Ceisteanna—Questions. Oral Answers. - Medical Records.

Máire Geoghegan-Quinn

Question:

5 Mrs. Geoghegan-Quinn asked the Minister for Health the number of patients' files relating to the administration of blood and blood products from the Blood Transfusion Service Board which have been discovered by his Department to be missing: the steps, if any, that have been taken to locate these missing files which are crucial for patients who are taking cases associated with the hepatitis C scandal; and if he will make a statement on the matter. [5845/96]

(Limerick East): I wish to emphasise that individual patients' medical records are kept in hospitals and not in the Department of Health. My Department issued letters to all health boards and voluntary hospitals regarding access to medical records for persons who have been diagnosed positive for hepatitis C on 31 May 1995, 26 June 1995 and 5 February 1996. The hospitals and health boards have undertaken to make records available when requested once clearance has been received from the consultants and save only in cases where it is considered that it would cause serious harm to the patient's physical or mental health. To date the hospitals have issued medical records on request and currently a number of requests for records are being processed. I am not aware of a backlog in any hospital.

Transfusion Positive have expressed concerns in relation to access to medical records. My Department recently offered to give all necessary assistance to its members who were encountering difficulties in locating past medical records. Transfusion Positive subsequently wrote to all of its members and details of eight persons who were encountering difficulties were forwarded recently to my Department. My Department has made inquiries of the hospitals involved and will be in touch with Transfusion Positive in due course.

Discovery orders have been made in two cases before the courts in relation to hepatitis C infection. Every effort is being made to trace all relevant files in the Department of Health. This exercise has not yet been completed and I am, therefore, not in a position to state if any relevant files are unavailable.

How many files were transferred from the Blood Transfusion Service Board to the Department of Health for safe keeping, where are those files and are they kept in one building or a number of buildings? Is the search in the Department ongoing and, if so, who is in charge of it?

(Limerick East): The search is being conducted by officials in the Department of Health on the request of the High Court. I wish to distinguish between the two types of records. The first type of record establishes at hospital level the connection between infected blood product or infected blood and hepatitis C. In the case of members of Positive Action, these records are readily available because the screening process, which covered more than 58,000 women, established the connection. In the case of members who received infected blood rather than infected blood product, we have had discussions with Positive Action who have indicated that eight members are experiencing difficulty in establishing records of blood transfusions.

The other type of record is completely different and there are cases before the High Court — reference was recently made to one case. In the course of the proceedings in the High Court a discovery of documents order was secured and this has led to the search in the Department of Health. The search, which goes back as far as the 1950s and 1960s, is ongoing. I know some of the records are in Hawkins House and some may also be in O'Connell Bridge House. We are doing everything in our power to comply with the legal obligations to provide the documentation. However, it is not central to the issue which is frequently debated in the newspapers.

The compensation tribunal wrote to the Irish Kidney Association and to Transfusion Positive in response to concerns expressed by both groups about medical records from hospitals and the BTSB. The tribunal informed both groups that it made awards where the claimant had received a blood product but was not in a position to match the blood given, to a batch supplied by the Blood Transfusion Service Board. The tribunal also advises that medical reports submitted to the tribunal should, in cases of doubt, deal with the exclusion of other possible causes of the condition.

The Deputy is familiar with this issue. The onus of proof required at the tribunal is the balance of probability that one got hepatitis C from blood or blood products. However, the tribunal is not rejecting people who cannot establish a written record to make the connection and it has made awards where such a document was not available to make the link. I understand the Deputy is aware that members of Transfusion Positive are pleased with that statement of practice by the tribunal.

I am glad the Minister assured us that every member of staff in the Department of Health is co-operating fully to recover the missing files.

(Limerick East): They are not missing.

They cannot be found in the Department.

(Limerick East): The search is ongoing, but we are talking about a huge volume.

One only searches when one cannot find something.

(Limerick East): Search in the legal sense means one gets the documents the courts are seeking.

The Minister said he knows some of these files are in Hawkins House and that there may also be some in O'Connell Bridge House. It is important that the staff in the Department co-operate fully in this search.

There is at least one case in which a woman got the Anti-D product in 1993 and 1994. A set of files is available for one year during which the virus or infection did not occur. However, a set of files for the other year, during which her medical people think the infection occurred, is not available. There is a problem for some people who got Anti-D products. Is there a problem as regards hepatitis C victims getting batch cards from the Blood Transfusion Service Board?

What is the connection between Mr. Bill O'Herlihy's publicity company and the tribunal or the firm of solicitors representing victims before the tribunal? The Minister might be able to confirm or deny if there is a direct link between that PR company and the tribunal or between it and the firm of solicitors. There seems to be publicity surrounding the tribunal at present, something the Minister assured us would not happen. He also assured us that the people are entitled to privacy.

