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46,700 | 346 | QUESTION:
So the Department agreed to set up a hepatitis C
compensation tribunal, and that became a statutory
tribunal under the Hepatitis C Compensation Tribunal
Act of 1997. If we just look briefly at that.
WITN7418010.
So we've got the arrangement of the Act there. If
we go, please, to page 4, we can see, bottom ... |
46,701 | 346 | QUESTION:
But there was still no acceptance of legal liability
by the Government?
ANSWER:
That's correct. And in fact it's worth, I think,
reiterating that the compensation tribunal -- that
the first payments under the compensation tribunal
were made a year before the Lindsay Tribunal terms of
reference were even -- ... |
46,702 | 346 | QUESTION:
And if we go over to page 6, we've got Section 4 of
the Act, and that tells us who could claim, initially,
to the Tribunal?
ANSWER:
Yes.
|
46,703 | 346 | QUESTION:
So those diagnosed positive for hepatitis C resulting
from anti-D, those diagnosed with positive for
hepatitis C as a result of receiving a blood
transfusion or blood product, and then we have
children and spouses, carers, and dependants.
If we just go to the next page, just to pick up
something, it's in sub... |
46,704 | 346 | QUESTION:
That's how we understand -- the reference
to section 5, subsection (3) there, is a reference
to -- if we go to the bottom of the next page, it's
the third paragraph from the bottom:
"An award in respect of aggravated or exemplary
damages may be made by the Tribunal where a claimant
establishes a legal entit... |
46,705 | 346 | QUESTION:
So if a claimant wanted aggravated or exemplary
damages, they had to establish that there was a basis
for it that was a basis recognised in law. But is
this right, they could opt then, instead, for
28a 20 per cent uplift to their compensation?
ANSWER:
That's correct. Any individual who felt that they
... |
46,706 | 346 | QUESTION:
And that came from something called the Reparation
Fund?
ANSWER:
Yes.
|
46,707 | 346 | QUESTION:
What was that?
ANSWER:
It was basically a fund that topped up the awards by
20 per cent, in lieu of aggravated or exemplary
damages.
|
46,708 | 346 | QUESTION:
But essentially a fund from the same source, from
Government?
ANSWER:
Yes. Absolutely, yes.
|
46,709 | 346 | QUESTION:
I don't know whether you know the answer to this
because obviously your focus will have been those with
haemophilia, but we have heard evidence in relation to
the United Kingdom of claims being made to the funds
established here for -- by those infected through
transfusion being difficult to establish becaus... |
46,710 | 346 | QUESTION:
Then is it right to understand that the claimant
making the claim to the compensation tribunal could
elect for a lump sum, so an assessment of their
compensation once and for all, or for provisional
damages?
ANSWER:
Yes, the majority elected for a one-off lump sum
award, but there was also the option to take... |
46,711 | 346 | QUESTION:
Is it right to understand that the approach that
the tribunal was required to take to the assessment of
compensation was to apply the same approach that
the courts would apply in a claim, a tortious claim,
for damages for personal injuries?
ANSWER:
Yes, my clear understanding is that the tribunal was
assessi... |
46,712 | 346 | QUESTION:
Then in terms of legal representation, the costs of
legal representation were met through this process?
ANSWER:
Yes.
|
46,713 | 346 | QUESTION:
So those who were making the claims had the benefit of
lawyers to assist them in advancing their claim?
ANSWER:
Yes. When the tribunal started in 1995, we had
a meeting with the members who agreed to go down
32the route of a tribunal. They also agreed that the
Society should engage a legal team who wo... |
46,714 | 346 | QUESTION:
Then there was a right of appeal against
the Tribunal --
ANSWER:
Yes.
|
46,715 | 346 | QUESTION:
-- award to the High Court?
ANSWER:
That's correct.
|
46,716 | 346 | QUESTION:
And is it right to understand that in the early years
there were a number of appeals because it was thought
that the tribunal assessments were too low?
