Hepatitis C Infection: Statements.

Limerick East): In making this statement before the Dáil, it is right that I should at the outset show where there is common ground between the Government and Opposition. The tragic death of Mrs. Brigid McCole, leaving her 12 children without their mother, was a major personal tragedy, and the focus on this personal family tragedy has raised public attention about the hepatitis C crisis to a degree unprecedented since my predecessor, the Minister for the Environment, Deputy Howlin, brought the matter to the attention of the House in February 1994.

What is now acknowledged is that what occurred is nothing less than a public health disaster. The number of persons involved, the fact that some of the originally infected women became blood donors, leading to both men and women being subsequently infected through blood transfusions, and that a second infected donor in 1989 caused the infection of another cohort of persons, underlines the enormity of the disaster.

All these victims of hepatitis C have been seriously affected in their lives, their welfare, their health and in their future. There is common ground also in describing the events which occurred at the time as a scandal. It must also be acknowledged that the events in question occurred in an institution created under statute, and for which I, as Minister for Health, am now politically accountable to this House.

There is common ground too in our recognition that what has occurred is a source of deep distress, justifiable anger, and a requirement to know and understand what occurred. However, in making this statement, and in bringing the motion to set up the Tribunal of Inquiry before the Dáil tomorrow, I accept too that I have obligations to this House and elsewhere.

For the House, the public and the victims themselves to pass judgment, it would be helpful if I briefly reflected on the issue of parliamentary accountability and how I see my responsibilities to the House. I am accountable to the Dáil for what I do or neglect to do as Minister, and for what is done in my Department. The essence of that accountability is the giving of accurate and complete information, in so far as it is known to me or my Department at the time the information is given. The question of responsibility or blame is a different matter which must be determined on the facts of each case, usually by the courts. I am, and will continue to be, fully accountable to the Dáil, which is the primary forum in which I must discharge this obligation.

With regard to charges and criticisms which were laid against me, I will always endeavour to set out the context and the full facts as known to me. Sometimes these facts may not be palatable, in so far as they may not fit with the perception of those making the charges, but I always hope, particularly when we are dealing with matters of such public importance, that the assessment of my responsibility would be based on these facts rather than on other considerations.

In discharging this accountability I must, in common with all Ministers past and present, adhere to the separation of powers under the Constitution. I cannot usurp the functions of the Judiciary or compromise the process surrounding the discharge of its functions. Neither can I make judgments on negligence or culpability in relation to any matter that is already before, or may come before, the courts. If there is not an acceptance of this reality then we do not have a basis on which we can have a constructive debate on this or any other matter of public contention. I hope we can also establish common ground on the concept of accountability and that Deputies, especially former office holders, will agree that the position I have set out in respect of a Minister's accountability to the House is fair and accurate, and no different from what was demanded of them when they held office.

Serious charges have been laid against me. It has been claimed that the State in the conduct of its High Court case in the action taken by the late Mrs. McCole delayed and obstructed the plaintiff from beginning to end. I deny this. It is simply not true.

The State denied liability in the action. My strong legal advice was and is that the State is not liable and that no admission of liability should be made. Those who have criticised me for not admitting liability on behalf of the State pretend that the BTSB and the State are the same entity with the same case to answer. If I were to accede to the demands being made on me to admit liability on behalf of the State I would be accepting liability on behalf of all Ministers and all officers of the Department who dealt with the BTSB over the years, and in terms of impending court cases back to 1970. If I were to do so, I would, as I have said, be acting against all legal advice, and indeed against my own judgment of the State's culpability in relation to the people who have been infected as a direct or indirect result of the distribution of infected anti D product. I ask those in Opposition who criticise me for taking this stance to say what they would do if placed in the same situation. Recognising the adversarial nature of our court system and the need to be equally fair to those against whom allegations are made and to the plaintiffs, would they ignore the legal advice, their own assessment of the situation and the obligation to reasonably protect the legitimate interests of the taxpayers? I very much doubt it.

I now wish to deal with a number of particular allegations. Far from there being delays in the State entering its defence, the State delivered its defence when the plaintiff's claim was adequately particularised by her lawyers, which they had failed to do when they delivered their statement of claim on behalf of the plaintiff.

