Regulatory Impact Analysis of the Garda Síochána Compensation (Malicious Injuries) Bill 2012

Transcription

1 Regulatory Impact Analysis of the Garda Síochána Compensation (Malicious Injuries) Bill 2012 July

2 Department/Office: Department of Justice and Equality/Garda Division Stage: Draft General Scheme of the Garda Compensation (Malicious Injuries) Bill 2012 Related Publications: Summary of Regulatory Impact Analysis (RIA) Title of Legislation: Garda Síochána (Malicious Injuries Compensation) Bill 2012 Date: July 2012 Available to view or download at: Contact for enquiries: Telephone: Kathleen Connolly Policy options which were considered? 1. Maintain the current scheme (do nothing). 2a. Revise the current scheme and have it administered by way of a Compensation Tribunal. 2b. Revise the current Garda compensation scheme and have it administered by the State Claims Agency in accordance with the commitment in the Croke Park Agreement. Preferred Option: 2b figures 6.0 m - Awards 3.25 m - Applicant Legal Costs 1.0 m - Administration m total costs 2a Option to set up a Compensation Tribunal was not OPTIONS COSTS BENEFITS IMPACTS Scheme supports Gardaí who are maliciously injured or killed. All stakeholders are familiar with the operation of the scheme. costed. 2b Estimated annual costs 3million 5 m - Awards 1.5 Applicant legal costs 0.5 m Administration 7.0 m total costs Would have some of the benefits of the 3 rd option More efficient and effective scheme. Cheaper and wider in scope. Includes risk assessment and the avoidance of future injuries. years. Estimated annual saving of approximately 3 million is envisaged. High portion of budget spent on legal costs and on administration. Claims take from 3 7 years to be finalised. Would have some of the impacts of the 3 rd option Greatly reduced legal costs. Frees up administrative capacity of officials and Garda personnel; 90% of claims paid within one year of application. Savings will take several years to impact as it may be necessary to maintain the current scheme for up to 3 2

3 1 Policy Context The Garda Síochána (Compensation) Acts provide for compensation in respect of death or injury which is maliciously inflicted upon a member of the Garda Síochána while on duty or in connection with their duties. The scheme applies to physical injuries and to psychological injuries arising from an incident which involve a physical injury or threat of physical injury. The scheme operates on the basis that the injured member (or specified family members in the case of death) may apply to the Minister for Justice and Equality for authorisation for leave to apply to the High Court for compensation in respect of the injury received. Applicants engage legal representatives to assist with their claim and the State carries the legal costs of both parties involved. Approximately 170 to 200 claims are submitted each year under the scheme. About 200 awards are made annually by the High Court and the average length of the time taken to finalise applications is from generally from 3-7 years. In 2011 the costs of awards was 6 m and the legal costs amounted to 3.25 m 2. At June 2012 there were 450 applications awaiting determination by the High Court. A further 700 applications on hand within the Department of Justice and Equality are awaiting the final medical report which will permit a decision on authorisation. (See Appendix 1 for information on the scheme.) In 1997, a review committee was set up to review and make recommendations on the efficiency and effectiveness of the scheme operating under the Garda Síochána (Compensation) Acts 1941 and 1945 with particular reference to the question of minor injuries which are excluded under the terms of the Acts. The Review Committee noted the requirement placed on the Minister to make an assessment as to whether an injury was minor in nature and whether such incidents involved special risk. The Act does not define these terms. The Committee recommended the repeal of the existing Acts and the creation of a revised scheme covering all malicious injuries inflicted on Garda members. The lack of clarity concerning the definition of a minor injury has added a considerable administrative burden to the scheme. Legal advice is often required to help decide on whether particular applications sit within the scope of the scheme and refusals on the grounds that the injury was minor in nature can result in Judicial Reviews of the decision. A key issue is the length of recovery time from the injury. Thus a serious injury which heals in a few weeks may not attract any compensation, whereas an ongoing soft-tissue problem may qualify for authorisation. The review committee was critical of the adversarial approach to the awarding of compensation which applies under the Garda Compensation Acts and the excessive legal cost which the system entails. Although the authorisation from the Minister generally means that most actions proceed on a no fault basis 3, both parties require legal representation before the High Court, the cost of which falls to the State. Legal costs now amount to approximately one-third of the scheme costs (see appendix 2). The Committee A further legal costs were incurred in 2011 in respect of 2 test cases concerning Blood Borne Viruses. As the legal precedent has been relied on to settle over 60 applications, these legal costs are not included in the figure of m. 3 Where malice is disputed, a more adversarial approach is taken. 3

