Alan Kelly (Tipperary, Labour) | Oireachtas source

I thank the Minister of State for being here. In fairness, the Minister, Deputy Harris, contacted me and apologised. He is double-booked. I wish he was here, but he had the decency to contact us.

This is a very important Bill. I have been through it multiple times. I have spoken to many people about it as I always do in matters relating to this issue. I am sure the Minister of State is well aware that I speak to patient advocates and people who are involved with this every day, including most Sundays. I would be lying if I said there are not mixed views about the Bill. This is virgin territory in legislative terms. There is a crossover between politics and the law with which some are uncomfortable. I include myself in that. Government and Opposition are approaching this in the same spirit and it is not an us versus them legislative process. For the right reasons, it is proposed to enact provisions to allow women and their families to go through a less adversarial process. However, I am not sure the law allows for this. I am not sure the law is willing to yield to create that less adversarial process. There is not much of a distinction between the proposed process and that which obtains in the High Court. It is still adversarial and will still involve cross-examination and many other issues which I will go through in detail.

There are a couple of points to make before I go through the Bill in detail. We have come a long way since Vicky Phelan, who I know extremely well at this stage, blew the lid off this issue. We are where we have got to today but many mistakes have been made. I am not here to admonish anyone. We have repeatedly discussed what the Taoiseach said on "Six One". I watched it live. It was impossible to do what he said would be done. It was never going to happen. Notwithstanding why he said what he did - I do not who advised him to say it or whether it was a rush of blood to head - it was inexplicable and wrong because it gave false hope to the most vulnerable. Ruth Morrissey spent 36 days in the High Court in the longest medical negligence case in the history of the State. That happened after the Taoiseach went on "Six One" to say that the State would settle the cases and chase the laboratories. There have been instances of faux pasbefore, but that has to be biggest faux pason a sensitive issue that I have seen in the course of my political career. I deal with these people all the time. They are vulnerable and they were let down badly.

I am in something of a minority, at least in terms of what people have stated publicly, in that I do not agree with appealing the Morrissey judgment. Certainly, I do not agree with the manner in which it has been articulated. I will get into that too. There are unintended consequences of appealing the decision. If we were to be Machiavellian about it, we might say that those consequences were intended. I would love if the Minister of State answered the following question directly. Will the tribunal start before the outcome of the appeal relating to the Morrissey judgment is known? Will he ask his officials? My understanding is that it will not. I am pretty sure I am correct on that. It is new information that was received only in the last short while.

Health spokespersons and other members of the Joint Committee on Health received a letter from Greg Dempsey, Assistant Secretary General of the Department of Health, in recent days. The letter was addressed to the Chairman of the committee, Deputy Harty. Committee members and spokespersons have had an issue with pre-legislative scrutiny being waived in respect of this very important, virgin legislation. Of all the legislation in train, this was felt to require it. In order to allow the legislation to go through, however, we decided eventually to waive scrutiny on the basis of a letter assuring us the Morrissey judgment would not have consequences. It is a two paragraph letter, the second of which states that the advice the Department had received indicated the tribunal is configured to deal with such CervicalCheck cases as are sent to it by claimants and defendants on the basis of the applicable law on personal injury claims. The applicable law is the body of precedent that now includes the judgment in the Ruth Morrissey case. In time, it will include any judgment that is issued on appeal in the same case. The letter does not state that the legal advice is that we have to stop the tribunal from commencing. It does not say that at all. Some of my colleagues and I asked the question in that regard. If the information I have received is accurate, who in the Government sought an opinion regarding why the tribunal should not commence until the Morrissey case has been appealed and its outcome is known? This does not tally with what the joint committee was told. I am angry about that and I am not alone. Obviously, it delays everything. Previous speakers indicated that there is an urgency in respect of this legislation. If what I have said is true and the appeal of the judgment in the Morrissey case means that the tribunal will not be up and running until the case is dealt with in the autumn, that urgency is not there. We do not have the same urgency at all and should deal with the Bill in the appropriate manner. We should not have to submit amendments by 10 a.m. on Friday. That to which I refer changes everything, which is why I want it confirmed.

The Taoiseach must apologise to the women. He went on Marian Finucane's show and said he thought he had done so. How in the name of God can the Taoiseach of Ireland not know whether he has apologised officially to these people and their families? How could he not know that? There was then the line that we would wait until the Scally report was completed. The report has been completed. I welcomed Dr. Scally's initial report but I have a lot of questions about the second one. I am not as happy about it by a long shot. I will deal with that matter at another time. However, it is done. As such, the apology must be made. When will that be? Is there a reason that there has been no apology? People are beginning to worry. I ask the Government to please tick that box. While it is doing so, it might also deal with another, albeit smaller, issue. The Taoiseach must correct the record in the context of what he said about the information being provided to Ruth Morrissey's legal representatives on the appeal of her case. I have raised that matter in the House previously and the Taoiseach has been contacted in writing about it. Given that it is now being commented on in the media, I do not have to shy away from it.

He should do the right thing by apologising and withdrawing what he said. That is it.

A woman who is quite involved in this matter contacted me this evening to ask me to put her views on the record of the Dáil. I will not name her. She says that from her perspective, this tribunal is about saving the State money and fighting the women. Those are her words and not mine. She believes her view of the tribunal is proven by the fact that the appeal to the Supreme Court is going ahead. Is it not deeply worrying that a woman who has been badly affected by this issue holds such an opinion? She points out that the Taoiseach said he would indemnify the women so they would not have to fight the labs. She wants to know whether, now that he has indemnified one, he will treat everyone else the same. I want to get on to that because I am the biggest supporter of what Ruth Morrissey did. I have spoken about her on many occasions in this House, in the Joint Committee on Health and in the Committee of Public Accounts. When the Minister said he would give all drugs to any women who were affected, I had to point out the inconsistency with regard to pembro. I had to get other women on that drug because of the way the matter was dealt with by the Minister.