On the question as to whether the State delayed the discovery of documents, dates for completion of discovery were set by the court and adhered to by all parties, including the State. The State sought and was granted two working days' extension of time for filing its affidavit of discovery — Monday, 1 April 1996 instead of Thursday, 28 March 1996. Some 5,000 documents were discovered, and made immediately available by the State parties, of which a small number became the subject of dispute which was resolved between lawyers of the respective parties without ultimate recourse to the court.

I now wish to reflect on the manner in which issues were prepared for court in the adversarial system with which we are all familiar. Pleadings are the means by which the issues to be tried by the court are both netted down and clarified so that not only the parties, but also the court, which otherwise knows nothing about the matters in controversy, can know what matters need to be adjudicated upon and the evidence which will be required to establish or refute those matters. What may appear to be convoluted or tortuous descriptions of highly charged allegations are sometimes recited, and must be denied in detail, otherwise they are deemed to be admitted.

In Mrs. McCole's case, assuming the alias Brigid M. Roe, her lawyers made a large variety of allegations of wrongdoing on the part not only of the BTSB but also the State parties and the NDAB. The State rightly called for matters to be properly established. The means of establishing these questions was a matter for her lawyers. They could either provide documentary evidence of the matters as the case proceeded or prove them by evidence in court. Exchanges of correspondence and documents between parties, with other interlocutory proceedings such as discovery, and interrogatories which in fact occurred in the McCole case, even further net down matters at issue. It should never be assumed, therefore, that a position quite rightly taken by a party at the very earliest state of proceedings will necessarily reflect the attitude of that party on the eve of the trial.

With regard to the question as to whether the State invoked the statute of limitations, I have said already what every lawyer knows, positions taken at the earliest stage of proceedings will not necessarily reflect the attitude of that party on the eve of the trial. In respect of the statute of limitations one should look at the defence delivered by the State parties to understand what precisely was pleaded: "In so far as the date of acquisition of the plaintiff's condition alleged in the statement of claim in or before 1980 and not the date of knowledge as defined in the Statute of Limitations is pleaded, such claim herein, if any, is barred by the provisions of the said statute." A plaintiff is required to give reasonably specific details of the occasions on which important events are said to have occurred and this detail was missing from Mrs. McCole's statement of claim. In pleading this, and in the notice of particulars, the State required her lawyers to specify the occasion on which they alleged she contracted hepatitis C or the occasion on which she became aware of having contracted such a serious condition.

Why did the State contest anonymity? A number of plaintiffs represented by the same firm of solicitors issued writs against the BTSB, the NDAB and the State using aliases and giving their solicitors' offices as their addresses. On 7 September 1995, the solicitors notified the defendants of the true identities and addresses of the plaintiffs. However, in the one case they chose to progress ahead of the others, they declined to say who she was until 27 September 1995. This was Mrs. McCole's case.

On 22 September 1995, Mrs. McCole's counsel was told that, while the confidentiality of her medical condition and other intimate matters would be maintained by the State parties, as a matter of constitutional law the client could not proceed under an assumed identity. This was confirmed in subsequent correspondence. Her counsel and solicitors took a different view and ultimately she brought a motion before the High Court seeking a ruling on the point. Their application in this regard was decided on 14 February 1996 by Miss Justice Laffoy, who dismissed it. The court in its judgment stated it had no jurisdiction to allow the plaintiff to prosecute her proceedings using a fictitious name and to do so would contravene Article 34.1 of the Constitution which requires justice to be administered in public. The judgment is available to anybody who wishes to read it.

The Attorney General is, like everyone else, bound by the provisions of the Constitution. It is not open to him to ignore the explicit provisions of the Constitution, irrespective of whether he likes them. Some Deputies opposite need to realise that under this Government, the State is governed by laws and not by lawyers.

Mrs. McCole's initial application for an early hearing was withdrawn by her lawyers and when it was ultimately re-entered on 26 April 1996 it was pointed out that the case would not be ready for trial in June as her lawyers requested. The President of the High Court adjudged it should proceed on 8 October 1996.

Will the Minister accept a 30 second intervention for a question?

(Limerick East): Questions will be taken later.

There is a new rule.

The Deputy is in order within the new regulations. However, it would be more opportune if the Minister made his points before questions. I will explain the rule to the Deputy. When the Minister has proceeded a little further, it will be in order for him to ask a question.

I want to question the Minister at this specific point.

Is the Minister prepared to give way?

(Limerick East): Will the Chair give me extra time to complete my statement?

Yes, in accordance with the new regulations.

(Limerick East): I would prefer to take questions at the end. That is reasonable.

