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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 of the
page, section 3 establishes the Tribunal:
"... a Tribunal to be known as the Hepatitis C
Compensation Tribunal to award compensation ..."
25And to a class of claimants.
Now, just before we look at who could claim from
this Tribunal, this uses the term "compensation"
rather than "ex gratia payments", so was that
significant to your mind, that this was an acceptance
of compensation, rather than the making of a payment
to dispose of litigation?
ANSWER:
Yes, because there was no litigation ongoing at
the time in relation to hepatitis C infection, and
the word "compensation" was used very clearly by
Government and, in fact, they're not going to put
the word in an Act without thinking it through,
whereas in 1989 the word was banned, they talked about
"recompense" or "ex gratia payments" without admission
of liability. "Compensation" was clearly understood
to be compensation in --
|
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 -- the discussions started
four years before the tribunal started hearings and
six years before the report. So I think they had
26clearly -- I think the Government put their hand up
and accepted responsibility at that point. Yeah,
there was no legal admission of responsibility but,
clearly, they were paying compensation.
|
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 subsection 7, so it's the fourth
paragraph down:
"... a claimant shall not be required to produce
to the Tribunal any evidence of negligence of the part
of a relevant agency or other person in respect of her
or his claim."
So there was no investigation by the tribunal of
liability. The claimant had to establish that they
had been infected through either anti-D or blood or
blood products provided by the state, but that was all
they needed to show in order to establish
27a prima facie entitlement to compensation?
ANSWER:
That's correct. And, in fact, in the case of a person
with haemophilia, just being able to show, from
medical records, that the person had received factor
concentrate -- plasma-derived factor concentrate, was
deemed sufficient proof. And I think, yes, there
was -- in relation to negligence, if the individual
believed that they were entitled to aggravated or
exemplary damages they could look for that or, instead
of that, they could also -- any award that they would
get would be topped up by 20 per cent from a so-called
reparation fund.
|
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 entitlement to such against
a relevant agency or the Minister."
ANSWER:
Yes.
|
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
were entitled to aggravated or exemplary damages could
seek those as part of their hearing. If they decided
not to seek that, their award was automatically topped
up by an additional 20 per cent.
|
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 because of
lost or missing or incomplete medical records.
Do you know whether that was a problem in Ireland
for those infected through the transfusion route?
ANSWER:
Not that I'm aware of, and certainly we had quite
a lot of dealings with Transfusion Positive, the group
who represent people who got hep C through blood
30transfusion. I hadn't heard that raised as an issue.
My understanding, again, is that the Government took
the view that, you know, if you had haemophilia and
you'd been treated with your factor concentrate or
cryoprecipitate and you got hep C, that was the cause.
If you could ever show that you had a blood
transfusion, that was sufficient cause. And if you
had received anti-D in one of a number of particular
years, that was the cause.
|
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 an
initial award, especially if the individual was
concerned about progression of liver disease or what
they were facing in the future. And then there would
be specific wording in their tribunal award which
would allow them to go back for further compensation
in specified circumstances. For example, an
individual who had cirrhosis might have wording in his
award saying that if he or she required a liver
transplant and there were costs associated with that,
31they could then go back to the tribunal for a further
award. So I think a number of people -- also some of
the younger claimants whose career path had not been
set, where the impact of the hepatitis C on their
medium to long-term future could not be wholly
ascertained, would often have a provisional award and
then go back later on for a full award.
|
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
assessing damages. It was as if you had won a court
case and there was purely an assessment of damages.
So there was no talk about liability or negligence, it
was purely -- it was as if a court case had been
completed, yes.
|
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 would act on
behalf of any member who wanted them to act on their
behalf, and that we would also search out expert
witnesses that many of them could use. So they really
relied on us to find a legal team and to find a lot of
expert witnesses.
Now, of course, any individual was entirely free
to get their own legal team and their own expert
witnesses, but vast majority used the same legal team
and used the same expert witnesses, which actually was
really helpful because they quickly developed a level
of expertise and skill on this.
|
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 significant increase in the award.