I am concerned about the manner in which the State has dealt with the Morrissey fallout. I want to say right here on the record that there are unintended consequences that the Government has not calculated. I believe I will be proven right in the future. By the way, I am a big supporter of this lady. I support the ring fencing of her money. How will it affect other potential claimants into the future? Has the State set a precedent? I ask the Minister of State to think about that. I know that many people out there are thinking about it. Some of the women and families affected by this issue believe the appeal of the Ruth Morrissey case, which will have some consequences one way or the other, means that women and their families who fight their cases in the future may not get the benefits of what Mr. Justice Cross determined in the Morrissey case. That is deeply worrying. The appeal will go ahead. The process is going ahead now. Is the equation the same in the way this will be dealt with? Is it a case of the State isolating one case because it does not want everyone else to follow the pattern of the case in which Ruth Morrissey deservedly got an award?

I want to deal with the legislation. There are unintended consequences here, or else they are intended consequences, if the Minister of State understands my meaning. There are concerns about this Bill. This is still an adversarial situation. I do not understand how the audit just stops. The audit has not happened since 5 April 2018. What about all the women whose cases arose after the cut-off of the audit? The date of 5 April is an arbitrary one. What about women whose diagnoses arose after 5 April? Their slides would have been read before 5 April. How are they going to get access to this? What happens in the case of a woman who suffers a late occurrence? We all know that in some unfortunate cases, women get cancer a second time. What about a woman who settles through the tribunal before her cancer recurs? Unlike the hepatitis C tribunal, this tribunal will not allow claimants to go back again. How will such cases be dealt with?

I have concerns about the amount of time being given to those who want to bring forward cases. Why is the pattern set down in the Personal Injuries Assessment Act, under which six months can be added onto the statute, not being followed in this case? I think that would be appropriate. This tribunal will deal with very vulnerable women, including women with terminal illnesses. I ask the Minister of State to note this important point. If such a woman unfortunately passes away, why will the case stop? Should this legislation allow her next of kin to proceed? It has happened before. I think this is a reasonable request. There seems to be a long period between an award being given and actually coming into effect because of the need to go through the High Court. This is something that could be changed pretty easily.

Section 19 of the Bill provides that when an award is made, the woman should be entitled to recover her costs. This has to change because people are nervous when they read the word "should". Similarly, section 24 is vague about the entitlement to recover costs through the High Court in respect of the element of a case that a plaintiff may have left aside to give the tribunal a chance. This means a woman could be penalised for choosing the tribunal over the High Court. That just does not add up. I hope these are merely wording or drafting issues. If they are, I want them to be addressed.

Section 22(1)(d) gives the tribunal the power to cross-examine witnesses. Why would an independent tribunal have to cross-examine witnesses? That is what the word "independent" is about. Why would it have to cross-examine witnesses? I ask the Minister of State to examine these matters.

I will mention a few other issues. The definition of "relevant woman" in section 2 of the Bill appears to exclude a certain number of categories. The cases that came through the cancer registry are gone off to the Royal College of Obstetricians and Gynaecologists. It needs to be clarified that the women in those cases are covered. We need to ensure women who have independent expert reviews that bring them into this cohort are included, even if they did not start off in CervicalCheck or in the cancer registry. I welcome the Government's decision to include women whose slides have been lost.

Section 20 involves "Hearings generally to be otherwise than in public". It is being said publicly that women and their families can ask for hearings to be in private. I feel that is fine if they want to make such a request. Unfortunately, the way this is drafted leaves the tribunal with the decision. It is totally understandable that a woman might ask for her hearing to be private on the basis that she does not want to discuss her sex life with the tribunal. The judge in such a case, having listened to other parties, might still decide that the hearing should be held in public. That is the way this is written. This has to change.

Section 28 involves "Confirmation and publication of determinations". Why do all determinations have to go through the High Court? As the Bill stands, even the rejection of a tribunal award has to go to the High Court. If the parties do not want to accept the award, it should not go to the High Court. Why is this the case? It needs to be looked at.

The role of facilitator is set out in section 31. There does not seem to be any obligation on people to attend. I suppose there would be issues there in other formats of law. Will the Minister ensure all State employees have to attend? I would like the Minister of State to respond directly to that question tonight. Surely he has the answer. All HSE employees and all workers paid by the State should have to attend.

There is an issue here regarding liability, namely, the question of liability regarding some of these cases and the State not accepting liability. When it comes to the issue of non-disclosure, the draft of the text is still very clear that the State is not accepting liability. When it comes to non-disclosure, given the fact it was a cervical cancer screening programme run by the HSE - by the State - why can the issue of non-disclosure not be dealt with differently? Surely as a country and a State, it is very hard to argue that the non-disclosure issue is not one that can be dealt with separately because, obviously, the State did not tell its people.

There is deep distrust among some people regarding the way trust meetings are put together so more depth is needed regarding how these meetings are going to work otherwise some people might feel it is a fishing exercise. The legislation says it will consider other awards and take that into consideration. That needs to be removed. We know about ex gratiapayments so that needs to go. This must be a straight line. It has to be a baseline. We cannot take any other payments into consideration.

I hope the Minister and officials have taken on board all those issues because there are some very serious questions and I have a funny feeling we will be coming back to the contributions made on the floor of the House regarding this in the future if they are not addressed between now and 10 a.m. on Friday.

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