3 June 2004
Dr. Henry: I am opposed to the entire section. However, perhaps the Minister will accept Senator Terry’s amendments and I can withdraw that opposition. He has support from everyone in the House in terms of trying to deal with the fact that people put forward exaggerated, whatever about fraudulent, claims. In my profession as a doctor I have said to people, “I am not a lawyer and I hope you will not be relying on what I can do for you in the courts”. It is a fact that people bring forward exaggerated claims.
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Dr. Henry: I, too, thank the Minister for his thoughtful response. I have a question about one group of cases about which I am not clear and, again, they relate to the medical negligence sphere. As the Minister will be aware, the Medical Defence Union and the Minister for Health and Children are in dispute regarding historic obstetric claims. What is the position regarding claims for cases of obstetric cerebral palsy, which do not come before the courts for six years on average?
Senators O’Meara and Terry also raised the case concerning claims made by women in the Drogheda area who for many years did not know they had been injured. What is the position with regard to people with historic obstetric claims or those who do not realise they have an injury until many years after the event?
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Dr. Henry: We had a good discussion on the amendments to the section. I signalled this opposition to the section, which was intended to go for the jugular, shortly after Second Stage before I received any representations on the issue. Cheshire Ireland requested that the period of limitation should be two years rather than one and I am sure the Minister would agree that the organisation is not a vested interest but rather views the issue dispassionately and out of concern for the patients for whom it cares.
I was taken by the Minister’s point that there must be justice for the defendant as well as for the plaintiff. A very long time span is extremely difficult for a defendant. I will ensure the Minister’s kind words of concern about the medical profession are passed on. I am happy to say I have never had one, but having medical negligence claims hanging over one’s head has a terrible effect on people, psychologically and physically and on their careers.
Question put and agreed to.
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Dr. Henry: I agree this is eminently sensible. There are various degrees of severity of a broken ankle but the person’s occupation should also be taken into consideration. For example, if I lost the tip of my little finger it would be very sore and upsetting for me but it would not be the same as for a concert pianist.
I have compared awards given by the courts here to those given in the United Kingdom. Are they mean and are we flathúlach, or do we suffer greater anguish when we are injured because the awards for similar injuries here are much greater than those given in the United Kingdom?
Progress reported; Committee to sit again
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Dr. Henry: That seems like a very good idea. Anecdotal evidence has it that some people are terribly accident prone. Is it right that all courts will report into this register? It will not be the case that accidents in Cork will simply be registered on the Cork courts register and there will also be one for Dublin and elsewhere? Will it be the same register for the whole country?
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Dr. Henry: If Mary Henry is constantly falling down potholes, will these cases appear one after the other or would people have to keep searching for my name every six months or so?
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Dr. Henry: I move amendment No. 39: In page 22, between lines 16 and 17, to insert the following subsection:
“(2) Access to proceedings to which the relevant enactments relate shall be permitted to bona fide academic researchers, subject to such terms and conditions relating to access as may be prescribed in regulations made by the Minister: provided that nothing published by such researchers shall contain information which would enable the parties to the proceedings or any child to which the proceedings relate to the identified.”.
As Senator O’Meara stated, this section is most important. My amendment is designed to ensure there will be access to the documents of the courts by bona fide academic researchers. The Minister and I recently attended the launching of a document by Baroness Onora O’Neill about freedom of expression and freedom of the press. As the Law Reform Commission and others have pointed out, we want to build up, with this legislation, a body of jurisprudence. In addition, I would like the public to be in a position to know how serious are the cases that come before the family courts. However, we do not want those courts to become places where sensational cases, albeit it in an anonymous way, are reported. These are most serious issues and usually cause great distress for the families involved.
I was somewhat surprised that the Minister did not merely reinstate the Courts Service’s family law reporting project into the legislation. What is contained in the section is slightly different. We must ensure that people who are involved in serious research on family law will have access to the papers of the court and that this will not just be seen as a reporting situation. I do not believe that is what the Minister wants.
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Dr. Henry: I am concerned that people do not believe that resources are involved in this area. I hope the Bill will include a provision to the effect that adequate resources will be given to the Courts Service to bring forward such evidence that is considered useful. The Courts Service must be provided with whatever funds are required.
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Dr. Henry: Regarding amendment No. 40, the national network of women’s refuges and support services put it to me that the following type of information needs to be gathered: the age, gender, nationality, ethnicity and family status of all applicants; the age and number of children involved; the number and nature of applications made and whether previous applications exist; whether domestic violence is alleged; the nature of legal representation, if any; the existence of Garda or health board intervention; and the outcome of the application. All this information should be gathered.
Also, in cases where there is domestic violence there is need to examine whether a weapon was used and if so, what type of weapon. We should also have details of breaches of orders such as barring orders. We need to know too the outcome of an application to include sanctions imposed by criminal courts. Detail is sought so we can know in exactly which areas the public is under most stress and where social services are most needed to intervene. If the Minister is prepared to consider allowing the gathering of this sort of information, the data we get will have a large application.
Progress reported; Committee to sit again.
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