ANSWER:
Yes.
|
46,717 | 346 | QUESTION:
Did that have the effect essentially of raising them
overall for the future or has the need to appeal to
the High Court continued to occur regularly?
33ANSWER:
It continues, perhaps not to the same extent. I mean
when the vast, vast, majority of appeals to the High
Court resulted in a s... |
46,718 | 346 | QUESTION:
Now, this obviously covered hepatitis C only, but in
2002 the tribunal's remit was extended to encompass
HIV?
ANSWER:
Yes.
|
46,719 | 346 | QUESTION:
How did that come about?
ANSWER:
In 2002 we had an election coming up, again, and we'd
had the hearings of the Lindsay Tribunal, including
the very powerful public testimony of members, during
the course of the tribunal, and in the two years
leading up to the tribunal and during the course of
the tribunal we... |
46,720 | 346 | QUESTION:
So if we go back to your statement, so WITN7418001,
pages 28 to 29. If we start at the bottom of page 28,
we can see there was an amendment to the 1997 Act
through the Hepatitis C Compensation Tribunal
(Amendment) Bill, 2002.
Then if we go to the next page, you've listed in
paragraph 59 those who could ap... |
46,721 | 346 | QUESTION:
Then if we go to the next paragraph, you tell us also
35that:
"New areas of claim were introduced under the
[2002] Act ..."
ANSWER:
Yes.
|
46,722 | 346 | QUESTION:
"a. [Child], spouse, father or mother of those who had
died could claim under loss of society or psychiatric
injury including post-traumatic stress disorder;
"b. Partners or spouses of those infected could
claim under loss of consortium;
"c. Children or spouses of those who died could
claim for loss of soci... |
46,723 | 346 | QUESTION:
So the significance of the 2002 Act -- is this
right -- is twofold. First of all, it establishes, or
extends the rights that were conferred by the 1997 Act
to those infected through HIV, and then it provides
for a wider range of types of claim that's applicable
to both those infected with hepatitis C and th... |
46,724 | 346 | QUESTION:
In terms of assessment for loss of earnings, which is
one of the heads of claim that can be advanced to
the tribunal --
ANSWER:
Yes.
|
46,725 | 346 | QUESTION:
-- do you know how the tribunal typically assesses
the loss of earnings?
ANSWER:
I think they bring a number of expert witnesses, they
look at the person's educational record, they do
IQ tests, they look at the career path they may have
had without hepatitis C. There may be opportunities
that the individual... |
46,726 | 346 | QUESTION:
Then in terms of those who are bringing a claim as
a carer --
ANSWER:
Yes.
37 |
46,727 | 346 | QUESTION:
-- effectively for the care that they will have
provided, gratuitously, to a relative, how is that
cost of care assessed? Do you know?
ANSWER:
I can't answer that, no.
|
46,728 | 346 | QUESTION:
In terms of the aggravated and exemplary damages or
the 20 per cent uplift, have there been many cases in
which claimants have opted to try to establish an
entitlement to aggravated or exemplary damages?
ANSWER:
Not that I'm aware of, no.
|
46,729 | 346 | QUESTION:
So claimants have typically gone for the 20 per cent
uplift?
ANSWER:
Yes, yes.
|
46,730 | 346 | QUESTION:
In terms of who sits on the tribunal, I don't mean by
name, but what are the kind of -- what kind of
individuals are appointed to the compensation
tribunal?
ANSWER:
They tend to be barristers, all of them.
|
46,731 | 346 | QUESTION:
How important has the availability of legal
representation been for the success of the tribunal in
your view?
ANSWER:
Vital. I think the availability of legal expertise
and expert witnesses has been absolutely vital,
because if you have across the board payments, as we
had in '91, then you really don't need... |
46,732 | 346 | QUESTION:
You've set out your view in your statement that
the tribunal has been a success?
