Thursday, 13 January 2011
Medical Redress Schemes
Question 4: To ask the Minister for Health and Children her plans to introduce a supplementary redress scheme for the surviving women victims, and surviving next of kin of deceased victims, of Michael Neary, in Our Lady of Lourdes Hospital in Drogheda, County Louth who were not covered by the redress scheme established and who have for long been campaigning for proper recognition [1842/11]
The Lourdes hospital redress scheme was established following an inquiry into peripartum hysterectomy at Our Lady of Lourdes Hospital, Drogheda. The inquiry was chaired by Judge Maureen Harding Clark. Judge Clark was requested by the Government to advise on an appropriate scheme of redress arising from the findings of the report. Having received her advice, the Government approved the establishment of a non-statutory ex gratia scheme of redress in 2007 and appointed Judge Clark as its chairperson.
The Lourdes hospital redress board has now concluded its work and all awards determined have been notified to successful applicants. The total cost of the scheme was €20.6 million. I was asked to consider an extension of the scope of the scheme to include additional former patients of Mr. Neary outside of the terms of the scheme. I gave due consideration to the request and consulted Judge Clark in the matter, who advised against an extension. Acting on this advice, I decided against an extension of the scheme and this was publicly communicated in November 2008.
The Government believes that the Lourdes hospital redress scheme addressed the matter in a sensitive and timely fashion. It was always the Government's intention that the women who qualified for the scheme would receive adequate compensation and that has been achieved in a fair and reasonable manner.
I have been a member of an all-party Oireachtas group which, for a considerable period, has been pressing the Minister by every means open to it to acknowledge and provide compensation for the unfortunate women in question. The group is made up of representatives of the Fianna Fáil Party, Fine Gael Party, Labour Party, Sinn Féin and the Green Party across the entire north-east region and Dublin North.
The pain and anguish of the women concerned has been compounded by the Minister's persistent refusal to recognise properly their loss and suffering. Only 35 cases are excluded under the terms of the Lourdes hospital redress scheme. This very small cohort of tragic women includes one woman who was three days past her 40th birthday when her procedure was performed having been deferred by one week. Why were women aged over 40 years excluded under the terms of the redress scheme? I ask the Minister not to trundle out once more Judge Maureen Harding Clark's recommendations or advice because that is exactly what they were - recommendations and advice. The Minister has the power to respond appropriately to the cases in question.
I acknowledge, uniquely in my experience as a Deputy of almost 14 years, the cohesion and commitment to work together of all the Deputies and Senators who have been a constituent part of the all-party Oireachtas patient support group. I have no doubt that the points I am putting-----
-----also carry their imprimatur.
It has been reported that the Minister, in the company of representatives of Patient Focus, indicated to some of the excluded women that they would be catered for, and the Minister has not denied that she made such a statement, including at an engagement that we had with her at one point over this long and protracted lobby. I ask the Minister to respond positively and appeal to her to establish a supplementary Lourdes hospital redress scheme. The number of women involved is small, as would be the size of any compensation fund. Right and justice demand, however, that this be done.
I understand the Deputy's wish and those of his colleagues in the constituencies in question. Unfortunately, however, as a Minister, I have wider responsibilities, as has the Government. The inquiry chaired by Judge Maureen Harding Clark and the report she produced were well received by the patients concerned and their representative organisation. The judge continues to be held in very high esteem.
Following the inquiry, when I recommended to the Government the establishment of an ex gratia compensation scheme, I believed it appropriate to ask Judge Harding Clark to determine the terms of the scheme because she had more information than anyone else and enjoyed credibility, authority and the support of the relevant organisation. I am not seeking to pass the buck to the judge. However, given her experience as chairperson of the inquiry and on the basis of her recommendations, I asked her what should be the parameters of the redress scheme. She recommended that redress be given to any patient who had an unplanned obstetric hysterectomy which, in the opinion of a consultant obstetrician, was medically unwarranted and any woman who had an unplanned bilateral oophorectomy which, in the opinion of a consultant obstetrician, was medically unwarranted.
