On yesterday's Order of Business on behalf of the Government the Taoiseach accepted liability for the health scandal we are discussing this evening. He went on to say that the liability must be met and is being provided for. This morning on the Order of Business he said the credibility of the tribunal with the women who need compensation would be greatly diminished if the Government did not make the financial provision to meet it and that the credibility of the tribunal is enhanced by the fact that financial provision is being made this year. That is far from being accurate. As Deputy O'Donnell pointed out, it would be better if the Taoiseach did not use the victims of hepatitis C as the excuse for the questionable accounting procedures of this Government.
The Taoiseach's statement is inaccurate in several respects. It is hard to diminish credibility for the tribunal proposed by the Minister for Health, Deputy Noonan, when the groups representing victims are deeply unhappy with it. As far as they are concerned an ad hoc tribunal for hepatitis C victims has no credibility or very little credibility compared to the statutory one they have demanded.
The Taoiseach also suggests that the groups were pressing for financial provisions to be made for the tribunal and that was what spurred on the Government. The groups representing hepatitis C victims did not insist that the Government push through the Supplementary Estimate in such a hasty fashion. They wanted the detail of the tribunal sorted out and had not pressed for an Estimate. Some of the groups representing the victims had met the Minister for Health the night before the Supplementary Estimate was moved at the Select Committee on Social Affairs last week and were less than happy with what they were told about the arrangements for the Estimate and the tribunal. They were not satisfied with the terms proposed by the Minister and believed further talks were necessary. They also believed the Minister for Health had failed spectacularly to listen to the concerns of those infected and that he was wrong to move forward with the Estimate at that time when the detail of the matter was not agreed. However, the Minister ploughed on showing complete disregard for the victims of a State disaster. For the Taoiseach to claim at this stage that the credibility of this ad hoc tribunal is enhanced because of the financial provisions is insulting. He should withdraw the remarks he made this morning on the Order of Business tomorrow.
The Minister for Health made a number of points last night which need to be addressed. He presented the research carried out by the Department of Health and the Blood Transfusion Service Board into finding the victims of hepatitis C as comprehensive. He also presented the ad hoc tribunal as fair, balanced and as giving an opportunity to all victims to get a settlement. That is quite inaccurate. The group which represents the people who contracted hepatitis C from blood transfusions will have legal difficulties with the Minister's proposal. That group includes at least 500 people, made up of mothers who received transfusions when giving birth, children who needed blood transfusions to save their lives, male and female car accident victims, males and females who received transfusions during serious operations and those with rare blood diseases.
Under the Minister's proposals transfusee claimants, their children and partners will be required to establish on the balance of probabilities that the hepatitis C antibodies or hepatitis C virus in respect of which they have been diagnosed positive resulted from a blood transfusion or a blood product received by the claimant, parent or the partner of a claimant within the State. They foresee two difficulties in relation to this obligation which is to be placed on every claimant before the proposed tribunal. They understand that some medical records would have been lost or mislaid through the amalgamation of various hospitals in recent years and that in at least one case medical records have been destroyed. The individual in question was in hospital as a child over 20 years ago and they understand that, in accordance with administrative procedures in that hospital, the records relating to her have been destroyed. Such persons, therefore, will have to rely on other means of proving they received blood transfusions. However, the most crucial issue in their view relates to the obligation contained in section 6 (e) (ii) whereby claimants are required to establish on the balance of probabilities that they have contracted the hepatitis C virus from a blood transfusion or blood product. This means that a claimant must establish on the balance of probabilities, in a positive manner, that he or she contracted the infection from the blood transfusion or blood products. It is their view that it is not sufficient for a claimant to show that the infection could not be caused by other causes or from other sources. Accordingly, a claimant must show a positive connection between the infection and the receiving of a blood transfusion or blood product.
The difficulty arises from the fact that screening for hepatitis C was not introduced until 1 October 1991. Only on or after that date are donors of blood tested for the hepatitis C virus. Persons who gave blood prior to that date would not have been tested in a significant number of cases. As the facts become available, it appears that quite a number of donors did not continue to donate blood after 1 October 1991. It is, therefore, not possible to establish whether such donors donated blood contaminated with the hepatitis C virus. It appears that only in cases where donors continued to give blood after 1 October 1991 can blood donated to claimants be positively confirmed as having been infected.
The Blood Transfusion Service Board's Lookback programme is only capable of establishing whether contaminated blood was donated in cases where donors continued to give blood after 1 October 1991. Therefore, there is a crucial difficulty, if not an impossibility, for a claimant to establish that he or she received contaminated blood in the circumstances I have outlined. Even the Blood Transfusion Service Board's attempts to identify whether blood donated in the past was contaminated will not succeed in identifying such blood unless the donor or the donors in question continued to give blood after 1 October 1991. Its view is that the obligation to establish, on the balance of probabilities, that a person's infection was caused by a blood transfusion or a blood product may be an impossible onus to discharge, through no fault of the individual claimant.