There are new regulations and, as the Deputy has intervened, I must ask the Minister if he wishes to give way.

(Limerick East): I do not wish to give way.

That is fine. It is voluntary.

The Minister is refusing to answer.

(Limerick East): The date, 8 October, not only permitted her case to be listed in advance of thousands of other waiting litigants, who did not have recourse to a compensation tribunal, but also enabled her lawyers to amend her claim substantially on two subsequent occasions and make a considerable number of interlocutory applications to the court for reliefs considered necessary to her case, even in the summer vacation.

While the State stated the case would not be ready for trial in June, it is clear from these details that the case on behalf of the plaintiff was not fully ready either. In fact one of the major issues in respect of the case, which is also an issue specifically for the tribunal of inquiry, that is, the issue in relation to the Therapeutic Substances Act, 1932, was introduced for the first time by the plaintiff's solicitors by way of an amendment to the statement of claim on 23 July 1996. They were not ready and the judge adjudicated that 8 October was the appropriate date. He gave Mrs. McCole an early hearing on the basis that neither side was ready.

The issues above convince me once more of the unsuitability of the courts as a vehicle for awarding compensation in cases arising from tragic events with a large number of plaintiffs who have broadly similar claims. I was convinced of this when, as Minister for Justice, I set up the compensation tribunal to deal with the victims of the Stardust tragedy. I am equally convinced I made the correct decision in this case when I advised the Government to set up the compensation tribunal for hepatitis C victims.

The compensation tribunal provided enormous and unprecedented advantages to hepatitis C sufferers. It has been made clear that if claimants prefer to pursue the more cumbersome and costly route of maintaining their claims against the State before the courts, the normal rules of court procedures will not be waived to give them the same advantages which are available before the tribunal. This remains the State's policy.

Victims are offered an unprecedented forum where their claims are, in effect, unopposed. Unequally among persons entitled to compensation, they can obtain it without any opposition, with no risk of cross-examination. The State, the Minister and the BTSB are not represented before the tribunal; only the applicant and the applicant's lawyers and witnesses are heard. It is not surprising that none of the 140 awards has been rejected. I ask the House to contrast this with the court system which is adversarial with all which that implies.

On reflection, would not the solicitors for the plaintiff have served their client better if they had advised her to go to the compensation tribunal early this year? Is it not accepted in the legal profession that the tribunal is working well and that Mrs. McCole could have received a significantly higher award by going before it? She would not have had to face the enormous stress of court proceedings. Could her solicitors not, in selecting a test case from the hundreds of hepatitis C cases on their books, have selected a plaintiff in a better condition to sustain the stress of a High Court case? Was it in the interest of their client to attempt to run her case not only in the High Court, but also in the media and the Dáil simultaneously?

That is dreadful.

(Limerick East): If we are to review the conduct of the case by the State, have not the solicitors for the plaintiff a case to answer also?

I have been charged with changing my position by setting up a judicial inquiry. I have altered my position in the light of what has occurred and it is now my view that setting up a judicial inquiry is vital in the interests of victims, their families and the public interest. However, before I am further criticised for changing my position, I wish to explain my previous position.

In 1994 the previous Fianna Fáil-Labour Party Government set up an informal inquiry to be conducted by a group of experts under the chairmanship of Dr. Miriam Hederman O'Brien. In retrospect, it might have been better if a full judicial inquiry had been set up at that time, but I fully understand, taking the circumstances of the time into account, why it was not established. The excellent public spirited expert group produced its report in January 1995.

The report was welcomed by all interested groups and was generally regarded as conclusive. It was believed it had not only got to the heart of the matter, but also filled in much of the surrounding detail. This was the position for nearly 12 months. The expert group report was the bible on the issue and nobody called for a judicial inquiry. In approximately March this year, solicitors for the plaintiff amended their first statement of claim. A statement of claim is not a statement of fact; in effect, it is a statement of allegations.

A statement issued to the press by Positive Action at approximately the same time was critical of the Dr. Miriam Hederman O'Brien report. The discovery of documents in preparation for the High Court case led to further allegations. By the time the High Court hearing was fixed on 26 April 1996, the content and conclusions of the expert group report were under pressure. When I answered questions in the House on 1 May 1996 I was asked if I would set up a judicial inquiry to inquire again into the events. I refused on the grounds that the criticisms of the expert group report were allegations and not proven facts and that the truth or otherwise of these allegations would be tested in the High Court in the McCole case which was set to commence on 8 October 1996. I said that this, in effect, would be a judicial determination of events and if there were gaps and inadequancies in the expert group report, the High Court proceedings would be likely to fill them.

