Dáil Éireann debate -
Wednesday, 1 May 1996

Vol. 464 No. 7

Ceisteanna—Questions. Oral Answers. - Infected Blood Product.

Máire Geoghegan-Quinn

Question:

3 Mrs. Geoghegan-Quinn asked the Minister for Health when his Department was first notified by the Blood Transfusion Service Board in respect of a file showing that the woman whose plasma originally contaminated the anti-D product in 1976 had infective hepatitis; if he has noted the contradictions in relation to this matter between statements made by him and the Minister of State on the one hand and the acting chief executive of the Blood Transfusion Service Board on the other; if the members of the expert group on the Blood Transfusion Service Board will now be freed from the restrictions, if any, that apply to them in relation to making public comments in respect of this matter; and if he will make a statement on the matter. [8900/96]

Liz O'Donnell

Question:

5 Ms O'Donnell asked the Minister for Health whether the file confirming that the donor whose plasma was used in the manufacture of anti-D, which is believed to be the main source of contamination for hepatitis C victims, was studied by the expert group led by Dr. Miriam Hederman-O'Brien, during the course of its investigation or was discovered after the report of the expert group was presented to him. [8868/96]

Mary Harney

Question:

13 Miss Harney asked the Minister for Health if he will publish the documents which formed the basis of the report of the expert group appointed by the Government to investigate the way in which over 1,000 women were given anti-D infected with hepatitis C; and if he will make a statement on the matter. [8753/96]

Desmond J. O'Malley

Question:

26 Mr. O'Malley asked the Minister for Health whether his Department intends to establish a special judicial inquiry to investigate new claims that the Blood Transfusion Service Board was aware of the fact that blood products used were known to be contaminated when administered; and if he will make a statement on the matter. [8761/96]

Minister for Health (Mr. Noonan

, Limerick East): I propose to take Questions Nos. 3, 5, 13 and 26 together.

The matters which form the substance of these questions are the subject of a number of cases which are currently before the High Court and I, as Minister for Health, am one of the defendants. I understand that on Friday last the President of the High Court fixed 8 October as the commencement date for the hearing of one of these cases.

The Dáil is not a court of law and it would be inappropriate for it to encroach on the functions of the courts or the Judiciary. As one of the defendants in these legal actions I am particularly constrained in what I can say to the House. The legal rights of the plaintiff and the defendants in any legal action must be respected and there is an onus on me and all Members of the House to avoid comment which might prejudice the outcome of the proceedings.

I wish to refute the allegations that my colleague, Deputy O'Shea, Minister of State at the Department of Health, misled the Dáil in responding to a Dáil adjournment debate on 28 March 1996. In my press statement of 17 April 1996, I reiterated that there was no contradiction between his statement to the Dáil and the report of the expert group on the Blood Transfusion Service Board. I confirm that there is no such contradiction.

There is a degree of confusion and misunderstanding in relation to the terms "infective hepatitis" and "jaundice". On 25 February 1994 the Blood Transfusion Service Board informed the Department of Health in writing that the board had

...been informed that the patient had an episode of jaundice early in the course of her treatment which led to an initial investigation of her hepatitis B status.

The fact that this was the first time that my Department had been informed that a donor to the plasma pool used for the manufacture of the anti-D product had had an episode of jaundice was one of the principal reasons a decision was made by the then Minister for Health to establish on 4 March 1994 an expert group with the following terms of reference:

(I) To examine and report to the Minister for Health on the following matters:

(a) all the circumstances surrounding the infection of the anti-D immunoglobulin product manufactured by the Blood Transfusion Service Board.

(b) the systems and standards in place for donor selection, the manufacturing process and use of the anti-D immunoglobulin produced by the Blood Transfusion Service Board.

(II) To make recommendations to the Minister for Health on the above matters and any other matters relating to the Blood Transfusion Service Board which the group consider necessary.

The report of the expert group was published by the Government on 5 April 1995.

As I have stated, one of the principal reasons for establishing the expert group was the information given by the BTSB to the Department of Health in a letter of 25 February 1994.

