much better way.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Is there a difference in the time involved under the pre-action protocol? Perhaps Mr. Breen would explain how it works.

Mr. Ciar?n Breen:

It is a protocol which states a person cannot issue legal proceedings if he or she was in a medical negligence event. The person writes a letter of claim to the State Claims Agency and has to set out his or her claim in detail. We in the agency, on behalf of the HSE, must respond within a strict time limit, stating which aspects of the claim we take issue with. That contrasts with the current system, under which everything is in debate. Under the pre-action protocol, issues are netted down. The two experts can then get together and talk about why they have different views and explore if they can narrow those views. The whole idea is that very quickly, we get to the mediation process. For families, that avoids the added trauma of preparing for, and going to, court. Cases are dealt with in a much shorter timeframe.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I am not talking about cases with catastrophic ends, but what sometimes influences somebody to take a case is the attitude of the offender, or the perceived offender. Very often, hands-up apologies can be proffered and some sort of mitigation offered. What is awful is when people come out to the steps of a courtroom and say nobody ever apologised. In what scenario does that become almost a culture? What advice would the SCA give in respect of something like that?

Mr. Ciar?n Breen:

Our advice is always that where there has been wrongdoing, like open disclosure, a hospital should apologise and it is the hospital that offers the apology and not the SCA, obviously, because we are not the people who were responsible for the treatment in care.

In respect of the issue the Deputy has raised, I agree that the tort system as we have it now creates great trauma for families where someone has suffered a clinical negligence event. We need to do better and the pre-action protocol is one thing that if it were to be brought in - and it will be brought in, as I understand it - would change much of the stress that is there for families at the moment. The good thing about the pre-action protocol and moving to mediation is that mediation is the perfect forum to offer an apology. It can often mean that an individual will be there to apologise to the family in person.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Does the pre-action protocol require legislation?

Mr. Ciar?n Breen:

The legislation is in place. There was a small legal anomaly, which is about to be taken care of in a particular Bill that is being brought forward by the Department of Justice.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Is there a justice Bill?

Mr. Ciar?n Breen:

There is. It is under debate in the Dáil.

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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I welcome the witnesses to the meeting. My first question relates to the process in situations where there are reoccurring claims. Does the State Claims Agency provide advice to State agencies where it feels they need to tie down loose ends or provide advice to them where there are reoccurring solvable issues that the agency feels would reduce the overall levels of compensation that are required to be paid out? Does the agency engage in those conversations with State agencies? The reason I am asking is there was significant growth in the outstanding liability from 2012 to 2022. The growth has been, quite frankly, enormous.

Mr. Ciar?n Breen:

I thank the Deputy. The answer is "Yes". We have a risk management department for the general indemnity scheme and the clinical indemnity scheme. One of the main tools that both of those units use is to examine all of the adverse events that are notified on the national incident management system and the feedback and learning from claims. We are constantly feeding that back. To give the Deputy one small example-----

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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Will Mr. Breen hold onto that example? I do not have the time for him to share it. The NIMS is an interesting analogy. I understand that only 25% of claims against the Department of Health and the HSE between 2017 and 2021 were reported by the system.

Mr. Ciar?n Breen:

I am aware of that.

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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Why was that the case?

Mr. Ciar?n Breen:

That can happen in different circumstances. There are, for example, some incidents that only come to light after the event. For example, somebody can have a clinical procedure, leave hospital and go home before it suddenly transpires that there is a complication related to the event. That event could never have been notified. Having said that, there is no doubt but that some incidents are simply not being reported. We have been working extensively with all the hospitals and State authorities to ensure they are reporting their events. We want them to report every event. The statute requires reporting of events giving rise to claims.

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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Is the HSE notified by the agency of the claims that are paid and not reported as incidents? If that is the case, does the HSE undertake reviews to ascertain the reasons for non-reporting of the incidents?

Mr. Ciar?n Breen:

We work with individual hospitals where we find under-reporting. We give each of them a report and the exact statistics about claims where no previous incident was notified. We call that "delta CPRI". Those are incidents that become claims but were not previously reported. We give the hospitals all of this information. We engage with them. All of this is with a view to ensuring the maximum number of incidents are reported.

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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What share of the liabilities that the agency has to pay out come from health-related cases? Have the witnesses an estimate for that?

Mr. Ciar?n Breen:

I previously quoted €4.9 billion and the bulk of that, bar €1.1 billion, which is the general scheme, relates to the clinical indemnity scheme.

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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What is the view of Mr. Breen and the agency of the HSE's patient management system in respect of individual data? Perhaps a patient was in hospital and undergoing treatment for an advanced healthcare problem that required input from consultants from different locations, along with the patient's GP or pharmacist, about their prescriptions, follow-on care and all of that. I am hearing from people who work in healthcare that there is a more up-to-date IT system for the medication and healthcare of animals than for people. I am also hearing that if somebody has to get files from different hospital groups on different campuses, whether they are in private care or trying to request documentation from the HSE, it can take up to a month. That is what I have been told by some doctors. It is shocking. It is no surprise to me that the HSE is having to deal with so many legal cases and actions. That is the endpoint of a process that amounts to failure. A patient would be entitled and right to bring a case for wrongdoing. How can we get to a situation where we can fix that problem? The IT system in the health service requires to be fixed. In 2023, we still do not seem to have a properly functioning system, according to many healthcare professionals who have come to me.

I just want to get an indication from the witnesses. Is that a conversation they have been having with the HSE? In all honesty, if it is not, it is about time they did. Have they been having those discussions?

Mr. Ciar?n Breen:

The question of the maintenance of medical records really is not a matter for us; it is a matter for the HSE. Obviously, we secure medical records from the hospitals in individual cases in which we are involved and we get those medical records-----

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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I do not mean to be flippant, but if you reach a situation where there is negligence caused by an error on the part of a medical professional - sadly, because of the IT systems in place, that can occur - you end up in a situation where it is your problem and your responsibility. I do not mean to be direct with Mr. Breen, but do not sell me that one. I am asking him a very clear question. I think this is one of the greatest problems we have with the health service at the moment. All I am trying to ask him is whether he is telling the HSE that this is a problem it needs to fix. It is costing the State potentially hundreds of millions annually.

Mr. Ciar?n Breen:

We certainly have discussions on several matters relating to medical records, the adequacy of medical records and how they are kept, maintained and given to us. That is a feature of our interaction with the HSE from time to time.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Deputy, we have representatives from the HSE, Dr. Orla Healy and Ms Mairéad Dolan, if you wish to raise that issue with them.

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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Addressing the question to the HSE, does it have a particular view on this? To be clear, the point I am making is about a live patient system that a doctor can log on to in order to see exactly what medication a certain patient has, the underlying health conditions they may have and their full patient history. What I am hearing is that much of this is paper-based, that there is still not an up-to-date system and that it is a nightmare to get documentation from other hospitals if the patients are in a particular healthcare facility where they were not previously receiving care for a particular health condition. I know that is a bit longwinded but I am just asking what has been done to address that.

Dr. Orla Healy:

I thank the Deputy for his question. His point is well made. Clearly, the linking of individual patient records that exist in multiple locations is important. A level of automation has occurred in recent times, as evidenced by the impact of the cyberattack last year. That clearly demonstrated how automated our systems have become and the level of electronic records we have in the system. It is acknowledged that when people visit various sites, separate records are maintained on all those sites. The ultimate means of linking all that would be to have a unique health identifier for patients in order that there is a single record number across the board and that the use of that identifier would ultimately lead to an electronic patient health record. In some services we have that facility. For instance, maternity services have an electronic patient health record and people can seamlessly access their information from site to site. As I said, however, that is a huge undertaking for the health service and is very much linked to the electronic patient health record. In the absence of that record, we have a number of other systems and actions - for instance, medication. In my directorate in quality and patient safety, we have a no-ask check campaign whereby we encourage patients to keep a record of their own medication, so we engage with patients as partners in-----

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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I hate to cut across Dr. Healy, but if we are dealing with these cases, we might as well be blunt about it. They are the most serious of them, the ones that could end up costing millions in liabilities paid out to people who have gone through extraordinary trauma and are suffering lifelong consequences as a result of mistakes made within hospital settings. It is okay to say that certain HSE facilities have these records, but the problem is that all of them need to have them in order for the system to work. That is the point I want to make. The witnesses can see that my time is out, but I will ask them just one question. Is there a timeline for every HSE facility, particularly hospitals run by the HSE, to have that system in place? Is there a window or a timeframe for that to happen?

Dr. Orla Healy:

I cannot provide the Deputy with those data at this point in time. That is a matter for our ICT and the implementation of the unique patient identifier.

