Seanad debates

Thursday, 6 July 2006

Hepatitis C Compensation Tribunal (Amendment) Bill 2006: Committee and Remaining Stages.

 

SECTION 1.

1:00 pm

Fergal Browne (Fine Gael)
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I move amendment No. 1:

In page 3, lines 33 to 36 and in page 4, lines 1 to 27, to delete paragraph (b).

I welcome the Tánaiste and Minister for Health and Children and her officials to the House. This amendment will ultimately remove the scientific tests for hepatitis C for people and leave matters as they were before, that is, dependent on clinical diagnosis which seems to have worked very well in the past. There were problems with the testing. The Tánaiste has admitted that the ELISA test is not fully satisfactory for people with hepatitis C and might not pick up on the condition. We would prefer to leave matters as they were. We believe that clinical diagnosis has worked well in the past and could do so, again, in the future.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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I am not in a position, unfortunately, to accept the amendment. Senators made reference to this issue, yesterday, on Second Stage. We do not believe any genuine claimant will be affected by what is being done here. When legislation was proposed in this area in 1995-96, Mr. John Rogers SC and Ivor Fitzpatrick and Company Solicitors, on behalf of the affected groups, put forward the ELISA test as the diagnosis that should be acceptable in testifying to hepatitis C. I do not know why that was not accepted at the time.

In 1998, the expert group on hepatitis C chaired by the chief medical officer of the Department of Health and Children — which includes representatives from the liver consultants' group in Ireland and Positive Action — agreed that the ELISA test should be the standard accepted for getting the health card. That was a unanimous agreement and there was no difficulty about it. The Senator might ask why we are taking the opportunity to do it in this legislation and why there was no consultation, and I want to address that. This test is used in Canada and the UK. In Canada, in fact, not only must a claimant satisfy the ELISA test, but the results must be confirmed by another test. We are prepared to accept the evidence of ELISA, RIBA, PCR or any test that arises. If within 16 weeks of getting the anti-D product, a person presents with jaundice, that clinical diagnosis will be acceptable as well.

Why are we doing this? A case was refused by the tribunal that went before the High Court. Essentially, on the basis of fatigue, even though the claimant had not presented before a doctor over many years and there were no records over a long period as regards illness, a substantial award was made, and there is another case pending. As a result, I believe it is important for the tribunal to have a scientific basis on which to be able to make awards. As everyone in this House has acknowledged, the tribunal has worked extraordinarily well. The tribunal is now bound to take on board the decision of the High Court, which clearly made its judgment on the basis that the legislation did not say any particular test criteria had to be met. We are therefore introducing internationally accepted scientific tests and saying that if a claimant was clinically diagnosed as having jaundice in the 16 weeks after getting the anti-D product, that will be acceptable. It is either one or another and it is not a case of the ELISA test being confirmed by something else. Any test will be acceptable.

Senator Ryan asked me yesterday why we had included RIBA and PCR, which, as he rightly said, were not in the initial draft. They have been inserted at the request of the various groups. As to why we did not discuss the issue with the various groups, clearly the Government is making a decision on something that can affect the public interest, where possible litigation can ensue, sometimes on a large scale. Remember, 15,000 people got the anti-D product in this country. We all accept that the vast majority, thankfully, were not affected with hepatitis C and the whole purpose of the compensation scheme and the insurance support as well as the health card is to support genuine claimants who were seriously infected as a result of the administration of blood and blood products in this State in the 1970s and the 1990s. I have described their situation as catastrophic. Unfortunately, I am not in a position to accept the Senator's amendment.

Photo of Brendan RyanBrendan Ryan (Labour)
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The faith of the Attorney General in scientific tests is naive and touching. Science is not as precise as that. If somebody applied for disability benefit and a scientific test was called for to prove he or she was suffering from clinical depression, it could not be done. Neither could a scientific test, such as those the Tánaiste outlined, prove someone was suffering from schizophrenia.

A number of red herrings arise. From the famous 15,000 quoted by the Tánaiste, how many of those relate to the infected batches between 1991-94? My understanding is that a good number of the 15,000, if not the vast majority, are in those categories of infected people. The point is that the particular infection they received is different from that which people contracted in the 1970s. The infection in the 1990s is treatable and the vast majority of those people have been cured. That is what clinical hepatologists are telling us. It is the Tánaiste's job to respond to this. The fact Canada or some other country was excessively harsh is interesting but not central to the issue.

Similarly, the fact that my party colleague, Mr. John Rogers SC had a hand in drafting a Bill does not give him any more authority as regards what is appropriate for diagnosing a particular illness. He is a lawyer, perhaps the best, and a former Attorney General. However, the Tánaiste and I are in the Oireachtas long enough to realise that Attorneys General get things wrong. Some of the great embarrassments of Government have happened because of Attorneys General either giving bad advice or having poorly run offices. I have a number of questions, but let us deal with the 15,000 first. What proportion of the 15,000 is accounted for by people infected between 1991-94?

