Seanad debates

Wednesday, 5 July 2006

Hepatitis C Compensation Tribunal (Amendment) Bill 2006: Second Stage.

 

Question proposed: "That the Bill be now read a Second Time."

7:00 pm

Photo of Mary HarneyMary Harney (Tánaiste; Minister, Department of Health and Children; Dublin Mid West, Progressive Democrats)
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While no monetary support or compensation can ever repair the damage done in this area, Ireland is doing more for victims compared with other countries in similar circumstances.

For many years, people infected with hepatitis C have made the reasonable case for a method of addressing the insurance difficulties which they and their spouses face. No particular solution to these difficulties was apparent and while it was relatively easy to find precedents for monetary compensation schemes, a scheme to address the insurance difficulties of this nature could not be found anywhere in the world, and as far as I am aware, this remains the position today.

The Department of Health and Children worked in close co-operation with the representative groups — Positive Action, Transfusion Positive, the Irish Haemophilia Society and the Irish Kidney Association — to agree the parameters of the scheme and I have taken virtually all of the recommendations of the groups on board in the scheme's development.

Persons to whom this scheme will apply fall into two categories with regard to insurance matters: those individuals who can get insurance but only with increased premiums; and those individuals who are deemed by the insurance industry to be uninsurable. The Bill's objective is to provide reasonable access to the insurance market for those for whom the cost of insurance to date has been rendered prohibitive or for whom cover is currently unavailable.

Broadly, the introduction of the scheme will provide for life assurance and mortgage protection cover. Under the scheme, the State will pay the additional risk premium where the life assurer is willing to provide cover, subject to an additional premium. The State will assume the risk on the life cover where the assurer is not willing to provide this cover. The Bill also allows as a matter for priority for the development of a scheme for travel insurance. The scheme will be administered under the aegis of the Health Service Executive. Specific details on the administration of the scheme will be set out in regulations and an administrator will be recruited as soon as possible after the Bill's enactment.

The introduction in the Bill of an insurance support scheme on a statutory basis shows the continued commitment of the Government to the victims of infection. This scheme now brings to three the key forms of statutory support and recompense which the State has put in place for this cohort of people. There are already two supports in place. The first is the compensation scheme which is administered through the hepatitis C and HIV compensation tribunal. To date, the tribunal has made awards to approximately 2,200 people, including most of the 1,700 persons infected with hepatitis C or HIV, and a significant proportion of their spouses, partners or dependants. The total figure for awards made to the end of 2005 stood at €580 million.

The second support is the provision of a range of health care services without charge under the Health (Amendment) Act 1996. The cost of the health care scheme is approximately €15 million per annum. After enactment of the Bill and to ensure consistency and fairness, every person who received a compensation award at the tribunal under the existing or new legislation will also receive the special health card. I will shortly be in contact with the Health Service Executive in this regard. The third form of recompense, the insurance scheme, will cost an estimated €90 million over its lifetime, which is estimated to be at least 30 or more years.

I will now deal with the detailed provisions of the Bill. The purpose of section 1 is to provide a definition of diagnosis for the purposes of the existing compensation scheme and the new insurance scheme. The symptoms linked with hepatitis C include fatigue, aches and pains, depression, dry skin and rashes. Many of these symptoms are common to a number of viral and other conditions not associated with hepatitis C. To ensure the support schemes operate in a fair and equitable manner and that those determining eligibility under the schemes use clear consistent criteria, the Government agreed that a hepatitis C diagnosis should be defined in terms of a scientific test or by reference to certain defined symptoms in respect of acute infection acquired within 16 weeks of the administering of the anti-D product.

The Bill, as originally circulated, proposed to use the enzyme linked immunosorbent assay, ELlSA, test. This test is accepted internationally as being the standard method for diagnosing hepatitis C for the purposes of the health care services. In practice, the ELISA test is used as the first-line indicator that any hepatitis C sufferer has been exposed to the hepatitis C infection at some time in the past and should be further investigated for evidence of current infection.

The national virus reference laboratory uses the ELISA test to identify hepatitis C infection and in 2005, it screened over 52,000 samples for the presence of the virus. The anti-body tests used have been shown to have excellent sensitivity in the identification of hepatitis C in most individuals, except those who are immunosuppressed. The investigation of hepatitis C infection by means of the ELISA test is regarded as best practice in many countries, based on the accuracy of the test and, with the exception of investigating very recent hepatitis C infection, would be expected to be positive even in the absence of hepatitis C being active in the body. A similar scientific test definition of hepatitis C diagnosis is used in other jurisdictions like the UK and Canada where compensation schemes operate.

The expert group on hepatitis C, which is chaired by the Chief Medical Officer of my Department and includes representation from leading liver consultants and a member of Positive Action, agreed in 1998 that eligibility for the Health (Amendment) Act card should be on the basis of a positive diagnostic test for hepatitis C. In 1995, support groups pressed for a statutory compensation tribunal. A Bill was drafted with the assistance of John Rogers, SC, and Ivor Fitzpatrick and Company Solicitors. The Bill included the ELISA test as the basis for a diagnosis of hepatitis C.

Following discussions with the hepatitis C support groups and officials of my Department, I agreed to amend the Bill to include a number of other tests, any one of which will be sufficient for participation in the insurance scheme, eligibility for the compensation tribunal and the Health (Amendment) Act card. In addition to the ELISA test, the Bill now includes reference to the RIBA test and the PCR test. There is a provision to include any other relevant recognised test that may be developed in the future. These requirements will not apply to claims for compensation made to the tribunal before the publication of this Bill on 20 June 2006.

Section 2 deals with eligibility for compensation in respect of loss of consortium. Persons who were directly infected with hepatitis C or HIV are compensated at the compensation tribunal in their own right, on the evidence presented, for all the effects of hepatitis C and HIV, including its impact on their relationships in the past and into the future. The chairman of the compensation tribunal, Judge Anthony Murphy, has confirmed that this is the position. Moreover, in the case of young people, the tribunal and the courts rightly take into account the age of the claimant and recognise the consequences of infection on the future relationships of young people, particularly those who have not formed permanent or stable relationships. From time to time, claimants choose, as they are entitled to do, on this or any other element of a claim, to highlight this aspect of their case. This has always been the position and it will not change with the enactment of the Bill.

The Hepatitis C (Amendment) Act 2002 provided for the first time for compensation in respect of loss of consortium suffered by the spouses and partners of infected persons who entered into marriage or long-term relationships without the spectre of hepatitis C or HIV hanging over them and then found that the expectations which they had of a normal family life were severely affected by their partners' condition. It is not proposed to alter this provision in any way.

Where a new relationship is formed in the knowledge of the hepatitis C or HIV diagnosis, it is intended that this particular head of claim will not apply. This is on the basis that for a loss of consortium to exist, there must have been a committed relationship already in existence and the legitimate expectation that this would continue without the imposition of a viral illness acquired through the use of State-provided health services. However, it is important to note that eligible partners in relationships formed after diagnosis will remain entitled to all the other relevant heads of claim under the compensation scheme, such as compensation for any actual losses incurred in looking after their partners, loss of services, loss of society, post-traumatic stress disorder, mental distress and dependency losses.

Section 3 allows the Minister to make regulations providing for the establishment, operation, administration and supervision of an insurance scheme. This will provide certain types of insurance to claimants who are hepatitis C-infected anti-D recipients; hepatitis C-infected transfusion recipients; HIV-infected recipients of relevant products; the children or spouses of eligible persons with hepatitis C or HIV who have themselves been diagnosed positive for the virus; parents, brothers or sisters of infected persons who have themselves been diagnosed with hepatitis C or HIV infection; and certain other claimants, all of whom have been refused the relevant insurance on the grounds that they have been diagnosed positive for hepatitis C or HIV, or the administrator reasonably believes they would be refused if they applied for insurance or who are refused insurance unless they pay a higher premium than persons of similar age and gender who have not been diagnosed positive for hepatitis C or HIV.