Photo of James O'ConnorJames O'Connor (Cork East, Fianna Fail)
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I will defer the matter to a later round.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I ask the witnesses to come back maybe within two weeks with that information from the ICT section of the HSE. It is an important question.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I want to be able to offer a timeline because that has come up in previous sessions, and what we heard was that the business case was rejected in 2018 by the Department of Public Expenditure and Reform. The HSE has not redone the business case. It is linked to the children's hospital. By the timeline we worked out with the HSE in the room at that Committee of Public Accounts session, I believe we said that it would be ambitious to have e-health records rolled out by 2026 and that it would more likely be 2027. I have other questions but I just want to follow up on what Deputy O'Connor has raised because it is really important. Our e-health records system does not have a working business case and has not gone to any procurement. It will be a continuing risk and the State Claims Agency is in the business of assessing risk. Am I given to understand from the witnesses responses to Deputy O'Connor that they do not identify the lack of patient e-health records until maybe 2028? The interim head of the HSE said 2027 or 2028 to me. The witnesses do not identify that as an ongoing significant risk.

Mr. Ciar?n Breen:

We do. I did not want to play it down. For us, the adequacy of records is a major issue because sometimes, in assessments in court, for example, or a particular clinical claim, the inadequacy of records can become an issue and can go to the negligence in the particular case, so it is very much an issue for us in that sense.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I would like to think we are talking just about different ICT systems, but often we are talking about paper documents and they go astray.

Mr. Ciar?n Breen:

Yes.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Considering that the witnesses accept that they are a risk and that the State Claims Agency is in the business of advising the State on risk, we also heard from the HSE that there is no funding to e-health records at the moment. It is a project of over €1 billion, probably, and there is no funding in place for that. Does the State Claims Agency advise the HSE or the Department on the issue?

Mr. Ciar?n Breen:

Obviously, while we give them general advices as to what we would like to see by way of best records practice, it is up to the HSE itself in terms of its budgets and so on to implement the best records systems. We cannot tell it in that sense what to do. We give advice generally on the inadequacy of records and-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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What form does that advice take? Does the State Claims Agency issue the HSE circulars or briefing notes or how does that work? What formal document lands on the desk of the Minister when Mr. Breen says this lack of e-health records is an ongoing and recurrent risk?

Mr. Ciar?n Breen:

It normally forms part of discussions we have on the joint governance group. There is a joint governance group between the State Claims Agency and the HSE and-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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How often does it meet?

Mr. Ciar?n Breen:

We meet roughly four times a year.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Are the minutes of those meetings publicly available?

Mr. Ciar?n Breen:

I presume they are.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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If I went to see those minutes, would I see the State Claims Agency saying to the HSE that this is an ongoing risk?

Mr. Ciar?n Breen:

I cannot say the Deputy definitely will but I can definitely tell her that there have been occasions when we have discussed health records, e-health records and record-keeping.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Okay, but is that in the context of a specific case?

Mr. Ciar?n Breen:

Not necessarily. We rarely talk about specific cases. We talk about this in its generality.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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When Mr. Breen says "in its generality", is that related to, let us say, a scheme like CervicalCheck, or is he saying that, in a global sense, the State Claims Agency is saying to the HSE that this is an ongoing and recurrent risk?

Mr. Ciar?n Breen:

What we would say is that in certain cases in which we are involved, assessing a clinical negligence event, the adequacy of records sometimes arises.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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What is the response from the HSE when the State Claims Agency delivers advice like that? Does the HSE have a requirement to respond to the agency's advice?

Mr. Ciar?n Breen:

First of all, we do not have any sanction powers or anything like that. We do not-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I am not asking about sanction power, but if the agency flags something for the Department or the HSE, does it have a requirement to respond as to how it is managing the risk the agency has flagged for it?

Mr. Ciar?n Breen:

Normally, they respond to us.

We have different forums, not just the particular one I referred to. Dr. O'Keeffe, who heads up our clinical risk unit, can probably tell the Deputy more about this than I can. We address many risk issues that we see.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Perhaps Dr. O'Keeffe could comment. When a risk is flagged to the HSE or the Department of Health, how do they respond to it? Do they respond with an answer of how they are going to deal with that?

Dr. Cathal O'Keeffe:

It is important to understand exactly how our risk management function works. It is a statutory risk management function and it is advisory. On that basis, we analyse what we are seeing in claims and-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I accept all that. There is a whole other area I want to get to. What I am asking is, when the agency gives advice, does it go into a black hole, the HSE or the Department thanks the agency and the advice is put it on a desk, or is the agency able to follow how they respond to the advice? I note, from previous sessions of the Committee of Public Accounts, that the Minister will take recommendations, but that is a very formal process. I am asking that as cases come and go and as the agency identifies risks, is there a formal process whereby they respond?

Dr. Cathal O'Keeffe:

We have a process of continuous engagement with the HSE both at a corporate level and at an individual hospital level. For example, at the individual hospital level, very often we are discussing with the hospital the claim that has arisen, the issues that have arisen in relation to that claim, and seeking reassurance from the hospital that measures are in place to mitigate those risks. In certain circumstances, we will make specific recommendations or ask the hospital to do specific things. We will track the implementation of those recommendations.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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For something that is so comprehensive as e-health records or records systems, that is a huge undertaking and a huge project. It probably relates to every single case the agency deals with in some small degree. How does the agency make that advice available? When has that happened and has the HSE responded?

Dr. Cathal O'Keeffe:

Sometimes we engage with individual hospitals on specific issues. We also issue more general advice about general issues. One of the recurring themes we see with claims is deficits in communication. I think what the Deputy is talking about falls within that general broad category of communication.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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This is not a broad issue. It is a very specific project and the Department has said it is not particularly proceeding with it at present. There is no funding, no business case and no procurement. It is linked to a project that is long delayed. What is the agency saying about that?

Dr. Cathal O'Keeffe:

What we can say is that on the basis of-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Hang on. On the basis of what you can say or what you are saying?

Dr. Cathal O'Keeffe:

What we can say, on the basis of our analysis of claims and incidents, is that a common theme is deficits in communication. By that, I mean interprofessional communication. It goes back to the sort of thing the Deputy is talking about.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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That is a lot broader than saying we need e-health records to be more accurate in our reporting here. What Dr. O'Keeffe is describing is a lot broader.

Dr. Cathal O'Keeffe:

What I am saying is the problem is broader than just e-health records.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I accept that, but there is a very specific thread here that the State could address. I am asking if the State Claims Agency is outlining in great detail and accurately to the Department that this is an issue not in a general way, but in specific way.

Dr. Cathal O'Keeffe:

Our advice is given directly to the HSE and not to the Department, because we indemnify the HSE, so we would not reply directly to the Department on that. In relation to the HSE, we have said that communication issues are a problem, and by that I mean communication around care and the transfer of care. What the Deputy is talking about is part of that. Our analysis has to be rooted in what we are actually seeing in claims. We may or may not see in a claim, and in fact we probably would not see directly in a claim, an issue directly related to the lack of an electronic healthcare record. We would be able to see that perhaps an issue-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I think we might start to debate what is inductive or deductive reasoning. If the use of records is consistently an issue, then a more modern system does not seem like that much of a jump.

Dr. Cathal O'Keeffe:

I understand that, but I guess what we are bringing to the table is our unique perspective on the perspective of claims. That is not to say the HSE cannot do its own analysis on deficits in documentation or other issues or what, at a policy or systemic level, has to be put in place. Our analysis and advice is very targeted based on exactly what we are seeing in claims. That is the basis of what we do.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Does Dr. O'Keeffe think the agency might not be able to see the wood for the trees in that manner of operating?

Dr. Cathal O'Keeffe:

No, I do not think so. As I said, we are coming from a very specific perspective and we need to stick to that perspective. The value of what we say is the fact it is rooted in the real data we see.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Does the agency have the data on or track how many non-disclosure agreements, NDAs, it has advised the State to enter into over the course of a year, for example?

Mr. Ciar?n Breen:

We do not ever put them in place unless we are asked to by a plaintiff.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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The agency never initiates NDAs.

Mr. Ciar?n Breen:

We do not.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Does the agency track the data on how many it has entered into in conjunction with the plaintiff, for example?

Mr. Ciar?n Breen:

We do not because they are very rare. They almost invariably never arise. The only circumstances in which they arise would be where a plaintiff might say to us they would like for us to enter into an NDA with them because they do not want anybody knowing about their settlement or whatever.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Would it be safe to say that, in the view of the State Claims Agency, NDAs mostly arise in cases concerning medical negligence where private medical information would be made available, and that is the majority of them?

Mr. Ciar?n Breen:

Yes, it would be.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I want to come back to that issue later.

Mr. Ciar?n Breen:

I should say mediation between the parties is confidential. We do not impose that. That is the mediation process. It is not an NDA, but we are bound, certainly as the respondent in those cases, never to talk about them or disclose the details of them. That comes from the process itself.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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We have talked about delays in the processing of claims and it has come up quite a lot. One of the areas where delays are occurring is where there is an adverse outcome, a person has died and there are delays at inquests. Is that a feature in dealing with claims and subsequently, because there is a delay? There is no time period in which an inquest has to be held. Has the agency raised any concerns in that area with the Department?