So I think that did start the tribunal thinking in
terms of giving higher awards. So perhaps the
number of appeals diminished but there were still
appeals.
|
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 had constant meetings with Government
on various issues. But one of the things was pressing
for was that we felt that the 1991 awards, while very,
very welcome at the time, were -- were -- they were
not fair and equitable compensation for people who
got HIV. We felt, really, that those individuals had
been shortchanged, and in particular -- in
particular -- the families of those who had passed
34away prior to 1991.
So it basically came about, I think, as a result
of our discussions with Government and, frankly, the
public impact of the very powerful public testimony at
Lindsay.
|
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 apply for compensation
following the amendment. So, similar to what we've
seen previously, but now encompassing HIV and the
children or spouses of those infected with HIV,
dependants and carers, HIV as well as hepatitis C?
ANSWER:
Yes. And I think the significant part of that for us,
really, was if you look at the section e, that the:
"Widows or Dependants of those who had died."
So the individual was no longer disadvantaged by
the fact that they'd passed away prior to the 1991
Act, their families were getting the full compensation
that they would have been entitled to had they
survived to that point.
|
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 society ([so] loss of [the] ...
care, companionship or affection);
"d. Dependents could also claim for aggravated or
exemplary damages ..."
Where there was a legal entitlement that could be
established.
These extensions covered both HIV and hepatitis C?
ANSWER:
Yes, correct.
|
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 those
infected with HIV?
36ANSWER:
That's correct, and bear in mind, however, that all of
those were infected with HIV were also co-infected
with hepatitis C, so they had been compensated
previously through the '91 settlement, but also
through the 1997 Hepatitis C Compensation Tribunal
Act. But this broadened it, really, to give more
compensation to people with HIV and, particularly, to
the families of those who had passed away.
|
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 may have had to pass up on due to
the hepatitis C, or HIV. So it's basically based on
an assessment. There might be an educational
psychologist and a couple of expert witnesses.
|
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 that, but when
you're having an individual assessment, each
38individual's circumstances are going to be different,
their experience is going to be different, their life
with hepatitis C or HIV or both is going to be
different, the impact on their life is going to be
different, so I think you really need an expert team
to put that in place.
It's a legal process, so, you know, the vast
majority of individuals would have no idea how to
approach that, and there is a lot of structure
involved in terms of putting the case, you know,
getting it prepared. So I think you do need a legal
team, you need expert witnesses, and frankly, their
costs -- it's been very, very helpful that their costs
have been borne by the state as part of the process.
|
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 in
that regard. Can you just help us understand a little
more about that?
39ANSWER:
It's very daunting for individuals with haemophilia
who have been exposed to HIV or hepatitis C to have to
stand up or sit down at a legal hearing and make their
case. So even preparing for a non-adversarial hearing
was very, very difficult for many of them because it
means revisiting all the trauma, all of the issues
over the years. It was really helpful that, from
day one, the tribunal was -- it was sympathetic, in
terms of the way that the individuals were dealt with.
It wasn't -- it wasn't adversarial in terms of
the questioning.
They would, of course -- there would be questions,
they would question the figures, they would question
some of the financial statements and so on, but it was
non-adversarial for the most part. That has continued
for the most part.
Now, in the last couple of years, now the vast
majority of the cases -- primary cases, have been
heard. My understanding is the last year or two,
during Covid especially, it's become a little more
adversarial, they are trying to limit the number of
witnesses. Obviously they're doing virtual hearings
and they're questioning more. But I think that, for
the vast majority of our members going through
the tribunal, it was genuinely non-adversarial.
40 |
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 HIV
through blood or blood products. There would be
a summary, I guess, of their medical records. There
would typically be a report from the haematologist who
treated them and the hepatologist or infectious
disease consultant who were treating them for HIV or
hepatitis C respectively.
There would be -- usually the individual going to
the tribunal would be asked by the legal team to
draft, basically, an essay on the impact of
hepatitis C or HIV in their life. They would draft
that, that would be included.
There would be reports on loss of earnings, there
41would be reports on the impact on their life, there
would be a report from an educational psychologist,
and also a counsellor who was specifically employed by
the legal team, there would be a psychological
assessment. So there would be quite a lot of reports
going in.
|
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 public
finances -- but that was it really, there was no
adversarial people there. But the Department of
Health were usually represented. The legal team,
the individual, perhaps their family member -- before
the hearing there would often be somebody from
the Society -- one of my team might be with them
outside just to help them through the day, help them
make arrangements and so on.
|
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 giving evidence on their own behalf.
|
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"?