Under this section, the Minister may also make regulations to specify the administrator of the scheme, his or her functions, the conditions subject to which a benefit will be provided, not provided or ceased under the scheme. The scheme will provide life assurance of €420,000 or seven times the annual earned income to a maximum of €525,000 of the claimant or his or her spouse or partner of three years standing at the time the application is made or their joint income. All the amounts mentioned will be index linked to the consumer price index.

The scheme will provide mortgage protection insurance for the purchase, change or improvement of the claimant's primary residence to a maximum of either €394,000, which will be index linked, or the average Dublin house price plus 25%, whichever is greater. For the first year after the scheme comes into effect, an eligible claimant will be allowed to remortgage any property he or she owns to a total of €100,000.

Under section 3, the Minister is empowered to make regulations to provide for annual travel insurance. The Bill provides that travel insurance benefits will be covered by the scheme within six months of the establishment of its life and mortgage protection elements. A claimant who wants to avail of the full benefits of the scheme without restriction must make an application to the administrator within one year of the scheme coming into effect or three years of the date on which her or she was diagnosed positive for hepatitis C or HIV, whichever is the later. The exceptions are applications for annual travel insurance and life and mortgage cover by claimants under 30 years of age. Once the travel insurance element of the scheme is up and running, a claimant can apply for full benefits at any time.

Regarding young claimants, the Irish Haemophilia Society made a compelling case that persons with haemophilia infected with hepatitis C in their early years may not have reached the stage where they are ready to take out mortgages or life assurance policies. Accordingly, the Government agreed that the full benefits of the scheme would apply without restriction to eligible claimants up to the age of 30 years rather than be confined to the first year of the scheme.

With the exception of this group, claimants who make an application after the first year of the scheme's operation and would be deemed uninsurable will still be able to avail of insurance, but the benefits will have a phasing in period. In the case of claimants under 50 years of age, it is intended by regulation to specify a two-year phasing in period. For persons over 50 years of age, the relevant period will be three years.

For the first year of the scheme, applications by persons who are 75 years of age or younger will be accepted, but after the first year applications will only be accepted from persons who are 65 years of age or younger. No applications will be accepted from claimants who are over 75 years of age, even during the first year of the scheme. Cover will cease for every claimant who reaches that age.

An important element of the insurance scheme is that eligible claimants with other medical conditions as well as hepatitis C or HIV will have all of these conditions disregarded for the purpose of the scheme. Under it, the claimant will be entitled to benefits by payment of a premium that will generally be the same as the premium paid by a person of similar age and gender who is not infected with hepatitis C or HIV.

Where an eligible person makes a joint application with a person not covered by the scheme and the application jointly benefits both parties, the other person will pay the same premium in respect of his or her benefit as any person of similar age, gender and health status and will not pay a higher joint premium in respect of the joint benefit than the joint premium charged for a joint application from two persons, neither of whom had been diagnosed positive for hepatitis C or HIV.

If an eligible person or the eligible person and his or her partner has two or more policies under the scheme, the maximum sum assured applies to the policies collectively. If a person has an existing policy or takes out new policies other than under the scheme, such will not be taken into account in calculating the maximum sum assured. The administrator will be obliged to submit a report and accounts to the Minister as directed, who will lay the report before the Houses of the Oireachtas. The report will not identify any claimant.

Section 4 outlines the appeals procedure to apply. Under this section, a person may appeal a relevant decision of the scheme within 90 days of being notified of the decision in writing. Following meetings with support groups, the length of time for appeals was increased from 28 days. The Minister will appoint one or more solicitors or barristers of at least five years standing to consider appeals.

The decisions of the administrator that can be appealed are a refusal to consider an application, a decision that a claimant is not eligible, a decision that a benefit cannot be provided, must cease to be provided or is partially or incrementally provided or a decision on the amount of the sum assured under the scheme. The appeals officer will be independent but will comply with any guidelines on procedure issued by the Minister. He or she will consider any oral or written submissions made by the appellant and the scheme administrator, make a decision in writing giving reasons and send the written decision to both the appellant and the administrator.

A person affected by a decision of the appeals officer may appeal to the High Court on a point of law within 28 days of receipt of the written decision. If the appeals officer's decision is not being appealed to the High Court, the administrator will carry out the decision as soon as practicable. Each appeals officer will report to the Minister in writing at intervals to be decided by the Minister, who will lay copies of the report before the Oireachtas. The appeals officer's report will not identify any claimant.

Section 4 also provides for the establishment of a special account to pay costs arising from the scheme, including the cost of administration and the payment of benefits. The special account will be an account with the Paymaster General, be subject to whatever terms and conditions as the Minister for Finance will decide in consultation with the Minister for Health and Children and be subject to audit by the Comptroller and Auditor General.

The scheme administrator may specify any forms that he or she sees fit and the documents that are required to be submitted with them. These forms must be completed in full by an applicant and accompanied by the necessary documents. The administrator may require a statutory declaration to be made that the particulars contained in the forms are true. Multiple copies of forms or documents may be required or, in particular circumstances, alternative documents.

Confidentiality is a prime consideration for persons infected with hepatitis C and HIV through the administration of blood and blood products within the State and I take their concerns on this matter seriously. As a result, section 4 stipulates that everyone connected with the process, including the administrator, the appeals officer or officers and the insurers, must maintain confidentiality in respect of all relevant matters and will not allow unauthorised access to any relevant documents. A person who contravenes this provision and is convicted of a summary offence will be liable to a fine of up to €3,000, six months imprisonment or both. A person found guilty of an indictable offence will be liable to a maximum of €25,000 fine, two years imprisonment or both.

Section 5 is a technical amendment to distinguish between the special account already set up to pay the costs of the compensation scheme and the separate account to be established to pay for the insurance scheme. Section 6 provides that the same definition of hepatitis C as proposed for the purposes of entitlement to compensation will apply to the Health (Amendment) Act 1996, which entitles eligible persons with hepatitis C to a range of health care services without charge. Section 7 provides for the Short Title and the commencement of its provisions. The establishment date of the insurance scheme will be set by regulation, which I intend to enact as soon as possible after the enactment of the Bill. Sections 1 and 6 will take effect from 20 June 2006 while section 2 will take effect from the date of enactment.

I acknowledge the input of the four hepatitis C and HIV support groups — the Irish Haemophilia Society, the Irish Kidney Association, Positive Action and Transfusion Positive — in the negotiations that preceded the Bill and thank them for their co-operation. The insurance scheme was developed following lengthy discussions between my officials and the support groups and I appreciate their patience with this process. As this is a unique scheme, it was important to establish in the first instance that this model of providing for the insurance needs of eligible persons with hepatitis C and HIV was feasible and, in the second instance, that it was equally important to reach agreement on the parameters of the scheme and get the detail right.

For legal reasons, neither I nor my officials were able to enter into discussion with the support groups on the contents of the other sections of the Bill before the publication date of 20 June last. While I regret that this was the position, the Government is obliged to act in the public interest despite coming under considerable pressure to adopt a different course of action. Following the debate on these sections of the Bill last week, it is clear that there remains a significant difference of opinion in relation to sections 1, 2 and 6, which address the issues of diagnosis and loss of consortium. However, I am convinced that the provisions of the Bill are both necessary and proportionate. Given the difficulties that have arisen from a lack of clarity around the definition of hepatitis C in particular, it would be remiss of me to put a third scheme in place that perpetuated rather than corrected these difficulties.

On the positive side it should not be forgotten that the discussions between my officials and the support groups have resulted in virtual unanimity on the question of insurance. A number of amendments to the insurance elements of the scheme were suggested by the support groups and were taken into account on Committee Stage in the Dáil. I am confident that at the end of this process, a statutory framework will be in place for a viable insurance scheme which, at long last, will enable the 1,700 people with hepatitis C or HIV to avail of insurance products in a fair and equitable manner. My Department will engage with the support groups to discuss the text of the regulations for the scheme once the Bill is enacted.