Mr. Ciar?n Breen:

I do not think so, in the sense that we are notified when we are notified. Obviously, we handle inquests on behalf of hospitals and individual doctors, so we are very much notified at the time an inquest will be held. We provide legal representation and we simply answer it.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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My understanding is junior doctors are not covered or provided with legal representation.

Mr. Ciar?n Breen:

Yes, they are. The clinical indemnity scheme covers them for legal representation in respect of attendance at an inquest.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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Any junior doctor, whether they are an intern to a senior house officer or a registrar-----

Mr. Ciar?n Breen:

Or a consultant.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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-----is covered now.

Mr. Ciar?n Breen:

Yes.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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Previously, they were not covered, as I understand it.

Mr. Ciar?n Breen:

No. Perhaps the Deputy is thinking about the fact they are not covered, for example, in respect of attendances before the Irish Medical Council or a tribunal of inquiry of any sort. They are not covered for that, but they are covered for inquests.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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They are fully covered for inquests now?

Mr. Ciar?n Breen:

Yes.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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A comparison with the UK was done and I believe the total amount paid out in the past year here in Ireland was €513 million. Is it correct that £13.3 billion was paid out in the UK?

Mr. Ciar?n Breen:

That is the annual cost.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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In the UK?

Mr. Ciar?n Breen:

In the UK.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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That is far higher than what it is in Ireland in real terms, considering that the population of the UK is 56 million. If we divide that figure by 5 million, we get around 11. If 513 million is multiplied by 11, we will only get around 5.5 billion. In other words, the UK has a far higher level of claims in real terms if the annual cost there is £13.3 billion.

Mr. Ciar?n Breen:

Exactly.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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I have been dealing with claims and a claim in relation to Belgium in particular. The level of compensation in Belgium would be around one third of what it would be here in Ireland. Have we done comparisons with other EU countries, not only as regards the value of the claims but also the amount of claims?

Mr. Ciar?n Breen:

The reason we only look at England is because it is a common law jurisdiction and therefore the tort systems are similar.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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I accept that, but is it not also good to see how are we comparing with other EU countries?

If we looked at three or four jurisdictions in Europe, how are they dealing with the level of claims? Were we to take, say, Denmark, Belgium and the Netherlands, how do we compare with those countries in real terms? It would be useful to know if there is something we can learn from those countries as well.

Mr. Ciar?n Breen:

I absolutely agree. You will probably find that the number of claims are far less in those jurisdictions. One of the reasons I think that happens is because of the systems in the countries. With the health services at that level, there are lots of supports provided a very early stage to affect medical negligence victims in a way that we do not have in our system.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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Is there then a reason for looking at that?

Mr. Ciar?n Breen:

There absolutely is.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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At any stage, has the State Claims Agency suggested to the Department that it look at these to see what changes can be made to assist families where there is an adverse outcome and therefore avoiding the whole issue in relation to claims? Is there not a reason for looking at that?

Mr. Ciar?n Breen:

I am glad the Deputy mentioned that because it is a fact that, for example, over a number of years we have engaged with the HSE, particularly in relation to care packages for persons who are injured as a result of a medical negligence event. The idea we had was that you would provide early support, for example in cerebral palsy, to a baby leaving the hospital and its family and scale those up to make sure that families were getting the kind of support they need at the early stages. There was a lot of discussion about that over the years.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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I have come across cases where, even where there is an adverse outcome in a hospital, because there is such a disconnect between the various sections in the HSE, between the hospital system and the community system, that families find it difficult to get the back-up support that was committed to delivered on. Is further engagement with the HSE needed to deal with that?

Mr. Ciar?n Breen:

It is an ongoing issue. We certainly have never abandoned it as a point of discussion with the HSE.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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Mr. Breen highlighted the issue in relation to maternity claims. There are 19 maternity hospitals. Are the ratios of patients per hospital unit comparable? Does further work need to be done on any one of those 19 units to reduce the level of risk and claims?

Mr. Ciar?n Breen:

When we look at them as a point of risk, we look at many different issues. We do not just look at their rate of clinical negligence events on their own or their number of claims. We try to look at a more global picture of what they are doing, the number of live births and so on. More particularly, in relation to cerebral palsy, which is obviously a terrible outcome families but also in terms of its cost for the State and the system, we set up jointly with the HSE the neonatal encephalopathy group which Dr. O'Keeffe sits on with people from the HSE and other parties. The purpose of that is to examine the incidence of cerebral palsy and to try and formulate a system response, insofar as you can, to ensure that you are dealing with that issue because those events are normally not reducible to one single event. They are normally different things happening. If all these things could be looked at, then obviously you could bring down the incidence.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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A number of private hospitals are not connected to the HSE. Has there been any engagement with the private hospitals on what they are doing differently in order to reduce claims on their side? Obviously, they have claims as well. The big difference there is that none of them are now doing maternity. Unfortunately, because of the level of insurance, the last two that were ended up having to close down their maternity units. In relation to medicine generally, operations etc., has there been engagement with the private hospitals to see if there is anything the HSE could learn from how they are managing adverse incidents?

Mr. Ciar?n Breen:

I think the answer is "No". We do not engage with them. Mostly, in any event, they have an insurer and the insurers look after their interests. Our profile, in the way treatment and care takes place in our hospitals, is different. That is not to say that we would not engage with them at some point but we have not, largely because our engagement is with our system and the HSE.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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Similarly, has there been any engagement with the NHS in the UK on its system of managing cases or adverse outcomes? This is all a learning exercise. It is about reducing the level of claims and adequately dealing with families and providing supports to them as well.

Mr. Ciar?n Breen:

My colleague, Ms Tarrant, sits on a committee. She might talk about some of the work she is doing with that committee which is dealing with the NHS.

Ms Catherine Tarrant:

I sit on the multi-jurisdictional operational group which involves the heads of healthcare, people in a similar position to myself, dealing with clinical claims across the different jurisdictions, Northern Ireland, England, Wales and Scotland. We meet regularly and we discuss issues arising. We compare data, trends in claims and so on.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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Can I ask one final question?

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Very briefly. We are going to a break.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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The opening statement set out that in respect of the amount claimed for legal expenses, what is settled for is 41% less. Sometimes cases go into court because the amount sought is far higher than the value the State Claims Agency put on it. Looking at the amount that is originally sought in a claim and what it ultimately settles for, what kind of percentage reduction occurs overall? I know that the agency cannot give any individual case but the State Claims Agency gave us the figure for legal costs; can they give the figure for the amount originally sought and what was ultimately settled?

Mr. Ciar?n Breen:

That is very difficult. If, for example, we are transacting negotiations with plaintiff's lawyers, many offers are being put and many counter-offers are being put. While we record those, sometimes in our file notes etc., we do not actually document what they were originally looking and what did we ultimately settle at. If I may offer this anecdotal observation, frequently in catastrophic injury cases we are asked for sums of €50 or €60 million, which ultimately settle for sums in the order of €20 or €25 million.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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It would be useful. At times people wonder why cases go into a hearing but there is no explanation of what the State Claims Agency's assessment of what the case is valued at and the amount being looked for. It would be useful from the agency's perspective to keep a record of that so that when it comes back in here it can clearly tell us that the amount of cases where €50 million was sought and there was a subsequent settlement of €15 million.

Mr. Ciar?n Breen:

I understand why the Deputy would say that to me but he can imagine that the administrative requirement of doing that would be very burdensome.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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But there is a problem, in that there is a lack of understanding out there. People do not understand why the State is fighting a case -----

Mr. Ciar?n Breen:

No, I absolutely accept that.

Photo of Colm BurkeColm Burke (Cork North Central, Fine Gael)
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----- and it would be useful from that point of view to explain. The agency is there protecting the money for the taxpayers. Yes, it is accepted that people are entitled to be compensated. The agency puts a value on a claim after detailed analysis by its experts, forensic accountants etc.

Mr. Ciar?n Breen:

What we would do maybe is do a sampling, which would be easier to do. We could do a sampling over a number in different bands and then we would be able to come back at the next committee with the kind of information the Deputy is talking about.

Sitting suspended at 11.10 a.m. and resumed at 11.20 a.m.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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On the overall claims, obviously health and healthcare accounts for the highest estimated liability in 2021, at €1.4 billion. Is that correct?

Mr. Ciar?n Breen:

In 2021, the estimated outstanding liability was €3.41 billion and that is now €3.86 billion, as of the end of 2022.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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What sectors or State bodies are the next highest?

Mr. Ciar?n Breen:

For State bodies, it is €1.1 billion in 2022 and it was €1.12 billion in 2021. Believe it or not, the amount of outstanding liability has dropped slightly between the two years.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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What State bodies are top of that league?

