From the very beginning there has been a tendency for the public to be blinded by science in this whole matter. The substantive issue of the scandal is easily clouded by the terminology of science and medicine. Deputies on all sides of the House have struggled to keep abreast of the extent of the BTSB scandal in so far as we can, given the limited information to which we have had access. Knowledge is power and in this affair all of the knowledge and all of the information has been in the power of the Executive and its agencies. The Dáil has been left to make what it can from the crumbs which have been extracted by way of Dáil questions and debates.
Cynics will claim that by politicising this issue the Opposition can be charged with party political point scoring. It is the oldest taunt in the Dáil and it simply does not wash. If the infection of up to 1,600 people with hepatitis C by a State agency is not a political matter, and if the Minister for Health can evade accounting for the manner in which he has presided over the hepatitis C affair and the legal claims for compensation, then there is no such thing as accountability. If the Dáil abdicates its responsibility of holding the Government of the day to account in such public matters, then it has failed the people.
There has been cover-up of facts in this whole matter from the beginning. Poisonous fumes of concealment are now leaking into the public arena and the air is growing thicker by the minute. The death of Brigid McCole has ironically and tragically brought these matters to a head in the belated admission of liability by the BTSB. It is clear from corespondence revealed by the family of the late Mrs. McCole today that the Minister and the State, representing the people, have played soft cop in the Dáil but hard cop in the court proceedings, particularly in the proceedings of Mrs. McCole. I understand the terms of the settlement in that case are confined to that case. That is illogical, as the Minister has indicated. Equally illogical is the State's stubborn refusal to accept liability. Liability of the State lies at the heart of the cover-up we have experienced.
The Minister's statements on Thursday were immediately curious to me. It was the first occasion where the State sought to distance itself from the BTSB. I have pondered over the reason the State should adopt this particular stand at this late stage. Could it be there is a reason for the State to be still in denial, even after the BTSB has admitted negligence and liability? Could there be another appalling vista of further or potential liability opening up beyond the victims who are infected in this jurisdiction? Is the State being sued by persons in another jurisdiction for defective blood products supplied by the BTSB, or could this be related to an insurance policy? It seems that the State's fingerprints are all over the settlement agreed with the late Mrs. McCole's solicitors. In particular, I wish to reject any suggestion or implication that the Minister was neither consulted about nor approved the admission of liability in advance.
Even more awful than the negligence of the BTSB, now admitted, is the manner in which the State, the BTSB, the other defendants and the Minister have sought to conceal and to cover up information since these matters came to their attention. In so far as we are told, this was in February 1994. There is the wider issue of the blood bank scandal, the truth of which we have not yet discovered, and there is the second but no less important matter of the extent of the duplicity and concealment of information legitimately sought in this House.
There is no dispute that the infection of a large number of people with hepatitis C as a result of receiving a blood transfusion or a blood product produced by a State body is the most serious disaster ever to affect a large group of patients and the public health service. The matter has been debated and questioned heread nauseam and the emphasis has shifted from one aspect of the scandal to another. Most of the emphasis has been on the provision of services for those affected by this tragedy, and the merits and demertis of providing compensation through a non-statutory tribunal, as opposed to through the courts.
Last week's public admission of liability by the Blood Transfusion Service Board in the McCole case, within 24 hours of the tragic death of the plaintiff, has brought the emphasis firmly back to the question of responsibility for this tragic state of affairs and the handling of the matter since it came formally to the attention of the Government in early 1994. It has always been claimed that these matters came to public attention, and to the attention of the Department, and were announced in 1994 following routine research by Dr. Joan Power. Is this the whole truth? Did something much more significant happen in the Department of Health and in respect of the BTSB at the same time?
Up to now, the Minister has not felt able to comment in any detailed or coherent fashion on the question of responsibility; it has been skirted at every opportunity. He has avoided doing so and equally avoided publishing the documents in the case, including the documents before the expert group which was asked to report on it, on the basis that High Court proceedings were pending and that he was a defendant. Apart from the question of offending thesub judice rule, on 1 May 1996, at Volume 464, column 1792 of the Official Report, the Minister claimed:
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.
Equally, at column 1795 the Minister stated:
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.
When asked specifically about the continued use of the product after 1991, after an English hospital had furnished a full report on 1977 samples to the BTSB, the Minister declined to do so on the basis that "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".
On the larger issues, at column 1801 of the Official Report, the Minister stated:
Questions such as who is to blame, if anyone is to blame, whether there was negligence and if there is liability, form the core of the High Court case.