A large amount of groundwork has been done on this and the outline rules on how the scheme will operate have already been drafted. I have instructed my officials that the completion of this process and the appointment of the administrator for the scheme should be given priority and completed within a three to six months' timeframe. I also acknowledge the importance which the support groups attach to the travel insurance element of the scheme and it is my intention that discussions on the parameters of the scheme will proceed as soon as possible.

I commend the Bill to the House and urge members to support this substantial initiative, so that the necessary arrangements can be made to make the scheme available to those who need mortgage and life assurance as quickly as possible.

Fergal Browne (Fine Gael)
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I wish to share my time with Senator Terry. I welcome the Tánaiste and her officials to the House.

I am a bit puzzled over this Bill. What should have been a very simple Bill has now turned into a complex one, which is regrettable. When the Bill was published and people saw its Title,the Hepatitis C Compensation Tribunal (Amendment) Bill 2006, they expected it to be a stand-alone Bill dealing purely with the insurance aspect of the hepatitis C issue. Provisions concerning testing, which I understand the Tánaiste introduced half an hour before the Dáil debate last week, seem to have thrown a spanner in the works. The Tánaiste even admitted that there were problems with the ELISA test, as pointed out by interested groups, in that it might not prove that a person has hepatitis C. I am aware that, as a result of the groups' representations, she has included other tests but it also shows that the Bill was not thought out properly.

The ELISA test does not pick up on people who have hepatitis C but who have lost the antibody and those who are immunocompromised and who have kidney disease and leukaemia could lose out. Though the Tánaiste has included tests for those situations I am puzzled as to the reason for the introduction of the test. As far as I am aware the tribunal works very well and we on this side of the House have heard no complaints. She said the tribunal has heard over 2,000 cases and made awards to over 2,200 people, including most of the 1,700 people infected with hepatitis C or HIV and a significant proportion to spouses, partners or dependants. The total figure for awards made at the end of 2005 stood at €580 million. Is there a problem with the tribunal or has she been made aware of issues of which the public has not been made aware? There was no need to go down this road, because those who were infected with hepatitis C as a result of a blood transfusion are being compensated.

I get the impression from the Bill that the Government is terrified of an avalanche of claims. What is the basis for that? I cannot see any evidence for such an avalanche. The Bill deals with people who, in the process of having a blood transfusion, were infected because of negligence on the State's part. I am aware that people can contract hepatitis C from other sources but that is not involved in this Bill. Most people want to know why the Government anticipates an avalanche of claims and why, therefore, it is bringing in this draconian test. It is going down badly with the groups involved, with whom there seems to have been a lack of consultation. They were consulted for nine years on the Bill and were very surprised when these new elements were introduced.

The Minister referred to the fact that, for legal reasons, she could not brief the groups on that matter. Can she elaborate further on that? It seems surprising. What happened to these people was shocking and due to negligence on the State's part. Their infection from contaminated blood had a devastating effect on their and their spouses' and partners' lives. While we welcome many aspects of the Bill, we are unhappy with the late introduction of some elements of it and we will vote against it tonight for that reason. By introducing the tests at this stage is the Government overreacting?

8:00 pm

Sheila Terry (Fine Gael)
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I welcome the Minister. We can only try to understand the level of suffering that 1,700 people and their family members have endured over the years as a result of receiving contaminated blood products. Nobody ever wants to see it happening again. I recognise that many steps have been taken to ensure it never happens again and that compensation and other measures have been put in place to minimise, in some way, the hurt and the damage. While we can never undo the damage we can at least strive to make the lives of these people as comfortable as possible and to ensure that insurance is available to them at a reasonable cost. It is the State's obligation to see to it that they can buy insurance and to help to pay the costs over and above those any of us would be expected to pay.

However, it is sad that four organisations, Positive Action, Transfusion Positive, the Irish Haemophilia Society and the Irish Kidney Association, are unhappy with the Bill as passed by the Dáil. Unless changes can be made in the Seanad they will continue to be unhappy. Having spent over nine years trying to reach agreement with those organisations it is a pity that people perceive they are not getting what they set out to get and that they are unhappy with the way it has been dealt with.

I do not know if the Minister can address the needs of those organisations at this late stage or if she can listen to what they have to say. The Minister's assertion that people will not be at a disadvantage following the implementation of this Bill sounds convincing but we, as Opposition Members of the Seanad, have to listen to what they say. They are unhappy and they have asked us to table amendments, which Senator Browne will do. We will try to address the concerns raised by those organisations, of which the Minister is well aware. I ask her to consider those amendments before Committee Stage.

We are talking about a very small sum of money. The total cost of this element of the compensation is €90 million over 30 years. How much more would it cost to deliver what the organisations are seeking and to meet their requests in full? That figure must be small, if the overall figure is €90 million. Has the Tánaiste calculated what that amount would be if we were to meet the concerns outlined by the four organisations? We should consider how money has been wasted on other projects. I am thinking particularly of the topical issue of e-voting machines, with regard to which the then Minister for the Environment, Heritage and Local Government, Deputy Cullen, referred to the amount involved as minuscule. Perhaps that amount could go towards meeting the full requests of the organisations.

We have put these people through enough suffering. They will perhaps suffer for the rest of their lives. If further illness caused by contaminated blood or blood products comes to light and we can ensure that compensation is available in all its forms, as outlined in all the Bills and Acts, that should be done. It is not right that we have put people through this but, as matters stand, they will go away unhappy. I am sad that we must deal with legislation which leaves people unhappy. Enough damage has been done by the State and we are all responsible. Let us make every effort to ensure that we do not leave bad feeling between the State and these people who have been so wronged.

Rory Kiely (Fianna Fail)
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It is inappropriate to bring beverages into any part of the House, even the ante room. If any Member has brought in a beverage, he or she should leave immediately with it. I understand there is a beverage in the House and I would like it removed. Is that clear?

Photo of Mary WhiteMary White (Fianna Fail)
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No.

Rory Kiely (Fianna Fail)
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Senator White, who is in the precincts of the House, has a beverage. The danger with bringing in beverages is that it will become a practice and if they are spilled, they could cause harm. In any case, it is completely inappropriate to bring in such beverages. I ask Senator White to remove the beverage. I call Senator Glynn.

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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Whoever coined the adage that the cure is worse than the disease, this is a typical case. There is no doubt that many people are suffering as a result of contaminated blood products. Unfortunately, what has been done cannot be undone. However, we must do our best, as legislators, to in some way address the situation in so far as is possible. What happened with hepatitis C is the greatest public health tragedy that has occurred since the foundation of the State. Many people were infected with an incurable disease which has changed their lives and prospects, as well as their family and work relationships and their expectancy of living a normal life.

No monetary support or compensation can undo the damage. However, we, as legislators, must do what we can to make life as easy as possible for these people. The House has already enacted two Acts in regard to this tragedy, the Hepatitis C Compensation Tribunal Act 1997 and the Hepatitis C Compensation Tribunal (Amendment) Act 2002. This Bill seeks to establish a statutory scheme to address insurance difficulties experienced by persons infected with hepatitis C and HIV through the administration within the State of blood and blood products.

At some stage of our lives, we must all get insurance because we do not know the day or the hour when we will need it. In this case, a group of people received a product which was meant to improve their lifestyle and health but which ruined their lives in many ways. Moreover, they could not get insurance. This Bill is an important step in dealing with that difficulty.

The Bill has gone through the other House and is here for this House to deal with. The Tánaiste is a caring Minister and I compliment her on bringing forward the Bill. Unfortunately, everything we do with regard this matter is reactionary because we cannot be proactive as the damage has been done. We are trying to address that damage in some way.

