Dáil Éireann debate -
Wednesday, 7 Feb 1996

Vol. 461 No. 2

Adjournment Debate. - Hepatitis C Victims.

Mrs. Geoghegan-Quinn

Tá mé buíoch as ucht deis chun an cheist seo a ardú ar an Athló. It is little surprise that one of the groups representing victims of the hepatitis C scandal has decided to boycott the Minister's compensation tribunal. The other main group which represents victims who contracted hepatitis C from blood transfusions remains deeply unhappy with the tribunal and has expressed serious dissatisfaction at the Minister for Health's handling of its concerns.

For the past five months the groups representing victims have expressed serious concerns about the Minister's proposals. However, he has failed to listen to them and has instead rail-roaded his ad hoc tribunal. The tribunal is fundamentally flawed and I have argued from the outset that a statutory tribunal is the best way to proceed for numerous reasons. It is becoming apparent that individuals appearing before the ad hoc tribunal will be dissatisfied with the justice they receive.

There are numerous deficiencies with the ad hoc tribunal. For example, the terms under which it is established do not allow victims as a right to have medical oral evidence presented even though hepatitis C can cause many complications and is a potentially life threatening disease. There is not a medical expert on the tribunal to compensate for this. In addition, victims do not have an absolute right to give evidence to the tribunal, witnesses cannot be compelled to attend and while the tribunal can make provisional awards women must accept the ruling of the tribunal to grant a provisional or final award even though hepatitis C is a most uncertain disease and the victim's health can deteriorate considerably over time.

There are numerous other deficiencies with the tribunal. For example, its terms require victims to prove on the balance of probabilities that they contracted hepatitis C through blood transfusions or the administration of anti-D. This onus of proof may be impossible for many legitimate victims to discharge. For example, their records could be lost or the chain of evidence may be impossible to complete because testing for hepatitis C was only introduced after October 1991. There are also difficulties in regard to the way the tribunal was established. The Minister says it will continue indefinitely but there is no guarantee that a future Government will not try to abolish it. There is also no guarantee of a judicial review of decisions, while a constitutional issue surely arises in relation to the ability of one Government to bind future Governments to an ad hoc scheme.

Without doubt, the tribunal fails any reasonable fairness test on many counts. This leads me to believe the terms of the tribunal have been deliberately fashioned so that the State's liability is minimised. The argument put forward by the Attorney General in recent weeks in the High Court that victims of hepatitis C who use an alias should use their own names and addresses so that everyone knows who they are is an attempt by the State to cajole other victims of hepatitis C away from the courts and back into an ad hoc and unsatisfactory tribunal. Given that the State is fully responsible for this scandal — it was a State agency which was at fault — this treatment of the victims is shameful.

The Minister suggested that cases at the tribunal would go through almost on the nod and that victims would be treated fairly. However, the truth appears to be far from this. Victims will run up against all kinds of evidence difficulties and will find that the tribunal does not function in their favour.

Minister for Health (Mr. Noonan,

Limerick East): The first appropriate point to make is we will wait and see. The tribunal, which has heard two cases only, is independent in the exercise of its functions and I have confidence in it. It is also inappropriate to refer to a case which is before the courts and to criticise the side being carried by the Attorney General. This is not the normal practice in the House.

I welcome the opportunity to confirm to the House the Government's continuing commitment to fair compensation for those who have contracted hepatitis C from a blood transfusion or blood product. I very much regret the decision taken by Positive Action not to recommend the tribunal to its members. On numerous occasions, I outlined the many advantages of the tribunal as opposed to proceedings before the courts. I will reiterate these advantages: speed, informality, flexibility and privacy; negligence need not be proved; the right of court action is completely preserved unless and until an award is accepted; proceedings before the tribunal are not excluded from judicial review; the concept of a provisional award, which is not available in Irish law, allows a claimant to return to the tribunal for future specified unexpected consequences of the hepatitis C infection — this is a particularly important option for claimants given the uncertain nature of the infection — and the scheme is entirely optional and imposes no disadvantage.

I fully respect the decision of individual women to pursue their legal cases before the courts. I established the compensation tribunal on 15 December 1995 following detailed discussions with Positive Action, to offer an alternative to court proceedings to persons who contracted hepatitis C from the use of blood or blood products. It is entirely a matter for each individual to choose the avenue which they consider most appropriate to their individual circumstances. However, I hope that each person's decision will be made in the light of informed, accurate and complete information on the advantages of the compensaton tribunal. It is clear from some of the recent media coverage of the tribunal that there is a degree of misinformation abroad in relation to the compensation scheme.

I understand that two priority cases have already been heard by the tribunal and awards have been made in both cases. I am not aware of the detailed circumstances of these cases and I regret that there has been comment in the media with regard to the level of awards in the absence of knowledge of the circumstances of the cases. This may have given rise to undue distress to the claimants and their families. It can also serve to cause anxiety and confusion to other persons diagnosed positive for hepatitis C who may wish to make application to the tribunal.

Approximately 600 application forms have been forwarded to individuals and solicitors, on request. The scheme of compensation provides that claimants have six months to make their application to the tribunal from the date of the establishment of the tribunal or the date of a positive diagnosis for hepatitis C, whichever date is the later. A total of 72 applications have been received by the tribunal which I understand will recommence hearing cases in early March. No application has been withdrawn from the tribunal.