Non-adversarial system for brain injury cases proposed

Minster for Health Leo Varadkar has suggested the Government could consider introducing a non-adversarial system for dealing with the cases of children who experience serious injuries at birth.

At present, he said, in order to get compensation to pay for the needs of the child, families effectively had to prove there had been negligence in the provision of care.

However, he suggested that introducing a new non-adversarial system – such as the establishment of a medical injuries assessment board to set levels of compensation – would represent a major change and would be very expensive.

On RTÉ Radio One's Marian programme yesterday, Mr Varadkar said he believed society would be willing to bear this bill and it was a conversation that should take place.

He said at present, where the HSE or a voluntary hospital was sued, the legal strategy was handled by the State Claims Agency.

The Minster said the current system was “very adversarial”. He said there were lawyers on both sides who could be quite aggressive sometimes. Some lawyers may be getting a proportion of the overall payment and some who may be getting fees for every day a case continued, he added.

Mr Varadkar said the Government was currently planning three measures this year. He said one was the introduction of pre-action protocols to reduce dramatically the length of time in dealing with cases.

Periodic payment orders to allow for money to be paid on a phased basis and reviewed as needs changed rather than being given in one lump sum were also under consideration. He said the third initiative would see legislation put in place to underpin the concept of open disclosure by doctors and other staff about incidents.

The Minister said this policy was being adhered to at present on a hit-and-miss basis. He said it was “not where we would like to be as yet”. He said the new legislation would underpin the concept of open disclosure and protect it”.

“The fourth thing we might consider is offering a totally non-adversarial system but I have not decided on this as of yet.

The Minister suggested that this could involve the establishment of a medical injuries assessment board “where people could go in and maybe get the supports they need”. However, he said that one of the difficulties in such a scenario was that medicine was not an exact science.

“People have birth injuries and have cerebral palsy and other problems for biological reasons, by and large. It is not always down to medical misadventure or negligence .”

“At the moment to get compensation to look after child you effectively have to prove somebody was negligent in handling of your care. Maybe that’s wrong, maybe we should just provide the services that people need, full stop, whether somebody was in the wrong or not.”

The Irish Times reported last year that the State was facing a potential financial liability of more than €1 billion to deal with medical negligence claims in public hospitals and HSE facilities.

Department of Health briefing material maintained the number of clinical claims under active management by the State Claims Agency rose from 1,792 at the end of 2012 to 3,061 at the end of 2013. "The estimated potential liability has similarly risen over the same period from €642 million to €1,037 million."

The HSE has come under fire recently over the length of time such cases can take to reach a conclusion and the tactics employed.