David Stanton (Cork East, Fine Gael) | Oireachtas source

On behalf of the Tánaiste and Minister for Justice and Equality and on my own behalf I thank Deputies for their general welcome and constructive engagement with the Bill.

It is important to emphasise why the Bill is being introduced. The courts award damages for personal injuries to try to ensure that injured parties are put in the same position as they would have been had they not sustained the wrong for which they received compensation. At present, damages for personal injuries in catastrophic cases are paid by way of a lump sum. The working group on medical negligence and periodic payments identified deficiencies in the lump sum system as it applies to persons who have suffered catastrophic injury. The group recommended that to address these deficiencies legislation should be introduced to enable the courts to award damages in catastrophic cases by means of periodic payments.

While relatively short, the provisions of the Bill are rather complex. Before introducing the Bill it was necessary to consider several issues carefully, including: the scope of the legislation; the powers to be granted to the court in respect of period payments; the security of periodic payments; the indexation of period payments; the treatment of periodic payments in bankruptcy; and the treatment of periodic payments for income tax purposes. The Department of Justice and Equality has consulted extensively with Departments, the State Claims Agency and other stakeholders to ensure the Bill addresses these issues.

Several Deputies raised the issue of indexation of periodic payment orders and the possibility of specifying the use of a dedicated index to apply the orders. This would allow periodic payments to be index-linked to the levels of earnings of treatment and care personnel as well as to changes in costs of medical and assistive aids and appliances. An actuarial study of periodic payment orders commissioned by the State Claims Agency concluded that, in respect of indexation of periodic payment orders, an index in the form suggested by the working group on medical negligence and periodic payments could prove to be volatile given the small sample size available in Ireland.

The study suggests that instead the legislation should specify a broader based index in order to reduce volatility and provide certainty with regard to payments under a PPO to catastrophically injured persons. In addition, the study noted that in a five-year period from the adoption of the ASHE 6115 cost of care survey, as the index for periodic payments in the UK, the retail price index in the UK out-performed ASHE 665 by a cumulative 13%.

The interdepartmental working group on legislation on periodic payment orders considered the issue of indexation of PPOs in some detail. The group's considered view was that any index specified in legislation should provide as much certainty as possible for defendants in terms of the projected increases in their financial liabilities, should not lead to an unacceptable degree of statistical fluctuation, should not be unduly volatile and should take into account the types of costs incurred by claimants and the changes to these costs over time. A number of different options were considered by the working group which concluded that to meet the criteria set out above, an index based on the Irish harmonised index of consumer prices, HICP, should be the initial index specified in the Bill.

Section 51(l) of the Bill provides for an annual adjustment of a payment under the PPO in line with the prevailing rate under the harmonised index of consumer prices. This section also requires the Minister to carry out an initial review of the index after a five-year period and, should an alternative index prove to be more suitable, make regulations specifying that index to be used in adjusting payments under PPOs.

Turning to Part 4 relating to open disclosure, I assure the House that the Minister for Health fully appreciates that while some Deputies believe that open disclosure should be mandatory, the relative merits of a mandatory and voluntary open disclosure framework were carefully weighed by the Government in coming to the view that at this time the best option for successfully ensuring the essential cultural change to foster open disclosure lay with a voluntary approach. Deputies will be aware that the Joint Committee on Health also considered this issue in its pre-legislative scrutiny of the open disclosure legislative proposals. The committee recommended that the success of voluntary open disclosure based on the legislation as proposed be assessed in the future and the possibility of mandatory open disclosure be considered if it is determined that a voluntary system is not having a satisfactory impact in increasing the rates and quality of disclosure. The Minister for Health has given a commitment to do this.

Another issue raised in the debate is the protection given to open disclosure. Part 4 of the Bill provides for certain protections for information given to the patient at an open disclosure meeting. These include that the information and written statement given to the patient are not admissible as evidence of fault or liability in a court in relation to the patient's safety incident or a clinical negligence action that arises from the consequences of that patient's safety incident. Deputy Clare Daly had concerns about this provision. Again, the Minister for Health understands the reason for questioning the provision. It is important, therefore, to set out the thinking behind it.

Open disclosure should be a genuine engagement between the patient and his or her doctor that should not be hindered by other concerns and fears. However, a persistent barrier to open disclosure recognised in other jurisdictions and Irish research is the perceived fears of the medico-legal consequences of open disclosure. The origins of the provisions of Part 4 of non-admissablity as evidence of fault or liability lie in recommendations made by the Commission on Patient Safety and Quality Assurance in its report, Building a Culture of Patient Safety. The commission, which was chaired by Professor Deirdre Madden, identified fear of litigation as a barrier to open disclosure and recommended that legislation should ensure that open disclosure which is undertaken in compliance with national standards cannot be used in litigation against the person making the disclosure. Legal protection was also a consistent issue raised in the HSE evaluation of the national open disclosure pilot. The Joint Committee on Health was sympathetic to the view that cultural buy-in is essential to open disclosure. As Deputy Michael Healy-Rae said, the system that is in place in our health service can sometimes stand in the way of people making open disclosures. The intention behind Part 4 of the Bill is to help bring about this cultural buy-in, supporting an environment where the patient's information needs can be addressed positively as soon as possible. Patients will receive information applicable to the patient safety incident in an open disclosure made under Part 4. Moreover, they will still, of course, have access to their medical records which, in line with good professional practice, will contain all information relevant to their care and treatment.

On balance it is considered that the system of open disclosure provided for in the Bill offers the greatest likelihood that patients will receive the information they are looking for after an incident without the need to resort to the courts system simply to get a straight answer, as Deputy Clare Daly has described. It is a consistent message from patients that they prefer to receive information and explanations and, where appropriate, an apology directly after an incident and not have to go down a legal route to get this information or apology. Litigation may sometimes be inevitable but it should never be the case that a patient or his or her family has to go to court simply to find out information about a patient safety incident. Ultimately, open disclosure is a human process underpinned by honesty and respect. The intention behind the legislative provisions to support open disclosure is to create a safe space where that honesty and respect can flourish and where lessons can be learned by health service providers and health practitioners and acted on to improve the health service.

More generally, the provisions in the Bill to support open disclosure are part of a broader package of reforms and patient safety initiatives which have the purpose of improving the experience of people who are affected by adverse events when they occur within the health service. These include provisions on mandatory external notifications of serious patient incidents that will be included in the health information and patient safety Bill. In addition HIQA and the Mental Health Commission have developed standards for the conduct of reviews of patient safety incidents. Another initiative is the recent establishment of the National Patients Safety Office, the NPSO. Deputy Healy-Rae referred to the location of this new office. I would like to clarify that the office is within the Department of Health rather than the HSE itself. The NPSO programme is focused on patient safety legislation policy and surveillance.

In her speech, Deputy Daly raised the issue of mandatory inquests in cases of maternal death. Deputies will note that the Government today approved a proposal from the Tánaiste to draft, as a matter of priority, the coroners (amendment) Bill 2017. The Bill will introduce mandatory reporting, post mortem examination and inquests in cases of maternal death. Its aim is to ensure clarity for responsible persons, including hospital authorities, and would support the development of a transparent and accountable oversight for checking and investigating certain types of death. Most importantly, it will provide clarity and transparency for bereaved families.

In conclusion, this Bill, which gives the courts the power to award periodic payments in the cases of catastrophic injury, is extremely important. It will ensure that people who have been catastrophically injured will receive the care and assistance they require for the rest of their lives.

See this speech in context