When the issue arose of extending the scheme to others, I consulted Judge Harding Clark and she strongly recommended against doing so. I recall her saying to me that when one establishes a compensation scheme of this nature, in other words, one which did not cover all of the patients of the doctor in question - the inquiry was not held into all his patients - there will always be hard cases. She also drew my attention to several hard cases and we asked the State Claims Agency to deal with them. I believe the agency has done this.
As Deputy Ó Caoláin will be aware, one lady took a judicial review because she was not compensated under the redress scheme. The case was struck out by the High Court. I must be honest with the Deputy because I am not in a position to re-open the redress scheme or establish a supplementary scheme. It may well be that others may wish to do so in future but I do not believe it would not be appropriate for me to recommend such a step to the Government. Even if I did believe it appropriate to make such a recommendation, I do not believe that, in the current circumstances and given the other two groups from the region in question which also have grievances against individuals from the hospital concerned, the Government would re-open the redress scheme and extend it beyond the scope recommended by Judge Harding Clark.
There are five constituencies in the area in which the 35 excluded women, at least those of them who have survived, reside. The Minister, in her response, exposes the weakness in her position. One cannot give to somebody who is not democratically accountable and does not have ministerial responsibility the right to make the final determination as to what is appropriate in a particular situation. Whereas the Minister invited recommendations and advice, the ultimate responsibility in determining what is the appropriate response rests with the Minister.
The Minister cited two particular groups Judge Maureen Harding Clark recommended for inclusion under the terms of the redress scheme. The judge also recommended those who had reached the age of 40 years, a group which I specifically and deliberately referred to in my earlier contribution. How can the Minister, as an officeholder but also - if I may - as a woman, explain the decision to reject this recommendation? Will she explain the idea that women who had passed their 40th birthday were in some way less hurt than women who had not reached 40 years of age? Among the 35 cases excluded from the scheme is a woman who had her procedure deferred by one week immediately before her 40th birthday and had it performed three days after her birthday.
With all respect, whatever responsibilities will rest on those who will take up government after the upcoming general election, surely the Minister recognises that one of the last actions, in all justice and fairness, that she should take is to proceed as she has indicated she is not of mind to do, namely, by recommending to government, however late in the day, that a supplementary redress scheme be introduced.
We welcomed the money allocated for the first scheme and correctly covered many of the cases which came under it. I understand this money was not fully drawn down. There is a question that the additionality in this particular instance is so small that it is not beyond either the Minister's gift or duty to make such a recommendation and do justice and right by the women concerned. I conclude again with that appeal.
Unfortunately, I am not in a position to accede to the Deputy's appeal, notwithstanding the passion with which he makes it. When the Government decided, on foot of the report of Judge Maureen Harding Clark, to have an ex gratia compensation scheme - the term "redress scheme" is more appropriate because it is not possible to compensate those concerned with money for the traumatic impacts on their lives - we asked the judge to recommend the terms of the scheme. We made this decision because we believed she had the expertise to make recommendations. I accept, however, that I made the final decision in conjunction with the Government. I am not trying to pass the buck to the judge who simply gave advice.
When a plea was made to extend the terms of the initial scheme, I sought and secured Judge Harding Clark's advice and spent some time discussing the matter with her. She took a strong view that the scheme should not be extended for a number of reasons. While the Government did not have an obligation to introduce a redress scheme, on the basis that the women in question could not vindicate their rights through the courts for a number of reasons, we believed it was right to establish a redress scheme.
When one opens up a redress scheme of this kind, one will always find some people are unhappy because they find the redress insufficient or the cut-off point - age in this case - is unreasonable. We felt there were a number of hard cases outside the scheme and we asked the State Claims Agency to deal with them. I believe the agency has dealt with them.
I accept they did not deal with the 35 cases. One of those 35 cases is the woman who recently took the judicial review, which was denied. I know the name of the woman but not her circumstances. She felt the redress scheme should have dealt with her but it was denied by the courts. For a host of reasons, I am not in a position to reopen this scheme or to establish a supplementary scheme.