I do not know the purpose of this. I believe the Department of Finance got at this legislation and, being staffed by good civil servants, wanted something that was defined and precise, and did not want the wooliness of general medical diagnosis. I will come back to scientific evidence later but first I want to talk about the 15,000, because the Tánaiste raised it.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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Some 12,000 people received the product between 1991 and 1994, and of those 139 tested positive. My point on the KL case was that there was no evidence that the claimant received an infected batch of the product or had gone to a GP or other medics in the long period of time that elapsed. Yet on the basis of symptoms that can be related to other diseases, for example fatigue, the claimant got a substantial award. Given that the legislation required no specific diagnostic test, the court had no alternative. That causes difficulties for the tribunal. If I thought even one infected person would be denied entitlement to compensation, insurance or a health card, this would not be pursued. I have put much thought and discussion into this.

Although it is a medical and not a legal issue, it has legal consequences. Everybody here is aware of that. I am not making a point about Mr. John Rogers SC because I have the height of respect for him and it was 1995 and 1996. However it is interesting that this was put forward at that time. In 1998, which is more interesting, the expert group, including liver consultants and a representative of Positive Action said the health card should be given only if there is a positive test.

One cannot say a person may receive compensation without a positive test but may not receive the health card as that would be inconsistent. As infected people have serious health problems, they probably need the health card more than the compensation. As a gesture of goodwill I have decided that, in the context of this legislation, anybody who has received compensation or who has made an application that has not yet been determined either by the tribunal or the courts will receive the health card even if he or she does not test positively. Anybody who has received compensation but does not qualify for the health card because he or she did not test positive will receive the health card from now on. This is a gesture of goodwill and because I am concerned about them.

This will bring consistency, as everybody who received compensation will also get the health card and insurance. However from 20 June, when this legislation was published, to qualify for compensation, insurance or the health card, people will have to have a positive test, ELISA, RIBA, PCR, or any other test that emerges, or have had jaundice up to 16 weeks after the administration of the anti-D product. That is accepting a clinical diagnosis or a scientific test. Nobody could argue that we should base the compensation scheme on the word of a doctor. We would not do it in any other area. It is not that I do not respect or trust doctors, but they make mistakes. We must go beyond doctors and have a scientific basis. Some 52,000 of these tests have been conducted in the centre in UCD by Professor William Hall and the personnel there have strong comments on the sensitivity of this test. I accept that some conditions, such as back pain or depression, are difficult to diagnose conclusively. We spent some time in this House in the context of personal injury insurance discussing whiplash. Some conditions have grey areas, but this does not.

Fergal Browne (Fine Gael)
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Listening to the Tánaiste one wonders if this is a legal rather than a medical issue. I accept what she says, that the tribunal rejected the claim of a person who subsequently went to court, where a different ruling was obtained. I wonder if we are going about this the wrong way. Should the legal aspect of this draconian measure be examined? It is amazing that a court would take a different line from a tribunal. One would imagine that a person making a claim would have to prove that he or she has hepatitis C and contracted it through infected blood products, showing the State to be negligent. However, the Tánaiste said the courts overruled that and did not take it into account.

Photo of Brendan RyanBrendan Ryan (Labour)
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We have established that 12,000 of the 15,000 were infected with a curable form of hepatitis C and are capable of being dealt with in a different way. Although I do not agree with the Tánaiste on much, I have great respect for her. With respect to her, it is a red herring to quote the 12,000 because we are not talking about that issue. The Tánaiste's virologist can tell her about longitudinal studies that have been done. He has publicly acknowledged that one study dates back to 1977. Follow-ups throughout the 25 years of the study found people who had initially tested positive but three years later tested negative on all tests. Similar and equally compelling tests have been done in parts of Germany, France and Italy and are available to the Department of Health and Children. These tests were peer-reviewed, published and not challenged, and they provide compelling evidence that a number of people who were infected in 1977 would not have tested positive for any of those three tests but would still be infected. We knew they were infected because the initial evidence showed that. Is the Tánaiste aware of this study?

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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Does Senator Ryan suggest that such a person would not have presented with jaundice within 16 weeks of receiving the product? The court made the award in the KL case on the basis that the anti-D was probably given, although this could not be proved, and the person was suffering from, among other symptoms, fatigue. If we accept this basis, potentially everybody who received the product could receive compensation, with no scientific test or clinical evidence after the administration of the product. The Oireachtas, the public and the four groups we have sought to support through this legislation would not wish to see that. This is why we are introducing the requirement for scientific tests.

