John Whelan (Labour) | Oireachtas source

Those deep pockets are not to be used to frustrate fair play, common sense and natural justice when a wrong has been done, perhaps by mistake, misadventure or some mishap. This is not a question of apportioning blame. It is a question of seeking to change a culture and system which has at its heart a default opening position where the State will go to war against its citizens, very often to find itself five or even ten years down the road eventually accepting liability, apologising and paying compensation. All that has happened in the intervening years is to prolong the trauma and the harrowing process for families and their children, not only the child that is directly affected but his or her siblings. Can you imagine the stress and trauma and pummelling in that family home as people try to cope, again through no fault of their own? Eventually they get a lame apology and belated compensation. While compensation is all very fine and good, it is very often paid when the child is into his or her teenage years or even young adulthood and the intervening years have been lost. We all know the importance of early intervention, supports and services that cannot be reclaimed afterwards. Very often the damage cannot be undone because of the delay.

What I seek is for some common sense and compassion to be introduced into this culture so that the State Claims Agency acts on behalf of its citizens and not in conflict with them. We must remember that the State Claims Agency operates under the mandate of the Oireachtas and the Legislature so the responsibility ultimately rests with us to change that system and we can do so. I am not saying we should throw it out, I am saying we should reform it. We can have a hybrid system. Why do we not have mediation? Why do we not have independent arbitration first before we go into the long, arduous process of a difficult court case? I have been told by members of the legal fraternity that very often the only thing agreed when they take a case in good faith on behalf of a plaintiff is the name of the plaintiff and that they are actually standing in court that day. They step back from everything else and have to slog it out and prove everything, every minutia, every iota, every step of the way for years on end, while the case drags through the High Court in the name of the State. They are certainly not doing it on our behalf and in our names. This is wrong.

There is an opportunity here not only to save tens of millions of euro on behalf of the taxpayer, because that is the kind of bill that we are looking at. We can also show our citizens that the apparatus of the State is not pitched against them but is there to help and support them, and that it is accepted that we were wrong and that the damage has been done. It is possible to accept such in a no-fault scenario. This system works very well in Australia, for instance. We can have a situation in which people can receive interim settlements, periodic payments, and a settlement and compensation where no fault is ascribed or sought.It removes the need for families to be unnecessarily dragged through the courts, where they could run up hefty legal bills and run the risk of losing and having to pay costs to the other side, namely, the State. Institutions of the State such as EirGrid and An Bord Pleanála are increasingly being pitched against our own citizens and communities in the courts, which is wrong.

The State Claims Agency represents 129 different apparatuses, bodies and institutions of the State. It currently has over 7,000 cases on its books, with a potential liability of €1.5 billion. We have done our research here and we can see that the pattern has been the same over the past decade. On average, settlements are now reaching in the order of €100 million per annum. A further 50% is being added to those settlements in the context of legal costs and expenditure on behalf of the State Claims Agency and plaintiffs.

This is a very straightforward proposition. We are asking that the system, particularly in the area of medical negligence, be reformed. It would be a win-win situation for families, citizens, communities, the courts system and even the insurance industry. The adversarial approach means that insurance premiums are skyrocketing. My colleagues who are qualified in law will speak to this. It has reached the point where insurance companies have refused cover to surgeons and consultants. There is no end in sight.

I am aware that a further round of cases is listed on the courts' schedule for early next year. The parents taking them do not want to go to court. They want to sit down with the HSE and reach a fair and reasonable settlement. Their children have been inflicted with narcolepsy as a result of the swine flu vaccine which the State administered, albeit in good faith. It is accepted that the vaccine has had a profoundly negative impact on these young people's lives. Many of them have now gone through school and college and are young adults, and are still waiting for the State to put its hands up and admit it made a mistake and offer to help. Instead of that, the State is fighting them tooth and nail. It is not being honest and it is going to drag these citizens through the High Court.

We will see the outcome on the six o'clock news - we will pay out millions, eventually apologise and pay the lawyers more and more in the process. The apology will be lame and pointless for the families who have had to endure this system. We cannot wash our hands of it or say it has nothing to do with us. I implore the Minister of State to use her good offices in order that action will be taken to reform the State Claims Agency. Families should have the option of an alternative system in the form of a no-fault settlement process under mediation.