The Bill is a vital measure designed to give further support to people diagnosed with hepatitis C and HIV as a result of contaminated blood products being administered to them. Since 1997, it has been obvious that infected people's inability to buy life assurance or mortgage protection policies was further compounding the damage they had already suffered. This Bill proposes three types of compensation. The hepatitis C and HIV compensation tribunal to date has awarded money to over 2,000 people, approximately 1,000 of whom were anti-D recipients, 700 of whom were transfusion recipients, renal patients and persons with haemophilia, and the remainder who were secondary claimants or dependants who are entitled to claim under a range of headings including loss of consortium, loss of society, carers' expenses and so on. Those who contracted hepatitis C through the administration within the State of blood or blood products are entitled to a health card under the Health (Amendment) Act 1996. All of these measures are of great help. As the Minister stated in her contribution, a range of measures will be put forward. If additional measures can be found to make life easier for those involved, that should be done. This will cost an estimated of €90 million over the lifetime of the scheme.

This is an important measure. When we consider what has been done elsewhere, it is a positive step. Unfortunately, it is necessary to address a serious situation. If more can be done, more should be done. As has been pointed out, no other country has introduced an insurance scheme and the Bill shows that the State is committed to working with the victims of infection to provide all possible supports for them.

The scheme will cover the insurance risk for the 1,700 or more people entitled to avail of insurance products, irrespective of any other medical conditions these people may have, once they pay the standard premium that an uninfected person of the same age and gender would pay. Obviously, in order to have a consistent approach to all three supports, it was agreed by Government that a hepatitis C diagnosis in the Hepatitis C Compensation Tribunal Act 1997, the Hepatitis C Compensation Tribunal (Amendment) Act 2002 and the Health (Amendment) Act 1996 should be defined in terms of a scientific test, the ELISA test, or, alternatively, based on whether the person has displayed symptoms of acute infection with jaundice up to 16 weeks after the administration of the infective agent.

While the ELISA test has in the past had its doubters, the Tánaiste rightly pointed out that there has been significant progress in its development. A similar scientific test definition of hepatitis C diagnosis is used in other jurisdictions, such as the UK and Canada, where compensation schemes operate. The sections relating to this test will not affect any claims already made to the compensation tribunal.

The symptoms linked with hepatitis C are reflected in other conditions, as noted by the Tánaiste. We should also remember that the expert group on hepatitis C, which is chaired by the Department's chief medical officer and includes representation from leading liver consultants and a member of Positive Action, agreed in 1998 that eligibility for the Health (Amendment) Act card should be on the basis of a positive diagnostic test for hepatitis C.

The objective of the scheme is to provide reasonable access to the insurance market, with certain limitations, for those for whom the cost is prohibitive or cover is unavailable. From its outset in early 1997, a key issue highlighted by the consultative council on hepatitis C was the insurance problem encountered by persons with hepatitis C. Advice was originally obtained by the Department of Health and Children from life assurance experts on the feasibility of developing an insurance scheme and a second phase of work then established the parameters of the scheme. When the draft scheme was devised, officials worked closely with the representative groups on agreeing the final parameters of the scheme. The support groups deserve great credit. They have fought a hard battle trying to get the wrong that has been done corrected and I commend them.

In the wake of representations from the Irish Haemophilia Society, it was agreed that the small number of persons infected only with HIV would also become eligible under the scheme. Most persons with haemophilia who are infected with HIV also have hepatitis C. Persons with hepatitis C and HIV fall into two categories with regard to insurance matters: those who can get insurance, but only with increased premiums, and those who cannot get insurance at all.

What this Bill means is that the State will pay the additional risk premium where the life insurer is willing to provide cover subject to an additional premium and assume the risk on the life cover where the insurer is not willing to provide this cover. In each case the person requiring insurance will pay the average basic premium which an uninfected person of the same age or gender would pay.

As I said, this is an important Bill. Unfortunately it reacts to an existing situation. I hope it goes some way to addressing the great hurt and damage done to the lives of those people who were full of confidence that their illnesses would be treated but found that the cure was worse than the disease. I support the Bill and commend it to the House. If there is anything further that can be done to help those people, it should be done.

Photo of Brendan RyanBrendan Ryan (Labour)
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Although I do not want to draw Senator Browne into one of my rows with anybody, the first issue that intrigues me is the incapacity of the Department of Health and Children to produce legislation that does not cause problems. Senator Browne and I struggled with a particular piece of legislation here less than six months ago. In its original form it was incomprehensible and when the amendments were added it became even more so. I cannot remember whether it was called the Misuse of Drugs (Amendment) Act or the Irish Medicines Board (Amendment) Act because it included amendments to both Acts.

Rory Kiely (Fianna Fail)
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What is the relevance to this Bill?

Photo of Brendan RyanBrendan Ryan (Labour)
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I am coming to the peculiar way the Department of Health and Children deals with legislation of which this Act was symptomatic. The Act had amendments to the Health Act, including eligibility for school medical examinations, tacked onto the end. The Title did not reflect its contents. Then we had the first attempt at compensating people for the nursing home debacle, which was rejected as unconstitutional. I have had experience in this House of the way the Department of Health and Children drafts legislation. On this occasion I do not mean this as a criticism of the Tánaiste; I have plenty of those. Time and again it arises that the Department drafts peculiar legislation and operates in a peculiar manner. Maybe now that a couple of hundred staff have been relieved from the duty of answering Dáil questions they might get involved in putting some sort of consistency into the legislation. That is what caused so much outrage about this Bill, which was meant to be good and welcome news for the victims of a profoundly cruel mistake, if not an act of deliberate, culpable negligence by agents of the State. Something that is enlightened, forward-looking and welcome started a row with the support groups for those who have been at the receiving end of this. I wonder how this Department lands itself and its political heads in this sort of trouble time and again. The former leader of Fine Gael, Deputy Noonan, had his political career undermined by something he was advised to do by that Department. He acted on the advice and was lampooned across the nation because of it. I wonder about this. The remarks attributed to the Minister for Finance, Deputy Cowen, about Angola may not be far off the mark.

I would love the Tánaiste to explain why she felt it was appropriate to insert a provision that, sensible, intelligent and compassionate woman that she is, she must have known would start a row. Why not deal with the row separately and deal with the good news and sensible proposals here? I read what was there of the Committee Stage debate on this in the other House. Unfortunately it was truncated. It would have been worthwhile to tease out many other issues, but the Dáil does not seem to have the willingness or capacity to deal with legislation in the detail that this House does. This House does not guillotine legislation and that is to the credit of the Leader, who seems to be able to face down Ministers about how much time is required in a way that senior Members of Dáil Éireann do not seem to be able to do. For that I commend the Leader. I dare not say long may she continue to hold that position because she would be offended. I will leave Senator Bannon and the Leader to sort themselves out.

Rory Kiely (Fianna Fail)
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Can we return to the Bill please?

Photo of Brendan RyanBrendan Ryan (Labour)
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Tomorrow we will have the chance to debate the Bill properly. If we had not had that awful controversy and if we did not still have the taste of it, there is much about this Bill that nobody could but unequivocally welcome. I welcome it and recognise it as an attempt to provide insurance for people who would otherwise be uninsurable. It is a welcome piece of legislation, and, as far as it goes, generous and imaginative. I suspect that this is the first time in legislation that the unmarried partners of people ever got this level of recognition and acknowledgement. I take it from the Tánaiste's speech that there will be no gender distinction about partners, which is progressive and welcome. It would be ungenerous of me not to acknowledge that fact. I previously stood here and listened to a Minister for Social and Family Affairs deal with the Department's definition of cohabitation for the purposes of social welfare eligibility and he mentioned everything except for sex. Eventually he managed to slip in one reference to sexual relations at the bottom of a three-page definition of cohabitation. I am glad we have moved on and recognised the complex nature of human relationships.

I welcome the provision of health care services without charge, as the Tánaiste mentioned. I wish we had a universal provision of health care services without charge. Maybe now that the enlightenment has begun to spread we will begin to move in that direction because that is what a civilised society should have. No citizen of a civilised society should have to pay directly for any health care service he or she needs.

