Colm Burke (Fine Gael) | Oireachtas source

I welcome the Minister. I thank the Senators concerned for bringing forward the motion. It is grand to talk about reform, but what is important is to carry it out. It is almost the fifth anniversary of a report by the working group on medical negligence and periodic payments which was dated 29 October 2010.To date that report has not been implemented. Blaming the legal profession for the lack of reform is not right. The legal profession wants reform, but the Government's reaction in this regard has been slow. The Law Reform Commission's report on periodic payments was published almost 20 years ago in 1996. The Minister for Justice and Equality recently published the heads of the Civil Liability (Amendment) Bill which will allow a court to award indexed linked annual payments instead of a lump sum to cover future costs in respect of a serious injury. Progress is being made, but it is very slow. There is a need for reform, but it is important in the context of our discussion on the State Claims Agency that we are fair to it. For example, in a case reported in the past two years there was a nine year gap between the time the person was born and when the compensation was paid. While the States Claims Agency was severely criticised for the delay in that case, very little had been done on the plaintiff's side during the first seven years. When the matter came to the agency's attention, it was dealt with as expeditiously as possible within a two year timeframe. We are often too quick to criticise the agency which does not have a right of reply.

Another interesting point in relation to the State Claims Agency, with which I have been in correspondence on various issues, is that while a claim may be worth €5 million, the settlement amount can be €15 million. We do not hear about this; we hear only about the award made. The agency's role is also to protect taxpayers. I am not suggesting it is the plaintiffs who are demanding high settlements. It is often the case that those acting for them are being unreasonable. A case might be before the High Court for three or four weeks and nobody is aware of what budgets might be available until the first three or four days of the case are over. It is only then that people come to the table to try to settle matters. It is important to bear in mind that these are the issues which the State Claims Agency has to examine.

The main issue in this debate is that of periodic payments. Under the current system lump sums are awarded which often turn out to be inadequate because costs have risen, but there is no opportunity to return to the courts. For this reason, the recently published heads of the Civil Liability (Amendment) Bill are welcome, as we have been talking about addressing this issue for over 20 years. It is welcome that some progress is being made at last. Some countries introduced periodic payments in the 1960s and the system is working effectively for them.

I agree with Senators John Whelan and Denis Landy that it is important to ensure an award is made available at an early stage in order that the injured party can access all of the services he or she requires. One of the biggest problems in medical negligence cases has been that because of lengthy delays in settling cases plaintiffs have not obtained full benefits at an early stage. This issue needs to be addressed.

In New South Wales a lifetime care and support scheme, rather than a lump sum scheme, is in place. The lifetime care and support scheme meets the cost to the injured person of medical treatment, rehabilitation, respite care, attendant care services, aids and appliances and home and vehicle modifications. We need to look at alternatives to the current system. I am not convinced that it is doing everything possible for the person who has suffered injuries. While in some instances it does, in others it does not. We need to examine all of these issues in the context of reform and find a comprehensive way of addressing the matter. I hope the Civil Liability (Amendment) Bill will progress quickly through the Houses. It is important legislation, but it is also important that we get this right and that we review how periodic payments have worked in other jurisdictions.

On the "no fault" system, actuarial work has been done on it. I understand that under that system, costs rise substantially. According to one of the documents I received, they could increase by up to 50%. It is important to bear this in mind.

On the cost of clinical claims resolved, in 2014 the average cost was €143,000, a decrease of €40,000 on the figure for 2013. This means that the average cost has reduced from €183,000 to €143,000, including legal costs. It is important that there be a recognition of the work being done by the State Claims Agency.

On compensation and the current position on medical practitioners, the cost of insurance for a privately operating orthopaedic consultant is €104,000 per annum. This means that a private hospital wishing to employ an orthopaedic consultant must pay an upfront premium of €104,000 per annum, or €2,000 per week. In some cases, private hospitals are having difficulty recruiting consultants. This issue and that of capping levels in what the State will cover need to be addressed in the next few months.