Enda Kenny (Mayo, Fine Gael)
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Question 104: To ask the Tánaiste and Minister for Health and Children her plans to bring in a no fault compensation for babies who are brain damaged at birth; and if she will make a statement on the matter. [28921/05]

Mary Harney (Dublin Mid West, Progressive Democrats)
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A group was established in 2001 by my predecessor to examine, among other issues, the feasibility of introducing a "no fault" compensation scheme for infants who sustain brain damage at, or close to, the time of birth.

Two main reasons were advanced for the establishment of the group. First, there existed a body of opinion which believed that the conventional tort system was not best suited to establishing the reasons some infants suffered brain damage before, or during, birth. Uncertainty about the precise cause of the resulting disability was believed to give rise to inconsistencies in the making of awards by the courts. Second, the increasing size of awards made by the courts to brain damaged infants was leading to unsustainable increases in the cost of public liability insurance for health boards and hospitals with maternity units and to similar increases in the cost of professional indemnity cover for consultant obstetricians.

The group was chaired by Dr. Peter McKenna who was then master of the Rotunda Hospital. It included representatives of the Department of Health and Children, the Department of Finance, the Attorney General's office, the Institute of Obstetricians and Gynaecologists, the Faculty of Paediatrics, the Incorporated Law Society, the Bar Council of Ireland, an academic expert on medico-legal issues and representatives of Justice and Equality for Brain Injured Babies. The group undertook an intensive work programme over the following two years. At an advanced stage in its activities in early 2003 it had to suspend its work due to hospital consultants' withdrawal of co-operation with ministerial working groups as part of the consultants' opposition to the introduction of the clinical indemnity scheme. The group has not met since that time.

In the interim, advice received from the Attorney General about another proposed no fault compensation scheme has raised a number of constitutional issues which throws doubt on the feasibility of establishing such schemes in Ireland. I am conscious of the huge amount of work which Dr. McKenna and his colleagues on the group invested in this exercise and I hope to meet him in the next few weeks to discuss how the group's analysis and conclusions to date might be made use of by my own Department and other interested agencies.

The introduction of the clinical indemnity scheme has removed the need for health boards and hospitals to purchase public liability insurance cover for clinical negligence claims. The Government has put in place arrangements which effectively cap the amount of professional indemnity cover which consultant obstetricians in private practice need to purchase at €500,000 for any one claim with a further aggregate cap of €1.5 million per consultant in any one year. These provisions have removed the threat which spiralling insurance costs had posed to the availability of maternity services.