ANSWER:
Yes.
|
46,733 | 346 | QUESTION:
And again, you've identified, I think, a number of
the factors. One, the availability of excellent legal
support. Another, the availability of excellent
expert witness support. You've also identified
the non-adversarial nature of the tribunal, although
you've suggested that there might have been a shift i... |
46,734 | 346 | QUESTION:
So we can understand the typical pre-Covid process --
ANSWER:
Yes.
|
46,735 | 346 | QUESTION:
-- so a written application would be submitted --
ANSWER:
Yes.
|
46,736 | 346 | QUESTION:
-- is that right?
ANSWER:
Yes.
|
46,737 | 346 | QUESTION:
And that would set out, essentially, the basic facts
about the claimant, and then would that written
application be accompanied by supporting expert
evidence?
ANSWER:
Yes, there would be a written application. There
would be proof from the medical records that
individual had been exposed to hepatitis C or H... |
46,738 | 346 | QUESTION:
So those would all be submitted to the tribunal?
ANSWER:
Yes.
|
46,739 | 346 | QUESTION:
Would there then always be a hearing in every case, or
could an assessment be made on the basis of
the written material?
ANSWER:
I'm not -- I think a hearing was -- in every case
there was a hearing.
|
46,740 | 346 | QUESTION:
In terms of the structure of that hearing, there would
be the claimant, their legal representative. Would it
always be necessary for all the experts to come and
give oral evidence?
ANSWER:
No, not necessarily. Very often the expert's written
evidence would be read into the record and taken as
read.
|
46,741 | 346 | QUESTION:
Would it be right to understand that there would be no
other side represented? There would be no opposition
to the claim? Or was there someone there representing
the Department or the Government?
ANSWER:
There was usually somebody there from the Department
42of Health -- I guess keeping an eye on the ... |
46,742 | 346 | QUESTION:
To what extent did the individual have to give
evidence to the tribunal in the hearings? Was that
always the case?
ANSWER:
It wasn't obligatory but the vast majority of cases,
they gave evidence.
|
46,743 | 346 | QUESTION:
So would the tribunal be composed, then, of one
member? There would be a single lawyer --
ANSWER:
Usually, three, usually, yes.
|
46,744 | 346 | QUESTION:
Usually three?
ANSWER:
Yes.
|
46,745 | 346 | QUESTION:
And they would ask -- or could ask questions?
ANSWER:
Yes.
|
46,746 | 346 | QUESTION:
But did whoever was there representing the Department,
did they play an active role in the proceedings,
asking questions?
ANSWER:
They did at times, yeah. Yes, they did, yeah. But
43the questions were usually directed to the legal team
or to the expert witnesses but very rarely to
the individual givin... |
46,747 | 346 | QUESTION:
Would the Department make competing submissions? So
if you have got the claimant's representative making
a submission as to how the loss of earnings should be
calculated and what figure the tribunal should award,
would you have the Department making submissions to
say, "No, no, it should be a lesser figure"... |
46,748 | 346 | QUESTION:
So it's an element of individual recognition?
ANSWER:
Yes.
|
46,749 | 346 | QUESTION:
The recognition of the impact there has been on that
individual's life?
ANSWER:
Yes.
|
46,750 | 346 | QUESTION:
In terms of the disadvantages of the scheme, would it
be right to understand that the major downside has
been the length of time it has taken for some cases to
be finally resolved?
ANSWER:
Yes, I mean, I think the process has been very good
for the vast majority of people but some cases have
taken several ye... |
46,751 | 346 | QUESTION:
And has there been any expressions of dissatisfaction
46on the part of those who have made claims, that you're
aware of, or, broadly speaking, have those who have
participated made their claims to the tribunal been
content or accepting of the outcome?
ANSWER:
Well, I think where there was any level of
d... |
46,752 | 346 | QUESTION:
There is obviously no such thing as a typical case,
but is there a typical length of time that it's
taken -- for those who were directly infected, to the
primary cases, not the secondary cases, and who were
infected as adults, so if we leave aside
the additional complications in terms of time that
might aris... |
46,753 | 346 | QUESTION:
I'm going to move now to a separate issue, which is
the health amendment card and the Health Amendment
Act -- or the Health Amendment Card Act, I think it
50is. Can you tell us first of all, in broad terms, how
the Irish healthcare system works and what a medical
card is?