Of course it is a medical issue. We can never make up to the affected group for the damage done through compensation, health support, insurance or any other recompense. We are trying to do our best. We are trying to put in a level of support that any decent, civilised society should give to a vulnerable group of its citizens, approximately 1,700, who were infected with hepatitis C as a result of maladministration. In that context we are entitled to accept the scientific knowledge available. I am no scientist or medic. I do not know if that is a good or bad situation. When I became Minister for Health and Children somebody wrote to me and said she was delighted that at last a doctor had taken over at the Department. I realised she was confusing me with Senator Henry because she went on to say I treated her veins a number of years ago. I told Senator Henry about this and I understand she occasionally receives irate calls on her home telephone looking for me.

Fergal Browne (Fine Gael)
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Perhaps the writer was psychic and foretold the day when Deputy Twomey will be Minister.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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It is a medical issue with legal implications. There are lawyers in this country who are more than happy to pursue any route available to them. We know about the compensation culture and no fair-minded person would want that to happen. Anybody else in my position who had the information available to me in the context of what has happened would take do the same.

Photo of Brendan RyanBrendan Ryan (Labour)
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The Tánaiste accepts that there are people who will not test positive for any of these tests who have been infected with hepatitis C.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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Is the Senator suggesting they test positive? If they test positive anytime they will receive the compensation. They do not have to test positive now.

Photo of Brendan RyanBrendan Ryan (Labour)
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Jaundice is a varying illness and not everybody would get a clinical diagnosis for it. Some people would just deal with it. When I had jaundice as a child the doctor never came near the house because my mother knew what it was and I got better and went on. It was regarded as one of the hazards of life.

One might not have a clinical diagnosis which the legislation seeks. Somebody may not show up with jaundice and have it clinically diagnosed within the first number of weeks, and it has been scientifically proven that many lose all traces of what can be found by these three tests within as little as three years. Does the Department of Health and Children accept that this scientific study exists and that its conclusions are as I have stated? The answer is either "Yes" or "No".

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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The Department is aware of the study to which the Senator refers.

Photo of Brendan RyanBrendan Ryan (Labour)
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It is possible for somebody to have been infected and not test positive on any of these tests. We must accept that anybody who has been infected would have to have had such a severe level of jaundice that she would have it clinically diagnosed. I am not in a position to argue about that but I am told by people who know that it is not necessarily the case for everyone.

I must accept what Dr. Liz Kenny from Cork University Hospital says, namely, that a significant number of people would not show up under these tests and who she is satisfied are suffering from hepatitis C. She has been told that as an expert witness she will be manipulated by lawyers. She would have to swear a false oath. It would be possible to define the level of expertise necessary, namely, a consultant hepatologist and a consultant gastro-enterologist, or two of them. This happens all the time in company law cases and compensation cases across the spectrum. Expert witnesses swear on the basis of their professional judgment not according to some scientific test. That is universally accepted, except apparently in this case and I do not understand why.

We know that 15,000 people is the upper limit of possibility. The Tánaiste, however, seems to want me to believe that those 15,000 people would successfully persuade a consultant hepatologist, or two, to enter the witness box and swear an oath that the clinical symptoms indicated to their satisfaction that the person was infected with hepatitis C. I do not want to attribute negative motives to anyone but this Bill reflects a naive belief in the ability of science to solve the problem and so tidy it up.

I am something of a scientist. Science cannot prove what it cannot find. It can prove only what it can find experimentally. Science evolves by way of tests being done, experiments conducted and theories put forward. The theory is that these three tests are conclusive. The next level is to test that. That is done in the same way as the studies in Europe which showed that it is not scientifically valid to assume that those three tests are conclusive. The science the Tánaiste uses to justify this proves that it is wrong. One either believes science all the way or opts for a naive selective belief in science. The worst part of the Green movement is very good at picking out the little bits that suit its argument. To a degree the Tánaiste is culpable in the same way.

I do not believe the figure of 15,000 people. A colleague and I went through the analysis. People say the maximum number might be approximately 40. They are limited by certain categories, such as a time period, and being a woman who had a baby, who was rhesus negative and whose husband was rhesus positive. There may be 15,000 but there are few who would initially qualify.

I am at a loss to understand why a small amendment to section 1 to add the well-known symptoms cannot be accepted. The symptoms include fatigue, skin rashes, dry eyes and others with which the Tánaiste and her officials are more familiar than me. For a consultant hepatologist to say that he or she was satisfied is as scientific a conclusion as the one reached by somebody in a laboratory running a blood analysis. I am at a loss to understand the reluctance to accept science.