To sum up, the legal difficulty from the point of view of the blood transfusion victims is that, under the Minister's ad hoc tribunal, there is a major risk that a bona fide and deserving claimant may not be able to prove his or her case because of the imposition of an obligation to establish that blood was contaminated in certain circumstances that cannot be proved. It will not be possible to prove because testing for hepatitis C was not introduced until after 1 October 1991. If a person who had the virus donated blood prior to that date but did not donate again after that date they cannot be traced for hepatitis C.
The Blood Transfusion Service Board's Lookback study, which was requested by the Minister, has only established cases where infected blood was given after that cut-off date of 1 October 1991. The objections to the Minister's tribunal are compelling and put in context the incompleteness of records and tests so far. I say to Deputies on the other side of the House who have given commitments to the groups representing victims about a statutory tribunal that if they walk through the lobbies and vote down this motion, they are denying all these people compensation for a tragedy caused by the State.
The group representing blood transfusion victims has suggested some sensible changes that should be introduced to stop their members being locked out of the tribunal. So far, the Minister for Health, Deputy Noonan, has ignored these calls from a very vulnerable group.
I wish to raise a number of other points with the Minister, Deputy Noonan, who made some remarks about lawyers here last night. He implied that they would somehow devise a hepatitis C tribunal that would be complex, just to get exorbitant legal fees. I hold no brief for lawyers but I believe the Minister's remarks are offensive, especially to the senior counsel who have been involved in this controversy. In fact, instead of insulting them the Minister would do well to listen to them given that at least one of them has held very senior legal office in the State. The Minister is obviously sore because they have challenged his legal scheme and said it has a number of significant weaknesses. They have also said that the sentence in the scheme providing for the tribunal to continue indefinitely does not remove the real fears that the ad hoc tribunal could be abandoned by a Government even in the short-term.
Legal experts also point out that having regard to the provisions of Articles 17 and 28.4.3º of the Constitution there must be a real doubt as to the extent to which a Minister or the Government can purport to bind future Governments in the manner proposed in the scheme. The Minister said last night that even a statutory tribunal could be abolished by amending an Act of the Oireachtas. While I accept that could be done, a Government would think twice about doing this in that it would have to come before the House and have it voted on. It would be much more difficult to do that then to abolish an ad hoc tribunal where the only challenge would come from the courts and where such an action might not succeed.
All legal advice is that if the tribunal is not put on a statutory basis, then the best way to secure permanence is to provide for individual contracts between each claimant and the State, as Deputy O'Donnell suggested. I did not regard that as the best way forward and I would prefer a statutory tribunal but the Minister has not even offered the contracts route as a compromise in this affair.
The well considered advice I have been given by lawyers, close to this controversy, points to the Minister's scheme failing a fairness test on a number of counts. Claimants cannot present oral medical evidence to the ad hoc tribunal; there is no provision whereby witnesses can be compelled to attend hearings and claimants are not given an entitlement or a right to a provisional award. In all cases the tribunal has the discretion to make a lump sum award rather than a provisional award. The Minister's tribunal is not subject to judicial review and the ad hoc scheme excludes the right of appeal.
In his comments last night, the Minister said that proceedings before the tribunal are not excluded from judicial review but the victims and the lawyers do not share this certainty. It is their view that if there is a judicial review, it would only be after an onerous process. I heard what the Minister said on these points but advice from senior lawyers does not agree with the Minister's version of events. In fact, they believe that despite the Minister engaging the groups representing victims in a month of intensive negotiations, no significant improvement resulted in the proposals for the ad hoc tribunal. The lawyers came to the conclusion that the Minister's plan is that hepatitis C victims should be compensated, as Deputy O'Donnell said, with final lump sum awards at the earliest date, by the ad hoc tribunal, so that the problem is put into the past at the earliest opportunity.
I accept that the Minister made considerable headway on the health proposals. The health document put forward by him is satisfactory as it finally puts on paper the deal needed to copperfasten the guarantee of continuing quality health care given in 1994 by the former Government. It is a pity that guarantees had to be dragged, word for word, out of the Department of Health by the representative groups. The health document indicates that the representative groups will be consulted regarding the enabling legislation. When will the Minister, Deputy Noonan, fulfil that undertaking, given that his commitment in the House is to publish legislation by 31 December?
It must be remembered that hepatitis C is an unpredictable disease. It can arise at unexpected times and it can be fatal. That is why I would say to those on the other side of the House that if they vote down this motion, they are voting for a flawed half measure for the victims of a State tragedy. To say, as the Minister did last night, that a person falling into a pothole can be compared with a person infected with a life threatening virus at the hands of a State board shows clearly his lack of insensitivity and comprehension of the seriousness of this issue. The victims have fallen into a bottomless pit and the Minister wants to bury them there.