I have been informed that, at the time of the establishment of the expert group, that the Department of Health, the then Minister for Health and the members of the expert group were in no doubt that the donor to the plasma pool for the anti-D product had an episode of infective hepatitis. If the donor's episode of jaundice was not related to infectious causes i.e. not infective hepatitis, it may not have been necessary for the expert group to consider this matter. Blood donors with a history of jaundice not related to infectious causes could be accepted as donors. However, it must be pointed out that the diagnosis of the patient as "infective hepatitis" in November 1976 was a clinical diagnosis, i.e. an observational diagnosis. Following this clinical diagnosis of infective hepatitis, the BTSB sent samples of the donor's plasma to the UCD virology department and Middlesex Hospital, London for laboratory tests. At the time, 1976-77, there was no routine test available for hepatitis A. A routine test for hepatitis A was introduced in the virus reference laboratory at UCD in March 1981. The hepatitis C virus was not described until 1989 and routine testing for hepatitis C was introduced by the BTSB in October 1991 when a scientifically reliable test was available.

The donor's plasma tested negative for hepatitis B in both laboratories. Therefore, the clinical diagnosis of infective hepatitis was not confirmed by the laboratory tests. However, while the BTSB, stopped using the donor's plasma following the clinical diagnosis of infective hepatitis, the board decided to resume using her plasma having apparently concluded that the jaundice/hepatitis was due to environmental factors. I have been advised that the term "jaundice related to environmental factors" would generally be interpreted as meaning that the jaundice was caused, not by a blood borne virus, but rather by one of a number of factors such as poor hygiene or consumption of contaminated food or drink.

The expert group at paragraph 6.11 in its report concluded as follows:

In 1977, the BTSB had clear standards governing the selection of donors for (a) ordinary blood donors and (b) the male donor panel for anti-D production. In both categories, the BTSB's standards prohibited the use of donors with a history of infectious hepatitis or jaundice of unknown origin. We consider that the BTSB should have applied those same standards to the 1976/77 female plasma exchange patient. Her plasma would not have been accepted under the standards set down for the other categories of donor, and should not, we believe, have been used in the production of anti-D in 1976/77 after she had become jaundiced.

The expert group on the BTSB carried out its work by meeting relevant individuals and groups and by requesting relevant documentation. It requested meetings with interested parties and, in a small number of instances, individuals approached the group for a meeting. In addition, it wrote on a number of occasions to the then chief medical consultant and the then chief executive officer of the BTSB for information on specific issues. Where additional queries arose, the group invited individuals for further discussions. The expert group did not seek each and every document in the BTSB. It held its meetings and examined documentation between March 1994 and early January 1995.

As I have already stated, High Court proceedings have been initiated against the BTSB and others. The file referred to by the Deputies is a BTSB internal file which was disclosed to the plaintiff by the BTSB in accordance with a High Court order. The BTSB at no time forwarded any internal file to the Department of Health. I would like to state unequivocally that there are no BTSB files in my Department.

I understand, however, that attached to the affidavit sworn by the plaintiff's solicitors on 22 March, 1996, are Crumlin Hospital standard laboratory test request forms indicating the clinical diagnosis of infective hepatitis in November/December 1976. As I have already mentioned, my Department and the expert group knew before the establishment of the expert group on 4 March 1994 that there was a clinical diagnosis for this donor of infective hepatitis in November 1976. While the Crumlin Hospital standard laboratory test request forms attached to the affidavit sworn by the plaintiff's solicitors on 22 March 1996 were not seen by the expert group, it and the Department of Health were aware of the clinical diagnosis and the outcome of the subsequent laboratory tests, as I have already outlined. When the information on the clinical diagnosis was given to my Department and to the expert group, documentary evidence in this regard was not sought or required for their purposes.

In the light of the details which I have set out, I will deal now with the alleged contradictions between statements made by me and the Minister of State Deputy O'Shea, and reports in the media in recent days following the attendance of the chief executive of the BTSB at a meeting of the Committee of Public Accounts on Thursday, 25 April. My officials have been in contact with the chief executive of the BTSB and the following is the position.