Mr. Ciar?n Breen:

First, there is the HSE.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I accept that.

Mr. Ciar?n Breen:

Then after that-----

Mr. Seamus McCarthy:

It is this split that the Chair is asking about.

Mr. Ciar?n Breen:

Yes.

Mr. Seamus McCarthy:

Can Mr. Breen see the diagram?

Mr. Ciar?n Breen:

Yes, I can. It is largely made up of health cases. Then we have the various other ones, for example, the Irish Prison Service, An Garda Síochána, the Department of Defence and so on.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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How much is the outstanding liability for the Irish Prison Service?

Mr. Ciar?n Breen:

For the Irish Prison Service, in terms of the costs of resolving and managing ongoing active general claims, in 2022 the figure was €4.81 million.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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There are nine detention centres in total in the State.

Mr. Ciar?n Breen:

Yes.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Does Mr. Breen have a breakdown of those?

Mr. Ciar?n Breen:

We do but I do not have a granular breakdown. We can provide that.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Yes, I ask for that information in relation to the Midlands Prison in Portlaoise, specifically the old Portlaoise high-security prison.

Mr. Ciar?n Breen:

Yes.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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According to the information that I have, Waterways Ireland, though a relatively small body, tends to have a substantial estimated liability. Is that correct?

Mr. Ciar?n Breen:

Waterways Ireland does not feature among the largest ones, by breakdown, according to the information I have with me, but I can get back to the Chairman on that. It certainly has a number of claims, including one very significant claim, against it. It is a particular spike.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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What is the average award regarding injuries within An Garda Síochána? I know, unfortunately, that a lot of gardaí are being attacked on duty and we see them increasingly receiving injuries.

Mr. Ciar?n Breen:

We do not deal with the Garda compensation fund or the Garda Síochána (Compensation) Acts at the moment. Under the new Garda Síochána (Compensation) Act, we will, as and from this spring, have the assessment of those cases. Up to now, they are done completely separately from the State Claims Agency.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Prisons fall under the agency's remit, however.

Mr. Ciar?n Breen:

Yes.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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An Garda Síochána will come under the agency's remit.

Mr. Ciar?n Breen:

It is going to come in brand-new, yes.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Does Mr. Breen have any idea of the average award?

Mr. Ciar?n Breen:

I can only tell the Chair, and I cannot remember all the details, that we carried out some analysis a number of years ago of a sample of compensation claims under the Garda Síochána (Compensation) Act. We found two things. One was that there were very long delays between the lodging of the claim and its ultimate settlement. The second part that we found in that audit was that, as a result of the long distance between the claim occurring and the claim being paid, we felt not that there was considerable exaggeration but that you pay far more the longer the claim goes on. We felt, therefore, that many of the claims, had they been within our brief, would have been settled much earlier and for far less than the ultimate settlement.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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It was different because they were being settled by a different body, the Garda compensation fund.

Mr. Ciar?n Breen:

Exactly, yes. It was just taking too long. I hope that when we get them, which I have no doubt we will, we will bring the disciplines that we bring to claims management to get them settled in a much shorter time.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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It seems to be an issue, even with the State Claims Agency, that the length of time it takes to resolve a claim tends to be a factor in driving up costs. I think that is accepted. Is it correct that costs for the agency increase, in terms of the size of the award, the longer the case goes on and the legal costs are related?

Mr. Ciar?n Breen:

There is no doubt that both compensation and costs increase the longer a case goes on.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I believe surgical claims take an average of 5.25 years. Am I correct?

Mr. Ciar?n Breen:

Yes. The Comptroller and Auditor General can clarify this for me if necessary but I believe the figures he quotes are from the date of the lodging of the claim to the ultimate resolution of costs, for example, whereas the way we measure the longevity of a claim is from the lodging of the claim to when we pay compensation. The resolution of costs can often be a longer issue. Our own metric to look at how functional we are is whether we are delivering compensation within a certain window. I do not know if the Comptroller and Auditor General wants to comment on that.

Mr. Seamus McCarthy:

I think the definition is there but, I suppose, in order to get a handle on the relationship, let us say, between compensation and costs, you really have to look at the totality of the claims. You cannot just assess it at a point in time.

Mr. Ciar?n Breen:

I agree with that. It is purely for us-----

Mr. Seamus McCarthy:

Yes.

Mr. Ciar?n Breen:

-----in terms of when we deliver compensation to plaintiffs.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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The average time has been increasing steadily since 2012. Is that correct?

Mr. Ciar?n Breen:

Yes, unfortunately. If we take the period the Comptroller and Auditor General looked at, and we have looked at ourselves, we had Covid in that time and there is no doubt that added somewhat to it. The Chair is right that the timeframe, no matter what way one looks at it, looks to be overly lengthy. That is one of the things I was saying earlier to the committee, namely, that if we have the pre-action protocol, we will, hopefully, be able to bring down those times significantly.

Mr. Seamus McCarthy:

I think another point is that the longer a case goes on, or at least if it is extending over time, the liability will inevitably go up because there are more cases on hand.

Mr. Ciar?n Breen:

Yes.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Legal costs make up 24% of the total cost of a claim, which is substantial. The briefing material indicates that the State Claims Agency has procurement. I found it surprising that such a substantial chunk of a claim relates solely to legal costs. If the outstanding liability is just shy of €5 billion, legal costs will be €1.25 billion, which is a huge figure. What can be done to reduce legal costs?

Mr. Ciar?n Breen:

The Chairman is right. He may recall that the retired President of the High Court, Mr. Justice Kelly, recently sat on a group which looked at a number of things, including legal costs.

He said as part of his report that legal costs here are simply too high, and they are. We have a legal cost adjudication system that sets the tariffs for costs. I personally think, if I am being asked to comment on it, that it is overly generous. We have to live with that, however. The one area-----

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Mr. Breen accepts that it is over-generous.

Mr. Ciar?n Breen:

I do. I think it is over-generous. I made the point earlier about the idea that a bill of costs is drawn up and a fee is then added to that for drawing up the bill of costs, adding 10%, in some cases, which is a sizeable sum of money. It is those kinds of excesses that cause the kind of reaction people normally have to legal costs.

We do everything we can to keep them down. We can control our own legal costs very well. When we procure our panels of solicitors who advise us and our barristers, for example, we obviously do a good deal through that procurement process to keep our costs down. We have no control over what happens in the adjudication of costs system, however.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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There would be a fear in people dealing with the legal profession. There is the old saying about creating a big file. It does not matter how many letters go back and forward - it might only be one sentence - but the wording is in the letter and there is a charge for each one. Obviously, that increases when it moves up. Mr. Breen is dealing with substantial claims, but the length of time is critical. Obviously, people have to be fairly compensated where there is found to be wrongdoing or when they have suffered an injury. That is not the argument here. The fact that one quarter of it relates to legal fees, however, is something that will have to be worked on. Is it the case that there is evidence of foot-dragging by those in the legal profession? To a large extent, they have some control over how quickly a case moves. The legal profession ultimately controls that. Would that be correct?

Mr. Ciar?n Breen:

That is true. The Chairman might be interested in this example. In respect of the bills of costs our legal costs unit handled under the clinical indemnity scheme, when the total amount claimed was €58.18 million, the figures were adjusted downwards by 38.8% to €35.6 million. In respect of the general indemnity scheme, the figures went from €36 million to €22 million; a similar reduction.

When we look at tribunals of inquiry, it went from €19.67 million to €9.3 million. The overall cost save by that unit in one year was the total amount claimed of €166 million down to €98 million, which is a 41.2% reduction in the costs. That gives the Chairman an idea about the problem of legal costs.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Has Mr. Breen carried out analysis of where cases drag out over a longer period and made a comparison? I am sure the State Claims Agency has claims that are settled relatively quickly. Has Mr. Breen done a comparison on them to see what the difference is?

Mr. Ciar?n Breen:

Yes. We always analyse our individual cases at our claims teams' meetings. We look at why a particular case might have gone on over an extended period and what the reasons were for that. We ask ourselves whether there were things to which we were contributing in terms of that length. We do that kind of analysis. Then, we also look at the behaviour of plaintiffs' lawyers who sometimes do not want to engage at an earlier time. The Chairman can imagine that in some cases, they do not want to because the longer a case goes on, the more costs they can claim, particularly in the adjudication of costs system.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Okay. With regard to mediation, what kind of cost comparison is there in the overall costs - legal and everything else all in at the end - in terms of the size of that cost for the State Claims Agency? What is the percentage of difference?

Mr. Ciar?n Breen:

It is difficult to quantify because---

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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What is it in the order of, though? Is it 10% or 20%?