Fergal Browne (Fine Gael)
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I am still baffled about the court case. Did the State appeal it when the award was made? I cannot understand how in the case of the person who did not prove receipt of contaminated blood and whose complaint the tribunal did not uphold, the court overruled that finding. While I accept the Tánaiste's point, and am happy with the scientific test, I wonder was the court decision appealed and if not why not. I find it incredible that a court could make such a ruling when the tribunal did not accept the case.

In the United States, 4 million people have hepatitis C which can be contracted through sex, contaminated needles, tattoos, etc. The Bill caters for people who contracted hepatitis C purely as a result of contaminated blood products, caused by the negligence of the State. It is incredible that the court would give money to a person who did not prove that he or she received contaminated blood from the State. Why did the State not appeal that decision?

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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The State could have appealed that decision only on a point of law. Anybody who goes to the tribunal is entitled to appeal to the court, whether he or she received no award from the tribunal or was not satisfied with the award made by the tribunal. There is a case pending to be heard soon. This Bill does not affect any of those cases.

In respect of the 40 persons mentioned by Senator Ryan, they would have made an application to the tribunal or an application is in process. Why, almost ten years later would they not have done so? Why did all the experts consulted believe unanimously that the health card should be given only on the basis of this test but we should use other criteria for deciding compensation? I do not accept that because surely if one has an illness one needs the health benefit and the compensation would be of little benefit.

The health benefits reassure people. Only yesterday, a person who got an award through the tribunal, but did not qualify for the health card because she did not test positive, contacted my office to say how much she appreciates the fact that people in such circumstances will now receive the health card. She said it is reassuring for them because they do not have to worry about their health needs. The health card can be used not only for health services, but also for home help services, respite care and other similarly essential services.

The National Virus Reference Laboratory at University College Dublin, which is headed by Professor William Hall, who is a national and international expert in this area, accepts that this is the definitive test. There is no consensus among medical experts, to the best of my knowledge, that fatigue, dry eyes, aches and pains and depression are symptoms which can be attributed to hepatitis C.

Photo of Brendan RyanBrendan Ryan (Labour)
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What about increased ALT liver function?

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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Yes. The symptoms I mentioned can also be attributed to many other things, as we know. The consumption of alcohol, for example, can cause depression and fatigue and increased liver function. There is no consensus in that regard.

I would like to speak about the jaundice issue. We are talking about a woman who has just had a baby and would be in hospital during the period in question. It is not as if we are talking about somebody at home who had jaundice but did not contact anyone about it. If the person was in hospital during the relevant period, as I suggest she would be, it is clear that clinical records would exist to establish whether she had jaundice. I am not suggesting and I have never suggested that 15,000 people will suddenly be convinced by lawyers to start lodging applications for compensation.

Photo of Brendan RyanBrendan Ryan (Labour)
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The Tánaiste is almost suggesting that.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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I am not suggesting that. I am saying that is the kind of potential number we are talking about, based on the High Court decision. I am not suggesting that such a figure would be realised. There is no doubt that a large number of such applications could be made on foot of the position in which we found ourselves after the High Court case. We know what happened in other circumstances — we had to take the lawyers out of the equation, in effect, in the case of personal injury claims. As a result, motor insurance costs have decreased by approximately €1 billion over the past three years and employers' liability insurance costs have decreased by approximately €300 million per annum.

Such reductions took place because we challenged a particular vested interest and introduced a new, speedier and more effective way for claimants to get compensation. This change has had a dramatic impact on the level of claims and the cost of making such claims. Before we took action, 50% of the cost of making a claim comprised legal fees which were paid to lawyers. The Government's proposals in this regard are fair and reasonable. No genuine claimant will be adversely affected by what we are doing.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Is amendment No. 1 being pressed?

Photo of Brendan RyanBrendan Ryan (Labour)
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I am not quite finished discussing this amendment, a Leas-Chathaoirligh.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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We have been considering this amendment for over half an hour. The Senator can ask a final question.

Photo of Brendan RyanBrendan Ryan (Labour)
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I would like to say more than that. I wish the Tánaiste had been more careful with her words when she referred to "no genuine claimant". She said that 14 weeks after receiving——

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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I said "up to 16 weeks".

Photo of Brendan RyanBrendan Ryan (Labour)
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Given that the people in question do not tend to spend 16 weeks in hospital, the Tánaiste has accepted that people could develop jaundice long after they leave hospital. I do not doubt the Tánaiste's bona fides. As I have said on three or four occasions — I do not intend to test the Leas-Chathaoirleach's limitless patience much further on the last day of the session — we have been hijacked by people who have a wrong understanding of science.

I do not doubt there is a clear possibility that somebody could have jaundice without it being clinically diagnosed. There is clear scientific evidence from well-tested studies across Europe that people who were originally infected could have tested negative, under all three tests, three years later. The study to which I refer was conducted between three and 23 years after the event. Therefore, the Tánaiste accepts that there could be people who will test negative under all three tests. She is relying on there being a clinical diagnosis of jaundice in the cases of such people. I do not know much about jaundice, but I have been told that not everyone who has it goes to a doctor and gets a clinical diagnosis. It is possible that genuine people will be affected in this way.

