Wednesday, 23 April 1986
Seanad Eireann Debate
An Cathaoirleach: Before Committee  Stage begins I should like to inform the House that amendments Nos. 4 and 5 have been ruled out of order on the grounds that they could have the effect of imposing a charge upon revenue.
Mr. Fallon: I had this amendment prepared long before Senator O'Leary spoke. I, indeed, dealt with whether it should be “may” or “shall” and I did feel that Senator O'Leary felt that that was important. Naturally, I am disappointed that it is not being taken. The discretionary aspect of the Bill is vital in this matter. I did feel that this amendment was important. So I am expressing my disappointment.
In regard to this change of words, the worry would be that a subsequent condition set in after a claimant had been paid his compensation and after the health board had been paid their due entitlement for hospitalisation and in-patient and out-patient treatment. Let us say some other condition set in four or five years later as a direct result of the accident, the danger would be that the health board would subsequently be entitled to go after that person. If the person had to go to hospital or receive in-patient or out-patient treatment, the health board would pursue that patient on the grounds that the ultimate cause of the injury was a road traffic accident. Health boards are at the moment and probably for the next ten years will be very anxious to get as much revenue as they can. They will seize every opportunity to get funds. Unless this section is changed, in my opinion, it will give the health board the opportunity to go after that person for the cost of hospitalisation for the second time, even though the insurance company has paid up on the  first occasion. Certainly, that is something that we would have to be worried about. When the award is made, we will be told that is the award plus what hospitalisation has cost. The health board will get their due financial entitlement for the stay in hospital and in-patient and out-patient services. Something may happen. I gave an example on Second Stage: say in four or five years time arthritis or some other condition sets in as a direct result of the initial accident which hospitalised the person in the first instance. If the health board can then proceed in the knowledge that their resources will be scarce they can go after the claimant and recoup money for the second stay in hospital.
Mr. Durcan: Lawyers are often criticised for the delays on their part in bringing personal injuries actions to completion. One of the reasons is that it can often take time for doctors to give a definite prognosis as to the nature and extent of the injuries suffered by the injured party. For that reason I do not agree with Senator Fallon's amendment. In accepting any claim or in compromising any claim, one should be sure of the full nature and extent of the injuries sustained by a person. In the event of there being a possibility of these injuries continuing, then one should be able to evaluate the cost of providing treatment in respect of those continuing injuries. Therefore, it is only right that the health board should be able to recover in respect of any cost incurred by them in respect of continuing injuries. It seems that this subsection, as drafted, allows them to do that on a continuing basis. Having said that, it does put the onus on the injured party or on the injured party's advisers to ensure that the matter is not settled or compromised too speedily. For that reason I cannot find myself in agreement with Senator Fallon.
Mr. Durcan: That is something that the injured party through his or her medical and other advisers should be aware of  before the matter is compromised. In that way the health board or anybody else who provides continuing treatment will be protected. I cannot agree with the amendment.
Mr. Mullooly: The costs involved in continuing treatment can only be estimated. I am sure that it would not be possible in any given case to calculate or compute accurately what the costs will be. If the compensation or damages awarded to a patient is inadequate to cover the continuing costs, then it appears that this section will leave the patient liable to provide from within other elements of the compensation awarded a sum in respect of the additional treatment costs which arise.
Mr. Robb: I support the points that have been made. You cannot be absolutely certain of how a very serious injury is going to evolve over years. No matter how much you may try, it will be extremely difficult.
Let us take the case of severe burn as a result of a road traffic accident. The person injured may have to go back into hospital 20 times, or even more, for various skin grafting procedures and reconstructing procedures over a large number of years. I am certain that if those three words stay in the Bill this will indeed be a cause of great escalation in the charges of insurance companies to clients, because they will have to cover themselves. There comes a point where one has to accept the State's obligations in relation to ongoing treatment of such a person. To emphasise the point again, in spite of all the legal and medical expertise, it is almost impossible to quantify how much complication is going to cost over the years, how many attendances at hospitals will be necessary, what these will involve and how often they will occur.
Mr. Durcan: Much mention has been made today of the case of Cooke v. Walsh, the case which held to be ultra vires the power of the Minister in the regulations made under the Health Act, 1970. In relation to the point made by Senator Fallon, it may be relevant to  point out that that case, which was an appeal against a decision of Mr. Justice Hamilton in the High Court sitting without a jury, related to special damages in this area which amounted to £99,000 approximately. That figure was apportioned as between £69,000 in respect of charges incurred for hospitalisation and health board charges up to the date of hearing, and £30,000 in respect of an evisaged future cost of hospitalisation and treatment. The fact that courts make award based on expert evidence which takes account of future cost justifies the section as it stands.
Mr. Mullooly: Is it envisaged in the section that the health board will charge in anticipation of the treatment that may be required at some future date? If that is so and if the charge is in excess of the amount required to pay for the treatment what will happen to the excess amount? If the patient dies during the course of the treatment the health board will have charged an amount in excess of the amount which should be duly charged for the treatment provided. What will happen to the excess amount that has been charged by the health board?
Minister for Health (Mr. B. Desmond): I am in total agreement with the conduct of the case by the legal and medical advisers on my behalf on this issue. Unquestionably, if the amendment is accepted it will, with respect to the Senators moving it, cause enormous problems for the health boards in terms of the provision of future maintenance for persons requiring long-stay hospitalisation or, indeed, hospitalisation for life arising out of such accidents. The adoption of the amendment would preclude a health board from anticipating a claim in a levy on the part of the health board. While admittedly a health board in notifying the victim of the accident, would only specify the amount of money incurred to date, it would, nevertheless, indicate — so that he could lodge in court — how much it is likely to cost him in future on an on-going basis in the event of additional hospitalisation and medical  treatment on a continuing basis being required. It would then be up to the court to determine the amount. If one were to delete the words “or will be”, then inevitably a health board would be precluded from such an anticipation. That would pose grave difficulty for a health board in dealing with such cases. On reflection, the thrust of the Bill and the purpose of it, would be substantially diminished if the amendment was adopted.
Mr. O'Leary: What the Minister has stated in relation to anticipatory demands by the health board is interesting. I will take the case of a person who has been charged £5,000 or £10,000 for services rendered in the past. In the opinion of the health board he will require the services of another £10,000 a year indefinitely into the future. Supposing they make this claim and, as a result, the court decides that it is going to give only £5,000 a year into the future for some reason or other, can the health board still charge £10,000? Will it exercise its discretion here? Is it entitled to charge £10,000 a year if the person actually uses the services subsequently to the extent of £10,000?
Mr. B. Desmond: The computation of medical costs is unquestionably done on a general actuarial basis and on an argumentative basis between the plaintiff's representatives and an anticipatory prospect. One would have to in year one — most likely for 1986 — to multiply £800 per week by 52. With anticipation one may have to have a major actuarial debate on the precise estimate of cost. We now have young children with broken backs, broken necks and broken pelvis, arising out of accidents who will be in hospital for the rest of their lives fed by a tube.
Many of them will live for a long time. The cost of that can be computed and it must be done. The costs are quite substantial. It is those moneys which insurance companies will be obliged to provide for in a settlement. We are talking about £4 million to £5 million per year in 1986 terms.
Mr. Ferris: Before we suspend the sitting until 6.30 p.m. I should like to announce that in the event of the Private Members' Business not taking the amount of time allocated we may return to the Bill.
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