The allegations in the media are to the effect that the expert group did not see a particular file and, therefore, were not fully informed on the clinical diagnosis of infective hepatitis of the donor to the plasma pool used in the manufacture of the anti-D product in 1976-77 and that the Minister of State had been presented with this file before he spoke in the Dáil on 28 March.

While the file referred to by the chief executive officer of the BTSB at the meeting of the Committee of Public Accounts was not seen by the expert group, I reiterate that the expert group was fully informed and fully aware from the outset of its work of the clinical diagnosis of infective hepatitis in the light of the BTSB's letter of 25 February 1994 to the Department of Health.

I understand that the chief executive officer of the BTSB told the Committee of Public Accounts that he was of the view that the Minister of State would have been aware of the existence of the file in question. The fact is that the Minister of State, while aware of the existence of the file, had not seen the file.

I outlined earlier in this reply that no internal file of the BTSB was ever forwarded to my Department. However, as I have already mentioned there were a number of Crumlin Hospital standard laboratory test request forms attached to the affidavit sworn by the plaintiff's solicitors on 22 March 1996 and they form part of the current court proceedings. I have now been informed that these standard laboratory test request forms relating to the plasma donor form part of a particular file which has been discovered to the plaintiff's solicitors as part of the proceedings.

The expert group on the BTSB investigated fully the circumstances surrounding the contamination of the anti-D product. The High Court proceedings which are fixed to commence on 8 October next will involve a judicial examination of and determination on this matter. In the circumstances, to establish a special judicial inquiry would serve no useful purpose and would be inappropriate.

It would not be appropriate for me to publish the papers which form the basis of the expert group report. These documents are, for the greater part, documents from the BTSB to the expert group and were forwarded on a confidential basis. They have, however, been disclosed in accordance with a High Court order in the course of the proceedings before the High Court. Documents discovered in compliance with a court order can only be used by the parties to the proceedings for the purpose of the legal proceedings before the court.

I have placed no restrictions on the members of the expert group to make public comments. It would be inappropriate for me to do so.

For the information of the House, to date the compensation tribunal has received 342 applications and since its commencement has heard 44 cases. The awards made to date by the tribunal range from £20,000 to £324,321 and no tribunal award has been rejected. I understand that approximately £4.5 million has been awarded to date by the compensation tribunal. The tribunal is running smoothly, fairly and efficiently as I had envisaged. The closing date for applications is 17 June 1996. The tribunal has hearing dates arranged until 18 June 1996.

Mrs. Geoghegan-Quinn

Much of what the Minister said was extraordinary, but one sentence in particular, "While aware of the existence of the particular file, the Minister of State had not seen it". I doubt if any other issue has received as much publicity and been the subject of as much questioning as this one. It is extraordinary that a Minister would be aware of the existence of a file and not ask to see it. Is it not a fact that the file would never have come to light were it not for the fact that the Roe case is before the courts? Why was the expert group not given every document relating to the 1976 case? Who made it aware that the woman in question had been clinically diagnosed with infective hepatitis? Does the Minister regard jaundice as being the same as hepatitis?

Mr. Noonan

(Limerick East): The courts will hear the case on the initial plaintiff on 8 October. There is a statement of claim of which the Deputy is well aware as she quoted extensively from it during the Adjournment Debate to which the Minister of State replied. It seems that, in parallel to running the case in the courts on 8 October, an attempt is being made to run it in the media also. That puts me in a difficult position because I am not commenting on third party activities, but a defendant in the case. That is the context in which I am replying.

As to definitions, as I understand it, there is hepatitis A, B and C, all of which are mentioned in the report. In more recent years it has run further up the alphabet. In the 1970s there was a test for hepatitis B which is transmitted through blood. Consequently, if a person had hepatitis B, blood was not taken or given.

Hepatitis A, on the other hand, is contracted, for example, by children in school if they do not wash their hands after being to the bathroom or eat contaminated food. The symptoms include diahorrea. It is not transmitted through blood, but environmentally from one to the other on touch or contact.