I do not want to get into a debate on the origins of this problem, because it was not the Tánaiste's fault — she was not there at the time. I do not dispute for a second that the Tánaiste has dealt with many of the State's failings in this instance with considerable courage. A tone that is becoming evident in her defence, however, reminds me of words which were put in the mouth of a former Minister for Health, who spoke about the need to defend the financial position of the State. We are talking in this instance about people who were poisoned by the State. There are many ways of reducing the numbers involved — it has been decided that the people in question must be likely to have been recipients of contaminated blood over a period of time.

Somebody in the Office of the Attorney General got involved with this Bill and decided it was nice to have scientific tests. I accept that the advisory group said that too. It should be borne in mind that hepatitis C is an illness with a limited history. It is new in the sense that it did not exist, or was not known, 20 years ago. It is not the subject of a great deal of history. I assume the advice that was given and accepted seven or eight years ago was based on what was known then. I presume we are having this argument because what we know now is more comprehensive than what was known then.

I am absolutely certain that a small but significant number of cases will, regrettably, become causes célèbres, like some other tragic cases in this country in the past, because it will transpire that the people in question are not covered by any of the provisions which are being made in this Bill. I refer to people who, from now on, will be diagnosed late and, as a result, will not be able to go before a tribunal. Such problems will have developed because somebody in the Office of the Attorney General got the wobbles about crooked lawyers and developed what could be most generously described as a naive view of the universal validity of scientific tests. We now have comprehensive scientific evidence that the three tests mentioned in the legislation are not universal and do not always apply. If I have to choose between an analyst in a laboratory and a clinical hepatologist, I will believe somebody like Liz Kenny because I think practitioners are the best judges.

That is my final word, a Leas-Chathaoirligh. It is a matter of considerable regret that the Tánaiste is walking into something that could end up seriously tarnishing her reputation.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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Senator Ryan and I will not agree on this matter. Does he accept that the tests in question are used throughout the world to establish that blood is safe to be transfused to seriously-ill people? They are tests which are used. The Senator is saying they are not acceptable in the context——

Photo of Brendan RyanBrendan Ryan (Labour)
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Yes. I will answer that.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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That is the reality. There is no consensus anywhere of which I am aware — in Ireland or internationally — that the symptoms to which the Senator refers are associated solely with hepatitis C. While many people have opinions on the issue, there is no consensus on it. Opinions are not sufficient in this case.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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I will repeat what I have said previously. If it is the case that as late as 1998 the expert group, which included a representative of Positive Action——

Photo of Brendan RyanBrendan Ryan (Labour)
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That was eight years ago.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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Yes. Nobody has contended since then that it was not the basis on which a health card should be given. The affected group, which was upset at the time that it did not get the health card, will now get the card because I think it is fair that it should. We are bringing clarity and consistency to this area. The same principles will apply to compensation, insurance and the health card.

The members of the expert group, including liver consultants, a representative of Positive Action and the Chief Medical Officer who chaired the group, believed that the health benefits should be bestowed only on those who tested positive under the ELISA test. Therefore, I cannot understand why we should use another method when making decisions on compensation. I do not believe that a woman who developed jaundice after giving birth and having a blood transfusion would not have done something about it. The likelihood that a woman who just had a baby would not seek medical attention in such circumstances is quite small.

Photo of Brendan RyanBrendan Ryan (Labour)
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The Tánaiste asked me whether——

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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I am not——

Photo of Brendan RyanBrendan Ryan (Labour)
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The answer is that the scientific study shows that the shortest period of time in which those tests were found not to be positive was three years. One presumes that the blood that will be used for transfusions will be tested. I sincerely hope the blood transfusion service tests the blood products soon after it receives them and does not leave them for three years in storage. According to the scientific study, these tests will always be positive if they are conducted within three years of the infection. The symptoms would be——

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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We accept the blood tests from anti-D product recipients who test negative. It is right that we do. Using Senator Ryan's argument, we would not.

Photo of Brendan RyanBrendan Ryan (Labour)
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The blood transfusion service is still finding a few people who are infected every year. On the diagnosis, separate from the tests, it concerns rhesus negative women who had a baby whose father was rhesus positive. In time, they can also have a raised ALT level, joint pain and so forth. This is not a large amorphous group. It is a group who are within a clearly defined at-risk category who also have these symptoms. That is a perfect legitimate way of targeting that group. If the original legislation was sloppily drafted so that the courts did not have to ensure the person received infected blood, then the fault lies with it. The Tánaiste and Minister for Health and Children must accept that the representative groups are outraged by this. They will never trust the Department of Health and Children again. They know the Tánaiste and Minister for Health and Children will move on and a new Minister will be appointed but they will never trust the Department again because they believe they were let down.

