I wish to share my time with Senator Henry.
Adjournment Matters. - Hepatitis C Compensation.
Acting Chairman
Is that agreed? Agreed.
I welcome the Minister and thank him for coming to the House. I welcome the commitment from the Minister for Health to establish a tribunal to pay fair compensation to women infected with hepatitis C. This is as it should be, in light of the Government's responsibility to these women. Negotiations have been going on for quite a long period. Much to the surprise of the women negotiating with the Minister, the Minister announced a tribunal with which they were not happy.
The women who contracted hepatitis C were infected at the hands of a State board with a serious, life threatening illness. The extent of the human tragedy which faces these women, and the children who were infected, has only now begun to be realised. One of the very hurtful aspects for these women is that they have never received an apology from the State, which I think they are due. In other countries people would have been put in prison for what has happened to these women. I understand their concerns about the health implications for them and their children. They want guarantees of medical treatment, counselling and care which they require to meet their own and their family's needs.
The Minister has announced a tribunal which would give them an ex gratia payment. They are concerned that this non-statutory tribunal will create uncertainty. Because they have been let down once by the State and because the report of the expert group on the Blood Transfusion Service Board has destroyed their confidence in State institutions, they must ensure they are protected. They believe this protection will not be given through a non-statutory tribunal. They believe that if they accept this ad hoc tribunal, its provisions could be diluted or it could be abandoned in the future. Since it is not a statutory tribunal, its terms of reference could be changed at the whim of any future Minister.
I accept the Minister's commitment to ensuring that these women are given fair compensation, but he may not always be there and these women are concerned about what might happen in future Administrations. That fear is justified, given the traumatic experiences of these women. I am not convinced that the Minister can reassure the women by pursuing his proposal for an ad hoc tribunal. The Minister has a responsibility to establish a statutory tribunal which recognises the legitimate rights and concerns of these vulnerable women. Given the facts of these cases, the Government should be prepared to bend over backwards to accommodate them.
These women should drive the agenda, given the circumstances under which they became infected. Hepatitis C is an illness for which there is no cure at present or effective treatment, apart from Interferon, and its side effects have forced many of these women to stop using it. We were all shocked to hear that so many women and a number of children were infected with hepatitis C. It shocked us all to listen to the women describing how their health has been damaged as a result of being infected. That was the case at the Select Committee on Social Affairs last week. People who have not spoken to them do not realise the extent of the damage to their health and their future prospects. That is why they cannot be compared with any other group of people and why they need special treatment and a statutory tribunal.
The Dungarvan AIDS scare was given great attention because it was believed that six or seven men might be infected with HIV antibodies. When that is compared with the large number of women, over 1,200, who have been infected through no fault of their own, we realise what should be done to ensure that their demands are met.
I know that negotiations have broken down and that Positive Action and the Minister are anxious to resume them. The women are prepared to enter in good faith the negotiating process again, but they want the Minister to observe the process of negotiation and that when it begins next week there will not be a public announcement until there is agreement. The Minister is facing legal difficulties, but I cannot understand why they cannot be overcome by negotiating with the legal representatives of these women and the legal advisers to the Government. The negotiations have broken down twice and the women believe this was an act of bad faith by the Minister. They are distrustful of the situation and that is overriding their concerns. The least the Minister should give them is a commitment that he will observe the negotiating process until they are satisfied that they have guarantees of a permanent tribunal structure. That is the most important issue.
The Minister has not given any acceptable or logical reasons why the tribunal cannot be established in statute. The provisions which the Minister wants to include in an ad hoc tribunal cannot be put in place. These women are definite about these commitments and it will be difficult to convince them otherwise. Perhaps the Minister could bring an order before both Houses of the Oireachtas which could not be rescinded without bringing it back before any future Dáil and Seanad. There is no other way around this problem except by placing the tribunal on a statutory basis which will satisfy and give these women the guarantees they need.
I thank Senator Honan for sharing her time with me and for raising this issue, which is causing great anxiety among those who have been infected. There is no need to rehash the Hederman-O'Brien report, but the Department of Health, the Blood Transfusion Service Board and the National Drugs Advisory Board seemed to have been remiss in their dealings with blood products in the past. The Minister has been involved in the rapid reorganisation of the blood services and the Department of Health is to be commended for this. It is even more important that it now tries to show its concern for and generosity towards those who have been infected by contaminated blood.
It is essential that people are paid compensation as soon as possible. Monetary compensation will do little to retrieve the situation because in some cases their health has been seriously affected and, as Senator Honan said, many have had to abandon treatment which was of benefit to them because of its side effects. Fortunately, we have been able to trace many of those infected through the Look Back programme, which has been successful. It will continue indefinitely. Therefore, we need the Minister's assurance that there will be no cut-off point as regards claims for compensation by infected people who may appear in years to come. That is why it is so important that the tribunal should be on a statutory basis. Most people have probably been traced by now, but some may not have been traced.