I admire but do not share the Tánaiste's faith in the scientific method. The scientific method is what it is. I refer to various diagnostic tests. As an engineer and therefore, to a degree, a scientist, I recognise the value of science and accept the scientific method. However the scientific method is experimental and its real genius is that nothing is certain. Everything is only as good as the experimental evidence and one accepts the theory until better evidence emerges.

The genius of science is that it continuously questions what is there. Church leaders and others were horrified by the scientific method when it came along because it implied universal scepticism about accepted wisdom when people asked why it was true. The answer was because it was always true. Then they asked for evidence. One seeks evidence and maybe it is not true. We worked out that the sun did not rotate around the earth because the evidence suggested the opposite. To a degree, the original enshrining of one test in the legislation reflected an extraordinarily naive view, to be charitable about it, of how science works. Diagnostic medicine is only one form of science. It can never be written in stone. As it is amended, future tests and diagnoses have been built into the Bill. It took a great deal of fuss to get us from a degree of certainty that one test would do to accept that several tests are necessary or acceptable and there may be better tests in the future.

Anybody who says there is only one answer to any scientific question, that something is absolutely clear in scientific terms or that science has proved beyond a shadow of a doubt that something is true, is being disingenuous. Speaking as a scientist I do not know any laws of nature. We have only the best possible model at present. That might change next year or years after that. I do not teach students laws of nature. Instead I tell them "This is what works. This is the model that describes it. Use it for a while, it may change in the future". That is what legislation such as this should contain.

If one is to use quasi or pseudo-scientific methods of diagnosis one must recognise that they are only the best we have at the time. They may be inadequate, limited or wrong and leave people out. There are so many areas of human illness, particularly of a psychological or psychiatric nature, for which there is no agreed definition. One cannot prove that somebody is schizophrenic. One can run a series of tests leading to the conclusion that it is the most likely diagnosis but there is no scientific test which proves it. In this case, however, hopefully there is such a test.

I wish this Bill could have gone through the Houses in the tone and mood in which the central issue was debated. It is a matter of regret and it seems almost endemic in the Department of Health and Children that there must be a row about something extraneous that seems to many outside these Houses to have been slipped in, perhaps inappropriately, and definitely unnecessarily.

John Minihan (Progressive Democrats)
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I join previous speakers in welcoming the Tánaiste to the House. I support the legislation before us. It is admirable and indeed vital that all possible steps are taken to ease difficulties experienced by persons infected with hepatitis C and HIV through the administering of blood.

There is hardly a valid objection to be raised against providing reasonable access to the insurance market for those vulnerable persons for whom the cost is prohibitive or cover is unavailable because of this tragedy. The road that has led us here has been a hard one for those infected persons and their families whom we should not forget. Theirs has been a journey of grief, suffering and the loss of loved ones.

As the Tánaiste made clear, the infection of people with contaminated blood products was catastrophic for them. No monetary support or compensation can even come close to repairing the damage done. Nevertheless, it is unconscionable that steps which could be taken under legislation to remove some sources of added distress would not be taken.

I commend the work of the Tánaiste and the Government for the specific measures in this Bill. At her initiative, Ireland is doing as much, and more, compared with other countries, for victims in similar circumstances. This is as it should be. The Bill is an addition to the existing support for people, namely, the hepatitis C and HIV compensation tribunal, and the Health (Amendment) Act 1996, which provides for a range of health care services free of charge. This Bill is another step in dealing with this terrible tragedy and the legacy of the mistakes of the early 1990s. The legacy includes the deaths of at least 88 haemophiliacs who contracted HIV from contaminated blood products and the infection of more than 1,000 people with hepatitis C from infected batches of anti-D.

By the end of last year some 2,000 claimants had been dealt with by the hepatitis C and HIV compensation tribunal. Approximately 1,000 people were anti-D recipients, 700 were blood transfusion recipients, and there were others. The Irish Blood Transfusion Service was quoted in The Irish Times as saying there is a need "to accept the past without denying or discarding it". Dealing with the repercussions must be truly awful. The literature on living well with hepatitis C, refers to dealing with stress.

I cannot even begin to imagine how difficult this must be for the people involved. I hope, however, that the free GP services, free prescribed drugs, medicines and appliances, dental and ophthalmic services, home support, home nursing and counselling services supplied under the 1996 Act provide some help. Each of the Health Service Executive regions has a hepatitis C liaison officer whose job it is to ensure that all those infected with hepatitis C from blood or blood products receive the services to which they are entitled under the terms of the 1996 Act.

Notwithstanding this, it is wrong that infected people would face the obvious stress of being unable to buy life assurance or mortgage protection policies. This stress can and should be removed where possible. I welcome this Bill and the three forms of recompense now provided for, namely, compensation, the special health card and life assurance support. In addition, this legislation allows for the development of a travel insurance scheme. Money should not be an issue when it comes to measures for these groups. I welcome the provision of the estimated €1 million to €6.4 million per year, for up to 30 years.

Under the Bill, the State will pay the additional risk premium where the life assurer is willing to provide cover, subject to an additional premium. Where the assurer is not willing to provide this cover, the State will assume the risk. The State must do what it can to help infected persons and by making sure that the person requiring insurance will pay the average basic premium which an uninfected person of the same age and gender would pay, the State is making a real and important difference in this regard.

The scheme will be administered under the aegis of the Health Service Executive and the specific details on the administration of the scheme will be set out in regulations. I urge the HSE and the administrator, who is to be recruited as soon as the Bill is enacted, to work quickly on this valuable scheme.

Regarding the mortgage protection cover for purchasing, changing or improving the home, I am glad the provisions take the realities of our housing market into account. This element of the legislation will cover an overall maximum of the average Dublin house price plus 25%, or €375,000, linked to the TSB-ESRI Dublin house price inflation index. We must, however, acknowledge the realities. This cannot always be the case, for example in respect of grants but in this case I acknowledge and welcome this provision.

I also commend the open period for young people, who are not ready to avail of insurance or mortgage protection until their 30th birthday. This provision makes for a more equitable scheme. The awarding of compensation to the spouses and partners of the people under discussion, if the relationship commenced before the diagnosis of hepatitis C or HIV was known, to which Senator Ryan alluded, is correct. I welcome this scheme, which is not without controversy. It is necessary and right that there should be a consistent approach to the supports provided by the State. I accept that the tragedy under discussion is particularly awful. The symptoms linked with hepatitis C are not particular to it. Having worked in the pharmacy sector, the Minister of State, Deputy Tim O'Malley, like all other Members of the House, will be aware that fatigue, aches, pains, depression, dry skin and rashes are symptoms of many ailments. They are not associated with hepatitis C alone. That poses a problem.

In this Bill, the State is meeting some of its many duties. We must not forget it has a duty to ensure that the support schemes it establishes are fair and equitable. Eligibility under those schemes must be determined against clear and consistent criteria. If it is to meet the duty I mentioned, it has to ensure that diagnosis is determined by means of an accepted test that is in line with best international practice. I welcome the fact that, as Senator Ryan mentioned, this legislation has been amended to provide that further tests, including tests which may become available in the future, may be used. While it acknowledges the valid concerns which were expressed last week, the Government has acted as it must by setting the internationally accepted standard method for diagnosing hepatitis C as the method to be used for the purposes of the Irish health care services. The legacy of the tragedy of infection by blood and blood products is a terrible one for those infected, their families and their friends. This Bill represents a welcome intervention by the State to help to deal with one aspect of that legacy.

I welcome the Bill. I commend the Tánaiste and the Government for this initiative. As I outlined, stress management is a large part of positive living for those who have been infected. The Bill is a valuable step in reducing and hopefully removing a source of stress from people who have suffered dreadfully already.