ANSWER:
Not that I'm aware of, no. You could, perhaps, check
that with the legal team we had, but not that I'm
aware of, no. I think they would -- they may question
the submission that was made, but they wouldn't
normally submit an additional submission of their own.
|
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 years to get to a hearing. If
the individual who was infected was a child, then you
can't really ascertain their loss of earnings or their
future potential career possibilities for many, many
years, so there may be a provisional award, an award
later, and that has meant that the process has taken
quite a long time for some people. And, you know,
even though it's a very good process, it does delay
closure. So until an individual has finished entirely
with the compensation tribunal, it's kind of hard to
bring some closure to the issue. So I think that's
the -- the big disadvantage is the time required.
|
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
dissatisfaction the award was appealed to
the High Court and, in the vast majority of cases,
that resulted in a significant uplink (sic) to
the award. And in some cases, in one or two cases, it
was actually appealed to the Supreme Court on a point
of law. So I think in terms of the amount there was
very little dissatisfaction. I think people genuinely
felt that this was fair and equitable compensation.
The dissatisfaction, where I've heard it expressed,
relates to the length of time that the process has
taken for some individuals.
|
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 arise in relation to children, if they were
making a claim in the late '90s or throughout the
2000s, and once it was extended to HIV, do you have
47any sense of how long typically, from the making of
the claim to the tribunal award, how long a period
elapsed?
ANSWER:
I mean, an educated guesstimate would be a year to
18 months. Some cases significantly less than that,
some cases significantly more than that.
|
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 is a card which gives
an individual free access to public hospitals, to
general practitioners, and it's means based, so it's
typically if you have relatively low income or a lot
of dependants. Generally, in Ireland, if you don't --
now, for haemophilia you have a separate card, called
a long-term illness card, which covers
the haemophilia-related costs such as factor
concentrates, ancillary supplies, they're all paid for
by the state. But for people in Ireland without
a medical card, then you pay for -- unlike the UK
National Health Service, you pay for your GPs visits,
you pay for your prescription drugs. And we have
a two-tier healthcare system: we have the public
hospitals, which are free for the vast majority of
the population, or you can also have private health
insurance. There are private hospitals or private
beds in public hospitals. So it's a mixed two-tier
system.
|
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 the compensation
battles, that was not a hard battle. I think the fact
that you had a couple of hundred people with
haemophilia; you had several hundred people who had
been infected through blood transfusion; you had in
excess of 1,000 women who had been infected through
anti-D; all of these groups collectively wanted access
to better healthcare.
So I think it was, very much, a case of coming up
with a solution for, in a sense, in relation to
the total population, a relatively small group of
people, 3,000 or 4,000 people in total. So I think
that's -- one of the reasons the card was put in place
was because the number of people who would benefit
would be finite and wouldn't be increasing. So it
wasn't a hard battle to have it put in place.
|
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, have contracted
52hepatitis C directly or indirectly from the use of
Human Immunoglobulin-Anti-D or the receipt within the
State of another blood product or a blood transfusion
and to persons of such other classes (if any) as may
be prescribed ..."
Then we have set out a number of services.
Now, this is limited to hepatitis C. It doesn't
encompass HIV?
ANSWER:
It actually does, in the sense that, I mean, all of
our members who were infected with HIV were also
infected with hepatitis C. But it does cover -- I'm
just looking at the specifics of the Act -- it does
cover HIV as well, through blood and blood products.
So if an individual had been infected with HIV through
blood or blood products but had not been co-infected
with hepatitis C, they would still get an HAA card.
|
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 the
administration within the State of contaminated blood
and blood products and are currently eligible for a
53Health (Amendment) Act (HAA) Card."
Then if we just look at the next paragraph:
"The new drug treatment for Hepatitis C has been
offered to all HAA card holders by the end of 2017 and
many cardholders have been successfully treated in the
last couple of years.
"The HAA card is a like time care ..."