Jaundice is a symptom of both, when there is a liver problem, and can occur for a variety of causes. As I understand it, it is and was the practice in the 1970s to talk in terms of hepatitis A and environmental jaundice as being synonymous. They were also called infective or infectious hepatitis. Hepatitis B was the one everyone was looking out and testing for. It was also called infective hepatitis.

What happened was that a woman was seen in Crumlin Hospital suffering from particular ailments. Her plasma could have been used in the manufacture of the anti-D product. Her clinician made a clinical diagnosis that because she had jaundice it was infective hepatitis. Blood samples were taken and sent to the viral laboratory in UCD and Middlesex Hospital and found to be negative. Rightly or wrongly, it seems that the Blood Transfusion Service Board concluded, by a process of exclusion, that since it was not hepatitis B it was hepatitis A, also called environmental jaundice.

In its prudence, Middlesex Hospital kept archive samples of everything that had been sent to it for testing, including the samples from Dublin. In 1989, hepatitis C was established as a separate strain under laboratory conditions. There was no routine test available until later. In 1991 the Blood Transfusion Service Board began to use a routine test to exclude any donor who had contracted it.

As can be seen from the Dr. Miriam Hederman-O'Brien report, the key element is that Middlesex Hospital retested the archive samples and wrote back to the chief medical consultant of the Blood Transfusion Service Board stating that it had solved the mystery of 1976-77 — it was hepatitis C. The Deputy is aware of the sequence and what the report concludes on that aspect.

The charge being laid at the Minister of State who does not have responsibility for this area in the Department — he filled in for me on the night by reading out a script — is that because the dockets from Crumlin Hospital, which the solicitors have attached to the affidavit, were not seen by the expert group, it did not know what it was doing. It had full and complete knowledge that it was infective hepatitis and that it was, as it thought from the letter it was studying, the hepatitis B status of the woman concerned that was in question. If the Deputy reads the report carefully, she will see that it does not draw conclusions.

I think everybody knows that unless liability is established before the courts damages will not be paid and unless negligence is proved there is no liability. I object strongly to this being run in the media to establish a certain atmosphere rather than allowing the courts to examine every aspect.

The Minister of State is aware of the existence of a file in the way the public is aware of it. The solicitors running the action looked for a change in the statement of claim. They could quite easily have written a letter to the Chief State Solicitor and secured it by agreement, but decided instead to turn it into a media occasion. We read in the newspapers that there was a new file of some significance, but all it contains are test dockets from Crumlin Hospital which state that the clinical diagnosis was infective hepatitis. It seems that the samples were sent from Crumlin Hospital to the Blood Transfusion Service Board for testing.

The essential point is that the expert group, under Dr. Miriam Hederman-O'Brien, had all the information available. The Deputy is aware of this because she was a member of the Cabinet at the time. During the 12 months Dr. Miriam Hederman-O'Brien and the expert group examined the matter my colleague and the Deputy's former colleague, Deputy Howlin, then Minister for Health, kept the Cabinet briefed. It is wrong to suggest that anyone was kept in the dark.

All the documents were not provided to the expert group because that was not the way it proceeded. It was an informal group which proceeded informally as it did not have judicial authority or anything like it. It started to ask questions and interviewed people around at the time. It also asked to see relevant documents, but the event which triggered the inquiry was the letter, dated 25 February 1994, from the Blood Transfusion Service Board to the Department of Health. That letter which stated, "being informed that the patient had an episode of jaundice early in the course of her treatment", led to an official investigation of hepatitis B status. That is why the then Minister for Health, Deputy Howlin, went into Cabinet and sought an inquiry. There is no question of anybody fooling anyone. There are thousands of documents in this case, affidavits in the court and discovered documents. This file came up as a result of a discovery of documents. The new people I appointed to the Blood Transfusion Service Board, and the chairman of the board, said they did not know about the file when they got it, so they sent it off with the rest of the documents. The solicitors for the plaintiffs have it and any other relevant person can get it by application.

