Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

I and my party welcome the legislation and support its passing, as the Minister of State is aware. The Civil Liability (Amendment) Bill allows courts to award periodic payment orders to compensate injured victims in cases of catastrophic injury where long-term permanent care will be required instead of the awarding of lump sum awards of damages. This is long overdue. In 2010, the working group on medical negligence and periodic payments led by Mr. Justice Quirke proposed this and the Law Reform Commission also made recommendations as long ago as 1997. The current system of awarding damages as a lump sum is not fit for purpose and should be replaced by periodic payments.

Following on from the 2010 paper, many thought that this legislation would be passed quickly, however that has not transpired. Many families in which there has been a victim of medical negligence resulting in catastrophic injury have been compelled to go to the High Court on multiple occasions to secure funds to provide the necessary care of their loved ones. These lump sums can be an additional burden and mental strain on families very often caring for a loved one with catastrophic injury, and leave them dependent on investment advice. On certain occasions, unfortunately, that investment advice has not been as good as people might like. In addition, people have often lived beyond the life expectancy upon which basis these payments have been calculated.

The concerns regarding section 51(l) about indexation have already been raised and I add my voice to them. Specifically, I highlight the indexation of costs and the fact that the biggest costs will be care. The particular cost of labour needs to be taken to mind and I hope the Minister of State will consider it when drafting amendments. Labour is not necessarily the same as other costs.

I note the comments of Mr. Justice Kelly, who recently said it is shameful that legislation has not been introduced to provide periodic payment orders, PPOs, when he was addressing a case involving a 13 year old suffering from cerebral palsy following medical negligence during his birth. I also want to highlight another case that illustrates why this legislation is necessary. Catherine O'Leary is a mother of one who has had locked-in syndrome since undergoing major brain surgery at Cork University Hospital five years ago. Catherine is tetraplegic and can only feed and drink through a tube. She cannot walk and is dependent in all aspects of her daily life on her carers and parents. She can communicate only through blinking. Since surgery for the removal of a brain tumour on 31 January 2008, Catherine's physical and mental capacities have been catastrophically impaired. It was asserted during proceedings that had a brain tumour diagnosis been made on Catherine and surgery carried out earlier, it was very probable she would have avoided catastrophic brain injury. This is a dreadful situation.

A young mother has had her life confined beyond our imagination and her family has had to carry the burden subsequently. Her parents, Margaret and Pat, have fought for her tirelessly with great commitment and determination. I want to recognise them here today. The High Court awarded €2.5 million in damages against the HSE. In 2011, the voluntary housing association, Clúid, purchased a house in Carrigaline for her and the Department of the Environment, as it was then, provided an extension for her which allowed her to be moved home in 2014 to be cared for there as her family wished. However, this is not the end of the story. Catherine's care is inevitably very expensive. Equipment and medicine are provided by the HSE but the cost of her care, which is borne entirely through her compensation, runs into the hundreds of thousands or at least is well in excess of €100,000. This is after the O'Learys have made every effort to minimise costs. The difficulty is that the compensation was calculated on the basis of an additional four years beyond departing hospital. She left hospital nearly three years ago and is currently very stable. It now appears likely that she will live considerably beyond the four years after her discharge from hospital. The question is what happens next. What happens if the money runs out?

These questions arise even aside from her ability to leave something to her son, something her family is keen to do. It appears, however, that this sum could be exhausted. Since Catherine O'Leary requires 24-hour care, her parents are restricted in terms of employment and so on. The family income is limited and much of it is spent on the significant energy bills required for all the machinery and care.

I am highlighting this point for two reasons. The first is in support of the Bill. It may be too late for Catherine O'Leary and her family but it illustrates the difficulty with the fact that periodic payments and lump sums are calculated on the basis of life expectancy that can often be wrong. Addressing that is the least people in this situation deserve given what they and their families have gone through.

I also take this opportunity to highlight the fact that I believe the State does not do enough. I do not believe we have an adequate programme for younger people who require comprehensive home care. The programmes for older people are perhaps a little more generous. That is welcome, right and proper. However, I believe the programme is not adequate for younger people who have serious confining injuries and diseases. Catherine O'Leary does not even qualify for home-care packages currently, although that would relieve the burden on the family somewhat and make her care more sustainable. There is a need for the State to ensure that people such as Catherine O'Leary can be cared for properly at home.

I am aware of another case in which the failure to provide adequate supports is not dissimilar. This failure is currently preventing the patient from moving home from hospital. I intend to write to the Minister for Health on the matter following the debate. I will enclose a copy of my speech and raise these points. However, since the Minister of State at the Department of Justice and Equality is present to listen to my contribution I am appealing to him to make representations to the Department of Health in that regard.

While we believe that this legislation can be improved, it is welcome and it can make a significant difference to families in terms of how they manage the compensation they receive and in terms of certainty. It can also be improved with regard to the particular issue I have highlighted whereby a person's life expectancy can go beyond the basis of the initial calculation of the lump sum.

See this speech in context