ANSWER:
Well, a medical card i... |
46,754 | 346 | QUESTION:
Now, you've told us, in your statement, how the Health
Amendment Act Card came about. Can you just summarise
for us, what led to the campaign for that scheme to be
51set up, and what you think swayed the Government and
influenced the Government into setting up?
ANSWER:
It was not a hard battle. Unlike... |
46,755 | 346 | QUESTION:
If we just look briefly at the Act, WITN7418005,
please. If we go to page 3.
We've got the Health (Amendment) Act, 1996, and we
can just pick up the essence of it in paragraph 2:
"A health board shall make available without
charge to persons who, in the opinion of the chief
executive officer of the board, h... |
46,756 | 346 | QUESTION:
Then if we look at the guide you've appended to your
statement, WITN7418011, this is a 2020 piece of
guidance about the working of the card, and I think if
we can pick it up on page 3, under the heading
"Introduction":
"This 2020 Information Guide to Services is for
persons who contracted Hepatitis C through... |
46,757 | 346 | QUESTION:
Then if we go down to the bottom of the page, under
the heading "What is the HAA Card?":
"The ... Card is for eligible men, women and
children who contracted Hepatitis C from the
administration within the State of contaminated blood
or blood products. It is not the same as a medical
card [you've told us wha... |
46,758 | 346 | QUESTION:
Then there is reference to a Drug Payment Scheme Card;
what's that?
ANSWER:
That's if you have prescribed drugs there is a limit
you have to pay every month, and after that you get it
reimbursed anything additional you pay.
|
46,759 | 346 | QUESTION:
Then this guide goes on to explain that the:
"The HAA Card gives eligibility to additional HSE
services, on more flexible terms and conditions than
the medical card."
And then it explains it's for the lifetime of
the card holder, and it's personal to the card holder.
So it doesn't extend to family and member... |
46,760 | 346 | QUESTION:
Was there a concern when this scheme was enacted that
55it would be unfair or amount to some form of queue
jumping because it was prioritising or conferring an
entitlement upon a particular group of individuals
that others would not have?
ANSWER:
No, because the 3,500 individuals had developed
serious m... |
46,761 | 346 | QUESTION:
So it wasn't something that was -- has led to any
resentment or any sense of unfairness from the rest of
the population to your knowledge?
ANSWER:
No, none whatsoever.
|
46,762 | 346 | QUESTION:
Then you've set out in your statement, if we go back
to the statement, WITN7418001, and we go to page 33,
please, paragraph 77.
So you've set out in paragraph 77 the services
that those who hold the HAA card receive, or are
entitled receive?
ANSWER:
Yes.
|
46,763 | 346 | QUESTION:
The first is:
"Open Access to public hospital facilities for
Hepatitis C or any related condition. The cardholder
should not have to wait more than two weeks for an
56appointment with their liver specialist and also for
their first referral to another specialty. This is
generally referred to as the tw... |
46,764 | 346 | QUESTION:
Then if we continue through the list of services, so
if we go further down the page, we've got:
"Access free of charge to a registered [GP] of
[the individual's] choice and to all GP medical and
surgical services for all medical conditions."
58And you've explained how that is different from
the position... |
46,765 | 346 | QUESTION:
Then if we go over the page, we can see the list
continuing:
"Access to chiropody and podiatry services ...
"Access to complementary therapies [and that
includes] massage, reflexology, acupuncture,
aromatherapy and hydrotherapy."
And they're all set out in the guide that we
looked at a few minutes ago, and ... |
46,766 | 346 | QUESTION:
Then if we just go to the next paragraph. We can see,
61here, the reference to home support services.