We should not attempt to try this matter here nor should we try to accuse the Minister of State at the Department of Health, Deputy O'Shea, of a coverup or of scandalous behavour. This is a dreadful situation for the people involved and for the victims. It is difficult to deal with it but we are trying to do so as sympathetically and fairly as possible. However, I cannot do the work of the High Court here; it must be done in the High Court. Anything I say here today will be used as evidence on 8 October and anything Deputies say they know could result in them being called as witnesses. There is an attempt to run this matter in a couple of locations, but I am happy to let it run in the High Court.

Ms O'Donnell

Would the Minister not agree that we would not have known about the clinical diagnosis of infective hepatitis but for the court proceedings? Despite the fact that the Minister set up an inquiry to look into this matter, the important fact that donor X had infectious hepatitis would not have been revealed to the public but for the legal discovery of documents.

The Minister seems to suggest there was some confusion about the difference between jaundice and infective hepatitis. I remind the Minister that the expert group consisted of a professor of haematology, a lecturer in microbiology and Dr. Hederman O'Brien. Would the Minister not accept that had they seen this file and strong documentary evidence of infectious hepatitis in donor X, their conclusion would have been different? They could not have concluded, as they did, that the infection was due to jaundice by environmental factors. Their conclusion is flawed because information was withheld from them. The Minister said they were aware of it. How were they aware of it if they did not see documentary evidence?

Mrs. Geoghegan-Quinn

I asked the Minister that question but he did not answer it.

Ms O'Donnell

How did they reach a conclusion which pointed to environmental factors rather than infectious hepatitis? If the conclusion is flawed, then the tribunal, which is based on the conclusion of the report, is equally flawed.

Mr. Noonan

(Limerick East): If Deputies read the report in full, they will see that its conclusion is that the woman had hepatitis C in 1976. They do not suggest the consequences of that; the report speaks for itself. It is not true that the conclusion is that it was environmental jaundice. The people in the Blood Transfusion Service Board arrived at that conclusion in the 1970s. It was a wrong conclusion because when the test results came through in 1989-90, it was clear it was hepatitis C. There is no problem about it. They knew they were dealing with infective hepatitis. One of the documents they had was the letter from the Blood Transfusion Service Board to the Department of Health, which triggered the inquiry and the investigation of the hepatitis B status — that is, infective hepatitis. If they are called as witnesses, I have no doubt they will say they knew exactly what they were dealing with and that they were not relying on the documents from the Crumlin hospital.

A clinical diagnosis arises from a doctor looking at somebody. Many doctors make clinical diagnoses and they are proved wrong when tested.

Miss Harney

Why did we not hear about it? The Minister did not tell us about it.

Mr. Noonan

(Limerick East): I will explain that statement; I am not making a charge. The doctor said he looked at the woman who had jaundice and concluded it was infective hepatitis. Tests for infective hepatitis B, proved negative. They concluded by exclusion that it was environmental jaundice, also called hepatitis A. However, they were wrong because, as is shown in the report, it was hepatitis C which caused all the problems.

People are trying to lay charges against us on the basis that there is new information which would have changed the conclusions of the expert group. Anybody who reads the report of the expert group knows they were talking about an investigation into infective hepatitis. They do not conclude erroneously that it was jaundice; they described the conclusion arrived at by the BTSB at the time.

I did not say there was any confusion about the terms. There are various forms of hepatitis. Hepatitis B was being tested for in the 1970s as a matter of course by all blood services and it was known that it was transferred through blood. Any donor would be excluded if they had had it and blood would be excluded if it was infected. All blood services look at the case history of a donor and if the donor says he had hepatitis A, he is excluded. However, they do not test for it as a matter of routine because it is not passed through the blood and it clears the system in a couple of days. There were no routine tests for hepatitis A until 1981. Hepatitis C was not established until 1989 and there was no routine test until 1991.

I have explained the situation as well as I can, but I cannot try the High Court case here. Many allegations will be made. A statement of claim is innumerable allegations and they will be defended by the defendants in court, but they will not be defended in public before the case arrives in court.

