Bríd Smith urges Tribunal access for excluded women and families
Bríd Smith addressed the Bill's Tribunal provisions, arguing its eligibility rules exclude many women and families and should be widened. She defended the Tribunal as preferable to the courts on timing, facilities and sensitivity, while acknowledging negligence must be established through questioning.
Main concern about exclusions
She warned the Bill would exclude categories of women and families from the Tribunal, citing that spouses cannot go before the Tribunal. She said this would exclude the cases of Vicky and Jim Phelan and Ruth and Paul Morrissey, and that families with dependent children cannot apply unless the cancer sufferer is dead - which she said would have excluded Emma Vic Mahuna.
Tribunal advantages over courts
She argued she could find no advantage to pursuing cases in the courts over the Tribunal. The Tribunal was praised for being much quicker, for having premises and facilities set up appropriately, and for being designed to handle cases sensitively.
Adversarial process and cross-examination
She addressed concerns about the adversarial nature of hearings, noting that cross-examination is a technical part of establishing negligence. She said the Tribunal is organised to avoid hostile or harassing questioning where possible, that aggravated damages for unacceptable questioning are already covered, and that the 221 Plus group accepts negligence must be established and that labs may be cross-examined.
State liability and indemnity with labs
She reiterated that negligence must be proven and that the State pays, with the State holding an indemnity agreement with the labs to manage that outcome.
Eligibility and next steps
She said she was sympathetic to expanding eligibility beyond the current groups, referenced an opinion allowing current groups access, and noted a Cabinet memo she brought on Tuesday addressed this point. She indicated the matter can be looked at further and thanked Kian Kurla.
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Are we taking the whole section together? Yes, section one. My amendment number two, I believe, has been ruled out of order, is that correct? Yes, we can't debate amendments that are out of order. Okay. Well, I just want to back up what Deputy Cullinan has argued there. I mean, at the end of the day, there's a huge exclusion of all sorts of categories of women from the Tribunal. For example, if you have a case involving a spouse, you can't go before the Tribunal. That would mean that Vicky and Jim Phelan and Ruth and Paul Morrissey would be excluded from the Tribunal where they try to apply to it. And if Vicky's case, as I said earlier, was starting today, she'd be totally excluded from it. The other category with dependent children, families cannot apply unless the cancer sufferer is dead. So, this would have excluded Emma Vic Mahuna. So, I think there's a huge gap in this Bill that doesn't allow for the representation that is required for families and for women. So, I think you should address that. And I will come to the other amendment that I have later on, section two. There are, I believe, some very important advantages for women and families of using the Tribunal. I couldn't find any advantages over the Tribunal that the courts provide. Essentially, whatever you have access to in the court, you have access to in the Tribunal. But the Tribunal has advantages over the courts. So, when you line up, go to the Tribunal or go to the court, I haven't been able to see a single advantage of the court. But there are very clear advantages to the Tribunal, some of which I think we've agreed with today, including timing. Timing is a real issue here. The Tribunal is much, much quicker. However, the premises have been set up specifically for this. There has been very good feedback in terms of the facilities and the facilities being appropriate. And it is set up very cognizant of the fact that this needs to be dealt with in as sensitive a way as possible. I think one of the points that was raised by several colleagues in Second Stage was around the adversarial nature. And I think it's something just worth responding to. So, I agree wholeheartedly with all of the comments made in terms of the Tribunal not being adversarial in the way that we all talk about things being adversarial. And some of the testimony we all heard from women who were taking their cases and lines of questioning, which sounded completely unacceptable, around their sex lives and around all sorts of things, potentially to try and discredit them as witnesses. I mean, things that I thought were outrageous. And indeed, one of the amendments that is tabled, I don't know if it's in order or not, Ciancorla, but that is tabled, is that aggravated additional damages could be awarded. If there was an unacceptable line of questioning and harassment. And actually, the good news on that is that we don't need to take the amendment because it's already covered. Actually, when the bill was being passed, I raised it and I'm sure other colleagues did. That is already allowable within the Tribunal and indeed within the courts. But adversarial to the lawyers just means you're allowed cross-examine. And there's probably, the way we all use adversarial is different to that. We don't use it in the technical sense. We use it in the sense of none of us would accept these women and families being harassed under hostile cross-examination. And the Tribunal is very sensitive to that. And it's been set up to try and deal with that as well as it can be dealt with. But with one important caveat, which is cross-examination, which is what the lawyers call adversarial. That that is part of the process. And indeed, in my own meetings with the 221 Plus group, they do accept that negligence has to be established. And it's accepted that for negligence to be established, questions have to be asked. And indeed, the labs have to be cross-examined. And so the Tribunal is set up to be as unadversarial as possible in the sense of how we all use the term. But I think most people agree, and the 221 Plus group, certainly in their meetings with me have agreed, that negligence does need to be established. It's not a redress scheme. It's about establishing negligence. And then the State pays. And then the State has an indemnity agreement with the labs, and the State deals with all that end. But the State pays. Only 16 minutes remaining. I'll address the last point then very quickly. Thank you, Kian Kurla. It's in terms of eligibility. I am very sympathetic to expanding eligibility. There was an opinion given some time ago, which was to allow the current groups access to the Tribunal. But I think there is a case to be made. And indeed, in the Cabinet decision, the memo that I brought to the Cabinet on Tuesday, it addressed exactly that. And I think that is absolutely something that we can look at. Thank you, Kian Kurla.
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