ANSWER:
Yes.
|
46,767 | 346 | QUESTION:
Now, as I understand it, this is something that's
distinct from the home nursing service?
ANSWER:
Correct.
|
46,768 | 346 | QUESTION:
That's meeting clinical needs, care provided by, or
arranged by nurses?
ANSWER:
Correct.
|
46,769 | 346 | QUESTION:
This is more along the lines of domiciliary support,
assistance within the home with household tasks; is
that right?
ANSWER:
Yes.
|
46,770 | 346 | QUESTION:
And, again, what's the take-up and importance been of
that particular service?
ANSWER:
There has been a significant take-up of that.
A significant number of our members, certainly, would
have a home worker who comes in and does tasks around
the house: cleaning, cooking, ironing, gardening.
They would receive... |
46,771 | 346 | QUESTION:
Now, you were asked in your statement whether you
thought the HAA card was a success and you've said
unequivocally yes. Why is that? Why is that your
view?
ANSWER:
I would have said if we were speaking back in '95,
'96, '97, our members were much more concerned about
compensation on these issues and the fo... |
46,772 | 346 | QUESTION:
And same question as with the compensation tribunal.
63If you were setting up the scheme again from scratch,
would you make any changes to it or has it worked in
the way you would have wished it to?
ANSWER:
No, I think I wouldn't make any changes, I think it
works very well. I would clarify, perhaps,
t... |
46,773 | 346 | QUESTION:
And so we have the Hepatitis C Compensation Tribunal
(Amendment) Act 2006, which set up the scheme. And
I think we've got some regulations?
ANSWER:
Yes.
|
46,774 | 346 | QUESTION:
But I don't think we need to look at those.
68If we go back to that guide that we were looking
at earlier, because it's got a section on insurance,
and think it might be a convenient way of picking it
up.
WITN7418011, please, page 23.
So we've got the heading "Insurance Scheme",
travel insurance, mort... |
46,775 | 346 | QUESTION:
If you don't fall within either of those categories,
I don't know if there are any who would, you then have
to make out a case for eligibility?
69ANSWER:
Yes.
|
46,776 | 346 | QUESTION:
But essentially it's proof of infection or acceptance
that you were infected and infected through blood or
blood products?
ANSWER:
Yes, but you don't have to keep proving it. So as you
say, if you have an HAA card or if you got an award
from the Compensation Tribunal, as a person with hep C
or HIV then you ... |
46,777 | 346 | QUESTION:
Then if we just go back to the top half of the page,
so we can see the three types of insurance under the
scheme, so: life insurance, mortgage protection and
travel insurance.
Can I deal with life insurance first of all. How
does that work in practice? What does this give
people that they would otherwise h... |
46,778 | 346 | QUESTION:
Is this underwritten by the state?
ANSWER:
Yes. And in fact the -- so what happens is, we have
two insurance companies who provide policies under
the scheme. They have to be accepted by the scheme.
And then the insurance company will -- you know,
they'll do an evaluation, as they normally do, and
then they... |
46,779 | 346 | QUESTION:
Just sticking with life insurance for a moment, how
72important has that been for your members?
ANSWER:
I think it's been very important because it means that
individuals can take out life insurance at
a reasonable cost; they can provide for their family,
their dependants, in the event of their death up... |
46,780 | 346 | QUESTION:
Then the second type of insurance, the mortgage
protection insurance for a new primary home or repair,
renovation or refurbishment of current primary home;
does that, essentially, work in the same way?
ANSWER:
Yes.
|
46,781 | 346 | QUESTION:
But you've told is in your statement that the uptake
of that has been relatively low. Do you know why that
was?
ANSWER:
I think there was a reasonable uptake in year 1 but
after that, it just -- people just haven't been taking
it up. I'm not sure why. It's surprising. To me,
also, with the life insurance... |
46,782 | 346 | QUESTION:
Then the third form of insurance is travel insurance.