4 was also critical of the requirement for applicants, the injured members of the Garda Síochána, to attend the High Court, even though there may be no dispute on the facts of the case. This impacts on Garda productivity. The review committee found the existing procedures to be unnecessarily costly and cumbersome. The procedures developed to implement the current scheme only allow for the determination of awards when a final prognosis is available on the injury. It can take several years before such a report is provided. This can cause significant increase in costs and means that applicants can be waiting a number of years for determination of their claims. Considerable inputs are required from Garda Inspectors in verifying the events relating to the injury and from the Garda Síochána Chief Medical Officer in confirming the medical status of the applicant. Garda trainees who have not completed phase IV of their training do not meet the criteria for payment of compensation under the current scheme. There is a need to clarify responsibilities for policy, implementation and administration under the scheme. The Minister for Justice and Equality authorises an applicant to apply to the High Court and acts as the instructing client (on behalf of the Minister for Finance, now Public Expenditure and Reform) to the Office of the Chief State Solicitor (CSSO). The Garda compensation budget is located in the Garda Vote 4 and payments are made from this source. The scheme would be enhanced by being more closely linked to health and safety legislation. The current scheme does not provide for risk assessment or control measures to reduce future injuries and claims. In summary, the current Garda Compensation Scheme contains a number of weaknesses, mainly, It is based upon an adversarial approach to the awarding of compensation, resulting in disproportionate legal costs to run the scheme. The procedures developed to implement the current scheme result in long delays in determining awards for applicants and involve considerable administrative costs. There is a need to clarify the role of the Minister for Justice and Equality and the Garda Commissioner in relation to the operation of the scheme. The current scheme needs to be updated with particular reference to the need to (i) have most cases settled by the State Claims Agency without recourse to the Courts; (ii) amend the scope of the scheme to include all minor injuries and to include Student Gardaí; (iii) introduce a risk assessment facility which will afford the Garda Síochána the opportunity to avoid risks identified. 4 at subhead A 10 4

5 2 Policy Initiative and Objectives 2.1 Policy Objective All stakeholders agree on the need for a modernised scheme covering death or injuries which are maliciously inflicted on members of the Garda Síochána while on duty or in connection with their duties. It is proposed that the revised Garda Compensation (Malicious Injuries) Scheme will have the following objectives: 1) To clarify the roles of the Minister for Justice and Equality and the Garda Commissioner under the scheme; 2) To provide for a more effective and efficient scheme with reduced legal and administrative costs; 3) To modernise the scheme by, in particular, (i) having most cases settled by the State Claims Agency without recourse to the Courts; (ii) amending the scope of the scheme to include all minor injuries and to include Student Gardaí; (iii) introducing a risk assessment facility which will afford the Garda Síochána the opportunity to avoid risks identified. 2.2 Main Elements of the Proposed Revised Scheme Clarification of roles It is proposed to repeal the Garda Compensation Acts and introduce a Garda Síochána Compensation (Malicious Injuries) Bill 2012 which provides for a revised Garda compensation scheme to cover death and injuries which are maliciously inflicted on members of the Garda Síochána. The revised scheme would reflect the following policy, implementation and administrative responsibilities: the Minister for Justice and Equality Department will retain overall policy responsibility for the scheme. the Garda Commissioner will be responsible for the implementation of the revised Garda Síochána Compensation (Malicious Injuries) Scheme. the State Claims Agency will administer the revised scheme on behalf of the Garda Commissioner. The clarification of roles and responsibilities will enhance the efficiency and effectiveness of the proposed scheme. The Minister will retain ongoing policy responsibility for the scheme and will be empowered to make regulations on matters relevant to the scheme. The designation of the Garda Commissioner as being responsible for the implementation of the revised scheme is in line with the Commissioner s responsibilities for Garda operational matters as provided for in the Garda Síochána Act As the budget for the 5