As appears from those quotations, the High Court case was scheduled to begin today, Tuesday, 8 October. A few days before that, and while the unfortunate plaintiff was on the point of death, the proceedings were settled on the basis of an admission of liability by one of the defendants, the BTSB. It is important to recall that this admission of liability constituted avolté face on the part of the board because it had previously denied liability.
The Blood Transfusion Services Board and the State defendants did far more than simply deny liability. They made use of every lawyerly technicality to avoid acknowledging responsibility and to avoid paying compensation on the basis of that acknowledgment. First, the BTSB and the State, in the defences on 15 April 1996 and 18 June 1995 respectively, pleaded the statute of limitations. This may sound a technical point to make but it is quite horrific. It means that the BTSB and the State said they were going to claim that Mrs. McCole had left it too late to sue and they would, if they could, defeat her claim on that basis. That is an astonishing claim to make in view of the gross delays in notifying Mrs. McCole of what had, unfortunately, transpired. This decision was presumably made on the advice of the Attorney General given to Government.
Second, the State defendants actually pleaded that Mrs. McCole was not entitled to adopt the name Brigid Roe in order to preserve her anonymity during the proceedings.
Because she had done so, they claimed her action was not properly constituted. This challenge was pursued on the direct instructions of the Government. This sort of pleading gives the lie to the Minister's claim that the State behaved in a caring and compassionate fashion. Certainly, these claims were open in law and the Minister may have been advised to this effect, but it is for the Minister and the BTSB, not for the lawyers, to decide what defence they would actually rely on. They adopted, calmly and deliberately, an attitude of nit-picking technicality, of legal hardball. I call on the Minister to explain, if he can, how these pleas came to be in the State's defence and that of the BTSB in the name of the people.
This was not the end of the pettifogging. The State's defence denies that the BTSB manufactured or supplied anti-D, even though it must have known at all times that it did. It denied that anti-D was administered to Mrs. McCole as alleged "or at all". It denied the particulars given of Mrs. McCole's state of health.
The State's defence also denied that the BTSB used plasma from a patient who, to the BTSB's knowledge, had been diagnosed as having infective hepatitis. This, of course, is absolutely inconsistent with the admission of liability. The State also denied that the BTSB was negligent and, astonishingly, denied that the BTSB had taken no steps to notify the plaintiff after the fateful communication from the Middle-sex Hospital in 1991. I call on the Minister for Health to explain to this House how these cynical pleas were placed on the record of the High Court with his authority in the name of the people.
One is surely entitled to assume that the admission of liability in the case taken by Mrs. McCole implies that there will be a similar admission in all of the other cases. It is now essential that the Minister should explain to the House the basis on which liability was accepted by the Blood Transfusion Services Board and should himself address, or appoint some other body to address, the question of where responsibility for the facts giving rise to the board's liability lies.
This is essential for two quite separate reasons. First, where a tragedy of this kind occurs, with literally deadly or life-blighting consequences for a large number of citizens, a full and detailed explanation and attribution of responsibility is owed to those citizens and their families and, indeed, to all who rely on the public health service. It would be outrageous to any sense of justice if a tragedy of this proportion could occur in a vital public service without a full explanation and inquiry into responsibility for it.
Secondly, all those with claims now pending before the tribunal will have to decide whether to pursue their claims and receive compensation on anex gratia basis, or to pursue a claim instead before the courts and receive compensation as a matter of right if liability is conceded or established. As the Minister himself pointed out on radio last Thursday, one distinction between the damages available in court as opposed to from the tribunal is that in certain circumstances exemplary damages may be awarded by the court. However, without a firm explanation as to how the tragedy occurred, it would be difficult for those people or their lawyers to assess the likelihood of an award of exemplary damages or the extent of such award.
The fact that liability has now been accepted where it was publicly denied up to a few days ago, raises questions of its own. What caused this U-turn? Presumably the Blood Transfusion Services Board, and its lawyers, thought deeply before deciding, on the facts as known to them, to deny liability. It would therefore appear that the dramatic decision to accept liability where it had previously been denied was taken on the basis of some new fact or facts of sufficient importance to convince the board and its advisers that a finding of liability against it was certain or very likely.
Those affected, and their families, this House and the community generally is entitled to be told what this fact is. Whatever the merits or demerits of the non-statutory tribunal established by the Government, it is certain that, since its awards were to be made on anex gratia basis, the proceedings there could never have led to an establishment of liability. Central to the tribunal was that there was no liability. It was a cash-dispensing body which deliberately skirted the issue of liability, for good reason.
