Dáil debates

Thursday, 19 February 2009

Other Questions

Clinical Indemnity Scheme.

3:00 pm

Photo of Michael D'ArcyMichael D'Arcy (Wexford, Fine Gael)
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Question 7: To ask the Minister for Health and Children the action she will take to address the legal expenses claimed by lawyers when their clients are awarded damages under the clinical indemnity scheme; and if she will make a statement on the matter. [6638/09]

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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The management of claims covered by the clinical indemnity scheme has been delegated to the State Claims Agency, SCA, under the National Treasury Management (Amendment) Act 2000. Therefore, I have no direct involvement in their management. The 2000 Act imposes an obligation on the agency to ensure that the expenses incurred in the management of claims are contained at the lowest achievable level.

The establishment of the clinical indemnity scheme in 2002 has already produced significant savings in legal and other transaction costs by eliminating the multiple defendants who would each have had separate legal representation under the previous arrangements. The elimination of separate representation for hospitals, consultants and junior doctors has made it easier to settle cases. As well as eliminating multiple costs, it delivers compensation to patients with legitimate claims much more quickly. It also makes it easier to defend cases that have no merit.

The SCA minimises its own legal costs through the use of a panel of specialist solicitors selected following a competitive tender. Through these solicitors, it agrees the fees to be paid to counsel. However, in dealing with the costs of successful plaintiffs, it is obliged to work within the rules and conventions of the courts system where these matters are determined. Where the costs cannot be agreed between the parties, they are submitted for taxation. The agency is examining how legal costs might be further reduced.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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The legal costs of the average catastrophic injury case, such as one involving cerebral palsy, amount to approximately €1 million. This is a particularly relevant issue. From my general practice, I know that vaccination is the most dangerous thing that general practitioners do because of untoward effects, which are rare but possible. Why is it the case that, the higher the award to the patient, the greater the professional fee? It does not make sense. We are paying approximately 56 cent in legal costs for every euro that a plaintiff gets. Under the NHS in the UK, only 43p is paid out on every pound. It is a hell of a difference.

Will the Minister consider a no fault compensation fund for the victims of the childhood vaccination schemes? If a doctor gives a vaccine in good faith, manufacturers produce it in good faith, parents have it administered to their child in good faith and an untoward event occurs, as occurs rarely, the parents will be left mortgaging their house to get justice and care for their child. Everyone is sued, everyone has legal costs, the legal profession has a heyday and the families and professionals who have done no wrong are traumatised. If there is neglect, that process is fair enough, but there is none in most cases. Has the Minister considered a no fault compensation scheme and what are her plans to reduce horrendous legal costs?

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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That was a specific expansion on the question, but I ask the Minister to reply.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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I share the Deputy's opinion on legal costs in Ireland and the plethora of lawyers, from junior and senior counsel, solicitors and so on, involved in various actions. A previous Minister for Justice, Equality and Law Reform established a group on legal costs, the recommendations of which are being considered for implementation by the current Minister.

The Deputy's point on percentage costs is valid. It also applies to pharmacists, who receive a 50% mark-up on the cost of drugs. I have a strong opinion in that regard. When I am doing business in my private capacity, such as it is, I usually negotiate a fee. More people should do likewise. We pay substantially more in terms of legal costs and doctors than is paid in the UK. Professionals in this country do much better than their counterparts in Northern Ireland or the UK. As the Deputy is aware, the legislation on emergency provisions in respect of the levy, which is before the House, provides for the renegotiation or resetting of fees for health, legal and other professionals.

To be fair, the introduction of enterprise liability has been of major benefit from the point of view of hospital claims. Instead of different professionals having their own lawyers and insurers, each trying to ensure that their clients are not blamed, and the cases going on forever, cases are settled more cheaply than used to be the case.

Regarding a no fault scheme, a group under Professor Peter McKenna, an obstetrician from the Rotunda Hospital, was established prior to my appointment as Minister for Health and Children. The group's focus is on children who have suffered brain injuries at birth. If my memory serves, there are few such cases each year. The Deputy is correct in that the parents must litigate, a process that is traumatic and expensive. I am awaiting the group's report. It was trying to reach agreement between parents and the various interest groups before making a recommendation, which, judging by initial indications, was for a no fault system. I would have much sympathy for it. If we could target money to the children and their families instead of through a legal process and litigation that results in trauma, it would be attractive. Beyond this, the matter has not been considered. If we could have a no fault system that did not open the flood gates, I would be in favour of it.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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For that reason I was careful to refer to childhood vaccinations specifically, not to people receiving travel vaccinations. Will the Minister focus on her plans or other initiatives to address the plaintiff's legal fees?

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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These are generally determined by——

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I will allow Deputy Naughten to ask a brief supplementary question.

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Fine Gael)
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Before the Minister responds, will she update the House on the report on her desk concerning vaccine-damaged children? When does she hope to publish it?

Photo of Jan O'SullivanJan O'Sullivan (Limerick East, Labour)
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My question is more or less the same. Does the Minister have a timescale for publication of that report? Every Deputy would consider it eminent sense that the money should go to the children and their families instead of to the legal profession.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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Regarding Deputy Reilly's question, a plaintiff's costs are generally determined under court procedures. Unfortunately, we pay more in such costs than is paid in other jurisdictions. We also pay our doctors much more for screening programmes. In the new economic circumstances, all these matters must be reviewed.

I will revert to Deputy Naughten as I am not in a position to answer his question. I would welcome a dialogue on some of these issues with the Opposition as they should not be contentious and are not ideological. We could hold a good discussion on vaccinations via the Joint Committee on Health and Children.

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Fine Gael)
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I have already met the working groups and they would have no problem in that regard.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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I would happily have it.