Mr. Ciar?n Breen:

I will answer it this way. If we are handling a claim and we can get it to mediation at an early stage, let us say, early in the proceedings when we are not anywhere at the defence stage, the savings on that would probably be in the order of maybe 30% to 40%. That is where we would be if we were, for example, beyond the defence stage and on the steps of the court. Therefore, it depends on where the mediation takes place within the timeframe of the claim and the ultimate resolution of proceedings.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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And a large reduction in legal costs is part of that.

Mr. Ciar?n Breen:

Yes, and that is why if we had the pre-action protocol where cases are getting to mediation at a much earlier stage, we would see a correlative effect in terms of costs.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I thank Mr. Breen. I will go back to the questions for a second. Members might bear with me. Some Deputies who are tied up with other duties may come in later. I will go back to Deputy Hourigan.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Deputy Catherine Murphy is ahead of me.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I am sorry; Deputy Murphy can take six minutes and we will see how we go.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I want to come back the point I made earlier about the €5 billion in known claims. Outside of the known claims, there is potential liability with regard to incidents that occurred but were not claimed for. I understand that the International Banking Research Network, IBRN, has done work on this and that there is potential for an actuarial report. Can Mr. Breen tell us what the most recent actuarial report tells us in terms of the actual numbers?

Mr. Ciar?n Breen:

Yes, I can. The most recent IBRN report we have is from 31 December 2020 to 31 December 2021. The IBRN figure, as of 31 December 2021, is €13 billion.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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It is €13 billion.

Mr. Ciar?n Breen:

Yes.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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That is substantial. Obviously, that is a potential. When we compare it with the United Kingdom, as Mr. Breen did in his opening remarks, is there a higher level of known claims? Are they higher? Is it an actual like-for-like comparison?

Mr. Ciar?n Breen:

The UK, for example, would have exactly the same. It would obviously have an IBRN liability quite like ours. That is the way of a medical malpractice case.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Ours is approximately 25% of the known claims. Is the UK figure 25% or 30% of the known claims?

Mr. Ciar?n Breen:

I have not calculated it but I can tell the Deputy that it would be much larger than that.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Mr. Breen might come back to us with that. In terms of transparency, the Comptroller and Auditor General spoke about how things are reflected. Mr. McCarthy might, therefore, come in on how things are presented in the accounts in terms of liability and how it crystallises.

Mr. Seamus McCarthy:

That is really a matter for the Department of Health. It determines the framework for accounting and reporting by hospitals and the HSE.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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We have sat here for long enough to know that the Comptroller and Auditor General takes a view that it should be very transparent, although I do not want to put words in his mouth. There will be issues with regard to the codes Departments are "required" to use as opposed to those they would "like" to use.

Mr. Seamus McCarthy:

Certainly, I would be in favour of more reporting. Ultimately, however, it is a determination by the Minister as to what is required to be reported.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Okay. I have two other areas to discuss and I will perhaps come back on another occasion if we get another opportunity. I will use the recent controversy around medical cards in nursing homes as an example. We could see there was a strategy in terms of how the State pursued that particular policy. When it comes to a strategy where there are multiple liabilities, where do the Attorney General, the State Claims Agency and the Government all fit together in terms of the strategy that would be pursued? Does the State Claims Agency advise? Is it advised by the Attorney General or the Government on how to pursue claims? How does that work?

Mr. Ciar?n Breen:

A formal delegation order delegates claims to us. That is where a Minister and-or other body states that we handle the claims from beginning to end. We do that within our function. However, we do not do it in a vacuum. We consult with the Office of the Attorney General, if required. It is not necessarily required in every case. To specifically answer the question, if we see an evolving mass action where we get, for example, a couple of claims and then, as is the pattern in a mass action, it develops over time and there may be something like 150 or 200 claims or, in the case of in-cell sanitation, a few thousand, we set the legal strategy in the first instance. That strategy always is: is the State is liable? Did it do something wrong? It if did, we get on with paying the cases in the best way we can. One example, as the Deputy is probably aware, was the situation in which certain children were given the H1N1 vaccine and subsequently went on to develop narcolepsy and cataplexy. There were roughly 150 claims. There was a lead case and as a result of the lead case, we put in place a mediation system. None of those cases since then have gone anywhere near the courts. They are all going through a mediation system where we pay compensation. I am happy to tell the Deputy that 82, I think, of those cases have now had compensation paid. That was a particular strategy, if you want to call it that, which was to make the payments in the shortest possible time. If liability is an issue point in the case, there is a different strategy. It may be that we have to go to court and the particular legal point requires adjudication. It varies.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I would like to go back to Dr. O'Keeffe on the process by which the agency advises Departments on how to prevent the recurrence of incidents. In my time on the committee, I have struggled with the legal difference between "shall" and "may" because I am not a lawyer, it is not my background. It is in the legislation that the State Claims Agency shall or may advise. Will Dr. O'Keeffe comment on that?

Dr. Cathal O'Keeffe:

Yes, we "may".

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Is it "may" or "shall"?

Dr. Cathal O'Keeffe:

"May".

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Does that present a problem because it speaks to the formality of whether the SCA is advising Departments on what they are going to do?

Dr. Cathal O'Keeffe:

It is not to Departments; it is specifically to the HSE.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I am sorry; I keep saying that. It is the HSE.

Dr. Cathal O'Keeffe:

Our role is advisory. The overarching statement of our mandate is that it is an advisory role. We do not have powers to compel the HSE or any other organisation to follow our advice. We also come very specifically from a claims perspective, which was the point I was trying to make earlier. There are lots of processes within the system to look at risk across the entire system. The HSE has its own developed risk management processes, from a safety and quality committee right down to individual risk management in individual hospitals. Our added value is to look at what we see in claims and bring that particular perspective.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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To be clear, the use of the word "may" is not so relevant for the HSE and how it behaves but more for the State Claims Agency and how it behaves.

Dr. Cathal O'Keeffe:

I need to make a correction. Mr. Breen has just advised me that the agency "shall" advise and assist. I stand corrected.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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So it is "shall"?

Dr. Cathal O'Keeffe:

It is "shall" advise.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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That formalises it somewhat. Dr. O'Keeffe is advising that the formal way of doing that is through the joint governance group.

Dr. Cathal O'Keeffe:

No, we have lots of different ways of doing that.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Is that set out anywhere as a process? If I was trying to follow this and go through all the public records, is there a process I could follow that is legible and, for example, in which I can see that the agency advised the HSE of a certain thing?

Dr. Cathal O'Keeffe:

The Comptroller and Auditor General set it out in his report. In the appendix, he listed the various ways in which we go about-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I am not asking about all the different routes. If there is a significant issue that the agency has identified, is there a priority pathway I can follow to make legible to me the conversation between the HSE and the agency around a recurring risk?

Dr. Cathal O'Keeffe:

There is a formal partnership arrangement between the agency and the HSE regarding our role in advising it. It is set out formally as a statement of partnership. One of the main groups sitting under that is the joint governance group, which Mr. Breen referenced.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I take all those points. For somebody who is trying to follow a particular issue, it seems a bit nebulous.

I wish to go back to non-disclosure agreements. My interest was piqued. The agency does not have data relating to that issue. In 2021, for example, of the cases settled without mediation, will Mr. Breen hazard a guess at how many included an NDA in some form?

Mr. Ciar?n Breen:

Possibly a fraction of 1%, if that.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Who were they led by?

Mr. Ciar?n Breen:

Led always by the plaintiff.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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How often does the agency advise the HSE and more generally? We heard about a particular instance at last week's committee meeting where we were told the agency had advised to move ahead with a particular settlement that included an NDA. How often does that happen?

Mr. Ciar?n Breen:

Did the Deputy say that the committee was advised that we entered into a non-disclosure agreement with a party? I am not aware of that.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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We might send on some details.

Mr. Ciar?n Breen:

The only circumstances, as I said, would normally be where we have been through mediation in which we have signed-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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That makes the agency a party to the whole process.

Mr. Ciar?n Breen:

It does. It is imposed on us by the process. We do not choose it. It is imposed on all the parties to the process. That is imposed by the mediator, who is independent.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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We are talking about mediation now, not settlements?

Mr. Ciar?n Breen:

Yes. If you take it outside of that, in the litigation process, I am not aware of any case in which we entered into a non-disclosure agreement, save when we were asked to by the plaintiff.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I take that point.

Mr. Seamus McCarthy:

I think the Deputy is referring to the case discussed during last week's committee meeting. In his questions at the beginning of the meeting, Deputy McAuliffe established that the State Claims Agency was not involved in that at all.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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That seems contrary to what we were told.

Mr. Seamus McCarthy:

The clarification he succeeded in achieving was that the State Claims Agency was not involved in the settlement or court proceedings in terms of the Insurance Compensation Fund.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Are the witnesses aware, regarding advice it has given, of a case with two parties where the State does not have a representative in the room and, therefore, is neither of the parties? Is the State involved in any settlements or court cases like that? That is what was described to us last week. Are the witnesses aware of any similar cases in which there are two parties to an agreement and the State is not one of them, but is involved through, I think, as we heard, the Supreme Court?

