Clare Daly (Dublin Fingal, Independent) | Oireachtas source

It is important to record that the Joint Committee on Justice and Equality took a decision to divide its resources today between the committee and this discussion in the Chamber. As such, the different groups have sent half their representations here for this debate. It is a bit regrettable.

While amendments Nos. 1 and 2 are not grouped, I would like, with the indulgence of the Chair, to make a verbal contribution on both together. As they are related to much the same subject matter, it would be difficult to talk about one without discussing the other. Amendment No. 1 deals with the waiting period for the first review of the suitability of the harmonised index of consumer prices for the setting of periodic payment order amounts.

Our proposal in this amendment is to reduce the time we have to wait for the review to be done from five years to three. Amendments Nos. 1 and 2 relate to the crucial issue of linking periodic payment orders to the actual cost of health care. As we pointed out on Second Stage, if this is not done, we run the very real risk that people who have been catastrophically injured in our health service will not receive funds sufficient actually to pay for the care that they need. We have recently had representation from wards of court at the justice committee. They described the complexities around some of these issues.

On Committee Stage, we tabled a number of amendments that proposed the creation of a new index based, among other things, on the actual cost of care and for that index to be used in calculating periodic payment orders, PPOs. Those amendments were defeated on Committee Stage, with the Minister of State noting that there could be problems with the reliability of a new index early on in the periodic payment order system. In light of that, amendment No. 1 provides that the Minister would review the suitability of the index that is now being proposed in the Bill - the harmonised index of consumer prices, HICP - after three years instead of five. Amendment No. 2 provides that if the Minister forms the view that the index is not suitable, he will be required to specify a different one. That is the nub of the two proposals before the House.

It is worth pointing out that the original recommendation with regard to indexation of PPOs, which was unanimously endorsed by the judicial working group on medical negligence, was that an earnings and cost-related index be introduced as a guide to PPO costs. However, the Bill before us uses the harmonised index of consumer prices as published by the CSO with no special provision for an index of care costs, which is the exact opposite of what the judicial working group recommended and completely ignores its unanimous recommendation. Linking payment orders to the HICP ignores the real difference between general increases in consumer prices and the much greater increase in medical wage and treatment costs. The working group on legislation to provide for PPOs points out that the Department of Finance, in its paper on PPO indexation, stated that an index based purely on either the consumer price index, CPI, or the HICP would not take direct account of wages and that the CSO's quarterly earnings, hours and employment costs survey should give the best outcome to recipients over the longer term. Using the right index is actually critical, which is why so many of the working groups spent so long telling us what it should be. What we are doing in this Bill is not that. It is something different. I think it does cause a problem which will get worse over time.

There is another point of danger. The word on the ground among people who work in the area is that if this proposed system is not changed to something else, plaintiffs will not go for PPOs at all, although that is what we want them to be doing. They will instead take lump sums, which is what we are supposed to be moving away from. It would be crazy if we went to the trouble of bringing in this legislation only to have it not used. We are not really asking for that much. We are asking that the review would occur in a timely manner, after three years instead of five. We think three years is enough for trends to emerge without them having a potential negative impact on recipients. We think five years is too long and could bring us into the territory where people are being negatively impacted.

On amendment No. 2, the Bill currently provides that the Minister "may propose" an alternative index after the review, even if the review has found that the current index is not suitable. We think that is ludicrous. It should provide that if the Minister finds it is not suitable, he or she "shall" come up with an alternative. I would not have thought either amendment to be hugely problematic, to be honest.

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