So, is it right to understand that if an
individual has been successfully treated through the
new treatments and has cleared hepatitis C, they still
have the HAA card for their lifetime?
ANSWER:
Correct, because they will still have hepatitis C
antibodies.
|
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 what that is], a GP visit
card ..."
What's that?
ANSWER:
The Government have been extending free GP care to
different age groups. So you have -- so for people
over the age of 70, there's -- they can visit a GP
54without payment. For children under the age of 6,
they can visit. So they have been kind of contracted
from both ends.
We're trying to get to a point of free GP visits
but it's going to take a number of years. So that's
a card that just gives you free GP visits. It doesn't
give you the prescriptions and other things.
|
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 members. But is
there an exception to that in relation to counselling
services?
ANSWER:
Yes, the card is for the individual but family members
of a person who was infected with hep C or HIV can
avail of counselling under the card.
|
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 medical conditions as a result of medical
treatment already provided by the state, so you're
effectively giving additional and faster healthcare to
people who have already had their health impaired by
the actions of the state.
|
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 two-week rule."
Then if we go over the page:
"Once the cardholder is referred by the liver
consultant to another consultant in a public hospital
for the testing investigation or treatment of any
known or suspected condition related to Hepatitis C
(or any condition which, while not related to
Hepatitis C, requires special treatment or care as a
result of the patient's infection with Hepatitis C),
they will be given priority appointment within two
weeks for the first consultation."
And then:
"Subsequent appointments [you go on to say] with
a specialty outside hepatology [are done] on the basis
of medical need ..."
And there is no two-week rule applicable to that.
So I just want to get a sense of how this works
for the individual who has hepatitis C. This two-week
rule, the entitlement to be seen within two weeks, in
practice, at least prior to the pandemic, did that
normally take place?
ANSWER:
It did for a number of years. I would say it worked
reasonably well until such time as the direct-acting
57anti-virals meant that the vast majority of people
were able to clear hepatitis C infection.
Now, prior to that, you know, people with
hepatitis C might have the need fairly urgently for
a consultation with a dermatologist or
a rheumatologist or a cardiologist, and this was
designed that they weren't waiting in a long queue for
that. So their hepatologist could say, "Okay, this
individual, I want them to see a rheumatologist fairly
quickly", so they'd get in within two weeks. It
worked relatively well. But I think even before the
pandemic, from, I'd say, maybe 2014, 2015, once the
vast majority of people had been offered treatment for
hepatitis C, it started to unravel somewhat. So
that's one aspect of the cart that doesn't function
very well, simply because of the pressure on the
hospitals, on the pressure on the hospital beds. So
I think also the requirement for people to see
additional specialists outside of hepatology has
diminished with successful treatment.
|
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 of the ordinary medical card holder. Top
of the next page there is an entitlement to all
necessary routine and emergency dental treatment.
Then paragraph (d), free hearing tests and hearing
aids and entitlement to an eye examination,
spectacles, contact lenses and so on.
Then:
"Certain aids and appliance ..."
And you've given some examples there, walking
sticks, frames, wheelchairs, et cetera:
"Access to physiotherapy when prescribed ..."
And then:
"A home nursing service ... available in respect
of all conditions affecting the health of eligible
people."
How does that work and how much recourse to it
have those who hold the cards had to have, do you
know?
ANSWER:
I think most card holders have not had to have
recourse to that, but when they have it's very, very
significant, in some cases 24-hour nursing care. So
we've had a number of members where, certainly when
they were extremely seriously ill, perhaps near the
end of life, that they will get 24-hour nursing care
59at home.
It works really well. We had a case in the last
couple of weeks of one of our members who was being
discharged from hospital, extremely sick, and within
24 hours we had 24-hour nursing care for him at home.
So, really, there is a clinical nurse coordinator
who works for the HAA card scheme. She will assess
this very quickly. The individual or the hospital
will contact her or, if the individual contacts us, we
will contact her. There is very good liaison between
all of us so, really, we can get this in place very,
very quickly.
|
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 then:
"Access to counselling services for the affected
individual."
And then we see they're also available to
relatives or carers.
What's the role, in relation to all of these
60services, of the liaison officer?