Photo of James BannonJames Bannon (Fine Gael)
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I welcome the Minister of State, Deputy Tim O'Malley, to the House. I had not intended to speak on the Bill, but in the light of the upset caused last week in the Longford-Westmeath constituency and further afield on foot of the remarks made by a local Deputy in the Dáil, I felt I had to support the valiant women who have fought hard and desperately, despite the illness and stress caused to them by the State's actions, to get the basic compensation and care to which they are entitled. It was unbelievable that their difficulties were further exacerbated by the extraordinary statement made by Deputy Peter Kelly, who cited some pseudo-medical knowledge to belittle the suffering of the women in question.

Since last Thursday, my clinics have been filled with women and men who have expressed their support for the victims of the State who are experiencing the serious effects of hepatitis C. The people in question have condemned the insensitive and damaging remarks of their local elected representative, Deputy Kelly. I have spoken to women from counties Longford and Westmeath who strongly empathise with the unfortunate victims who walked out of the Dáil in protest at Deputy Kelly's remarks last Thursday and are demanding an apology from him and action by his party.

I advise Deputy Kelly and other members of his party to bear in mind that the patients in question were infected with hepatitis C by the State's health service. They should recognise they are obliged to provide the best possible medical care and compensation to these women. It is to the Government's shame that the negotiations have been unduly confrontational to date, unfortunately. The fact that citizens of this State were medically, socially and psychologically damaged has often been forgotten or left out of the equation. It is to the everlasting shame of the Government and the health service that assumptions were initially made about how the victims were infected. Deputy Kelly's glib dismissal of the seriousness of their condition represents a regression to an ill-informed, witch doctor-like, prognosis.

Photo of Martin ManserghMartin Mansergh (Fianna Fail)
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On a point of order, I do not think we can discuss at great length what was said in another Chamber.

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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It is not right to mention a Member of the other House.

Photo of Martin ManserghMartin Mansergh (Fianna Fail)
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The Deputy in question cannot defend himself in this Chamber.

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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It is totally out of order.

Michael Finucane (Fine Gael)
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Perhaps the Senator should desist from referring to a Member of the other House in that way.

Photo of James BannonJames Bannon (Fine Gael)
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I cannot stress strongly enough the need to be proactive and to do all we can to assist people who deserve our help and sympathy. We need to unite to try to rectify the actions of the Government. All possible assistance should be given to those affected. The compensation scheme has failed the fairness test on many counts over the last two and a half years. This Bill finally delivers on the promise in the programme for Government for just and fair compensation to be offered. The Government has introduced this last-gasp Bill in the dying days of this session, and possibly in the dying days of its time in office. Adequate compensation and every possible assistance must be given to these innocent victims without further delay. The actions of the Minister for Health and Children have rubbed salt in their wounds. It astonishes me that Deputy Kelly dismissed their suffering so glibly.

Photo of Ann OrmondeAnn Ormonde (Fianna Fail)
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I would like to share my time with Senator Mansergh.

Michael Finucane (Fine Gael)
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Is that agreed? Agreed.

Photo of Ann OrmondeAnn Ormonde (Fianna Fail)
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I welcome the Minister of State, Deputy Tim O'Malley, to the House. I am grateful for the opportunity to speak on this legislation. I read many of the speeches which were made in the Lower House. I have also read the Bill and the submissions which were made available by the Irish Haemophilia Society. I have listened to the families of those who were infected by the contaminated blood products. The substantive part of this Bill puts in place an insurance scheme for people who contracted hepatitis C and HIV from contaminated blood products. The need to establish this life assurance scheme, as well as the earlier compensation tribunal for people infected through blood products administered by the State, stems from an enormously distressing chapter in Irish medical history. The shock and horror of those who contracted the diseases in question, through no fault of their own, will never be forgotten. The State is obliged to do everything in its power to help the people in question.

The insurance issue is the kernel of the Bill. Those who were infected experience many medical and associated difficulties. They also encounter problems when doing things many of us would take for granted, for example trying to obtain insurance or mortgage protection. Such problems are faced by many of the victims. The Bill will cover two categories of people — those who can get insurance but at an increased premium and those who cannot get insurance at all. The State will pay the additional risk premium for the first group of people and it will assume the risk for the second group of people. This insurance scheme is the first of its kind in the world.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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Yes.

Photo of Ann OrmondeAnn Ormonde (Fianna Fail)
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The Tánaiste and the Government should be congratulated for introducing this badly needed legislation. The Tánaiste has said that everyone who receives a compensation award at the tribunal under the existing legislation will receive a special health card and will automatically qualify for insurance cover. Two other components of support, the compensation scheme and the special health card, are already in place. The compensation scheme was put on a statutory basis in the Hepatitis C Compensation Tribunal Act 1997, which was followedby the Hepatitis C Compensation Tribunal (Amendment) Act 2002. The two Acts provided that a wide variety of people could be compensated.

The special health card is awarded at the direction of the chief executive of the Health Service Executive, which must establish proof that the infection resulted from the use of contaminated blood products administered by the State. The key to this diagnosis is the ELISA test for hepatitis C, which is used in the United Kingdom and Canada. The Tánaiste has now included in the Bill references to the RIBA and PCR diagnostic tests.

Any of those tests can be used to prove an individual was contaminated. I have spoken to the representative groups about their concerns that some hepatitis C sufferers will be excluded from the compensation scheme. Senator Ryan is correct that there are no absolutes. It is difficult for an individual to determine whether he or she is infected. It also poses problems for the State but guidelines must be introduced. The Tánaiste and Minister for Health and Children has stated future developments in tests and research will be accepted to endorse the diagnostic approach. This will include anyone given contaminated blood products but who shows up negative in the tests.

Photo of Martin ManserghMartin Mansergh (Fianna Fail)
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I welcome this Bill as an honest and conscientious attempt to repair, in so far as it is possible, the consequences of the tragic infection of people by State agencies. I do not often intervene in health debates. The reason for my contribution this evening is that a long-standing secretary of mine who has worked for many years in Leinster House is one of those infected by the anti-D product.

I do not share other Members' criticisms of the Department of Health and Children. One reason legislation comes before the Seanad is that we can explore with interested parties the possible flaws it may contain. This allows us to improve legislation as it passes through the Houses. Since the original Hepatitis C Compensation Tribunal Act was introduced some improvements have been made. That is not a serious criticism of the Act's originators. The legislation is subject to a legislative process and has, therefore, significantly changed. That is simply how legislation is supposed to work.

I welcome the Bill's main features such as the compensation scheme, the State stepping into the insurance market where the private sector is unwilling to go — a classic role of the State. The pledge of the medical card to all who receive awards from the tribunal is also an important feature.

The remaining area of controversy centres on those who are eligible for compensation and the range of tests. It is important but not easy, as pointed out by Senator Ryan, to identify with certainty those who have been infected. It has been argued that a retrospective diagnosis by a competent hepatologist should be accepted. There are women who show the symptoms of hepatitis C yet do not respond to the tests. I understand public administrators must be careful that compensation goes to those who deserve it. If I was put to the pin of my collar, I would rather that somebody unjustly receive compensation than that somebody who justly deserved it be denied it. Most Members I suspect agree with this. The thinking must be inclusive and should not concentrate too much on how to stop the system being abused. Everyone who deserves to be included must be included. There is a moral obligation on the State to ensure this happens.

It is appropriate that there is a substantial discretion in terms of power of regulation. More scientific knowledge of hepatitis C may become available. A case can be made that in some instances it will be a substantial period before the disease manifests itself. I am uncomfortable about the idea of an absolute cut-off date. Not only can legislation be improved in the legislative process, but its implementation through regulation can also be ensured. If circumstances and knowledge require further legislation to be introduced, then so be it. We have an absolute obligation to ensure everyone contaminated by the anti-D product by a State agency is compensated in so far as it is possible. All the palliative measures part of this enlightened Bill are welcome. The only criticism against the Bill is that its provisions should be made more comprehensive and inclusive.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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I welcome the Minister of State at the Department of Health and Children, Deputy Tim O'Malley. From reading the contributions on Second Stage in the Lower House, I feel the Bill is responsible legislation. It is only the least that could be expected from the Tánaiste and Minister for Health and Children and the Government that took their duties seriously. It is a follow-on from the 1997 Act which caused so much tension, dissent and disquiet at the time. In view of submissions made, the Tánaiste and Minister for Health and Children included the RIBA and PCR tests along with the ELISA test. That has greatly strengthened the Bill. The inclusion of the loss of consortium in a relationship is a welcome provision as it can lead to disadvantages to any partnership. The Bill is not paternalistic — or materialistic for that matter — in its approach but is the proper way to treat people infected by the State.