6 Scheme is located within the vote of the Garda Síochána (subhead A10), it is proposed that the Bill makes provision for the Garda Commissioner to make applicants an offer of compensation. Spending on the scheme and relevant matters will be reported in each annual report of the Garda Síochána and the National Treasury Management Agency. It will be necessary to amend the National Treasury Management Agency (Amendment) Act 2000 to enable the State Claims Agency administer the revised scheme 5. Once this restriction is removed, the Agency can be given delegated sanction to administer the revised Scheme under regulations made by the Minister of Justice and Equality as required by section 9(1)(a) of the NTMA Act Thus, the State Claims Agency, on behalf of the Garda Commissioner, will make offers of compensation to applicants Include minor injuries and Student Gardaí It is proposed to extend the scope of the revised scheme to include all injuries which were maliciously inflicted on Garda members.. It is estimated to add a net cost of 100,000 annually to the scheme. This increase is offset by reduced administration of the revised scheme. It is also proposed to address an anomaly within the present scheme by extending the scope of the scheme to cover Student Gardaí. This extension should not add significantly to the cost of the scheme Awards The designation of the State Claims Agency as the body to administer the revised scheme will ensure that awards are based the Book of Quantum. The SCA will also seek a medical assessment of the injury. It is proposed that the State Claims Agency, on behalf of the Garda Commissioner, will make applicants an offer of compensation subject to a right to refer a case to the Courts regarding the amount offered. Where the Courts awards more than that offered by the SCA, the State will carry the legal costs of the proceedings. However, where the Courts awards an equal or lesser amount than that offered by the SCA, the applicant will carry the legal costs of the proceedings. It is estimated that 90% of claimants will settle their application without recourse to legal proceedings. This amendment to the current scheme is likely to achieve savings in legal costs in the order of 1.5 million annually and result in earlier awards to applicants. It is proposed to provide for a referral to the Courts in respect of the amount awarded Transitional arrangements At June 2012, there are a total of 450 applications which have been authorised to apply to the High Court for an award of compensation under the current scheme. A further 700 applications on hand within the Department of Justice and Equality are awaiting the final medical report which will permit a decision on authorisation. 5 The current scheme for compensation for injuries which are maliciously inflicted on members of the Garda Síochána is outside the remit of the SCA. 6

7 It is proposed that applicants whose applications were submitted under the Garda Compensation Acts but not authorised will be offered the option of transferring to the new scheme. Providing for the transfer of these applications to the new scheme is expected to delay the commencement of the revised scheme by six months. This is to give the State Claims Agency time to assess the applications and be in a position to make an offer of compensation to applicants within a reasonable period. Applicants who opt to transfer to the revised scheme will receive a prompt offer on their claim, whereas the expected time frame for an award under the current scheme is from 3 to 7 years. The State is expected to save a portion on legal fees in respect of applicants who transfer to the revised scheme. It is proposed to investigate whether applicants whose applications have been authorised under the Garda Compensation Acts to proceed to the High Court for an award of compensation might also be offered an option to transfer to the revised scheme. Applicants in this category who transfer to the revised scheme are likely to get earlier awards and the State is likely to achieve some savings on legal costs. Administrative arrangements for the new scheme will be set out in protocols between the relevant bodies or, where necessary, made in regulations. Applicants will have access to a solicitor to assist them with their applications from the panel of solicitors maintained by State Claims Agency.. Solicitors acting for a member of the Garda will have to abide by the schemes rules and fee structures. A flat fee rate will apply to solicitors participating in the scheme. 3 Identification and Description of Options Option 1 - No Policy Change If the current scheme remains in place, many of the weaknesses identified would persist. It may be possible to address certain inefficiencies of the current scheme, for instance by agreeing new procedures. However, many of the problems of delay, cost and uncertainty are inherent in the legislative provisions of the scheme which require amendment to address the problems. In particular, the proportion of the budget being absorbed by legal costs is no longer sustainable. Option 2a - Introduce a revised scheme which is administered by a Compensation Tribunal The 1997 Review Committee recommended a revised scheme whereby the majority of awards were to be decided by a Garda Compensation Tribunal. The process of exploring the implementation of this recommendation resulted in the selection of the State Claims Agency as the body best placed to undertake this task. Option 2b - Introduce a revised scheme which is administered by the State Claims Agency 7

