Seán Fleming (Laois-Offaly, Fianna Fail)

I welcome the opportunity to speak on the Hepatitis C Compensation Tribunal (Amendment) Bill 2006. Earlier this month the Tánaiste announced the publication of this Bill to establish a statutory scheme to address the insurance difficulties experienced by persons infected with hepatitis C and HIV through the administration within the State of blood and blood products. This important measure addresses the problem faced by these people of being unable to purchase mortgage protection and life assurance policies. These people were infected through no fault of their own. They received services from the State and were entitled to expect the highest possible standards. The Oireachtas on behalf of the State and various bodies on behalf the Oireachtas let those people down. Many were affected as a result. It is right that the State face up to its legal and moral responsibilities in this issue.

The Government acknowledges in the strongest possible terms that the infection of people with contaminated blood products was catastrophic for them and their families. While no monetary support or compensation can ever repair the damage, Ireland is doing more for victims compared with other countries in similar circumstances. No other country has introduced an insurance scheme. This Bill shows that Ireland is committed to working with the victims of infection to provide all the supports possible for them.

The scheme will cover the insurance risk of the 1,700 or more people who are entitled to avail of insurance products, regardless of other medical conditions they may have, as long as they pay the standard premium that an uninfected person of the same age and gender would pay. Such considerations might sound quite materialistic, but they are practical things which have to be taken into account if victims are to lead lives which are as normal as possible, enjoy normal facilities and have the security of insurance that other people have.

The enactment of this Bill will provide for a third form of recompense. The first form of recompense is compensation from the Hepatitis C and HIV Compensation Tribunal, which to date has awarded over €660 million to approximately 2,000 people. The second form of recompense is the special health card, which has been mentioned by various people during this debate. The cost of health care under the Health (Amendment) Act 1996 is approximately €15 million per annum. A third form of recompense — the life assurance support scheme — will be put in place with the enactment of this Bill. It is estimated that, over its lifetime, the scheme will cost approximately €90 million, which is small fry. It is not as if we will be providing €90 million in any one year — we will be providing €90 million over several decades. I expect the scheme will cost between €1 million and €5 million in any given year. The annual cost is not a serious issue. When one considers the State's moral responsibility in this regard, it is clear that the annual cost is not worthy of a row or a detailed debate. Even if the cost transpires to be greater than that currently envisaged, it should be borne in mind that the State would be meeting a significantly higher cost if it was only a money issue.

The Tánaiste said clearly earlier today that the Government has agreed, in the interest of having a consistent approach to all these supports, that "a hepatitis C diagnosis", under the Hepatitis C Compensation Tribunal Acts 1997 and 2002 and the Health (Amendment) Act 1996, should be defined in terms of a scientific test, known as the ELISA test. Alternatively, "a hepatitis C diagnosis" can also be determined if the person displayed symptoms of acute infection with jaundice within 16 weeks of the administration of an infective agent. I will come back to that aspect of the matter. The Tánaiste has indicated that some amendments to the Bill will be proposed on Committee and Report Stages, for example to deal with the ELISA test. I look forward to the relevant part of the legislation being broadened so it does not refer specifically to that test only. I understand it will be possible, as time goes by, to introduce regulations to make variations to the new testing regime.

The symptoms associated with hepatitis C include tiredness, aches and pains and depression. Many such symptoms are common to a number of conditions which are not associated with hepatitis C. It has been decided, to ensure the support scheme operates in a fair and equitable manner and that those determining eligibility under the scheme use clear and consistent criteria, that diagnosis will be determined by means of an internationally accepted test. A similar scientific definition of hepatitis C diagnosis is used in other jurisdictions, like the UK and Canada, where compensation schemes operate. Ireland is the first country to introduce an insurance scheme for victims in these circumstances. We will take further steps in respect of the various tests. I am sure the Tánaiste, who has been listening carefully to people over recent days, will make some movement in that regard. I cannot say at this stage how far she will be able to go. I am pleased that some amendments will be made when the Dáil debates this matter further tomorrow.