We blithely take for granted the right to travel insurance, life assurance and mortgage protection. It is not so for those infected by the State. Throughout their lives they will live in the shadow of something that has left them disabled in every aspect.

I have met people who were so infected. They cope with what they have now but live in dread of what may come and how their infection may affect them. The Tánaiste and Minister for Health and Children did well in introducing this Bill to the Oireachtas. I will not use the term "in the dying days" because it is proper legislation. The Bill was considered during its passage in the Dáil, as shown by the Tánaiste and Minister for Health and Children taking on board amendments which would be of great help to those affected. I welcome the Bill and I look forward to Committee Stage and what comes forward by way of amendment.

Photo of Mary WhiteMary White (Fianna Fail)
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I welcome the Minister of State, Deputy Tim O'Malley, to the House. I am pleased to have an opportunity to speak on this important Bill. I urge the Minister of State to make clear to the House the reasons behind the decision to incorporate certain amendments to the 1997 and 2002 Acts in this new Bill. Specifically, I would like him to clarify why sections 2 and 6 are not being considered separately to the rest. It is my understanding that discussions with victims' groups centred around the provision of an insurance scheme, and that the incorporation of new regulations into this Bill came as a surprise to them.

While I accept it is impossible to discuss every technicality ahead of the publication of a Bill, the response of interest groups to this legislation has been undeniably negative, and I must ask the Minister of State why that is the case. While he may defend the policy decisions behind the legislation, I find it difficult to accept the manner in which they were made. Victims' groups talk of feeling "ambushed" by this legislation. I do not understand why there was not more thorough consultation.

The provision of section 2, as I understand it, means that people who have been diagnosed with hepatitis C will not in future be allowed to claim compensation for the damage that this disease may cause to any relationship begun after diagnosis. Again, I am not clear why this is the case. One cannot choose when to enter a relationship. Would it not be fairer to pay compensation at the same level to all sufferers, regardless of their relationships? I also understand that future partners of children diagnosed with hepatitis C will have no right to compensation for the injury to their relationship and potential to have children that results from their infection.

Section 6 contains the provision that sufferers must pass specific tests that show they have hepatitis C in order to entitle them to compensation. It is my understanding that the tests referred to in the legislation, while used in some combination in Canada and the UK, are not fail-safe. In any case, I am not sure that the British health service is a fair indicator of best practice. In this circumstance, I would urge the Tánaiste to require an expert medical opinion instead. Surely this would allow doctors to perform accurate tests, without having to settle for a less than perfect result. It would be a travesty if a person who had suffered infection at the hands of the State were to suffer even further by being denied access to compensation for their suffering, or if they were told that the State did not believe them. I understand the desire to limit spurious claims, but under no circumstances should this be at the expense of a single legitimate case.

I believe the Tánaiste met with representative groups of those suffering as a result of the use of contaminated blood products, and that these groups were unaware that the Bill would contain anything beyond provisions for an insurance scheme. Will the Minister of State clarify whether the additional provisions of the Bill were developed in consultation with victims' groups? Surely the State should seek to ensure that every last person made to suffer as a result of this tragic situation is compensated generously — not that any compensation could ever be adequate.

The Tánaiste stated that over €500 million has already been spent on this scheme. I understand and largely agree with her desire to control claims under the nursing home charges scheme. However, I do not believe it is appropriate in this case to talk of limiting liability. This is not a technical illegality — it is a case of the State poisoning its citizens. I urge the Minister of State to ensure that we do absolutely everything we can to protect these unfortunate people from further trauma.

9:00 pm

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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I wish to conclude tonight's debate by thanking all Members for their constructive contributions on the Bill. I realise that this is a most sensitive debate and I am aware of the concerns raised tonight and in recent days on the contents of the Bill.

Each element of the Bill has been given long and detailed consideration. I would not be supporting it here tonight if I was not convinced that each section is serving a necessary purpose. It must also be remembered that the proposed insurance scheme is a unique provision among the many states where, tragically, members of the population were infected by contaminated blood.

I believe this scheme will remove the impediments experienced by people who up to now have had difficulties in obtaining insurance. It will clarify other aspects of the supports available to persons with hepatitis C so that all three supports — the compensation scheme, the special health care package and the insurance scheme — operate effectively to provide the required services.

There have been some suggestions that the section on the definition of diagnosis is extraneous to the insurance scheme and should not have been included in the Bill. However, I would argue that this section is of vital importance and is intrinsic to the Bill, since it affects the definition of eligibility for the insurance scheme, as well as the other two support schemes which are already in place. This matter has been given careful consideration, and the Tánaiste and Department of Health and Children have received expert advice in regard to the internationally accepted diagnostic tests for hepatitis C.

The views of the four support groups for hepatitis C and HIV — the Irish Haemophilia Society, the Irish Kidney Association, Positive Action and Transfusion Positive — were also taken on board and, accordingly, two other tests which are internationally recognised as being the best methods currently available for diagnosing either the presence of the hepatitis C virus or its antibodies in the system have now been added by amendment. Not only are these tests used for health care purposes but all the international standards on blood transfusions use these tests to determine if blood is safe enough to transfuse to seriously ill patients. The intention at all times has been to be as inclusive as possible and that is why claimants will be required to satisfy only one test.

The ELISA and RIBA tests show that an individual was infected by hepatitis C in the past, so it is not necessary to show evidence of being currently infected. In this country, compensation and health care services have always been available to persons who demonstrated evidence of having been infected, rather than current infection. It has always been sufficient that a person has tested once on one of these tests to demonstrate an entitlement to compensation and the special health care package. Even if a subsequent test proves negative or indeterminate, one positive result is sufficient. It is difficult to see how anyone could put in place a fairer or more inclusive system than this.

The Tánaiste has also taken into account the views expressed that medical science is advancing all the time and that newer and more accurate tests are being developed. The Bill now provides that additions may be made by regulation to the list of diagnostic tests accepted for demonstrating the presence of either the hepatitis C virus or antibodies, if and when such tests become available. This will ensure that infected persons are given every assistance in obtaining an accurate diagnosis which can be scientifically corroborated.

Let us not forget that the diagnostic process is a medical and not a legal process in the first instance, and its purpose is to establish, with as much medical certainty as possible, a person's health status. This is the most important function of the diagnostic process regardless of what medical condition is involved. It goes without saying that the purpose behind it is that the patient can be given access to whatever medical treatment and supports are appropriate to his or her condition. In order to be as inclusive as possible in its definition of the diagnosis of hepatitis C, the Bill includes a provision whereby a person who displays symptoms of acute infection by reference to the presence of jaundice within 16 weeks of the administering of anti-D will also be considered to have a positive hepatitis C diagnosis.

Consortium is defined as "the living together as husband and wife with all that flows from that relationship including companionship, the rendering of services, sexual intercourse and affectionate relationship between spouses". As the Tánaiste explained, this is a heading of compensation which applies in law to the uninfected party only. The rights of infected persons, whether young or old, in first or subsequent relationships, are not affected by this section.

Persons who were directly infected with hepatitis C or HIV are compensated at the compensation tribunal in their own right, on the evidence presented, for all the effects of hepatitis C or HIV on their lives, including its effects on their relationships, in the past and into the future. As noted by the Tánaiste, the chairman of the tribunal has confirmed that this is the case, and that everyone making a claim to the tribunal has the right to present evidence on all the effects — past, present and future — which infection has had or will have on their lives. It is also worth pointing out that tribunal claimants are represented by experienced and capable legal companies, whose job it is to assist their clients in putting forward to the tribunal a comprehensive and accurate picture of both tangible and intangible losses.