Mr. Ciar?n Breen:

Not on our account. Normally, our situations are relatively simple. We will have either a co-defendant or co-defendants. If a co-defendant decides to do something entirely of their making, for example, that they want to introduce an NDA, if we are a party to the same thing, we would advise that we will not do that and we do not do that. However, it has not arisen.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I will go back to legal costs and appointing barristers and solicitors. Will the witnesses explain how that happens?

Mr. Ciar?n Breen:

We use a formal procurement process. Solicitors' firms can apply to be on the panel for the general indemnity scheme or the panel for the clinical indemnity scheme. The procurement is a formal process in the context of which they set out the reasons they are applying and why they believe their firm should be chosen. The formal procurement is carried out by the NTMA. It is chaired by the NTMA's head of procurement and based on criteria, such as experience in the particular area of medical malpractice, IT systems, the status of the people who would deal with the cases and so forth.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Has Mr. Breen come across situations where the legal costs were higher than the amount awarded to the individual? Have there been such instances?

Mr. Ciar?n Breen:

I cannot remember, in recent times at least, a case where the amount of the legal costs exceeded the settlement.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Have there been cases that came close?

Mr. Ciar?n Breen:

Yes, that happened once or twice. For example, it might happen sometimes when the settlement agreed with the plaintiff is at a level that reflects complex liability or causation issues and where the legal fees charged to the plaintiff and payable by the State reflect the complexity and so on. They can be disproportionate in those circumstances. Such cases rarely arise.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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The agency has to go through procurement for the injured party. It cannot provide its own barrister or legal team. In obtaining legal representation for the State Claims Agency, has the option of having an in-house legal team to represent it and the State been examined?

Mr. Ciar?n Breen:

We have two in-house legal teams, one for the clinical side and one for the general side. They handle a certain volume of litigation.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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What percentage of cases do they deal with?

Mr. Ciar?n Breen:

On the general side, it is probably approximately 15% to 17%. On the clinical side, it is up to 10% or 12%.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Hospitals have different disciplines, deal with populations of various sizes and have different bed capacities. The State Claims Agency does not publish data on the level of claims of individual hospitals. I imagine the agency will state that it does not keep a league table.

Mr. Ciar?n Breen:

That is correct.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Why not?

Mr. Ciar?n Breen:

The reason we do not do that is the possibility of the extraordinary consequences that could arise from it being based on data that is not explained. For example, some hospitals, because of a particular specialty or simply because of the nature of the facility, deal with more difficult cases than others. Some hospitals see particular categories of patients whose cases are more difficult. As a result, outcomes are not readily comparable with those of other hospitals. It is possible to imagine a situation whereby if we were to issue a league table without a major explanation of the data required, some members of the public might say that hospital A is more dangerous than hospital C and that they would never to go to hospital A, and that is not true.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Of the 19 maternity hospitals, five are responsible for 56%-----

Mr. Ciar?n Breen:

I think it is six hospitals.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Are they responsible for 56% of the cases or of the money awarded?

Mr. Ciar?n Breen:

Of the cases. It might go both ways actually.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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That may be explained by the fact that they perhaps deal with a higher number of births per year. However, surely there would be a correlation in the context of maternity hospitals. They deal with maternity cases. That is easy to explain. There would be some comparison when it comes to the size of awards. It seems to that five hospitals out of a total 19 are responsible for the bulk of claims.

Mr. Ciar?n Breen:

My view is that it would have a negative effect in reality.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Would it not have the positive effect of acting as a deterrent in the context of poor oversight or governance? Things sometimes have positive and negative effects, and a call must be made. Would a league table relating to maternity hospitals, where many of the claims originate, not have the potential to have a positive effect? I am not a medical person, but I understand that cerebral palsy cases tend to come from maternity hospitals. The claims come from 19 hospitals. We do not know which ones the bulk comes from. For example, Beaumount Hospital has published its estimate of liability and some other figures. I am at a bit of a loss. While there may be negative consequences, the potential benefit may outweigh them.

Mr. Ciar?n Breen:

I am only giving my view. There would better ways to do it if the Chair is thinking of the deterrence aspect. We generally find when we report back to hospitals, especially those that have a high watermark in the outstanding estimated liability, that they are good at listening to what we say, to the lessons we feed back to them.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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It is actually 59%, almost 60%, that the six hospitals are responsible for. Does the State Claims Agency have a league table? It has data on this. I welcome that Mr. Breen clarified that the agency goes back to the hospitals and goes through a process. It depends how extensive that is. Mr. Breen clarified that the agency has detailed data that shows the 59% and it has detailed data for all 19 hospitals. Are these matters taken up with each hospital management group? Does the State Claims Agency present the picture to each hospital of the data relating to it or to the group of hospitals of which it forms part for the previous five years, including what the level of claims is and how those claims arose? Are those issues discussed with the hospitals?

Mr. Ciar?n Breen:

They are. We talk to each hospital group about their liabilities, especially because of the catastrophic injuries the Chair referred to that largely occur in the maternity hospitals, including those relating to cerebral palsy, but are not confined to those cases. We have those conversations.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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How does the agency use the data to identify where progress can be made?

Mr. Ciar?n Breen:

Perhaps Dr. O'Keefe could answer that because he is responsible for going back to the hospitals to discuss lessons learned.

Dr. Cathal O'Keeffe:

I will make a general point about the data relating to the six hospitals. The figure is based on estimated liability in those hospitals but the incidents that created the claims in those hospitals could have occurred over many years. It cannot be interpreted to mean that in any given year, these six hospitals are accountable.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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It is the outstanding liability at this point.

Dr. Cathal O'Keeffe:

Yes.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I understand that.

Dr. Cathal O'Keeffe:

The other thing is that these catastrophic injuries are infrequent events so very small variations in numbers could disproportionately distort the figures.

Even if these six hospitals were picked out, it would be wrong to suggest based on this particular metric that these are more dangerous hospitals than elsewhere.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Surely when the SCA looks at its internal data, which are not published, it can be said that there are certain hospitals where there are repeated patterns and a cause for concern. I ask Dr. O'Keeffe to briefly tell me what is done in this context in respect of answering the question.

Dr. Cathal O'Keeffe:

We would engage with hospitals. The way we approach it is from the perspective of the claim. If we see a claim where we feel there has been a particularly significant issue or concern, we would raise this directly with the hospital. On the maternity side of things, it is probably also worth mentioning the work of the national neonatal encephalopathy action group, NNEAG, which we partner with the national women and infants health programme, NWIHP. This programme, the HSE and our organisation work in partnership on the NNEAG. This is specifically designed to try to address the causes of these claims occurring in the first place. There are several elements to this endeavour. One of them, arising out of the work of the NNEAG, was the setting up of a group called the obstetric event support team, OEST.

This means that all significant injuries, whether a significant birth injury or maternal injury, must be reported to the OEST that sits within the NWIHP. On that basis, the NWIHP engages directly with the hospital to ensure that a review is undertaken of such cases. It advises on the review and examines it again. This is the angle we look at this context from in terms of the incidents, the claims, as they are occurring. Separately, we also engage directly with hospitals concerning several metrics and not just their number or value of claims. These include their incident reporting levels and these sorts of things. A range of metrics feeds into our analysis. It is also important to say that we have this unique claims perspective, whereas if the safety of a hospital is being examined, that actually involves looking across a much broader range of measures which we do not have.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Of course, I understand that.

Dr. Cathal O'Keeffe:

For us to publish a league table in that context would not be appropriate.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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All the SCA has been publishing is a league table of the money claims.

Dr. Cathal O'Keeffe:

Yes.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Of course, the other areas are for hospital management, the HSE and the Department of Health.

Dr. Cathal O'Keeffe:

Yes.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Okay. I call Deputy Catherine Murphy.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I have one area I wish to pursue. I do not know if this falls into potential liabilities. I have raised this before with the SCA regarding Casement Aerodrome. I have a list of premature deaths of people of pre-retirement age. Since 2019, we have seen deaths of people aged 56, 51, 63, 55, 27, 55, 55, 62, 63, 55, 51 and 38. I can go back to 1981 in terms of the age profile. Given this is not a gigantic employer, it is a stand-out in terms of premature deaths and certainly raises a significant question mark in this regard for me and for others. The SCA went in and carried out a safety management systems audit in 2010. Have such audits been repeated? Is the SCA dealing with active claims now concerning Casement Aerodrome?

Mr. Ciar?n Breen:

When the Deputy refers to Casement Aerodrome, I presume she is referring to the cases in the workshop. I say this because we have other claims from Casement Aerodrome.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Yes.