The national screening programme has been established and the public must be complimented for not panicking and rushing to get their blood tested at once. The people realised how low the risk was and their general practitioners were important in preventing unnecessary alarm among the public. Out of approximately 4,000 people tested, only eight proved positive and these could have contracted hepatitis C in another manner.
We are fortunate in the way the public has responded to this serious crisis in the Blood Transfusion Service Board. It is important to mention the donors, who have remained steadfast throughout the emergency and have continued to give blood. If they had panicked and deserted the blood bank, the system would have collapsed. The medical service and the public owe them a great debt of gratitude for retaining confidence in the system even at a time of great crisis.
The Department of Health and the Minister acted rapidly. They were fortunate that Professor Sean McCann took over at short notice in the Blood Transfusion Service Board and started to reorganise it. I hope that those who have been infected in the past will be considered of extreme importance by the Department, that the tribunal is set up on a statutory basis and that compensation claims are dealt with swiftly and generously.
I thank Senator Honan and Senator Henry for this opportunity of setting out the formal position regarding the payment of compensation to women infected with hepatitis C through anti-D.
As the House will be aware, the Government, in its policy document A Government of Renewal, included a commitment to fair compensation for women infected by hepatitis C from anti-D. The Government has decided to establish as a matter of urgency a tribunal which will assess compensation on an ex gratia basis in respect of anti-D recipients who are infected with the hepatitis C antibodies or virus.
The scheme of compensation approved by the Government offers numerous advantages as opposed to court proceedings to those making applications before the tribunal. These advantages include: speed, informality, flexibility and privacy; negligence need not be proved; the right of court action is completely preserved unless and until an award is accepted; proceedings before the tribunal will be subject to judicial review; the concept of a provisional award, which is not available in Irish law and allows a claimant to return to the tribunal for future specified unexpected consequences of the hepatitis C infection. This is a particularly important option for claimants, given the nature of the infection; and the scheme is entirely optional and imposes no disadvantages.
A tribunal based on statute would present many technical difficulties if it were to encompass many of the benefits highlighted above. By its very nature, a statutory tribunal would also be more formal, less flexible, unwieldy, subject to greater delays and with the potentiality of substantial legal costs.
Positive Action, a support group for anti-D women and their families, has sought a statutory admission of liability or an admission of liability in a form acceptable to their legal advisers. The Government, having consulted with its legal advisers, has made clear to the solicitors acting for Positive Action that there can be no admission of liability by the State in these cases.
It is difficult to see why Positive Action is looking for such an admission, given that the Government's compensation scheme provides that evidence of negligence on the part of the Blood Transfusion Service Board or any other party need not be produced. In the absence of the production of evidence of negligence, the question of proving liability is not, therefore, an issue in the Government's compensation scheme. Since claimants before the tribunal do not have to prove negligence, the question of admitting liability does not arise.
Positive Action has sought a statutory tribunal on the basis that a statute would guarantee the permanence of such a tribunal. A statutory scheme offers no such absolute guarantees on the permanence of a tribunal.
There is all party support in the Oireachtas for the principle of fair compensation for women infected with hepatitis C from anti-D. No party in the Oireachtas has suggested that the Government's scheme be abolished or amended to diminish the rights of claimants as enshrined in the scheme. In addition, there are a number of safeguards against the abolition or future amendment of the Government's scheme to diminish the rights of applicants to the tribunal. These include that the terms of any award made under the Government's scheme would be enforceable before the courts and any abolition or future amendment of the Government's scheme to the effect of diminishing the rights of applicants to the tribunal will be subject to judicial review.
The Minister for Health has assured Positive Action that those services currently in place under the Health Acts for those diagnosed positive for hepatitis C will remain as long as required. In addition, the Minister has made a number of substantial proposals in respect of the long-term health care needs of those who have contracted hepatitis C. These include: general practitioner services free of charge for all those who have contracted hepatitis C from a blood transfusion, anti-D or another blood product. This will require an amendment to the Health Act and a specific provision in the Book of Estimates in respect of the funding of hospital and counselling services for those who have contracted hepatitis C. This would allow any change in the funding of these services to be subject to detailed scrutiny by the Oireachtas. There is also the establishment and funding of a special programme on research on hepatitis C by the Health Research Board and the establishment of a statutory consultative council to advise the Minister for Health on matters relating to hepatitis C. The membership of the consultative council, which will be appointed by the Minister for Health, will include two persons nominated by Positive Action.
The Minister wrote to Positive Action on 14 September and 18 October 1995, requesting that discussions continue on a realistic understanding and acceptance of each others' positions and that we could continue to work together to meet the many complex and varied needs of their members.
In conclusion, I am pleased to say that Positive Action has now agreed to meet with the Minister for Health next week and I am confident it will be possible to make progress in addressing outstanding issues.