The acceptance of liability is, therefore, wholly due to the courage and tenacity of those who were not content with mere compensation but who insisted on a finding of liability. In saying this, I do not mean in any way to pass judgment on those who brought their claims before the tribunal. The tribunal suited the State far more than it suited the applicants. It offered a shortcut to tired and ill people, people whose defences were down, who could not play the hardball of a State stubbornly defending everything and denying all in court.
Having regard to the attitude of the State and State agencies in denying liability, in forcing those taking court proceedings to proceed in their own names, and in resisting an early date for hearing even in the most tragic circumstances, the attractions of the tribunal must have seemed overwhelming to many women. I reiterate, however, that this admission of liability is a monument to the remarkable courage in particular of the late Mrs. Bridget McCole.
The Minister has made much of the fact that the amount of the McCole settlement was relatively moderate and compared well in this respect with awards given out by the compensation tribunal. This view begs a number of questions. First, the McCole settlement was arrived at in the face of the imminent death of Mrs. McCole. When that occurred, the claim for damages for pain and suffering, for loss of earnings and other special damages into the future, disappeared. It was arrived at in circumstances of express threats of a sort which it is completely unacceptable to offer to any of the claimants in this matter, much less to one who was dying. The settlement was made in circumstances where a metaphorical gun was being held to the heads of Mrs. McCole and her advisers. In no way can the sum of the settlement be regarded as just or appropriate compensation, or as what would have been sought by a plaintiff whose condition upheld to allow her to pursue a full claim.
I listened very carefully to what the Minister for Health had to say in the House and in the media at the end of last week. It appeared to me, and to many others, that the Minister's statements were directed, in part, to distancing himself and his Department from the Blood Transfusion Services Board which has accepted liability. This is unacceptable and a fiction. While noone can blame the Minister personally for what occurred up to the alleged notification to his Department by the BTSB in early 1994, it is nevertheless clear that there must be political responsibility for the BTSB. If the Minister for Health does not carry that responsibility, there is effectively no public accountability for the board. In fact, it is clear that the board is a creature of the Minister's for which he has political responsibility.
While a blood transfusion board has existed since the 1940s, the present board was created by Statutory Instrument in 1965. It was created under the terms of the Health (Corporate Bodies) Act, 1961. This Act provides in section 3 that the Minister for Health "may from time to time by order establish a body to perform functions in, or in relation to, the provision of a health service or two or more health services". The board, therefore, is constituted by an act of a Minister for Health and its functions and the appointment of persons to it is a prerogative of the Minister. The Minister has power to continue the body or to dissolve it. There can be no doubt that the sums of money payable by the board on foot of the admission of liability will have to be provided, through the Minister's Department, by the taxpayer to whom the Minister is responsible.
These supervisory powers of the Minister over the BTSB give rise to some interesting questions. For example, how often did the Minister require that information be submitted in relation to Mrs. McCole's case and the other hepatitis C cases. Article 21.2 of Statutory Instrument No. 78/65 which established the BTSB requires the board to submit to the Minister such information in relation to its performance as the Minister may require. In his speech on Thursday last the Minister consistently used the phrase, "I understand that" in relation to the BTSB's admission of liability. This is wholly misleading given that he had a statutory right to require that the BTSB kept him informed at all stages of the proceedings in the compensation claim.
When it became known as a result of discovery in Mrs. McCole's case that anti-D had been manufactured from the blood of a donor who had been diagnosed in 1976 as suffering from infective hepatitis, did the Minister ask to be informed as to why this document had not been submitted or had been withheld from the Hederman O'Brien Review Group? Has the board requested permission from the Minister to borrow money to fund the damages payable in Mrs. McCole's case? If so, when was this request made? Did any of the Minister's predecessors in the Department of Health ever request information during the 1970s or 1980s as to the manufacture of anti-D? If so, what information was furnished?
The expert group reports that in 1977 the BTSB used blood from a donor with jaundice to manufacture anti-D because of a "scarcity of suitable antibody for anti-D production". Was this scarcity referred to in the BTSB annual report to the Minister for 1977? Was the fact the BTSB had manufactured anti-D from the blood of a jaundice sufferer referred to in that report, or, indeed, any report of the BTSB?
Furthermore, the practice of the board and of the Minister indicates that both parties accept the Minister's ultimate responsibility. The event which triggered the establishment of the first inquiry into this matter was a letter on 25 February 1994 from the BTSB to the Department of Health, belatedly reporting upon the hepatitis C findings. Subsequently, the Minister took a view, and was entitled to take a view, on the question of the continued employment of certain persons, and that view was acted upon. Did the Minister approve the severance packages for those people? Does he now concede that these golden handshakes approved by him were inappropriate in the light of the addmitted liability? Accordingly, it is impossible for the Minister to say because liability has not been accepted by the State or the Department of Health, that he has no further responsibility in the matter, or no responsibility to explain what has occurred and why.