An Ceann Comhairle

I must advert to the time factor for dealing with Priority Questions. There is a difficulty as regards Question No. 4 which, if not called promptly, cannot be disposed of. However, as the House is aware of that, Members may proceed and I now call Deputy Geoghegan-Quinn on Questions Nos. 3 and 5, which are being taken together.

Mrs. Geoghegan-Quinn

As Question No. 4 is in my name, I am prepared to allow it to go into ordinary time.

An Ceann Comhairle

I cannot take it in ordinary time. I can take the latter two questions, one of which is postponed, but I am not permitted under our new rules to take Question No. 4 unless it is put in time. I am afraid the time is now exhausted.

Mrs. Geoghegan-Quinn

As Questions Nos. 3 and 5 are important, we should continue to discuss them.

An Ceann Comhairle

That is fine.

Mrs. Geoghegan-Quinn

Will the Minister comment on the continued use of the product after 1991? If the Minister was infected with hepatitis and he now had a life threatening disease and severe liver damage, would he not want to know, and would it not be proper for him to be told, from where the infection came, who was told about the blood product, what standards were involved to prevent this happening, were they applied and by whom and, if they were not applied, why? Would he not be entitled to get every piece of information relating to his health and to the fact that a State company infected him with a life threatening disease? If I was infected with hepatitis C, I would want to know that.

Since the Dr. Hederman-O'Brien report was published, we have had questions on Question Time, special notice questions, questions on the Adjournment and questions before the Select Committee on Social Affairs. Yet, we have still to get the full answers to this scandal. Neither Deputy O'Donnell nor I is being mischievous or endeavouring to try a case in this House. There is no jury in this case and, therefore, we will not influence a member of the public who might be a juror. We are entitled to the fullest, frankest and most open information from the Minister. All the men, women and children who are the victims of hepatitis C must be told the facts relating to it. I presume the Minister will have no difficulty with the fact that we will be inviting Dr. Hederman-O'Brien and the members of her expert group to come before the Select Committee on Social Affairs to establish the facts as between Mr. Dunbar's evidence before the committee, what was stated in this House recently and today and what Dr. Hederman-O'Brien was shown when a member of the expert group.

Mr. Noonan

(Limerick East): The first part of the question presents the difficulty. The Deputy is asking me to comment on what I think about continuing to give anti-D products after 1991. That matter is at the centre of the High Court case of 8 October and any comment I make as a defendant is evidential in nature. I agree with the Deputy that anybody who is a victim is entitled to all relevant information. The Miriam Hederman-O'Brien report gives an enormous amount of information. In the various debates here and during Question Time I have tried, where I had extra detail, to add to what is a succinct report, but what I cannot do, and which Deputies want me to do, is to draw conclusions from that information about liability or negligence. Deputies continue to ask what I think and who is to blame. People are entitled to know every detail which resulted in their present medical condition, and that will happen in the High Court.

There is a procedure where innumerable documents have been discovered and they are being examined by legal teams. A novel procedure is being invoked where a series of questions are put to the BTSB and it will deal with them. Deputy McDowell probably has the legal term——

Mr. M. McDowell

Interrogatory.

Mr. Noonan

(Limerick East): That procedure, which is unusual, will form the next phase and eventually the matter will go to court where experts will be called. I can provide as much detail as possible, but I will not be able to draw a conclusion. Questions such as who is to blame, if anybody is to blame, whether there was negligence and if there is liability, form the core of the High Court case. Even if I were not a defendant I could not go down that road and neither can any other Deputy. I inherited this problem and I have done my best to sort it out, but I can only do the work of a Minister and parliamentarian; I cannot do the work of a court. I am, however, facilitating the work of a court and will not inhibit it in any way whatever. In the case of court orders every co-operation will be given. People worked day and night over weekends and during Easter and discovered documents. Full co-operation was given despite the fact that a Civil Service industrial dispute was in progress.

Mrs. Geoghegan-Quinn

What about the expert group appearing before the committee?

Mr. Noonan

(Limerick East): If the expert group is invited to appear before the committee it is a matter for that group to turn up.

Miss Harney

There are restrictions.