ANSWER:
It's crucial. You've got about 3,500 cards issued in
a population of 5 million. You know, most GPs won't
have seen the card, a lot of pharmacists won't be
familiar with the card, so the role of liaison officer
is to ensure that individual gets the services which
they should be getting.
I would say their role has been really important.
There are 10 of them, they cover geographic areas, so
each individual who has a card will have an assigned
liaison officer, so if they have any difficulty
getting access to any of the services, they contact
the liaison officer and their job is to sort it out
pretty quickly. In some cases the individual will
contact us. Most weeks we're dealing with at least
one query from a member about something to do with
the HAA card. And they're usually in the grey areas
where this may or may not be covered.
And I have to say that we've found the liaison
officers to be extremely good to work with, they cut
through a lot of the bureaucracy. I would say that
the scheme has been extremely successful. It would
not have been successful if we didn't have the liaison
officers.
|
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 a defined number of days per week.
They can either -- the Health Service will employ
a home worker centrally and assign them, if they wish,
or, if they wish, they can employ them themselves and
be reimbursed for the costs of that. Because --
the latter is necessary because of confidentiality.
I think confidentiality permeates everything in
62relation to hepatitis C and that card. People are
very concerned about maintaining their
confidentiality, so in some cases that has meant that
they will employ somebody locally, themselves, and
then the costs will be reimbursed by the Health
Service.
|
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 forthcoming
inquiry than they were about the HAA card. But when
I look back on it now with the benefit of hindsight,
the HAA card has been absolutely crucial because it
gives people prioritised access to a lot of
the healthcare and services and support they need on
an ongoing basis. It has been invaluable for people
when they run into trouble health-wise. And when
people are at the point where -- if they are getting
near to the end of their life, it has been absolutely
amazing in terms of the help and support we can put in
place very quickly.
|
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,
the two-week rule, and just, you know, include it if
it's going to work and don't include it if it's not
going to work.
|
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, mortgage protection insurance, life
insurance for persons who were infected through blood
or blood products within the state.
Then we've got the general rules for the insurance
scheme, and if we just look at the whole page for
a moment, we can see there is a heading at the bottom
half of the page:
"Eligibility.
"To avail of the insurance scheme you must have an
eligibility certificate."
Then there is a description of how you get that.
Then, in terms of getting an eligibility
certificate, if you've got an HAA card or you've been
awarded compensation by the tribunal, you get
the eligibility certificate automatically?
ANSWER:
Correct, yes.
|
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 can take out the insurance.
|
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 have struggled to
get?
ANSWER:
As I said, somebody with haemophilia, without HIV or
hepatitis C, is often loaded for life insurance. If
you have hepatitis C, if you can get life insurance
you will be severely loaded. If you have hepatitis C
and HIV, you will be deemed to be uninsurable, you
won't get life insurance.
Now, the scheme, first of all, you can take out
life insurance up to your 65th birthday. But if you
took it out in the first year of the scheme, we'd
70negotiate that you could be insured up to your 75th
birthday. So in fact for the first year after the
implementation of the scheme I was like an insurance
salesman trying to get as many of our members to take
it out as possible, because you got an extra ten years
of cover. And also, if you took it out after the
first year, if you were under the age of 30 or over
the age of 50, there was one or two years until you
got full cover. So it was -- really, the optimum time
to take out the insurance was in the first year of the
scheme.
What it covers is, you will basically get life
insurance up to I think it's seven times the average
income or up to a maximum of about EUR 525,000. You
will be able to take out life insurance at the same
premium for a person of your age who is perfectly
healthy, who doesn't have HIV, who doesn't have
hepatitis C, who doesn't have haemophilia. The only
difference is if you're a smoker. They actually --
they load that along the board.
So if you've got a 50-year-old man with
co-infection, with haemophilia, with
joint arthropathy, with kidney disease, with liver
disease, he will get insurance at the same rate as
a perfectly healthy 50-year old. So it makes
71insurance attainable for people.
|
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 will quote a premium, and the premium --
there is a premium quoted to the individual, but then
there is also a premium quoted to the Government.
So, for example, with somebody who has
hepatitis C, the premium to the individual is
the premium for a perfectly healthy person. The
premium -- there is an additional premium then to be
paid by the insurance scheme on behalf of
the Government.
