|Posted on April 29, 2010 at 6:47 PM|
IRISH THALIDOMIDE ASSOCIATION
Thursday 29th April 2010
“Irish Thalidomide Association recommends that their Members reject the Government’s compensation offer”
IRISH CASE LAW AND PRECEDENT
Interaction with State Claims Agency/ DOH Documents
Over eight months the Irish Thalidomide Association through its solicitors has been seeking to achieve access to the Department records associated with the Thalidomide Arrangement/ Settlement. It should be noted that there was a refusal by the Minister for Health and Children to deliver access to such documentation. Access was requiredfor the purposes of interacting with the State Claims Agency by way of submission to ensure that all relevant matters were addressed in relation tothe State Claims Agency’s report. It turned out that the State Claims Agency did not wish the involvement of the Irish Thalidomide Association to occur in the circumstances that merited a comprehensive review.
The State Claims Agency interpreted their terms of reference in a narrow and restrictive manner. Also, the Minster for Health and Children refused access to the relevant documentation concerned. On the date of delivery of the State Claims Agency report by the Minister for Healthand Children she indicated, for the first time, that she was requesting advice from the Attorney General as to whether such documentation should be released.
During the course of the meeting on Tuesday 27th April 2010, it was indicated directly to the Minister for Health and Children thatthe Irish Thalidomide Association required such documentation to be provided for the purposes of ascertaining as to whether the original Compensation Arrangement had been approved by the High Court. In that regard, the Minister undertook to revert within aperiod, if at all possible, of 24 hours with such detail.
It appears to the Irish Thalidomide Association, that its memberswho were then children, did not have the benefit or the legal entitlement to have such a settlement approved by the High Court for the purposes of protecting their position.
As a matter of proper practice in the courts system in this jurisdiction, it has been the situation that for each and every type of personal injury claim where a child has been injured (under the age of eighteen, that the court must approve the settlement to protect that child from an inadequate or unfair settlement. In this instance, it is noteworthy that the Minister for Health and Children has stonewalled in correspondence, the Irish Thalidomide Association’s request for access to the relevant documentation. Such a refusal has occurred in circumstances where it was clear that the Irish Thalidomide Association required the documentation to obtain detail in relation to the original settlement arrangement. Also, access to the documentation was required for discussionwith the State Claims Agency i.e. to ensure parity if detail available to both sides.
It now transpires that after the relevant report has been delivered for approval to the Cabinet, in circumstances where there is no input from the Irish Thalidomide Association, that a crucial issue was not disclosed. In that regard, the Cabinet decision may be flawed, the victims may be in a situation where they were abused as children by virtue of the failure of the State to protect their rights. The present Minister for Health and Children has at the very least condoned such a situation by virtue of her refusal to deliver access to such documentation. It is interesting in the extreme, that it was only upon delivery of the relevant report, which was a fait accomplit in terms of what was on offer, that the Minister then said that the relevant documentation would be provided subject to the advice of the Attorney General.
If it is a situation that these settlements were not ruled, then in those circumstances it would appear that there is no valid original Compensation Arrangement. Also, the children concerned did not have the protection of the courts in circumstances where the State took advantage of both their parents and the children concerned. The State have neglected to disclose detail as to whether such events occurred yet the investigations to date seem to suggest that same is the situation.
The Minister for Health and Children is required now to clarify as to what occurred and respond in accordance with her undertaking having been apprised of the relevant detail. In addition, if she brought incorrect information to Cabinet incircumstances where no discussion occurred with the Irish Thalidomide Association, then it is incumbent upon her to rectify the situation. In addition, if the State Claims Agency report is fundamentally flawed arising out of inaccuracies contained there in and lack of information or proper investigation occurring, then that report should be withdrawn. For the mistakes of the past to be exacerbated by incompetence in the present is heaping insult upon injury in circumstances where the present government is conniving upon a conspiracy of concealment.
In the circumstances that exist, certain IrishThalidomide Association members have instructed their Solicitors to institute proceedings against the State. Also, it should be noted that proper practice and procedure has not occurred i.e. disclosure of such failures has not happened and the present Minister is still vacillating as to what to do. It is time that an open and transparent approach was delivered by the present government. As recently as Tuesday 26th April 2010 the government in its entirety connived in relation to concealment by way of its Cabinet decision.
The Minister contended during the course of the meeting with the ITAthat a submission had been delivered on behalf of the Irish Thalidomide Association. Such a perspective was yet again incorrect, in that Ciarán Breen, Director of the State Claims Agency confirmed in writing on the 23rd April 2010 that “we note that you have decided not to make a detailed submission, despite being requested to do so”. Such a statement was made in the context of receiving a request at the 23rd hour when the report, it was apparent, was already written.