I do not understand him to go quite that far in explicit terms. As I said he sought to distance himself from the BTSB, until on "Questions & Answers" last night, with public pressure mounting, he realised that this position of distance was untenable. He has come around to the view that there are questions to be answered. Where stands his legal advice now? There is a world of difference between legal advice and political advice as the Minister is finding out.
The Minister previously thought, and informed the House, that the High Court proceedings would involve a judicial examination of the entire matter including the question of whether anti-D products should have been given out by the BTSB after 1991, and the question of, to quote the Minister, "who is to blame, if anyone is to blame, whether there was negligence and if there was liability" will not now be determined by the High Court. It is essential that they should be determined in some forum.
I do not know whether such measures would be appropriate in the circumstances of this case. No one inside or outside the House can come to a reasonable conclusion on this topic until there has been full disclosure which has not taken place on the basis that High Court proceedings were pending, that those proceedings would establish what had occurred and whether there was liability. This will not now take place because of the settlement of the case announced last week in public and formally in the High Court this morning. That settlement and the circumstances surrounding it raises further questions about the Minister's conduct of the case. The settlement was proposed in a letter dated 20 September 1996 from the board's solicitors to the family's lawyers. It was accepted by the family in the appalling circumstance of the imminent death of the unfortunate plaintiff, their mother.
The letter offering the settlement makes a narrow and mean-spirited proposal and accompanies it with threats. Furthermore, the terms of the letter make it clear that in offering this settlement regard was being had to the interests, not only of the BTSB but also of the State defendants.
Let us see exactly what was and was not offered. First, the admission of liability was limited to liability for "compensatory damages for negligence". This excludes the plaintiff, who was in no position to refuse the offer, from the possibility of pursuing a claim for exemplary damages. Also, the admission relates to Mrs. McCole only. The Minister must make it clear this evening whether liability will be contested in the other cases.
The letter goes on to invite the plaintiff to drop her claim against the National Drugs Advisory Board and the State. If she does so, it is said, the BTSB will pay the costs of those parties. That proposition in itself underlines the cynical and unrealistic manoeuvring on behalf of the State. The BTSB is in no position to pay the costs of the other public sector defendants, except from the taxpayers' money. This offer, if availed of, would appear to mean that the Department of Health will make a grant to the BTSB to pay the Department's costs. This manoeuvre is straight from the pages ofAlice in Wonderland and is the height of duplicity. The letter goes on to say: “we respectfully suggest there is no justifiable reason for proceeding against the other defendants and incurring unnecessary costs in seeking to prove negligence on their parts”. Why would the BTSB's solicitors make this point except that they had been constrained to do so by the State defendants? It goes on, in the most express terms, to threaten the plaintiff who was then dying. It says: “if your client proceeds with her claim against the NDAB and the State defendants, our client will seek all additional costs thereby incurred from the date hereof...”. It makes the same threat in relation to the costs of her claim for aggravated and exemplary punitive damages and says that if this claim fails they will seek against Mrs. McCole, who was then dying, “all costs relating to the claim for such damages and for an order setting off any such costs in favour of our client against any costs to which our client might otherwise be entitled...”.
The contents and tone of the letter of 20 September, addressed to the lawyers of a dying woman who was anxious to make provision for her family, are shameful. They were made in the name of the people. They were made in the names of me and you and are shameful. They fall below any standards of decency or humanity. From the terms of the letter, it is plain that the Minister is directly responsible for them. The State's fingerprints are all over this letter. Remember the State is the people. Is this the way the people would expect the State to behave in trying to reach a settlement with a dying woman?
There is no explanation for the BTSB's solicitors seeking a discontinuance of the case against the other State defendants other than a cynical ploy on the part of the Minister and the State to allow him to say, as he said last week, that the BTSB is a separate legal entity and that the responsibility is theirs and not his. Because the family have made this letter public, they have done a public service. Chilling as the terms of the letter are from the BTSB's solicitors, they are absolutely in line with the way in which this case has been fought under the Minister's authority. Every attempt was made to coax and cajole claimants into the compensation tribunal, which had no power to make a finding of liability. Crude threats were used to dissuade them from taking the case to the courts.
In 1995, the State authorities informed the claimants that if, despite the scheme of compensation, any of them was advised to ignore the tribunal and pursue litigation, and accept such advice "any resulting litigation will be fully defended by the State, if necessary to the Supreme Court, and will be conducted strictly in accordance with the rules of practice and procedure which govern litigation in the Superior Courts". This is hard ball lawyerly defence.