Mr. Ciar?n Breen:

We have roughly about ten cases outstanding relating to the workshop there. These are all cases where proceedings have been issued. Liability is an issue in those cases. When I say it is an issue in these cases, we are currently going through all our investigations. There is some outstanding information that we require in the context of the management of those cases, which is a normal part of the investigation of those cases. I am, therefore, very limited in what I can say to the Deputy about them.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Regarding preventative actions, I presume the SCA continues to carry out audits. Has it carried out more audits than the audit carried out in 2010?

Mr. Ciar?n Breen:

I am sure we have. I am sorry I do not have that information for the Deputy today.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Mr. Breen might come back to us with it.

Mr. Ciar?n Breen:

Yes.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Along with those cases where I listed the ages of death regarding particular individuals since 2019, and I appreciate this is across the spectrum but equally this is not a gigantic employer, there are also others living with conditions. There is again a profile here in this regard and a similarity regarding the conditions. I presume this is part of the active cases.

Mr. Ciar?n Breen:

It most certainly is.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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The SCA reckons there are about ten cases at this stage.

Mr. Ciar?n Breen:

I think it is ten.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I understand these are active cases, but when was the first one initiated? Would Mr. Breen at least be able to give us a timeline?

Mr. Ciar?n Breen:

I will have to come back to the committee on this point.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Okay. I would appreciate it if Mr. Breen would do that because this is an issue that is on my desk constantly. I know more than a couple of the people involved. This is a stand-out situation and I think some of these things are going to be quite unusual in terms of workplace issues. This was my main point.

To pick up on a point made by Deputy Hourigan and others, any time I have ever asked about claims for something by way of parliamentary questions, the response has always stated that these go through the SCA. That is, they go through the SCA until they do not. I am at a loss to understand why there would be a particular strategy in a Department regarding claims that would not involve the SCA. We also hear about non-disclosure agreements and the point that Deputy McAuliffe pursued with the witnesses earlier. I refer to things not within the purview of the SCA. Is it unusual for the State to pursue claims without going through the SCA? Is this an option for various Departments or State agencies?

Mr. Ciar?n Breen:

If I can put it to the Deputy this way, and this is the golden rule of thumb, if it is a personal injury suffered by somebody, to include a death, caused by the negligence of the State, in respect of something it did or ought to have done, then such a claim would absolutely normally be with us.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Okay.

Mr. Ciar?n Breen:

Therefore, we only handle cases like that or where there is damage to property as a result of something the State did or did not do. Outside those contexts, where other things are happening and the State is being sued, such cases are clearly not within our remit.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Okay. The medical card issue concerning nursing homes would have been a case in point.

Mr. Ciar?n Breen:

Exactly. It would not be for us.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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The Department or the HSE would take-----

Mr. Ciar?n Breen:

Yes.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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-----a strategic approach in how they would handle such a situation. That is what we saw playing out.

Mr. Ciar?n Breen:

Yes, and that obviously was not a matter for the SCA.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I thank Mr. Breen.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I thank Deputy Catherine Murphy. I call Deputy Hourigan.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I am thankful. That information is helpful for my question. Regarding trying to follow the path around records in this context, I wonder if it would be possible for the SCA to provide the committee with a briefing note in this regard or perhaps even the correspondence between the SCA and the HSE on this issue, concerning where the risk is highlighted.

Dr. Cathal O'Keeffe:

Any discussions around this aspect are in the more general context of communication. If we look at an individual claim, specific temporal factors would play into it.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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No, I get that and Dr. O'Keeffe said already that this was part of a more general conversation. I am going to say this again, however. There is a specific risk in here-----

Dr. Cathal O'Keeffe:

Yes.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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-----with the failure to implement e-health records or some kind of a system like that.

Dr. Cathal O'Keeffe:

Sure.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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It is a very simple question really. Could the SCA provide us at any stage with either minutes or correspondence whereby it cited for the HSE that this was an ongoing risk?

Dr. Cathal O'Keeffe:

The extent to which we would have stated it is that-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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That communication could be improved.

Dr. Cathal O'Keeffe:

-----deficits in communication may result in an impact on patient care.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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If Dr. O'Keeffe does not mind me saying, I think the answer to my question is "No".

Dr. Cathal O'Keeffe:

I am not aware that we have issued specific advice on that-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Okay, but Mr. Breen stated earlier that the agency accepts it is a significant risk.

Mr. Ciar?n Breen:

To clarify that, when we talk to a hospital that has a clinical claim against it and where we find, for example, that there is a deficit in the record of whatever that might be, we obviously bring that - this is the point I was making - to the attention of the hospital whether it is a-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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That is on a case-by-case basis.

Mr. Ciar?n Breen:

Largely, yes.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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We are going over old ground now, but I want clarity that at no stage has the agency taken a step back from the case-by-case basis and said to the HSE that there was an ongoing, significant and recurring risk that it had not implemented e-health records. At no stage has that happened. Is that correct?

Mr. Ciar?n Breen:

I do not think we would have put it quite in the terms the Deputy suggests. We would have had discussions about the adequacy of records. We are not making a point about e-records.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Let us contextualise it as record-keeping throughout the system, not hospital by hospital. On a case-by-case basis the agency does that-----

Mr. Ciar?n Breen:

Yes.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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-----but at no stage has the State Claims Agency taken a step back from the case-by-case basis and said to the HSE that national record-keeping, as a comprehensive system, was an ongoing risk here.

Dr. Cathal O'Keeffe:

No, we would say that-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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When did the agency say that? Could I have a copy of that correspondence?

Dr. Cathal O'Keeffe:

What I am trying to say is it is not in the form of correspondence-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Was it at a meeting of the joint governance group?

Dr. Cathal O'Keeffe:

If I can say, we do two things. We engage directly with hospitals but also do thematic analysis of claims. When we do thematic analysis of claims, we identify thematic problems that are occurring across all claims. In that context, we produced a report looking at all claims finalised in 2017, and in that report, we referenced deficits in communication on a range of things, including interprofessional communication as being a problem. It related to deficits in communication between doctors and between nurses-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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That is not record-keeping-----

Dr. Cathal O'Keeffe:

No, it is-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I would very much appreciate seeing a copy of the 2017 report but-----

Dr. Cathal O'Keeffe:

That is fine, but my point is that documentation of communication between doctors and nurses is part of it. The reason to document clinical care is not so that a case can be defended in court but so that healthcare staff communicate with their colleagues. That is what documentation is about, and if documentation-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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The current system, however, does not meet that test either.

Does Mr. Breen consider this a deficit in the agency's operations? There was a thematic analysis report in respect of 2017 and it is now 2023, yet at no stage can the witnesses provide me with any kind of step-back identifying specific issues within the HSE that leave it open to continued claims?

Mr. Ciar?n Breen:

The Deputy might understand the context for us, namely, that our business and remit is to manage claims and to feed back the learning from claims. Part of that learning is that sometimes, the documentation and medical records are not what they should be-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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I hate to cut across Mr. Breen, but part of the agency's remit - he is absolutely correct - is that it learns from claims. If any of us undertook our learning on an individualised or case-by-case basis, our learning would be constrained by that. We would expect a group tasked with identifying risk to have the structural analysis ability to step back from cases and ask, given they are arising again and again, what the HSE is doing.

Mr. Ciar?n Breen:

The defensive claims are not of a scale the Deputy is describing for us and I do not want to give that impression. What I said was that it arises, and where it arises, we feed it back to the individual hospital-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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On a case-by-case basis.

Mr. Ciar?n Breen:

Yes, on a case-by-case basis, but I might add-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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The answer to my original question, therefore, is "No".

Mr. Ciar?n Breen:

The Deputy is putting words in my mouth-----

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Yes, I am, because this has been a very long interaction to get a "No" answer.

Mr. Ciar?n Breen:

Respectfully, I am not saying that. What I am saying is "Yes, on a case-by-case basis". We have mentioned it at a meeting of the joint governance group as being an issue but, ultimately, record-keeping is a policy issue for both the HSE and others. We cannot make that kind of imposition on them. There is cost, scale and so on. That is not to do with us.

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
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Mr. Breen is describing that as though I expect the agency to impose some kind of sanction and that is not what I have described at all.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I might return to the need for the pre-action protocol. It was interesting that Mr. Breen raised it. This would help start a case on the right food, reduce legal costs and speed up settlements, but he identified a technical issue here. Will Mr. Dempsey please explain what the issue is and what is being done by the Department to address it?

Mr. Greg Dempsey:

Again, this is actually under the Department of Justice. I had some correspondence to hand but I will answer the question off the top of my head. That Department is amending legislation that will enable it to develop the protocols. I think it is suggesting that will be in the second half of this year. In addition to that, an interdepartmental group is being put together and that will also look at the progression of, among other things, the pre-action protocol.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I presume the Department of Health is in communication with the Department of Justice on this.