The National DrugsAdvisory Board
The report as delivered to the Minister entirely ignores the regime that operated in advance of the establishment of the National Drugs Advisory Board. In that regard, certain drugs were required to be licenced under the Therapeutic Substances Act 1932. The rationale delivered by the Ministerfor the refusal to deliver and acknowledgement of wrong and/or an apology to Thalidomide survivors is that the Irish State had no responsibility for the injuries sustained. The rationale for lack of responsibility was solely based upon there being no licencing procedure applicable at the relevant time. This perception or advice is fundamentally flawed in that there were two reasons as to why the Irish State predominantly has a responsibility which are as follows:-
i. An alternative statutory regimen applied i.e. under the Therapeutic Substances Act 1932 or at the veryleast should have applied.
ii. The principles of negligenceapply in relation to the control of pharmaceutical products in this jurisdiction i.e. a case could have been advanced upon old fashioned negligence principles i.e. the Department of Health had a licencing section.
iii. It now transpires that a situation occurred where Thalidomide was left on the market in Ireland long after it was withdrawn in other jurisdictions. In that regard, certain Thalidomide survivors are the victims of that particular decision not to withdraw the product because it might cause concern to mothers who had already taken that product. The consequence of that decision was that the product remained in many mothers’ medicine cabinets to be used at a later date.
In short, the State knew or ought to have known that the relevant pharmaceutical product being Thalidomide was unsafe for pregnant mothers and had not been tested in that regard i.e. there was a risk of peripheral neuritiscomplications.
The Principles of Tort Law
The State Claims Agency report indicates that “it is inappropriate, in the Agency’s view, to apply current principles of Tort Law in the quantum of damages, general and special, to an event which took place in the years 1958 to 1962”.
In essence, what is being said to the Thalidomide survivors is that the standards of the past are to apply to the circumstances of the present i.e. 2010. That is patently wrong and most inappropriate and discriminatory towards one particular section of society. That is all the more so for the reasons that are elaborated upon below.
Marked differences between Hepatitis C and HIV Compensation Scheme/
The supposed marked differences that have been highlighted by theState Claims Agency are incorrect, flawed and without any foundation. The said marked differences show a distinct lack of understanding of how the Hepatitis C and HIV CompensationScheme operates. The following inaccuracies are contained in the State Claims Agency’s report:-
a. The original non-statutoryHepatitis C Compensation Scheme was set up in exactly the same circumstances that exist today for Thalidomide survivors. It was set up for the purposes of ensuring that persons received adequate or appropriate compensation in accordance with the Law of Tort, the Civil Liability Act 1961 as amended, Case Law etc. for the purposes of ensuring fair and equitable compensation.
b. It is irrelevant as to whether any contribution is being made by a third party. What we are dealing with here is the responsibility of the Irish State to provide compensation for citizens injured as a consequence of any act that occurred within this jurisdiction.
c. The payment of damages both general and special, do utilise the ordinary principles of Tort Law but it is not necessary that liability is assumed on the part of any Tortfeasor. In the circumstances of the Hepatitis C Compensation Scheme or what requires to be established is an injury i.e.Hepatitis C and an exposure to a particular pharmaceutical product being ablood product. In this instance in relation to Thalidomide survivors, it is exactly the same situation, an injuryhas occurred as a consequence of an exposure to a pharmaceutical product being a drug i.e. Thalidomide/ Softenonin this jurisdiction.
d. The reference to a criminal prosecution in Aachen is most unfortunate and inappropriate. The burden of proof in a criminal case in beyond all reasonable doubt and just because an action was unsuccessful on that particular burden of proof, it does not mean that a similar civil actionwould be unsuccessful as there is a lower burden of proof being the balance of probabilities. What is interesting is that the consequence of that criminal prosecution resulted in a settlement offer in relation to a civil action or proceedings.
e. It is wrong for the StateClaims Agency to indicate that it is “an impossible exercise to compute a retrospective and prospective loss of earnings- special damages- calculation for each Thalidomide survivor as this would require a predictive assessment that but for the Thalidomide event the survivor would have achieved a particular career with a particular level of earnings”. The author of such a statement is misconceived in the extreme in relation to the content of said statement. The State Claims Agency, upon a daily basis, deals with claims most particularly in relation to medical negligence circumstances or Cerebral Palsy type situations where quantification of loss of earnings occurs in exactly that situation. Also, the Compensation Tribunal which has been established to address the circumstances of infection of people/ children with HIV/Hepatitis C is required to undertake the exact same process. Such a statement is misleading, unfounded and wrong in law. It is an example of the partiality associated with the State Claims Agency’s positionin relation to the preparation of this report. The inaccuracy associated with the foregoing statement is further indicated by virtue of a subsequent contradiction that indicates that such calculations can be undertaken but “one would have to have knowledge of the survivors’ parents and sibling’s careers and levels of earnings and attached certain assumptions to these” i.e. it would be difficult to do. Difficulty in quantification of loss ofearnings does not mean that it is impossible.
The State Claims Agency report concludes that it doesnot believe that Case Law and Precedent in relation to quantification of damages, provides a suitable means to revisit compensation in the case of Thalidomide survivors. Such a categorical statement must be viewed against the Mission Statement of the State Claims Agency itself, which indicates that its purpose is to minimise the cost of claims to the State. It is submitted that it is solely for that reason that the State Claims Agency has indicated that the methods applicable day in day out in the court system in this jurisdiction should not apply to this vulnerable section of society. Even the Minister for Health and Children, upon delivery of the State Claims Agency report accepted that the State Claims Agency was not impartial or partial in relation to its views.