(Limerick East): I cannot give legal advice at any time in the House. If anyone has difficulty finding records they need to pursue a case before the tribunal or the courts, it is the Department's policy to do everything possible to find them. Where those records are unavailable, the tribunal has issued a practice statement indicating it will be prepared to take a lesser level of evidence and adjudicate on the balance of probabilities that a person had contracted hepatitis C from infected blood or blood products, although there was no documentary evidence of that. The tribunal has made awards without that documentary link.

I do not know the answer to the question about batch cards. However, I have instructed the health boards, hospitals and the BTSB to supply everything required. If the Deputy has an individual query in this regard, perhaps she could raise it with me.

That is the first time I have heard Bill O'Herlihy's public relations company mentioned. Drury Communications are the PR consultants for the Blood Transfusion Service Board. They were employed when I became Minister and I decided to continue their contract because they seemed to be doing a reasonably good job. I would be amazed if the tribunal employed a company of that nature.

It was inevitable that when a big award like £251,000 was made it would attract a great deal of publicity. As I understand it, one solicitor, who block booked the tribunal in the early weeks of the hearings, has the permission of his clients to state the amount of awards, but he is not revealing their identity. I have not communicated with him because I do not know him. He indicated on the first day of the tribunal that three awards were made and he specified some information about them. On the second day of the tribunal he gave the amount of the award for one, but in today's newspapers he states he does not have the permission of his clients to reveal either the amount or the identity. There is not a contrived publicity campaign; this is only a solicitor giving interviews with the permission of his clients after the hearings. Information is not coming from my Department or from the tribunal about any individual case. I reaffirm that as far as I am concerned everything will be conducted privately and confidentially and information will only be revealed if the clients or their legal representatives do so. It will not be done on a third party basis.

Does the Minister accept that it is difficult to find these files on blood transfusions and blood products and that this casts a long shadow over State administrative procedures? Is there a danger that the claims of Transfusion Positive victims will be affected by the State's inability to locate these records?

(Limerick East): The records to which Deputy Geoghegan-Quinn referred are not the same as those mentioned by Deputy O'Donnell. As a solicitor——

I am not a solicitor.

(Limerick East):——or a person with legal qualifications, she should know what search means in the legal context. This search is taking place on the direction of the High Court. It is not just a simple thing of finding a particular file. The people involved are working overtime to go through the files to see if there is a relevant document because the instruction is to produce a relevant document. There is nothing untoward happening; it is a normal search on the instruction of the High Court. A great deal of material must be examined and that work is progressing. I do not know if everything will be found but there are no indications so far of a difficulty.

As I said in my initial reply, we had correspondence and meetings with Transfusion Positive. We offered help if there was a difficulty in establishing documentary evidence of the link between infection and the blood received. We received a reply stating that eight persons were having difficulties. The Department is now trying to establish that documentary evidence. The tribunal has taken this matter up independently of me and has indicated that, as far as it is concerned, the balance of probability does not mean that documentary evidence must be available in all cases. It has made awards where the documentary evidence was not available to establish the link because the onus of proof required is the balance of probability.

They have advised that medical reports submitted to the tribunal should, in cases of doubt, deal with the exclusion of other possible causes for the contracting of the condition of hepatitis C. Deputies will see the relevance of that to the proofs required. The best I can do is to supply copies of the two letters of practice which the tribunal has issued which deal with this matter and other matters which are relevant to the members of Positive Action. I would like the House to have the fullest information on these matters.

Is the Minister aware of records already shredded or lost?

(Limerick East): No, I am not.

Will the Minister be issuing guidelines regarding the keeping of records in hospitals, etc.?

(Limerick East): I have not considered doing that because we are getting full co-operation. I have issued three letters to hospitals and health boards. This has not arisen as a major issue and I have no notice that it has arisen in respect of persons who have been infected by Anti-D product. However, I have had an indication that eight persons have had difficulties on the other side. If Deputies bring individual cases to my attention, I will do everything possible within the Department to find what they are looking for and to make sure it is supplied if it is available. Even if it is not available, that is not the end of the road, because the onus of proof is the balance of probability, and the tribunal has now issued a practice directive on that which favours the applicant who cannot provide documentation.

The Minister said at the Ard-Fheis that an accord was close, meaning an accord between himself and those infected with hepatitis C from both groups, Transfusion Positive and Positive Action, who have concerns about the long-term fairness of the compensation tribunal. Everyone in this House, certainly on this side, shares that concern. What did the Minister mean by saying that an accord was close? There is a particularly sensitive outstanding issue, that is, the power of the tribunal to compel witnesses to attend, which has been a sore point with both groups representing hepatitis C victims. Does the Minister intend to give that power to the tribunal or is the tribunal prepared to take that power unto itself? The Minister said on 8 February last that as soon as some very large awards were made by the tribunal there would be a rush of applications to it. Can he indicate how many more applications have been made to the tribunal since the one large award was announced less than a week ago?