If the individual is co-infected and is deemed to
be uninsurable, effectively the Government becomes the
re-insurer. So they'll still look at the policy from
the insurance company, they'll still pay the same
premium as a perfectly healthy person, but in effect
there is an arrangement between the Government and
the insurance company about who pays if and when the
person passes away.
|
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 to
the age of 65 or 75, depending on when they took it
out; and it also means that if they do get
compensation they can actually use that compensation
to live their life and not necessarily have to salt it
to away to provide for their family in the event of
their death.
|
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, I would have thought
that practically every person, you know, with Hep C or
HIV, would take out life insurance under the scheme in
73year 1 and a lot chose not to.
So the mortgage protection insurance was --
the uptake has been quite slow or low. Also, in
year 1 of the scheme there was a remortgage, so you
could actually take out additional insurance for
100,000 if you had an existing mortgage. Again, there
was very little take-up on that.
|
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, very useful and it gives them low-cost travel
insurance. And I get queries all of the time from
people with haemophilia who don't have HIV or
hepatitis C who are concerned because they find it
74expensive to get travel insurance. So, ironically, if
you're in Ireland and you have HIV or hepatitis C,
it's easier to get travel insurance, life insurance or
mortgage insurance than if you just have haemophilia.
|
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 little bit of resistance initially, but,
again, as the personal stories come out from Lindsay,
as the public awareness increased -- and Government
were genuinely sympathetic and their response was
sympathetic, so there was a willingness to explore
this, but from a practical point of view it was still
quite difficult to put it in place, so we had -- you
know, we had four legal teams, we had a team of
actuaries, we had a couple of insurance specialists
and brokers, we had the Department of Health, we had
the four organisations. I think we had
35 excruciatingly long steering committee meetings
over those four years. I know my colleague -- or
former chairman, who was at those meetings with me,
when he left the Society board later and I asked him
75back about 2012, to come back on the board, he made me
promise he'd never have to go to an insurance meeting
again.
So it was -- it was a lot of work to put this one
in place, simply because of the -- it was a novel
concept. I don't think it had been done before. And
the insurance industry are, you know, they're very
conservative in the way they look at things, so it
look a lot of work to put it in place.
|
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 has it been for those who were infected in
Ireland to -- that very fact of state recognition that
something had to be done?
76ANSWER:
I think hugely important. When I look at the Lindsay
Inquiry and I think a couple of things come to mind.
The personal testimony was hugely important.
The public understanding of what had happened to
the community was very, very important, and the public
understanding was, frankly, helped by very responsible
media coverage in the Irish media. All of the main
daily newspapers covered it, you know, in great
detail.
I think the apology from the Government after the
report came out, the compensation which was put in
place without having to wait for the Inquiry report,
the HAA card, the insurance, the tax concessions,
these were all really important in an overall view
that: look, this happened, this was an awful thing
that happened to you, we're really sorry and we're
going to make it up to you in any way that we can.
|
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
divide one by the other and get the average or mean
amount. But in a sense that's fairly meaningless
because, you know, you might have a case of, you know,
somebody who has got hepatitis C and HIV co-infection
and has had serious clinical and social consequences
or somebody who is perhaps a hepatitis C antibody
positive, was never virus positive, so all of the
cases are put in together, they don't break it down in
tranches, so ...
But they do publish an annual report and the
annual report gives the breakdown of the total
number of cases. And I think if you look at
the annual report, the last annual report that was
published, I think for 2020, I think there were about
3,500 cases heard. The average award including the
reparation payment was about a quarter of a million
80Euros, and the average award which had been appealed
was about half a million Euros.
|
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 payment was to
a person with haemophilia, but it would certainly be
higher than the average payment for the tribunal
awards generally because, as I say, they cover an
entire range of cases from primary claimants, to
secondary claimants, to carers, so I would think
that's -- I think that's reasonable.
|
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 crucially, when they started
in that role, when the card was established, we did
some training for them, as did the other
organisations. So they came around to the
Irish Haemophilia Society, to the Transfusion Positive
Group, to the Anti-D support group. They heard about
the issues, they met the community. So they gained an
understanding of the areas they were going to be
dealing with.
|
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