Earlier this year, the Committee of Public Accounts, of which I am a member, was presented with a briefing note on the HSE's spending on legal services and its open disclosure policy. We were also told that a contingent liability of €2 billion is needed by the HSE to fund claims into the future. The briefing note goes on to say that international evidence has demonstrated that patients are often forced down the legal route to get answers, acknowledgement and apologies when things go wrong with their care. Here we are, ten years on, and a woman in the worst of circumstances has been dragged through the courts to get answers. Indeed, had Vicky Phelan not been so brave to do what she did, then none of us would be any the wiser. Even if open disclosure is in place and these issues are mediated, what assurances are there that the identified failures will be remedied for others in the future? It takes people going public and not signing confidentiality agreements to force this into the public domain. How many other scandals have fallen under the radar because someone has agreed to a confidentiality clause? At what point do these repeated failings lead to system reform? The State Claims Agency alone has the legal authority to determine the management of claims made against the HSE. On the RTÉ news last night, the State Claims Agency said that in the case of medical negligence, the agency's policy is to admit liability. That is a direct contradiction to the statement of Caoimhe Haughey of C.M. Haughey Solicitors on the same programme, who said that, in her experience, the State Claims Agency robustly defends every case and shows little or no compassion. Her comments are played out week after week when we see the HSE apologise after a settlement is made in the courts for medical negligence.

There is a litany of cases we could point to, including the one to which Deputy Connolly has drawn attention. Last week, we had the "Prime Time" programme relating to child and youth mental health services and the failures there. Do we have to continuously have high profile failures or force people to lay themselves and their personal stories bare in the media or courtroom for our systems to be overhauled? The Taoiseach was Minister for Health when the proposed legislation to make open disclosure mandatory was rejected. He made a decision to establish a patient safety office within his Department rather than the impartial office which leading health experts said was required. Does the Taoiseach accept that, in doing so, he removed any hope of true impartiality within that office and by failing to heed the World Health Organization's advice to implement mandatory open disclosure? His actions in 2014 have directly contributed to the current scandal. At the time, his now Minister for Communications, Climate Action and Environment, Deputy Denis Naughten, said that in failing to legislate for mandatory open disclosure, all the Taoiseach was doing was maintaining a lawyer's slush fund. He also described the Taoiseach's comments as absolute nonsense. Does the Taoiseach accept that he was right?

Nobody in the Government, whether me personally, or anybody in this House, wants to see sick or terminally ill people dragged through the courts. Nobody wants to see prolonged legal cases going on for years. The public does not want that either. It is not in anyone's interest. It is not in the interest of taxpayers in the long run. It is not in the interest of the health service when it comes to confidence in the health service, and it is not in the interests of patients or citizens. I have looked into this and am told by the National Treasury Management Agency, NTMA, and the State Claims Agency that 98% of medical negligence cases are settled or dropped and do not go to trial. Only about 2% go to a contested court hearing and those 2% often go to court because facts or claims are contested. There will always be a certain percentage where the facts or claims are contested. In Vicky Phelan's case, as the Deputy knows, the case against the HSE was struck out but the laboratory settled for €2.5 million without accepting liability. While there may not have been legal liability on the State, I think there was moral liability on the State to ensure that she got the information about the case that she should have got. There was a breach of duty to ensure that occurred.

How will we deal with these matters? The first thing is to ensure that more cases do not go to court at all. We can do that by building a culture of truth in our health service. That means open disclosure and many other things. Bear in mind that this is the Government that legislated for open disclosure in the Civil Liability (Amendment) Act 2017. That will be commenced before June this year. We will also legislate, as we indicated last year and in the programme for Government in 2016, for mandatory open disclosure in the most serious incidents, which are those that are considered to be serious reportable incidents. We need to reform our laws to make sure that legal cases proceed more quickly. Let us not forget that the legal profession can help with this too. Where something goes legal, there are two sides, and both sides need to work together to make sure that cases are not prolonged. We can do that in a number of ways. For example, pre-action protocols, periodic payment orders and mediation have been legislated for by this Government. In the past year or two there have been three major Acts, designed to do exactly what the Deputy says should be done, namely, the Civil Liability (Amendment) Act, Legal Services Regulation Act and Mediation Act, which were passed in the last few months. I saw an example described yesterday in the news of a case which was handled very differently, that is, the case of a young boy who had a birth injury who settled for €5 million. That was done by mediation. The sister described on "Six One News" last night how things can be and often are done differently.

On that patient safety office, I was the Minister for Health who set it up. There was not one before. When one does things, one needs to do them in a stepwise manner. It is not possible to make all reforms happen overnight but we are making those reforms happen.

When the Taoiseach says that 98% of claims are not pursued through the courts, there are many different things that can happen. People can be afraid of the might of the State and the consequences for themselves. We know that settlements are routinely made on the steps of the court. We do not know what gagging orders or confidentiality agreements hide some of what we see.

There seems to be a conflict between the approach of the State Claims Agency and that of the HSE. That conflict must be resolved because if it is not, we will continue to see cases going through the courts. The Taoiseach set up a voluntary as opposed to a mandatory arrangement, which is not yet in force. Does he regret not setting it up as a mandatory arrangement? He said that he has set up an office within his Department, rather than the independent office recommended by health experts. Why did he do that? Why was his approach the better of the two approaches? What information did he have that it would produce a better result?

These issues are not new. Over the past ten or 20 years, there have been any number of Ministers for Health and any number of Ministers for Justice and Equality, bearing in mind that this concerns justice rather than health legislation. Any of those Ministers could have acted on these matters. I established the patient safety office and-----