Mr. Greg Dempsey:

Yes.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Will Mr. Dempsey report back that the matter arose at this morning's meeting and has been identified as an issue that needs to be progressed? It is important that it happen, and the Accounting Officer outlined why it is important. We were not aware of it before this meeting. It would be helpful in shortening the period for settling cases but would also help reduce legal costs and might allow more cases into mediation. Mr. Breen might confirm that is the case.

Mr. Ciar?n Breen:

Yes. If I could help the Chair with that query to Mr. Dempsey, the Courts and Civil Law (Miscellaneous Provisions) Bill 2022, in particular Parts 7 and 8, will correct the legal anomaly to enable the protocol. As of 21 February, the Bill had passed Committee Stage in the Dáil.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Nevertheless, departmental officials can sometimes dictate the speed at which these things move.

My next question relates to the overall number of claims. I appreciate that reducing the number of claims is not the agency's job. This was clarified earlier in respect of the medical profession. Are there active engagements, particularly with State bodies in the big four or five areas, with a view to reducing the number of claims? We often hear, for example, in respect of the Garda, about issues relating to safety equipment for gardaí, particularly those who are on public order duty, or for people working in dangerous circumstances such as prison staff? Are there active engagements between the State Claims Agency and those various State bodies to try to reduce the number of claims?

Mr. Ciar?n Breen:

Yes, very much so. The enterprise risk unit in the State Claims Agency engages with all those and particularly where the claims are emerging, such as in the Irish Prison Service or the Department of Defence. A formal audit process is carried out by the State Claims Agency in respect of standards the State Claims Agency is setting based on the learning from claims. To give one small example, there was a hospital where we identified that needlestick injuries were occurring. A number of needlestick injuries over a period of a year or whatever, as the committee can imagine, will cost a certain amount of money where people have been injured by them. We saw an adverse pattern there and engaged with the hospital, and in a short period, no claims were emerging in respect of needlestick injuries.

That is an example of the kind of initiative we undertake with the State authorities.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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On the overall global figure of assessments since 2012 and the actual total number of claims, a lot of the discussion we have had today referred back to that ten-year period. What kinds of figures are there for the numbers that came in on an annual basis? Is there a figure for 2012 and a figure for 2022 where we could see the actual number of claims, if not the value of them? This could give us a comparison with the number of dead bodies.

Mr. Ciar?n Breen:

Yes, it is under claims received. I can only go back to the range from 2018 to date, to give the committee an idea of how the pattern has been. In clinical claims, the numbers were 829, 833, 890, 720 and 741 in 2018, 2019, 2020, 2021 and 2022, respectively. In general claims, the numbers were 2,223, 2,374, 1,958 and 1,934 in 2018, 2019, 2020 and 2021, respectively, and then there was a drop of 2%, down to 1,881, in 2022. That is the frequency.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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It has stabilised slightly with a slight reduction across that.

Mr. Ciar?n Breen:

Yes. I would like to make one further very important point, which is a key performance indicator for us. We resolved more claims in 2022 then we took in. That is a positive thing for us in stabilising the interplay between what is received and what is settled. That is complicated by mass claims.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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What was the percentage? What number were settled in 2022 as compared to the amount of claims?

Mr. Ciar?n Breen:

I will see if I have it here.

Mr. Seamus McCarthy:

That is actually the second year that this happened. Since 2021 there has been a drop in the number of cases.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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What is the order of percentages?

Mr. Ciar?n Breen:

In 2022, I note 3,082 claims were finalised. The number of claims received in that year was 2,699.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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That would be in the order of about 15%.

Mr. Ciar?n Breen:

Yes, exactly 14%.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I thank Mr. Breen for that.

With regard to Covid and nursing homes how many claims have been made around nursing home deaths?

Mr. Ciar?n Breen:

We have a total of 121 claims. There were 54 deaths, of which 40 took place in private nursing homes, three in an acute setting, and ten in a community setting.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Is there an estimate of liability for that?

Mr. Ciar?n Breen:

Yes. I have not broken out that figure here for today but yes it would be part of our estimated liability.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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At this point, is it the case that there are signs that those cases will move into mediation as opposed to an adversarial setting in court?

Mr. Ciar?n Breen:

Yes, insofar as we possibly can.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Are there signs that this would happen? I know this is not totally in Mr. Breen's hands.

Mr. Ciar?n Breen:

There are private nursing homes involved here as well. In every case where we believe that mediation should happen we would absolutely urge mediation.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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On the controversy that arose weeks ago around the nursing home charges for patients who held medical cards, has the State Claims Agency seen an increase in the claims in the last three to four weeks from families and residents regarding those charges?

Mr. Ciar?n Breen:

We are not handling those cases at all.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Okay, the agency is not handling them but does it have to make a provision for the cost of that?

Mr. Ciar?n Breen:

No.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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Okay. Does Deputy Catherine Murphy have one final question?

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Looking at what the State liability is, we can see now that there is more than one route through which that liability can be estimated.

In 2020 I asked a question of the Minister for Finance, whose Department is the parent Department for the State Claims Agency. I have just repeated that question to the Department and I should receive a response fairly soon. It is being collated. Essentially, I was looking for current cases being handled on behalf of the Department, the nature of the claims and the numbers of the claims, and all of that. I was asking about the Department of Defence and Casement Aerodrome. The response to that question in 2020 was that the Department of Defence had one claim in litigation and two claims at trial. If the agency was giving a response to that question, does the State Claims Agency count mass claims as one claim or does it count them as individual claims? The reason I ask is just to get a profile via a response to a question like that. I have had a difficulty with being given inaccurate information in a response to another parliamentary question quite recently and I had to go back and have it clarified. Would the agency count that mass claim as one claim in terms of the response?

Mr. Ciar?n Breen:

No. We count the individual numbers within the mass action.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Okay. So, for example, that claim in litigation is counted as one, but I am aware that Mr. Breen has just told us there are ten claims for Casement Aerodrome. Casement Aerodrome is just one element of the Defence Forces, and there could be other claims as well. I doubt that they have been initiated since 2020. I would say that they have been ongoing since prior to 2020.

Mr. Ciar?n Breen:

I would imagine they are.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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Why would I get a response that there is one case?

Mr. Ciar?n Breen:

I really do not know. I believe we have ten but there could be eight. We are mostly covering the clinical indemnity scheme today and I did not bring a lot of those data with me. I can certainly tell the Deputy that we have a number in the order of eight to ten cases.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I got this reply, with regard to the Department of Health, and I was told that it is 42. When I get a reply like this that is at total variance with the information we are provided with, it is very frustrating because when we get a reply to a parliamentary question, the one thing we want to be able to rely on is that the reply will be accurate. It is a very important source and it is on the public record. It seems to have been just 150 cases in 2020. My question was very clear, and the agency would have provided the information to the Department. I ask Mr. Breen to look out for the particular question that I recently tabled.

Mr. Ciar?n Breen:

I have just found the information. It is 11 claims.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I ask have just asked that same question. That question will have gone to the Department of Finance and obviously, the State Claims Agency will deal with it. I ask that particular attention be paid to making sure that a claim is counted as an individual claim, as opposed to a mass claim. I feel that this information is wholly wrong and I am just drawing attention to it.

Mr. Ciar?n Breen:

Certainly, if we were asked by a Department what number of claims we are handling within a group like this, such as those the Deputy has referred to, we would give the total number of claims. In other words, not one claim. In this case, there are 11 claims.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I thank Mr. Breen. There was a request earlier that the officials would come back with an update on the civil liability amendment Bill by the end of the meeting. Do we have any update on that?

Mr. Greg Dempsey:

Yes. Our colleagues contacted the Department of Justice. The response they have given is that these issues are under ongoing examination with the Department of Justice. That was the response from the Department of Justice.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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It is a bit open-ended, but I am aware that if this is the reply that the Department of Justice gave-----

Mr. Greg Dempsey:

Deputy Kelly also referred to a letter or correspondence with the Minister for Health. I have not been able to track down the status of that but I will come back to the committee on that.

Photo of Brian StanleyBrian Stanley (Laois-Offaly, Sinn Fein)
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I thank Mr. Breen and the other witnesses from the State Claims Agency. I thank the Department of Health and the HSE for the work involved in preparing for today's meeting. The witnesses had to take many questions today. I thank the Comptroller and Auditor General and staff for attending and assisting with today's meeting.

Is it agreed that the clerk will seek any follow-up information required and carry out any agreed actions arising from this meeting? Agreed. Is it also agreed that we note and publish the opening statements and briefings provided for today's meeting? Agreed. I thank everyone. We will suspend until 1.30 p.m., when we will resume in public session to address correspondence and other business. Go raibh míle maith agaibh go léir.

The witnesses withdrew.

Sitting suspended at 12.31 p.m. and resumed at 1.30 p.m.