Again, is that essentially done in the same way, so
you're insured in the way you would be if you were
in --
ANSWER:
Perfect health.
|
46,783 | 346 | QUESTION:
-- perfect health, and then the increase is
effectively underwritten or paid for by the state?
ANSWER:
Yes.
|
46,784 | 346 | QUESTION:
And how important has that been for --
ANSWER:
Extremely important, I think the vast majority of card
holders take that out, especially now we've started
travelling again post-Covid, but it's really
important. It means that the individual and their
family can take out travel insurance. That's been
very, ve... |
46,785 | 346 | QUESTION:
You told us how this was something raised back in
the '80s and it took all of the way through the
discussions following the 2002 Act and the Lindsay
Inquiry report for this to eventually come to
fruition. Was there resistance on the part of
Government or was it just ignored or ...?
ANSWER:
There was a littl... |
46,786 | 346 | QUESTION:
Then just a final question from me for now, Brian.
Those three types of scheme that we've been looking
at, so the provision for compensation through
the tribunal, the HAA card and then the insurance
scheme, these are all measures that have been taken by
the state --
ANSWER:
Yes.
|
46,787 | 346 | QUESTION:
-- in recognition, would this be right to say, of
the suffering and disadvantage that individuals have
experienced through treatment at the hands of
the state. As well as the obvious benefits of
the schemes themselves, the provision of financial
assistance, access to health services and so on, how
important... |
46,788 | 346 | QUESTION:
Then does the HAA card cover the joint operations for
haemophiliacs?
ANSWER:
No, that's entirely under the Haemophilia Service.
|
46,789 | 346 | QUESTION:
The home care that you described, what's the source of
funding for that? Is that the Department of Health?
ANSWER:
The Department of Health.
|
46,790 | 346 | QUESTION:
I asked you earlier about how the tribunal approaches
the assessment of the cost of care, if carers are
making a claim, and you indicated you weren't sure of
how they approached it?
ANSWER:
Yes.
|
46,791 | 346 | QUESTION:
Is there a way we would be able to find that out?
ANSWER:
Absolutely. I think if you were to contact
Raymond Bradley from Malcomson Law, he would have
79dealt with vast majority of cases of carers, so he
would have all of the detail.
|
46,792 | 346 | QUESTION:
Thank you.
In terms of the information that's publicly
available about the tribunal's approach, does the
Government publish data about the awards?
ANSWER:
The tribunal publishes an annual report and they
publish the total number of cases heard and then
the -- the -- sort of, the total awards, and you can
div... |
46,793 | 346 | QUESTION:
You gave some figures that are quoted in
the Archer Inquiry Report about both the range and
average. Are those still accurate, do you know, or
has there been a significant change since then?
ANSWER:
Can you remind me what figures I quoted for Archer.
|
46,794 | 346 | QUESTION:
I can. I haven't got the report in front of me, but
the final report says that you told the Archer Inquiry
the average payment was -- it's about EUR 850,000,
from a range of between EUR 14,000 and
EUR 3.1 million.
ANSWER:
That range would certainly be correct. It is
impossible to know what the average paym... |
46,795 | 346 | QUESTION:
And in terms of the tribunal awards, is it right to
understand then that the individual awards are not
published? There is no --
ANSWER:
That's correct.
|
46,796 | 346 | QUESTION:
There is no decision from the Tribunal?
81ANSWER:
That's correct.
|
46,797 | 346 | QUESTION:
If they are appealed to the High Court, the High Court
judgments would be publicly available?
ANSWER:
Not that I'm aware of, no.
|
46,798 | 346 | QUESTION:
Just --
ANSWER:
Again, I think right through every step of this
process we've taken as much care as possible to ensure
confidentiality.
|
46,799 | 346 | QUESTION:
Yes, understood.
Just turning back to the HAA card scheme. The
liaison officers, what's the background of
the officers?
ANSWER:
They would generally be health service employees.
They would be -- perhaps some of them would have
a nursing background but generally they'd be health
service employees. But cruci... |
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