It should be noted that the expert group on hepatitis C, which is chaired by the chief medical officer of the Department of Health and Children and includes leading liver consultants and a member of Positive Action, agreed in 1998 that eligibility for the Health (Amendment) Act card should be determined on the basis of a positive diagnostic test for hepatitis C. Deputy Cowley has used his medical experience to tell the House about the cases of people who were given false diagnoses on foot of various tests. A positive reading is given in some cases when that should not be the case. In other cases, a negative reading is given when that is not accurate. It is important that we do not restrict ourselves to one particular test. Technology moves on as the years pass. We should provide for the flexibility to deal with changing circumstances.

I would like to speak about the question of consortium. The Bill proposes that compensation for loss of consortium will be awarded to the spouses and partners of infected people if the relationships commenced before the diagnosis of hepatitis C or HIV became known. New partners or spouses of infected people who knowingly entered such relationships after the diagnosis of hepatitis C became known will be unable to claim damages for loss of consortium. However, other headings of claim for compensation by persons in this category, such as loss of earnings, loss of society and post-traumatic stress, will not be affected by the amendment. I ask the Tánaiste to examine this provision in a humane manner, if possible. When I spoke to a representative of the Irish Haemophilia Society during my preparations for today's debate, I was disappointed to learn about the problems in this regard. Given that we have a moral responsibility to people who were infected by the State through no fault of their own, the essence of what we should be trying to do is to allow such people to lead the rest of their lives in as normal a manner as possible, just like the rest of us can do.

People may not have been diagnosed with hepatitis C or HIV before they entered a relationship. This Bill is saying, essentially, that if they knew before they entered the relationship that they had such a diagnosis, they entered the relationship at their own risk. That is not fair or moral. One will probably find well-paid legal experts who will say it is legal, but one could also find even better-paid legal experts who say it is not legal. The legal experts will make fortunes in the Four Courts, while people suffer as a result of this legislation. I have a big problem with our tendency to deal with issues like this in this manner. The legal approach often over-rides what I call the human approach. I ask the Tánaiste to think about this provision over the course of the night. If this matter is contested in the courts at some future stage, I am afraid people will think the legislation was not safe.

I am not a legal person. I am sure the legal people will contradict flatly what I am saying. I am speaking as an ordinary person who was elected to this House to represent the people. I believe people who were infected in this way are entitled to the maximum support from the State. It is not fair to tell people who know they have hepatitis C that if they enter a future relationship, they will do so at their own risk. If the State takes such an approach, it will condemn such people to lonely lives. I hope this matter can be revisited in the short time available to the Dáil before it passes this legislation. If it is not possible to come up with a wording that deals specifically with the point I am making, I hope the Tánaiste will provide in this Bill for the power to make regulations so these matters can be dealt with by statutory instrument after people have had time to consider and debate them further. The Tánaiste is anxious to have the Bill enacted so that as many people as possible who are deprived of access to the insurance market because they are infected with hepatitis C or HIV can avail of insurance products. I expect the Bill will be accepted by the House over the next day or so, before being considered by the Seanad in the coming days.

I refer to a document that I, like most Deputies, received from the Irish Haemophilia Society, the Irish Kidney Association, Positive Action and Transfusion Positive, which represent people who were infected by hepatitis C and HIV through infected blood and blood products which were administered by the State. The groups have said this Bill makes "fundamental amendments to the Hepatitis C Compensation Act 1997 which will significantly limit the categories of persons entitled to make claims for compensation and for provision under the health code". They also point out that they were not informed of these changes until recent days. I understood this legislation was primarily intended to deal with the issue of insurance, but we seem to be back-tracking to some extent by making some fundamental changes to the eligibility criteria. I thought such issues had been dealt with in previous Acts.

This Bill proposes that people infected with hepatitis C are to be identified solely by scientific tests, whereas currently a clinical diagnosis of hepatitis C is accepted by the tribunal and the High Court and for all other purposes such as entitlement to health provision. Given the Oireachtas has been content before now to stand over a clinical diagnosis as being valid in the High Court and the tribunal, I cannot understand why we are now saying that position will no longer hold from 20 June. I do not think we should be revisiting previously accepted positions on these issues. My intervention will not necessarily change the Tánaiste's opinion, but I ask her to reconsider her approach and to give herself some extra space by allowing for regulations to be used if these issues need to be revisited, but it is not deemed necessary to introduce further new legislation. The Tánaiste and Minister for Health and Children has proposed that in some cases, although a person who was infected through an identified infected blood product, such as anti-D, and had symptoms compatible with a hepatitis C infection, he or she will no longer be able to establish an entitlement to compensation on health provision. I hope this provision will be reconsidered. There was an entitlement for spouses and partners of hepatitis C and HIV sufferers to make claims for compensation for loss of consortium. The Bill proposes to exclude certain categories of persons from such an entitlement, for example, the spouse or partner of a young person infected at birth. That is unfair on those infected at birth through no fault of their own, or that of their mothers or the maternity hospitals.

