Brain damage compensation scheme setback

Legal difficulties: The Government's plans to introduce a no-fault compensation scheme for brain-damaged infants have run into constitutional difficulties.

Tánaiste and Minister for Health Mary Harney has told the Dáil in a written parliamentary answer that the Attorney General had raised concerns about the constitutional implications of no-fault schemes in general.

The work of an advisory group established by the former Minister for Health Micheál Martin to examine such a system for children with conditions such as cerebral palsy has, effectively, been put on hold as a result of the Attorney General's advice.

The group was established in 2001 on foot of criticism that parents with children born with conditions such as cerebral palsy had no option but to sue doctors, hospitals and health authorities for negligence to secure funding for life-long care.

Such negligence actions can take several years to come to trial and ultimately can cost many millions in awards and legal costs.

The chief executive of the National Treasury Management Agency, Dr Michael Somers, told the Dáil Public Accounts Committee several weeks ago that such cases involving brain-damaged infants were the most expensive the State had to deal with.

The advisory group established by Mr Martin to study the operation of no-fault schemes abroad and to examine the implications of such a system here met 19 times between 2001 and 2004.

However, its work was later suspended because of a row between hospital consultants and the Government over insurance cover.

That dispute was largely resolved earlier this year, but in the meantime the Attorney General's advice emerged.

It is understood that the potential constitutional problems arose when the Government was considering the issue of a no-fault compensation scheme for psychiatric nurses.

Ms Harney in her parliamentary reply said that the advice received from the Attorney General raised some questions "about the constitutional implications of no-fault schemes in general".

She said that she was considering the implications of re-establishing the group.

"In the event that it is re-established, I am certain that the excellent work already undertaken by the group can be built upon," Ms Harney said.

In his presentation to the Public Accounts Committee Dr Somers said that cases where something went wrong in the area of obstetrics could "cost a fortune".

He said that in one case which the State Claims Agency had been dealing with recently a child born with cerebral palsy had received a court award of €4.7 million.

However, in addition, legal costs of the plaintiff alone ran to €840,000.

Dr Somers said that there were 15-20 such cases involving brain-damaged infants at various stages in the legal system.

The State Claims Agency told The Irish Times last week that the State is facing a bill of more than €160 million to settle 1,300 claims for alleged medical negligence.