(Limerick East): Before any large award was announced the number of applicants had risen to over 200. I do not know what rush has occurred since. The word was only out in yesterday's papers. The tribunal is independent and I do not keep in day-to-day contact with it. Applications are coming in, as one would expect. As additional evidence is required to back up claims, it is clear there will not be a rush because the forms have to be filled in by solicitors and the kind of evidence we have just been talking about must be obtained.

Regarding what I said at the Árd-Fheis, I would very much like if Positive Action were fully satisfied with the terms of the tribunal. It is a fair and just tribunal presided over by excellent people under the former Supreme Court Judge, Mr. Justice Egan. Many of the fears of members of Positive Action arise from a misconception about how the tribunal will conduct its affairs. I have been communicating with the registrar of the tribunal to get him to clarify procedures. He has already clarified that each applicant will be allowed to give evidence before the tribunal and a number of other matters, thus narrowing the information gap.

The solicitor to which the Deputy referred in terms of publicity said in one interview he thinks that the question of provisional awards, for example, will be conducted on the basis that they will be available on application. I can give assurances that the provisional award will be communicated in writing and will have a contractual legal base to it.

Many outstanding items that were causing concern are being addressed as the tribunal clarifies its procedures. In due course I will be seeking further clarification from the registrar of the tribunal about items on which Positive Action would like clarification. Effectively what it comes down to is whether the practice statements issued by the tribunal will allay concerns. I believe they will. I believe and hope the tribunal will work very well because persons infected by hepatitis C have enough stress in their lives without having further stress because of this matter.

I do not know how big or small the awards will be. Individual cases vary, but the level of compensation will be measured in the same way as it would be measured before the High Court. I have been asked if £60 million is sufficient. I am on record as saying that that was simply the budget provided on our best guesstimate for 1996 but that we expect the tribunal to go into 1997. It was never intended that £60 million would be the charge on the Exchequer; it is the 1996 charge on the Exchequer.

Whatever about past deficiencies in terms of record keeping, which can now be minimised in relation to the subjective needs of the persons going before the tribunal by way of a practice statement, can the Minister assure the House that the procedures in place are optimal in relation to transfusions which may be given today or tomorrow in the current system of hospital care? Can the Minister assure the House that there has been every possible improvement in record keeping and administration in relation to blood products to restore very bruised confidence in the blood product which is in use currently in the State? Does the Minister accept that it is vitally important to learn from the past and to ensure the greatest degree of confidence in the current system of giving, taking and storing blood among members of the public who are receiving blood transfusions? Will he assure the House that new standards have been put in place?

(Limerick East): Whatever the criticisms of the Blood Transfusion Service Board, its records were accurate. They stood up to real scrutiny when one had to trace a donation of blood through different transfusions given. We thought initially there might have been some inadequacy in the hospitals, but when we probed the matter most of the hospitals came up with full records. I have only been notified of eight people encountering difficulty, and we are working on those to see whether the difficulties are owing to absence of records or lack of co-operation.

On the question of the Blood Transfusion Service Board itself, the Bain consultancy dealt with many of these issues. Deputies may have read in the newspapers that Mr. Liam Dunbar, who was acting in a temporary capacity, has now been appointed chief executive, and that Mr. Sean McCann, who was acting in a temporary capacity as chief medical officer, has become the professor of haematology in Trinity College. His post will be vacant and we will be putting in a full-time professional haematologist as soon as we can recruit an appropriate person. Such upgrading and reform is ongoing. The Blood Transfusion Service Board recently had difficulty with blood supply because of what they thought initially were defective bags. It transpired that the bags were not defective, but there was a great rally by donors. There is huge donor confidence again and very high recipient confidence. It is essential to maintain an adequate blood supply if we are to operate an effective health service.

When we raised the question of the partners and children of deceased hepatitis C victims the Minister stated the matter was under consideration and that no decision had been made. What would happen in the case of a person who contracted hepatitis C and returned home from living abroad after the expiry date for applications to the tribunal?

(Limerick East): I am speaking from memory but under the terms of reference of the tribunal, four categories of persons can make an application. As I stated in reply to Deputy McDaid one can apply in respect of a dependant. It is a non-statutory tribunal and if any anomaly, inequity or unfairness arises the terms of reference can be changed by referring them to Government. I do not want to exclude anyone who has a legitimate claim. If legitimate applicants are being excluded we will change the terms of reference in due course. The big advantage of the arrangement is that it can be tailored to meet legitimate cases as time goes by. As it is not embedded in Statute I do not need amending legislation to change it.