Without going back over the Bridget McCole situation, if our society has learned anything, it is that the legalistic approach should not dictate the normal Christian values to look after those who, through no fault of their own, have a particular problem. There will be an opportunity on Committee Stage tomorrow for the Tánaiste and Minister for Health and Children to explain this provision and give a humane response as opposed to a legalistic one. She has agreed to allow for extra tests, other than the ELISA test. This is welcome as it is inevitable that progress will be made in testing. Provision should be made to take such developments into account. The thrust of the hepatitis issue will continue for many more years.

Deputy Cowley referred to the issue of legal fees. The State has already paid out €660 million in this case. How much of that was in legal fees or was it all direct compensation to the people affected? Deputy Cowley highlighted the legal fees for special educational needs for which the State has paid €20 million. I am not sure if his figure is accurate but it certainly is more than €10 million. He argued that the State spent this money preventing people gaining access to special educational needs facilities to which their children were entitled. I disagree with his assertion. Recently, the Oireachtas Committee on Finance and the Public Service examined this area with the Office of the Chief State Solicitor. I found it perturbing that the State's legal bill was one sixth of the costs being submitted by the private solicitors on behalf of their clients.

The Chief State Solicitor's office made it clear that the extent of fees being charged by private solicitors for their clients was a barrier to the conclusion of cases. There was agreement between the State and the families on the required special educational needs for the children concerned. However, some solicitors insisted on not letting their clients settle cases until they received what came to six times the fees they are entitled to. We must pay attention to solicitors overcharging and preying on those with special needs. Some seek to extract the maximum amount of money from the State with little regard to the special needs of the children concerned. The same occurred with the army deafness claims in which legal fees came to 50% of the total compensation package.

Recently at the Committee of Public Accounts it was asked if some of these schemes are less compensation for victims and more a gravy train for the legal profession. This is a matter that must be addressed by the House soon. I am glad that the Taoiseach and the Minister for Finance are conducting a detailed assessment of all legal costs being paid by the State to ensure it is being done properly.

The insurance scheme will provide certain types of insurance to claimants who fall into the following categories: hepatitis C-infected anti-D recipients, hepatitis C-infected transfusion recipients, HIV-infected recipients of relevant products, the children or spouses of eligible persons with hepatitis C or HIV who have themselves been diagnosed positive for the virus, a parent, brother or sister of an infected person who is himself or herself diagnosed with hepatitis C or HIV infection, and certain other claimants to which the Minister extends eligibility for compensation by means of regulation made under section 9 of the 1997 Act. The regulation also specifies the category of those eligible for the insurance scheme. It includes those refused the relevant insurance on the grounds that they have been diagnosed positive with hepatitis C or HIV, those whom the administrator reasonably believes would be refused if they applied for insurance or those who have been refused unless they pay a higher premium than persons of a similar age and gender who have been not diagnosed positive with hepatitis C and HIV.

It is important to note an administrator will deal with the scheme. Approximately 1,700 people are affected and will be calling on this fund to assist them to pay for insurance cover entirely or incrementally. The legislation gives full details on the administrator and the conditions on the establishing the administrator. There is provision for the indexation of payments. Mortgage and remortgage protection and travel insurance have been included in the Bill and will be dealt with by regulation. There will be a time limit for applications, phased payments and provisions for those over 50 years of age up to 75 years of age. Other medical conditions will have to be factored in. Information must be made available — on reasonable grounds — to the administrator. The administrator will regularly report to the Oireachtas on the operation of the scheme. This is important in the interests of accountability and will allow Members to check on an intermittent basis if the scheme is working as intended.

I welcome the Bill but there are several matters that must be addressed. If they are not sorted out in the next 24 hours, I would like them to be dealt with by regulation. It is important that the 1,700 people waiting on this legislation see it passed by the Houses before the summer recess to allow them to proceed with these aspects of their lives like everyone else.

See this speech in context