The Civil Liability (Amendment) Act 2017 (the “Act”) was signed into law on 22 November 2017 and will commence upon Ministerial order.

This important piece of legislation will allow the Court for the first time to make Periodic Payment Orders (“PPO”) in cases of catastrophic injury and puts on a statutory footing the making of voluntary “Open Disclosures” by health service providers.

Periodic Payment Orders

Part 2 of the Act, allows the Court to make consensual and non-consensual PPO where the Plaintiff has suffered a catastrophic injury. These are cases where the personal injury “is of such severity that it results in a permanent disability to the person” which requires them to receive “life-long care and assistance in all activities of daily living or a substantial part thereof”. To date, the Courts have only had the power to make lump sum awards of damages in such cases.

In deciding whether to order a PPO, the Court must consider:-

  • the best interests of the Plaintiff
  • the circumstances of the case, including the nature of the injuries suffered and:
  • the form of award that would, in the Court’s view, best meet the needs of the Plaintiff having regard to the amount of the payments proposed, any financial advice received by the Plaintiff and taking into account the preferences of the parties involved.

Where the parties agree to the award of damages being paid partly or wholly by way of PPO, they can also apply to the Court to make a PPO. The Court, having regard to the criteria set out above, then has the power to make the PPO according to the terms agreed, refuse the application, or refuse the application and make its own PPO.

Open Disclosure

Part 4 of the Act sets out the provisions for health service providers to make voluntary “Open Disclosure” of “patient safety incidents”.

A patient safety incident is defined as an incident which occurs during the course of the provision of a health service which:-

  • has caused an unintended or unanticipated injury, or harm, to the patient,
  • did not result in actual injury or harm to the patient but was one which the health service provider has reasonable grounds to believe placed the patient at risk of unintended or unanticipated injury or harm, or:
  • unanticipated or unintended injury or harm to the patient was prevented, either by “timely intervention or by chance”, but the incident was one which the health services provider has reasonable grounds for believing could have resulted in injury or harm, if not prevented.

The Act outlines in detail the procedure for making open disclosures. This includes that the open disclosure should be made at a face-to-face meeting between the health service provider and the patient, that the meeting should take place as soon as practicable and that the patient should be provided with a signed statement containing the information in relation to the incident and an apology, if appropriate.

Crucially, the Act states that the information provided in making an open disclosure, or an apology, if given, :-

  • does not constitute an express or implied admission of fault or liability in relation to the incident or any clinical negligence action arising from the incident,
  • will not be admissible as evidence of fault or liability in Court in relation to the incident or clinical negligence action arising from the incident,
  • will not invalidate the indemnity or insurance cover of the health service provider, and:-
  • shall not constitute an express or implied admission of fault, professional misconduct, poor professional performance or unfitness to practice in relation to any complaint made by the patient to a regulatory body subsequently.