Question put: "That the words proposed to be deleted stand."

The Dail Divided:

For the motion: 27 (Cyprian Brady, Michael Brennan, Peter Callanan, Margaret Cox, Brendan Daly, John Dardis, Timmy Dooley, Geraldine Feeney, Liam Fitzgerald, Camillus Glynn, Brendan Kenneally, Tony Kett, Michael Kitt, Terry Leyden, Don Lydon, Martin Mansergh, John Minihan, Pat Moylan, Labhrás Ó Murchú, Mary O'Rourke, Ann Ormonde, Kieran Phelan, Eamon Scanlon, Jim Walsh, Kate Walsh, Mary White, Diarmuid Wilson)

Against the motion: 16 (James Bannon, Paul Bradford, Fergal Browne, Paddy Burke, Ulick Burke, Paul Coghlan, Noel Coonan, Maurice Cummins, Frank Feighan, Michael Finucane, Brian Hayes, David Norris, John Paul Phelan, Brendan Ryan, Sheila Terry, Joanna Tuffy)

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

Question declared carried.

Amendment declared lost.

Section 1 agreed to.

SECTION 2.

Fergal Browne (Fine Gael)
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I move amendment No. 2:

In page 4, line 30, to delete "by substituting" and substitute the following:

"by—

(a) inserting the following after paragraph (a):

"(b) a person who

(i) has been diagnosed by a consultant hepatologist and adjudged by him or her to most likely have Hepatitis C, and

(ii) has no risk factor that would indicate a risk of contraction of Hepatitis C other than the receipt of contaminated blood products," and

(b) substituting".

Section 2 relates to eligibility for compensation in respect of loss of consortium. Fine Gael is concerned that people entering into new relationships would not be covered under the proposals and we seek to address that by amendment. If a person who has contracted hepatitis C through contaminated blood products goes into a new relationship, he or she will not be covered by the legislation. We take the view that this is unfair on them.

Photo of Mary HarneyMary Harney (Dublin Mid West, Progressive Democrats)
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There is no question but loss of consortium is covered by the compensation scheme. In fact, Judge Murphy from the tribunal has assured us that this is fully taken into account because I was sympathetic to introducing an amendment to ensure that young people were not adversely affected because they had not yet formed relationships. What we are doing here is removing the possibility that somebody could get compensation for loss of consortium in a situation where the diagnosis had been made before the relationship began and therefore they could not lose something they did not already have. Loss of consortium is the change in a relationship as a result of a diagnosis and clearly if a diagnosis is known before a relationship begins, that does not arise.

I understand that in five cases where compensation has already been paid for loss of consortia, second relationships have been formed. I do not think it is reasonable or fair that in those circumstances compensation would be paid for loss of consortia. However, partners or spouses are entitled to get out of pocket expenses or to be compensated for mental distress, loss of society and other things. There is no question of that.

Young people infected with hepatitis C who have not yet formed relationships will, as part of their compensation package, get damages for future loss of consortia. The judge has reassured us on that point so therefore there is no need to introduce an amendment. All we seek to do is to bring clarity to what is the intention, namely, that loss of consortia should be given in cases where there is a loss of consortium, but in cases where the partner or spouse was aware of the infection at the time the relationship began, clearly he or she cannot claim for loss of consortium although he or she can claim for a host of other things. I think that is fair and reasonable.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Photo of Cyprian BradyCyprian Brady (Fianna Fail)
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Amendments Nos. 3 to 5, inclusive, are related and will be discussed together by agreement.

Fergal Browne (Fine Gael)
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I move amendment No. 3:

In page 4, line 46, to delete "or".

Amendments Nos. 3 and 4 are purely technical and are dependent on amendment No. 5 being passed. I welcome the Minister of State, Deputy Tim O'Malley, to the House. I am aware he has been in the Dáil Chamber for the past couple of hours.

Tim O'Malley (Limerick East, Progressive Democrats)
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The purpose of this amendment is to add a new type of claimant to the tribunal, namely, someone who was not diagnosed by a consultant hepatologist prior to the commencement of the paragraph. However, the Bill emphasises that such diagnosis is not sufficient when there are internationally accepted scientific tests which demonstrate that the person was infected at some stage with hepatitis C. I propose therefore that these amendments not be accepted.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Amendments Nos. 4 and 5 not moved.

Fergal Browne (Fine Gael)
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I move amendment No. 6:

In page 5, between lines 6 and 7, to insert the following:

"(v) who was a minor on the date on which he or she was diagnosed positive for Hepatitis C or HIV,".