8 Discussions with stakeholders on the implementation of the report of the 1997 Review Committee resulted in the selection of the State Claims Agency to administer the revised Garda Compensation Scheme 6 for the following reasons: It is the body set up under the National Treasury Management Agency (Amendment) Act 2000 to manage claims so as to ensure that the State's liability and associated legal and other expenses are contained at the lowest achievable level; It has an efficient and effective system for managing claims. It provides risk advisory services to State authorities with the aim of reducing over time the frequency and severity of claims. The inclusion of risk assessment is a new element of the scheme and is intended to provide a safer working environment for Gardaí. The SCA has a multidisciplinary team comprised of engineers and scientists who are specialists in the area of litigation risk management (including occupational health and safety, environmental management, fire safety, maintenance management, procurement risk, etc.) and who work to minimise the incidence of claims against State authorities. The Risk Management Units consultancy services are certified to the IS Quality Management System. Agencies under the remit also have access to the State Authorities Risk Management Network which hosts various initiatives including seminars, training, risk programmes and resource sharing. The Risk Unit services have replaced external consultancy services for many agencies and the costs are borne by the central exchequer. The SCA already works closely with An Garda Síochána to improve the forces employee and public injury claims experience. It has carried out reviews in conjunction with An Garda Síochána into Road Traffic Collisions involving Gardaí, the management of firearms, noise control programmes, custody cell design, etc. Gardaí have used the finding of these reviews to drive risk improvement initiatives. 4 Analysis of Costs, Benefits and Impacts for Options The existence of a fair and effective compensation scheme is an important support for the effective operation of the Garda Síochána. The Scheme assists the Gardaí in the performance of their functions and, accordingly, helps create a safer society for all. Thus, the operation of the scheme can be said to contribute, in some measure, to enhancing national competitiveness. The scheme provides protection for this category of workers and is designed to ensure that they receive prompt payment of the appropriate compensation. 1) Maintain the current scheme 6 The National Treasury Management Agency was established to manage personal injury and property damage claims against the State and to advise on the underlying risks with such claims. When performing these functions, the NTMA is known as the State Claims Agency. See 8

9 The current scheme is based on an adversarial system involving the High Court. The cost of running the scheme in 2011 was m as follows. Compensation Awards Applicants Legal Costs Administrative Costs 6 m 3.25 m (excluding in respect of two test cases) 1.00 m (refers to the Courts, the Office of the Chief States Solicitor, the Garda Síochána and the Department of Justice and Equality) Benefits/ Impact The weaknesses of the current scheme, which has been in operation since the 1940 s, are listed in pages 1 and 2 of this document. A number of different bodies are involved in the administration of the current scheme which unnecessarily complicates its operation and can lead to delays and inefficiencies. The relevant bodies are the High Court (to determine the award), the Minister/ Department of Justice and Equality (authorisation to proceed to the High Court and respondent), the Office of the Chief State Solicitor (to represent the respondent) and the Garda Síochána (the Garda Chief Medical Officer to provide medical evidence, Garda Internal Affairs section for Garda administration, Garda Legal Affairs to assess settlement offers). The progressing of an application under the current scheme is very much in the hands of the applicant s solicitors. It is the applicant, through his solicitor, who needs to furnish the Garda Chief Medical Officer (CMO) with a medical report containing a final prognosis before he can evaluate the applicant. The Minister cannot arrive at a decision upon the application without the views of the Garda CMO. A review by the Department of Justice and Equality of a sample of compensation files which were examined in 2010 identified the period from the making of an application to the furnishing of the applicant s medical report as the greatest cause of delay in the progress of these applications. The relevant figures for the delay in finalising the file are as follows: 43% solicitor, 34% awaiting Court hearing, 12% the Chief Medical Officer and 11% the Department of Justice and Equality. A further impact of maintaining the current scheme is the uncertainty as to what constitutes a minor injury. This requirement increases the administration cost of the scheme and gives rise to applications for judicial review each year. While the defence of such reviews are generally successful, the Court is usually unwilling to award costs against the applicant and the State is left to bear the costs of successfully defending the proceedings. 2) Implement the Proposed Revised Scheme The annual cost of providing the new scheme is estimated at 7 m based on the following: Compensation Awards Legal Costs (Applicants) Administrative costs 5 m 1.5 m 0.5 m 9

