Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael) | Oireachtas source

I welcome the opportunity to speak on the Bill. I am glad its focus is on mediation, which reduces stress and cost and helps to manage a process better overall.

Many Deputies have spoken on the Bill, but I wish to speak on a related matter of litigation, that being, the Comptroller and Auditor General's report, published last Friday, on the 2021 accounts of the public services and specifically chapter 20 on the management of the clinical indemnity scheme. I will first declare a personal interest in the scheme's management. This was a subject that was considered with the State Claims Agency by the Committee of Public Accounts many months ago, where Deputies challenged the agency on the funds it expended on litigation, the overall awards, the management of litigation on behalf of the State and the management of the ongoing risk to the State. It is a considerable liability. One of the challenges is to reduce risk even further in hospitals so that there are not only fewer cases for the State but, more important, fewer incidents that affect people's lives. As I told the Leas-Cheann Comhairle when entering the Chamber, and the Chairman and clerk to the Committee of Public Accounts, I have experience in this regard. One of the key pieces of exposure to the State is that of catastrophic birth injuries as well as birth and maternity injuries more generally. I have an active case with the State, which I wish to declare. Obviously, it gives a better understanding of some of the challenges.

A key element of the Comptroller and Auditor General's report has to do with the national incident management system, NIMS. The most costly and devastating injuries that happen in hospitals are those that happen in maternity hospitals to women - Deputy Cronin referred to psychological injuries as well - and babies. The exposure to the State can be large. The committee's concern was that we kept seeing a pattern of cases, be they involving brain injuries or cerebral palsy, and we wanted to know what the State Claims Agency was doing to hold the hospitals to account. Where were the patterns and were certain hospitals more problematic than others? The House will recall that Dr. Peter Boylan published a good report in 2016 on maternal deaths and injuries in the State, focusing on Portlaoise and other hospitals. The committee wanted to know what was going on and how to ensure it did not happen again.

There are many cases of birth injuries and deaths. It is frustrating to be a parent who is part of that community and to see this issue arising time and again in the same hospitals. One wonders whether anything will ever change. Our challenge to the State Claims Agency was to ask how it was interrogating the NIMS. The Comptroller and Auditor General has issued a brilliant response on the issue. He analysed the NIMS and wrote:

Overall, in the period 2017 to 2021, only 25% of claims received [by the State Claims Agency] had previously been reported by the DSAs as incidents on NIMS prior to claim notification.

Of the 75% of claims not previously reported ... the SCA concluded that - in 22% of cases, there was insufficient information available to determine whether or not the incident should have been reported;

- it was reasonable for the incident giving rise to the claim to have been recorded on NIMS in 21% of cases ...

- in around one third of all cases (32%), the DSA would not have been aware of the incident ...

It is clear that at least one fifth of those cases that ultimately turned into litigation cases for the State should have been recorded. It is only when hospital management is put under pressure in its responses that we get the opportunity to change the culture.

We challenged the scale of the cerebral palsy injuries. According to the report, 60% of claims with the State Claims Agency arose from maternity cases. That is 60% of the State's liability arising just from maternity hospitals. As members of the Committee of Public Accounts, we hold the health service to account more broadly. From a personal perspective, though, every one of those cases is life altering for the babies and families concerned. Every Deputy in the Chamber knows a case of that kind. None of those families who have to litigate their claims want to be in that situation or to go through the process of having report after report done on their child just to try to reach a balance where they can fund the child's altered life as a consequence of the injury.

The cerebral palsy cases represent €1.4 billion of the €3.4 billion liability, or 41% of the overall claims. At the end of 2021, there were 163 active cerebral palsy claims related to maternity services. It takes longer to finalise those cases, lasting up to approximately five years. That is five years' worth of stress, as the House can imagine. As such, the sooner the State Claims Agency moves en masseto the mediated system, which is a central part of this Bill, the better. Of course, claims must undergo appropriate due diligence, but mediation is always a better system.

In 2021, there were 335 active cases relating to catastrophic injury, with an estimated outstanding liability of €2.4 billion. The average liability per catastrophic injury claim is €7.2 million compared to €300,000 for other clinical negligence claims. It does not make for good reading, particularly when you know what is happening more intimately, but it is the basis from which we can start to hold the hospital boards more accountable for what happens within their hospitals. The Committee of Public Accounts was told by the State Claims Agency that there were approximately 26 cases of cerebral palsy every year and that this was in or around the average internationally. I know that the agency did not mean that heartlessly, but that is 26 families and 26 children. We know that it is not the case that some of them are unavoidable. We know that there are many cases in which mistake after mistake was made. More often than not, the women were simply not listened to in a maternity hospital of all places. The figure of 26 must be reduced, not just from the perspective of the State's liability, but from the perspective of each of the families and their children that will be affected.

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