Mr. Noonan

(Limerick East): There are no restrictions, but if I were a member of the expert group I would expect to be called on 8 October and I might hold my evidence for the court, which I presume is one of the reasons we do not see many press statements from that group.

Ms O'Donnell

Does the Minister agree that the fact that the court is seized of this matter and the respective rights of the defendant and the plaintiffs are being adjudicated on by the courts means the public interest is not being considered? Deputies on all sides of the House have the public interest at heart and that is the purpose of this Question Time. Will the Minister agree that in all the contributions made by him and the Minister of State to the House in this entire matter nowhere was there an admission that donor X had infectious hepatitis and that that fact was disclosed only because of the court proceedings? Will the Minister accept that that fact alters the position relating to liability and culpability because it goes to the core of the issue? The conclusions of the Hederman-O'Brien report would have been starkly different if that information had been given. Is the Minister saying that the recent disclosure in the High Court is of no consequence and nothing new? Is he saying that the recent discovery that donor X had infectious hepatitis and that as far back as 1976 the BTSB knew it is of no consequence in terms of liability and culpability?

Mr. Noonan

(Limerick East): I do not think the Deputy has read the report fully. The expert group concluded nothing other than that the cause of the infection was infective hepatitis C. The donor had hepatitis C, the same infection suffered by all the women involved. That information was not known at the time because there was no test for hepatitis C. The test was for hepatitis B, the infective hepatitis which was common at the time.

Miss Harney

It was clinically diagnosed in 1976.

Mr. Noonan

(Limerick East): A clinical diagnosis by observation, means a doctor examines a patient and sees that she has jaundice. There are several causes for jaundice and since the doctor is aware that the person has no record of, say, gallstones he comes to the conclusion that she has hepatitis and records the diagnosis as infectious hepatitis.

Miss Harney

That is not stated in the report.

Mr. Noonan

(Limerick East): When the doctor examined the woman she had jaundice and he concluded that it was either hepatitis A or hepatitis B. Blood samples were sent for testing in two laboratories and hepatitis B was excluded, resulting in diagnosis by exclusion. However, that was wrong. The problem was not environmental jaundice or hepatitis A, it was hepatitis C. In hindsight, with different medical practices, we all know about hepatitis C. One of the questions that will arise in court is what did people know at the time and what should they have known. It is not for me to recite that, it will be tested in the High Court. Deputy O'Donnell argues from a wrong premise and I ask her to read the report in full. There is no doubt that Miriam Hederman-O'Brien's group, including a haematologist as well as others, knew exactly what they were inquiring into and why the inquiry was set up because they had the initial documents. I am aware that Deputy Geoghegan-Quinn could not possibly, in a busy Department, remember the activity in other Departments, but the Government of the day was briefed on these matters.

Mrs. Geoghegan-Quinn

We are dealing with the fact that a file has come to the knowledge of the public because of a court case being heard in the name of Roe, who is one of the victims of hepatitis C. The Minister has more or less agreed the file would not have become knowledge were it not for the fact that the court case is proceeding. That is a scandal. All the information and documentation relating to this matter should have been brought to the attention of the expert group and should have been provided to the Minister and Minister of State. It is extraordinary that the Minister of State, while aware of the existence of the file, had not looked for it or seen it — I accept the Minister's word on that. Was the file made available to the tribunal, about which I always said I have serious doubts? Was any background information given directly by a civil servant in the Department or by anybody connected to the Department or to the Minister or Minister of State to others in the public domain to encourage and put pressure on victims of hepatitis C to go the tribunal route as opposed to the courts?

Mr. Noonan

(Limerick East): There is a discovery of documents as a result of the case which is to be heard on 8 October. An enormous number of documents will be discovered. Some will be relevant to the case and others will be discarded. The relationship between the Department of Health and BTSB is like those which the Deputy would have experienced in some of the Departments in which she served. For example, she was responsible for transport. She would not have seen all the CIE files and she would not have looked for them.

Mrs. Geoghegan-Quinn

If there had been a big scandal involving CIE I would have made sure I saw them.