10 The compensation awards have been estimated on the basis that: Awards will be based on levels of out of court settlements which reflects the level of injury received. Applicants will be assessed by medical specialists appointed by the State Claims Agency. There will be earlier and, therefore, somewhat reduced awards. (Court awards made many years after an injury attract a premium in damages.) Legal costs have been estimated on the basis of the expectation that 90% of applications will accept sum offered by the State Claims Agency. It is estimated, therefore, that up to 10% of claims may appeal to the appropriate Court for determination of their compensation. Up to an additional 0.1 million may be incurred by the inclusion of minor injuries in the revised scheme but this is offset by having a simpler scheme to administer. The inclusion of Student Gardaí will not add a significant amount to the overall scheme. Benefits/Impacts The revised scheme is expected to achieve a saving of approximately 3m annually, including reduced awards, legal costs and administration. The revised scheme will provide for greater efficiencies, a more streamlined administrative process, a more consensus based approach to decision making and involve fewer agencies. It is estimated that most applicants will receive an offer from the State Claims Agency within six months of date of application. The use of the State Claims Agency medical specialists will also free up capacity in the Garda CMO office to focus solely on assessing the fitness for work of Garda members who have been injured. Under the current scheme, the Garda CMO also assesses the applicant s injury and, in some instances, this involves repeat visits. The estimated savings do not include savings in time spent by Garda Inspectors in writing reports of incidents which is required under the current scheme. This work will be computerised under the revised scheme. The inclusion of minor injures will provide greater clarity as to what injuries are covered by the scheme. The revised scheme will address an anomaly and allow Student Gardaí to make claims for compensation. Formal risk management processes will be applied to malicious injuries received by Gardaí. An enhanced system to capture all assaults will be put in place. Quarterly reports will be provided to identify occurrences in each area versus national average to identify hotspots and trends. Where trends are identified further analysis and/or on the ground reviews will be carried out to identify and issues and if necessary introduce appropriate controls. As has proven with other risks, once addressed this will have the long term benefit of reducing the frequency and severity of assaults and associated claims. 10

11 Some investment in technology may be required to get the revised scheme up and running. It may be necessary to make financial provision for the current scheme for a number of years or until all authorised applications under the Garda Compensation Acts have been finalised. It is envisaged, therefore, that the two schemes may run concurrently for a period. Accordingly, the proposed savings may take a number of years to be realised. 5 Consultation The Review Committee which examined the current Garda Compensation Scheme in 1997 included all stakeholders including the Office of the Attorney General, the Office of the Chief State Solicitor, the Department of Finance (now Public Expenditure and Reform) the Department of Justice and Equality, the Garda Síochána, as well as the Garda Representative Association and the Association of Garda Sergeants and Inspectors. The main recommendations from the Review Committee are being incorporated into the attached proposal, including (i) the proposal to repeal the existing Garda Compensation Acts, (ii) the proposal to include Student Gardaí within the scope of the scheme, and (iii) the extension of the scheme to include all malicious injuries. While the Committee s recommendation to set up a Garda Compensation Tribunal is not being implemented, it has influenced the proposal to devolve the administration of the scheme to the State Claims Agency. The Garda Síochána and the Garda Associations are in agreement with this decision. The Garda Síochána and the State Claims Agency have been consulted throughout the development of the proposal and are in general agreement with the proposal as drafted. The Garda Associations were consulted in 2011 on the proposal for a revised scheme and raised the following concerns: (i) The need to provide for an appeal mechanism to review applications which are refused by the SCA. The Department of justice and Equality recognises the need for an appeals system the details of which will be developed during the drafting stage. (ii) Clarify the time limits which would apply under the new scheme The current scheme requires submission of claims within three months of occurrence of the injury and allows the Minister discretion in respect of late applications. The Garda Associations proposed increasing the limit for the submission of claims to six months under the revised scheme. The State Claims Agency has advised early submission of claims and the Draft General Scheme accordingly provide for the submission of claims within three months of occurrence of the injury. Provision is also made for discretion in respect of late applications and a date of knowledge to cater for physiological injuries. 11

