Paul Gavan (Sinn Fein) | Oireachtas source

The Tánaiste is very welcome. Sinn Féin welcomes publication of the Civil Liability (Amendment) Bill 2017 which, if enacted, will enable the courts to award periodic payment orders, PPOs, to compensate injured victims in cases of catastrophic injury where long-term permanent care is required instead of awarding lump sums in damages, as is the norm in these cases.

The Bill arose from the recommendations of the working group on medical negligence and periodic payments. It was established in February 2010 under the leadership of the then justice of the High Court Mr. John Quirke to examine the system in the courts for the management of claims for damages arising from alleged medical negligence and to identify shortcomings within that system. The group concluded that the system for awarding damages for future pecuniary losses - the lump sum award - was inadequate and inappropriate and should be replaced by periodic payments. An observation I would make on the working group's report concerns the membership of the committee. It included representatives of the various relevant State Departments and the persons with whom the group engaged. There was much discussion with the insurance companies but consultation with the families of those tasked with the care of their loved ones or the persons with catastrophic injuries who still had capacity was sadly lacking. I would like to see this issue being addressed by the Minister. Perhaps there might be an opportunity to address it when the Bill makes its way to Committee Stage. It has been a long-standing issue for many families where there has been a victim of medical negligence which has resulted in catastrophic injury. I note, in particular, the calls made by Ms Karen O'Mahony over a number of years. She ended up having to go to the High Court three times to secure a settlement for her son who had suffered a brain injury owing to medical negligence when in 2001 Cork University Hospital failed to provide proper post-operative care in treating a brain tumour. Following his catastrophic injuries, Eoin O'Mahony was quadriplegic and suffered from locked-in syndrome which required him to receive 24-hour care from a team of professionals. It should not have taken the O'Mahony family 14 years and three trips to the High Court to secure a settlement dto guarantee the necessary care and support throughout their son's life. Owing to the lack of PPOs, Ms O'Mahony and her husband were compelled to endure arduous court battles to ensure their son received the care he needed. In the aftermath, they were vocal about their belief this legislation was needed.

While we recognise that legal costs can be incredibly high, it is disappointing that the State Claims Agency and others have seen fit to tarnish the lawyers who advocate for families and individuals who suffer from catastrophic injuries as vultures out to milk the HSE when, in fact, it is the State Claims Agency that fights tooth and nail before inevitably admitting liability and negligence. Families should not be made to feel like pariahs for seeking payment to access the care their loved ones need. It should not come as a surprise when the option of mediation is often turned down.

We have some concerns about the Bill that warrant further scrutiny. I note, in particular, section 51L which deals with the indexation of payments. It will allow for the adjustment of a PPO in line with the cost of living. It is the cost of labour, however, that is the main component of care costs. This may be an issue down the road.

While there are people such as the O'Mahonys who would like PPOs to be introduced, there are others who want things to be over and done with in one go because they cannot face sporadic engagements where the costs of care go up or down. The difficulty with lump sum awards arises when a person exceeds his or her life expectancy. Suddenly, the money to provide care is gone and the State is obliged to fill the gap with varying degrees of success. Very often, persons are compelled to invest the award in order to make it last. The austerity years demonstrated just how difficult that was for persons who needed a guaranteed return to fund their medical care in the long term.

The report of 2010 recommended that the variation of PPOs be permitted where it had been determined that the plaintiff's condition would seriously deteriorate or improve. Given the nature of catastrophic injuries, we recognise that miracle recoveries are rare but, that aside, we do not want to see circumstances in which families are dragged back to court for contested PPO hearings where they are unnecessary.

We will allow the Bill to go further and will be suggesting further amendments on Committee Stage. Ultimately, we want to see a patient-centred approach that has the best interests of the person in need of care at the core of any new legislation.