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Editorial – Looking Back and Forward

  |   State Claims Agency

The year 2016, a year when Ireland celebrated the Centenary Celebration of the War of Independence, was also a significant year for the SCA which marked the 15th Anniversary of its establishment on the 3rd December 2001.  To put matters in perspective, in 2001 the SCA managed approximately 800 claims with a contingent liability of approximately €12 million.  Today, the SCA is managing 9,000 claims with a contingent liability of approximately €2.2 billion.  What a difference 15 years make!

There is much to look forward to, legislatively, in 2017 assuming the enactment of the Civil Liability (Amendment) Bill 2017.  The new Bill will empower the Courts, as an alternative to lump-sum awards of damages, to make consensual and non-consensual Period Payment Orders (PPOs) to compensate injured victims in cases of catastrophic injury where long-term permanent care would be required.  The Bill, which hopefully will be enacted shortly, will be widely welcomed by plaintiff and defendant practitioners, the SCA and families of catastrophically injured victims.  The current unsatisfactory situation where interim payments (PPOs) are being agreed by the SCA for short duration periods, of between 2 and 5 years, has proved most unsatisfactory for practitioners, the SCA and families of catastrophically injured victims.  The uncertainty, in the absence of the underpinning PPO legislation, has given rise to considerable legal wrangling over PPO agreements and has put catastrophically injured plaintiffs and their families through the unacceptable difficulty of having to periodically return to Court in order to agree new PPO periods and/or reversion to lump-sum settlements.  The new Bill, following enactment, will bring much more certainty to what has been something of a legal anomaly.  Catastrophic injury cases resulting from clinical negligence significantly impact the Clinical Indemnity Scheme’s annual compensation budget.

The introduction of the Pre-Action Protocols, as provided for in the Legal Services Regulation Act 2015, will add another welcome and vital reform and, when operational, should considerably reduce the timescale for the resolution of clinical negligence cases.

Thus, the introduction of the PPO legislation and the Pre-Action Protocols ought, on a combined basis, to considerably improve the way medical negligence cases are handled and litigated, reforms which the SCA have advocated for over a very long period.  The introduction of these reforms, as outlined, will bring with them, however, considerable challenges for the health services in relation to the timeous furnishing of medical records etc.  It will be vital, assuming some early teething problems, that the Pre-Action Protocols function as they ought to, thus delivering the benefits that their introduction has had for clinical negligence victims in other jurisdictions.

Ciarán Breen,
Director, State Claims Agency