12 (iii) Provide for payment of health insurer s costs to the insurer from the applicant s award. The current Garda Compensation Scheme facilitates the payment to the applicant s health insurer of any vouched health costs paid to applicants in respect of the injury concerned. The Garda Associations were anxious to maintain this facility in the revised scheme. The State Claims Agency has agreed to continue this arrangement. It is proposed to insert a consent provision in the application form authorising the SCA to pay these third party costs from any award paid to the applicant. (iv) Ongoing consultation Progress on the development of the revised scheme is reported to the Garda Associations at General Council. Further consultation will take place with these bodies following the publication of the Draft General Scheme of the Bill and in connection with the making of any regulations and the development of any protocols to administer the scheme. 6 Enforcement and Compliance The State Claims Agency use the Book of Quantum which is regularly updated with the objective of ensuring that awards of compensation are consistent from case to case. If an amount of compensation offered is not acceptable to the applicant he/she will still have the option to proceed to the Courts, although at the risk of being responsible for costs should an amount in excess of the offer fail to be achieved. The guiding principles governing the revised Garda Malicious Injuries Compensation Scheme are to be set down in primary legislation. It is intended that further administrative arrangements will be set out in regulations made by the Minister or agreed in protocols between the Department of Justice and Equality, the Garda Síochána and the State Claims Agency. It is proposed to provide a facility for the review of decisions by the State Claims Agency to refuse an application. 7 Review It is proposed to develop a set of output, impact and result indicators to assist with the monitoring of the scheme along the following lines: Output: No. of applications received per year No. of applications which are offered an award within a year of submitting the application No. of applications refused No. of applications requiring legal advice to be sought by the Garda Síochána No. of applications on hands at year end 12

13 Total cost of awards per year Total applicants legal costs per year No. of awards by amount of compensation by band: < 2,500, 10,000, 10,000-50,000, 50, ,000, >100,000 Result % of awards which are accepted without reference to the Courts % of applications which have recourse to the Courts No. of risk assessment reports prepared by the SCA Level of customer satisfaction with the scheme Impact % of the cost of the scheme allocated to awards % of the cost of the scheme allocated to legal costs ( applicant s and the State s) Action taken by the Garda Síochána to implement recommendations in the risk assessment reports The implementation scheme will be included in the Annual Report of the Garda Síochána, together with progress on implementing reports on risk assessment and the avoidance of future claims made by the State Claims Agency. The Garda Síochána is in a position to advise the Minister of the need for regulatory change on the scheme. The State Agency is to review the administrative arrangements for the scheme annually. 8 Publication It is intended to publish this RIA on the website of the Department of Justice and Equality, 13

14 Appendix 1 : Background information on the Garda Síochána (Compensation) Acts Who can apply? Two groups of individuals are eligible to apply for compensation under the Garda Acts: 1. Members of An Garda Síochána who sustained personal injuries (not causing death) maliciously inflicted upon them in the performance of their duties or acting in their general capacity as a member when off duty or merely because of their being a member of An Garda Síochána. Please note trainee Gardaí who have not completed phase IV of their training are not eligible under the Acts. 2. Dependents of deceased members who were fatally injured while on duty or while acting in their general capacity as a member or merely because of their being a member of An Garda Síochána. Section 3(1) of the Garda Síochána (Compensation) Act 1941 states that the following dependants may be awarded compensation: the widow, children, step-children, parents, siblings, half brothers or sisters, grandparents of the deceased member or adopted children under the age of 21 years who were supported, maintained and educated wholly or partially by the deceased person. Three months have elapsed since the date of the incident, can I still apply? Please ensure that you submit your application to the Department within three months of the date the incident occurred in accordance with the statutory time limit set out in Section 5 of the Garda (Compensation) Acts 1941/1945. Should your application be submitted outside the three-month statutory time limit, it is up to the discretion of the Minister as to whether the application will be accepted. The longer the delay, the less likely the application will be accepted, particularly if it is in respect of what could be considered a minor injury. The Department will seek an explanation if an application is submitted late but will not accept that the member is unaware of the existence of a time limit as a valid reason, as each member is provided with details regarding the scheme upon attestation. How long does it take for a decision? The time taken to issue a decision on an application depends on a number of factors, including the nature of the injury, the recovery process, the time taken to provide all the relevant medical reports including a final prognosis to the Garda Chief Medical Officer. Once all the relevant medical reports have been submitted to the Garda authorities, the member is placed on a waiting list to be examined by the Garda Chief Medical Officer. 14