However, it was never the intention to compensate future partners in relationships formed long after their partner's diagnosis with hepatitis C. For a loss to be compensated, the relationship that was lost or damaged must have existed in the first place. A person who forms a long-term partnership with an infected person does so in the knowledge of the diagnosis and the effects this has on their lives. Again, it cannot be reiterated too strongly that the infected person has and will continue to have this taken into account in his or her own compensation award. The younger the sufferer, the more account is taken of the potential effects of the virus on his or her personal relationships.

The parameters of the insurance scheme were discussed and agreed between officials in the Department of Health and Children and representatives of the four support groups during 2005. Part of the agreement was that the maximum levels of mortgage and life cover would be indexed by the relevant current indices, or their successors. In order to fairly reflect the passage of time since these monetary levels were decided, a request from the support groups to update these limits was agreed and included in the Bill as amended. The implications of these changes for the benefits available under the insurance scheme were alluded to by the Tánaiste.

Travel insurance has always been a priority with the four support groups. It had always been the intention to implement the travel element of the insurance scheme as soon as possible after the commencement of the mortgage and life cover. The support groups asked that a timeframe be given for this measure. Accordingly, a statutory commitment was given that annual travel insurance will be provided as a benefit under the scheme within six months of its establishment day.

During negotiations on the terms of the insurance scheme, agreement was reached with the support groups that certain benefits will be available for everyone during an open period of one year after establishment day. Thereafter, some benefits will be made available on an incremental basis depending on the age and insurance rating of the applicant. It was always the intention that the phasing in of benefits would only apply to persons who were deemed uninsurable, either because of infection with hepatitis C or HIV or another medical condition. This was agreed with the support groups and was to have been specified in the regulations to be made under the Bill.

However, the groups have asked that this be specified in the Bill itself for the avoidance of doubt and this was agreed. It was included on Committee Stage and is in the amended Bill. Benefits for the category of claimant deemed insurable subject to the payment of an additional premium will apply immediately and will not be subject to a phasing in period after the initial open period. Another of the innovative aspects of the insurance scheme relates to the exclusion of other medical conditions which may affect claimants from being taken into consideration by insurers. For example, a person with hepatitis C or HIV who also has a serious heart condition but wishes to join the scheme will be able to take out insurance at the same basic premium that would apply to another person of the same age and gender who has neither hepatitis C nor a heart condition. This was negotiated early on in discussions with the support groups and was always a key feature of the plans for the scheme.

Some illnesses which are not immediately apparent to the lay person are linked with hepatitis C. There are other illnesses, such as diabetes, for example, of which there is a disproportionately higher incidence in the hepatitis C cohort than there is in the general population for reasons which medical science cannot yet explain. There are yet other conditions which, though not caused by hepatitis C, are exacerbated by the illness or their treatment made more difficult. The case has been made that it would be so difficult to separate out the direct and indirect effects of hepatitis C from other completely unrelated illnesses, that in fairness to all concerned this should not even be attempted. This provision was agreed from the outset but in discussion with the support groups after the publication of the Bill, they did not feel that the wording in the Bill was clear enough on this point. For the avoidance of doubt, it has now been stated more clearly.

Ease of access to the insurance scheme will obviously be a key concern for those people affected and it was intended to address this by regulation. However, the support groups were most anxious that this be specified in the Bill itself and the Tánaiste has taken this on board. Officials in the Department of Health and Children have been in discussion with the support groups on this matter and I understand the list of ways in which eligibility can be established for the purposes of this scheme meets with their requirements. Thus, a person who already has a Health (Amendment) Act card given by the HSE will be able to use this card to demonstrate his or her eligibility for the insurance scheme and will not be obliged to provide medical details again to another administrator. This is eminently fair and reasonable. It will maintain the confidentiality of the person applying for insurance and will not only benefit that person but will also be administratively efficient.

From the first anniversary of the commencement of the insurance scheme, the scheme administrator will make decisions on applications within 28 days of the applications being received, or within 28 days of the application satisfying the information requirements of the scheme. A reduction in the timescale for achieving the 28-day response time is not feasible. The first year of the scheme will be an open period during which all eligible parties will be able to apply for a range of benefits without restriction.

While the scheme administrator will be expected to make every effort to deal with these claims as expeditiously as possible, it would not be reasonable to expect a statutory guarantee that a 28-day turnaround time should apply to all claims made within such a short period of the scheme becoming operational. The four support groups asked to extend the time limit for leave to appeal decisions of the scheme administrator from 28 days to 90 days. Although 28 days is the more usual time limit for appeals in regard to most schemes, the views of the groups on this matter were listened to and their concerns taken on board. Accordingly, the time limit for appeals has been extended to 90 days.

We have all been reminded today of the tragic events by which 1,700 people became infected with hepatitis C and HIV through the administering within the State of infected blood and blood products. Nothing can erase the pain and suffering of the men, women and children affected by either virus, or the suffering of their loved ones. The State has tried to do all possible to support the victims of infection since this tragedy came to light. The enactment of this Bill will result in the establishment of an insurance support scheme for persons with hepatitis C and HIV and marks a significant initiative which addresses a major obstacle encountered by these people because of their infection.

I give this Bill my full backing and I urge Members to support its passage into legislation tomorrow. This will allow the much-needed insurance scheme to be established and insurance products to be made available to persons with hepatitis C and HIV as a matter of priority.

Sheila Terry (Fine Gael)
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I expected that the question I asked of the Tánaiste and Minister for Health and Children while she was in the House would be passed to the Minister of State, Deputy Tim O'Malley. Questions that are asked on Second Stage should be answered; a prepared script is inadequate. Questions remain unanswered.

Michael Finucane (Fine Gael)
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I accept that. However, there will be further opportunity on Committee and Report Stages to ask questions.

Sheila Terry (Fine Gael)
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I expect the Minister who replies on Second Stage to answer the questions Members have posed.

Michael Finucane (Fine Gael)
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I have no control over the reply given by the Minister of State at the Department of Health and Children, Deputy T. O'Malley.

Tim O'Malley (Minister of State, Department of Health and Children; Limerick East, Progressive Democrats)
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Every effort has been made in dealing with this to answer as many questions as possible. I may not have answered Senator Terry's specific question but I believe I have addressed it in a general way.

Sheila Terry (Fine Gael)
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If we come in here to ask questions of the Minister of State they should be answered by him. I thank him for his detailed response but that was prepared before he came in here.

Question put.

The Dail Divided:

For the motion: 29 (Cyprian Brady, Michael Brennan, Peter Callanan, Margaret Cox, Brendan Daly, John Dardis, Timmy Dooley, Liam Fitzgerald, Camillus Glynn, Tony Kett, Michael Kitt, Terry Leyden, Don Lydon, Marc MacSharry, Martin Mansergh, John Minihan, Paschal Mooney, Tom Morrissey, Pat Moylan, Labhrás Ó Murchú, Francis O'Brien, Mary O'Rourke, Ann Ormonde, Kieran Phelan, Eamon Scanlon, Jim Walsh, Kate Walsh, Mary White, Diarmuid Wilson)

Against the motion: 15 (James Bannon, Paul Bradford, Fergal Browne, Paddy Burke, Ulick Burke, Paul Coghlan, Noel Coonan, Maurice Cummins, Michael Finucane, Michael McCarthy, Joe McHugh, John Paul Phelan, Brendan Ryan, Sheila Terry, Joanna Tuffy)

Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Browne and Cummins.

Question declared carried.

Rory Kiely (Fianna Fail)
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When is it proposed to take Committee Stage?

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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Tomorrow.

Committee Stage ordered for Thursday, 6 July 2006.

Rory Kiely (Fianna Fail)
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When is it proposed to sit again?

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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At 10.30 a.m. tomorrow.