Mr. Noonan

(Limerick East): A new file came up as a result of a High Court search. It was provided by way of discovery to Ivor Fitzpatrick & Co., Solicitors, who are the solicitors for the plaintiff. In that file there are dockets from Crumlin Hospital sent to the BTSB where it requested tests on the blood of the woman about whom we are talking. On the docket “clinical diagnosis” is in print and after that is written “infective hepatitis”. That was what the doctor thought it was. However, when they tested subsequently in the viral laboratory in UCD and in Middlesex they found it was not hepatitis B and went back to using her plasma.

The inquiry produced a fine report. The Deputy has the statement of claim because she quoted from it. If she goes through the statement of claim she will find that practically everything claimed is taken directly from this report in respect of the BTSB, the drugs board and the Department of Health. It is all there in the report and it is a very good quality report. I do not agree there is any kind of scandal because Deputy O'Shea does not know the contents of every file in the BTSB, no more than the Deputy would know every file in CIE.

Mrs. Geoghegan-Quinn

There is a scandal. Would the Minister not look for the files when there is a scandal?

Mr. Noonan

(Limerick East): There is nothing in those dockets which informs the expert group, the Department, the then Minister or me of anything we did not know already — namely, that there was a clinical diagnosis of infective hepatitis.

Mrs. Geoghegan-Quinn

So the Minister saw the file.

Mr. Noonan

(Limerick East): No. I am saying there is nothing in the dockets. The dockets are in the public domain.

Miss Harney

Only because of the court case.

Mr. Noonan

(Limerick East): The solicitors, for reasons best known to themselves, attached them to the statement of claim.

Mrs. Geoghegan-Quinn

Did the Minister see the file?

Mr. Noonan

(Limerick East): I did not.

Mrs. Geoghegan-Quinn

Why?

Mr. Noonan

(Limerick East): I saw the dockets because they were in the public domain. The file has now been discovered and whether anything else in the file is relevant will be a matter for the court to decide.

Mrs. Geoghegan-Quinn

So the Minister has not seen it yet?

Mr. Noonan

(Limerick East): There is no information which the expert group did not have. I know that displeases the Deputy. She would love to unearth a scandal.

Mrs. Geoghegan-Quinn

There is a scandal. I do not have to unearth it.

Mr. Noonan

(Limerick East): The scandal that is here today has been here for a long time and it is all dealt with in the report. Do not try to attach any personal blame to anyone who now has the responsibility.

Mrs. Geoghegan-Quinn

Is the Minister saying he did not ask for the file since it became public knowledge?

Mr. Noonan

(Limerick East): The Deputy asked about the tribunal. Again if she had briefed herself properly she would know that the tribunal is not dealing with culpability or negligence. It is paying money out on an ex gratia basis. The tribunal's only task is to establish that there is a link between the hepatitis C which the applicant has and a blood transfusion or product. Then they must establish the damage to their health and give a measurement of the appropriate damages. They would not get any files because they do not need them. They are not in the business of trying anybody or establishing culpability or anything like that. The charge that I, or anybody else on my behalf, is trying to drive victims to the tribunal rather than the court is not true.

Mrs. Geoghegan-Quinn

It is.

Mr. Noonan

(Limerick East): We have given applicants a choice of going the High Court route or the tribunal route. There are certain advantages, which I have pointed out on numerous occasions, of going the tribunal route but if people do not want to, they can go to the High Court and I have no difficulty with that. I have given them a double option in the terms of reference of the tribunal. If they go to the tribunal and are not satisfied with the award made, they have time to consider the award and if they turn it down they can still go to the High Court. They can go to both the tribunal and the High Court in that sequence. It is not true, it is misleading and putting extra pressure on people who are under pressure already as victims of hepatitis to be broadcasting effectively false information which is adding to their trauma.

An Leas-Cheann Comhairle

Question No. 6.

Mrs. Geoghegan-Quinn

A Leas-Cheann Comhairle, there is one tiny element——

An Leas-Cheann Comhairle

I am not prepared to transgress our Standing Orders any further. We will take Question No. 6 in the category of other questions.