The purpose of this amendment is to provide specifically for those persons who were minors when they were diagnosed with hepatitis C or HIV.

2:00 pm

Tim O'Malley (Limerick East, Progressive Democrats)
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Section 2 relates to the issue of consortium. 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". This form of compensation applies in common law to the spouse or partner of the injured party only. It does not have legal application to the injured party. 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 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.

No partnerships already formed and no applications already submitted to the tribunal will be affected by this legislation. I do not propose to accept this amendment.

Amendment put and declared lost.

Fergal Browne (Fine Gael)
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I move amendment No. 7:

In page 5, line 10, after "HIV," to insert the following:

"but these sections shall not apply in relation to any claim for compensation to the Tribunal before the 20th of June 2006,".

This amendment will ensure the new Act does not affect those persons who made claims to the tribunal prior to 20 June 2006.

Tim O'Malley (Limerick East, Progressive Democrats)
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This amendment proposes that section 2, in respect of the loss of consortium, should not apply in regard to a claim for compensation to the tribunal made before 20 June 2006. It is not my intention to commence this subsection until the date of enactment of the Bill, which will obviously be later than 20 June 2006. Unless I misunderstand this amendment, the text in the Bill represents a slightly more favourable provision. I do not propose to accept the amendment.

Amendment put and declared lost.

Question proposed: "That section 2 stand part of the Bill."

Photo of Brendan RyanBrendan Ryan (Labour)
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As I said on Second Stage, the extraordinary aspect of this Bill is that the Government managed to turn what should have been good news into a highly political issue. It is matter for political scientists to discover how this was done.

I compliment the Government on the breadth of section 2. The willingness to take into account non-marital, including same-sex, relationships is a brave step. Those of us in the Opposition who sometimes have great fun at the Government's expense ought to acknowledge when it does something right. This is a brave step and it is the correct one. It must have passed unnoticed by some of our moral arbiters or perhaps they felt they could not fire their moral arrows given the group of people they would hurt. It is undoubtedly a step on the way to providing some compensation to those people.

I hope, moreover, it will be a model for reform of our legislation generally to ensure that stable couples, whether of the same or opposite genders, will acquire a body of rights. It is a pity that, in general, the same-sex partner of a person who is seriously ill with an illness like hepatitis C or HIV does not have next of kin status and has no inheritance rights under law. There is no need to refer to "gay marriage"; it is a question of legal recognition for partners in terms of inheritance rights and so on. This Bill is a step in the right direction in this regard and I compliment the Government on that.

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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This section deals with the reality of life for those affected by this terrible condition. That our primary concern should be the welfare of the victims is given de facto recognition in this section.

Question put and agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Fergal Browne (Fine Gael)
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In her speech on Second Stage yesterday, the Tánaiste referred to certain age limits in respect of some aspects of the insurance scheme. She said:

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.

Senator White has led the way in the House on the issue of ageism. Will the Minister of State clarify the purpose of this provision? I am concerned it constitutes a form of ageism but I may be misreading it.

Tim O'Malley (Limerick East, Progressive Democrats)
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My understanding is that this particular age limit was agreed with the four representative groups and that they are satisfied with it.

Fergal Browne (Fine Gael)
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I accept the Minister of State's response. However, I am always concerned about the inclusion of specific age limits in legislation. None of us knows when we will leave this life. A person eligible for this insurance scheme who lives to 100 years would be without coverage for 25 years. Perhaps the Minister of State will consider whether this should be amended in future.

Tim O'Malley (Limerick East, Progressive Democrats)
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My understanding is that an age limit of 70 years is the norm in insurance. In this case, 75 years was accepted as the limit. The representative groups were agreeable to this because it is to their advantage. However, I will get back to Senator Browne on this issue.

Fergal Browne (Fine Gael)
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My point is that a person of 75 years is no longer considered old. When people die in their 70s these days their deaths could be considered premature. Given that people are increasingly living longer, I am nervous of including a specific age limit in legislation such as this.

Question put and agreed to.

SECTION 4.

Fergal Browne (Fine Gael)
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I move amendment No. 8:

In page 15, to delete lines 40 to 50.

This amendment relates to amendment No. 1 and refers to the testing procedure. Both Senator Ryan and I have elaborated on the several reasons for our dissatisfaction with the provisions in this regard. Given that amendment No. 1 was not accepted, however, I do not expect that this one will be either.

Tim O'Malley (Limerick East, Progressive Democrats)
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It has always been the intention that legislation would be consistent across all of the legislative schemes, backing up supports to persons infected by hepatitis C and HIV from the administration of blood or blood products within the State. This section of the Bill emphasises the insurance scheme will be consistent with the other two schemes and I cannot therefore accept the amendment.