15 The Garda Chief Medical Officer then provides a report regarding his examination to the Department. Applications are considered upon the receipt of the Garda Chief Medical Officer's report and information from the member's divisional office regarding the incident in which the member sustained their injuries. Generally, applications are processed in the order that the reports are received from the Garda authorities and not from the date that the injuries were sustained. How do I get an appointment with the Garda Chief Medical Officer? Once the Garda authorities are satisfied that a final medical report has been received, which includes a final prognosis, the member's name is placed on a waiting list. The member will be informed of arrangements for his appointment through his Divisional Office. What is the role of the Chief Medical Officer? Upon receipt of all the applicant's medical reports, including a final prognosis, the member's name is put on a waiting list to be examined by the Garda Chief Medical Officer. The applicant will be informed by their Divisional Office once an appointment has been made. The Garda Chief Medical Officer reviews the member's medical reports and provides a report to the Department, regarding the injuries sustained, the treatment received, present condition, past history (if relevant) and prognosis. The Garda Chief Medical Officer does not provide a recommendation as to whether the member's application for compensation should be granted or refused. What is the role of the Garda Commissioner? The Garda Commissioner confirms to the Minister that the incident did occur on duty and that it was not caused as the result of the wilful default or negligence on the member's part and whether the member was assigned to duties which included special risk. The Commissioner does not express a recommendation regarding the authorisation of an application. Investigation reports regarding the background to the incident, the alleged culprit(s) responsible for the member's injuries and statements given with a view to bringing criminal prosecution against the culprit(s) are also forwarded to the Department but are subject to Garda privilege and are forwarded to this Department with this understanding. What does the Department mean when it refers to minor injury? The Minister is guided by previous judgements issued in the High Court, in particular the McGee and Merrigan cases (further details below) when deciding whether an injury should be considered minor or non-minor in nature. The Minister would be of the opinion that a minor injury was sustained if the member returned to their pre-incident health level or recovered completely within a period of 15

16 three months with no adverse medical sequelae anticipated in the future. The Minister reaches this decision by considering the medical evidence submitted in support of the application including the Garda Chief Medical Officer's report and medical reports submitted by the applicant. What is special risk? The Minister is advised by the Garda Commissioner whether the applicant sustained injuries while performing duties which involved special risk. Generally, members are detailed for similar duties on a regular basis and in the majority these duties pass without any incident occurring. Similar incidents could arise on any day or night, when members are on routine patrol and public order disturbances occur, resulting in rioting or affrays. No special risk is considered to be attached to such incidents. What is a certificate of authorisation? This is a document signed by an official on behalf of the Minister authorising the applicant to lodge proceedings with the High Court in respect of the incident which gave rise to a member's injuries. What do I do when I receive a certificate of authorisation? The certificate of authorisation and your original application for compensation (which is returned by the Department when a certificate is issued) should be filed with the High Court within two months from the date the authorisation of the application by the Minister was communicated to the applicant. An application to the High Court for compensation under the Garda Compensation Acts should name the Minister for Finance as defendant. The Chief State Solicitor, Osmond House, Little Ship Street, Dublin 8 will accept service of proceedings on behalf of the Minister for Finance. Can I appeal the Minister s decision if my application is refused? There is no provision for an appeal in the relevant legislation when an application is refused. However, the Department informs the applicant when their application is being considered for refusal and gives an opportunity to the member to submit additional information or evidence in support of their application by a specific date. Upon receipt of further submissions, the application is reviewed and the Minister's decision is communicated to the applicant or their legal advisor. Should no reply be received from the applicant by the date specified in the Department's notification letter, the Minister's decision will be made based on the information available. 16

17 Appendix 2: Awards and costs paid in 2011 under the Garda (Compensation) Acts 1941 and 1945 Year No. of Awards Payments Compensation Awards No. of Cost Payments Cost Payments Total million m million million million 8.1 million million million 11.9 million million million 18.4 million million million 12.7 million million million 9.6 million million million 8.7 million million million 4.5 million million million 6.4 million million million 7.5 million million million 10.5 million million million 6.9 million 7 The figure for applicants legal costs for 2011 totaled 3.8 m, including 2 test cases on blood borne viruses which cost m. As a further 60 cases were settled on the basis of the blood borne precedent, it is not appropriate to include them as regular applicant costs. Including these 2 payments also increases the number of payments to 217 in