Amendment, by leave, withdrawn.

Section 4 agreed to.

Sections 5 to 7, inclusive, agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Tim O'Malley (Limerick East, Progressive Democrats)
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I request the Chair to direct the Clerk to make two corrections to the Bill under Standing Order 121. On page four, line three and again on page 17, line 16 to insert the word "or" after the word "assay" in each case. This would not affect the meaning of the text but would clarify the intention of the section.

Photo of Cyprian BradyCyprian Brady (Fianna Fail)
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I will arrange for the Clerk to do that.

Tim O'Malley (Limerick East, Progressive Democrats)
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I thank the Acting Chairman and all of speakers who have participated in the enactment of this sensitive legislation. Members of both Houses of the Oireachtas, are conscious of the pain and hurt caused by the State to these people over the years. This legislation is very worthwhile and I particularly thank the four groups representing the 1,700 people infected by the State for their input. I thank the officials of the Department of Health and Children and everyone involved in this difficult legislation. The Government has done the right thing and has paid attention to all views expressed on all sides of the House.

Fergal Browne (Fine Gael)
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I concur with the comments made by the Minister of State in thanking the officials for the work they have put into this. I also thank the Tánaiste and Minister for Health and Children, Deputy Mary Harney, for appearing before the House today and yesterday, the Minister of State and the other spokespersons.

Like Senator Ryan, I knew this Bill was on the way and made inquiries about it. I was told it was very simple, uncomplicated and that everyone would be happy with it. We now know that was not the case. This has happened before and hopefully the next health Bill before this House will not be as contentious. I acknowledge the complications involved and feel the Tánaiste clarified today some of the points on testing, although we are not happy with the testing element in the Bill. It is vital that people who were genuinely adversely affected by a blood transfusion in the past be adequately compensated to allow them and their families get on with their lives. The case the Tánaiste and Minister for Health and Children mentioned this morning is amazing and may present work for another day. I appeal to those genuinely affected to claim compensation. Those who are not affected, yet make claims, do a disservice to people in need. We should do what we can to discourage such actions.

I compliment the Irish Haemophilia Society, Transfusion Positive, Positive Action and the Irish Kidney Association, all of which have communicated with the Members here today. We sought to have some of their amendments made and, hopefully, our debate today might bring clarity to some issues for them.

Photo of Brendan RyanBrendan Ryan (Labour)
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As I said on Committee Stage, this should have been a good news Bill which would have seen us trying to persuade the Government to be even more generous. Instead it has, in both Houses, shown a mistaken judgment by the Government that sought to introduce scientific clarity in a naive way. I do not believe science is as developed as that. If one believes in science one believes in the scientific method, which means one considers the evidence as it evolves. The evidence, now, is that the three tests are not conclusive and people can be infected yet not be detected through these methods.

I believe this Bill will, sooner or later, lead to high-profile embarrassment because somebody will turn up, clearly infected and with the support of medical consensus to that effect, who had not made a claim up to that point and will be denied compensation.

As I said on Committee Stage, I admire and compliment the generosity of the Government's definition of partnerships. It is a good day for the country and for the recognition of the realities of life and who matters in people's lives, as Senator Glynn correctly said. We will have to recognise those realities as a society, perhaps in a more formal fashion, hopefully in the not too distant future.

Photo of Camillus GlynnCamillus Glynn (Fianna Fail)
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I thank the Minister of State at the Department of Health and Children, Deputy Tim O'Malley, the Tánaiste and Minister for Health and Children, the officials, the Clerk, the Seanad staff and all involved in the passing of this legislation on all sides of the House. I compliment the four groups concerned on their efforts and communications with all sides of both Houses. This is a very important piece of legislation that gives recognition to the plight of people cast in a scenario where the cure was worse than the disease. Whatever we do cannot compensate for this.

One of the curses of being human is that we feel so helpless at times in addressing situations such as this. However, I believe that this Bill will help people who heretofore could not get insurance at all or could not do so without paying prohibitive premiums. I believe this is a step in the right direction. We must deal with the realities of life. We are discussing human beings, irrespective of status, who have been affected in a particular way. Hepatitis C and related conditions are terrible. When a person goes to hospital to receive a blood transfusion, that person believes it will be beneficial in dealing with his or her complaint. This turned out not to be the case for a number of people.

As the Tánaiste rightly said, nothing can compensate people for what has happened. I am glad this Bill will be passed, it is another step in the right direction. I hope in the near future other legislation may be enacted to alleviate further, in a small way, the plight of the people concerned.

Photo of Cyprian BradyCyprian Brady (Fianna Fail)
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I also thank the Tánaiste and the departmental officials.

Question put and agreed to.

Sitting suspended at 2.20 p.m. and resumed at 3 p.m.