I have been accused of changing the position I took in the Dáil on 1 May when I subsequently spoke in the Seanad on 20 June 1996. What I said in the Seanad is consistent with what I said in the Dáil. I cast it in different terms, however, as on 7 June 1996 the Chief State Solicitor received a letter from Messrs. Ivor Fitzpatrick, solicitors to Mrs. McCole. The letter referred in detail to what I said in Dáil Éireann about a judicial inquiry and went on to point out that the plaintiff, the late Mrs. McCole, did not want her case to be used by the State as a judicial determination of events, and that she wanted to proceed as a private citizen in her claim for compensation. I quote the relevant paragraphs:

These statements in the Dáil give the clear impression that the Minister for Health and the Government intend these proceedings should be used to clarify, in the public interest, the significant and outstanding questions regarding the source of the hepatitis C infection for the numerous victims who have become infected with hepatitis C through anti D. Thus Mrs. McCole's case is being used in a manner which was never intended by her. It is being used for other purposes than the purpose of vindicating her personal right to bodily integrity, through the medium of compensation. Her case is being used by the Minister and the Government to deal with controversies which in the context of these proceedings are of no concern to Mrs. McCole. Though Mrs. McCole obviously has an interest in the questions which are being raised recently in the public domain, she does not seek to pursue that interest through the medium of these proceedings. And she resents and instructs our firm to resist any attempt by the Minister for Health to draw her into such a role.

The letter to which I refer is why I couched my remarks differently in the Seanad. There is now no court case. I cannot say with certainty if and when a case will be taken in the High Court. I cannot say with certainty if such a case would be a judicial determination of the issues. I now believe that the establishment of a judicial tribunal is the only way forward.

I have previously mentioned the discovery of documents in preparation for the McCole case in the High Court. I want to refer now to one item of discovery and to the allegations that the Minister of State, Deputy O'Shea, and I misled the House when asked to comment when this item of discovery was made public by solicitors for the plaintiff. The nub of the charge being made against us is that dockets in a file which the expert group did not see indicated that a clinical diagnosis of infective hepatitis had been made in respect of the 1976 plasma donor, that this proved that the BTSB in 1976 knew that what it was dealing with was infective hepatitis, that the expert group did not know this and that, contrary to its own Protocols for other classes of donor, the BTSB continued to use the woman's plasma for the manufacture of the anti D product, which was the source of the subsequent infection.

What I have said is a fair summary of the allegations which were made and continue to be made. It is quite clear that a new file with new documents was discovered. What is in contention, as far as I am concerned, is whether the expert group knew that the BTSB knew it was dealing with a possible case of infective hepatitis in 1976. It seems that the expert group report makes it quite clear that it did know, and that in fact while the expert group did not see the file of the documents which had been discovered, it had acquired similar information elsewhere which it had taken into account in the report.

According to the expert group report, in November 1976 the female donor became jaundiced and the BTSB stopped using her plasma. On 18 November 1976 the BTSB ordered tests for hepatitis B on all samples of plasma taken to date from the female donor. These samples subsequently tested negative for hepatitis B in UCD Virology Department. Samples from the female donor, the original pools for five batches of anti D immunoglobulin and the batches themselves were sent for RIA testing to Middlesex Hospital. On 15 December 1976, Middlesex Hospital reported that all samples it had received tested negative for hepatitis B. In December 1976 the female donor recovered fully. The BTSB apparently concluded that the jaundice was due to environmental factors and decided to resume using her plasma for anti D production.

This is the summary in the appendix but it is more fully dealt with in the report itself. Is it not clear from that summary that from November to December 1976 the BTSB thought it was dealing with infective hepatitis of the hepatitis B type? Why else would it have ordered tests for hepatitis B? When the tests both from UCD and Middlesex Hospital proved negative the BTSB, according to the expert group, apparently concluded that the jaundice of donor X was due to environmental factors. We now know its conclusion was incorrect. Donor X had neither environmental jaundice nor hepatitis B. She had hepatitis C.

I have never argued as to the culpability or otherwise of the BTSB in respect of these events. I cannot do so as Minister for Health. It is for the courts to decide culpability and negligence. It would be totally improper for me to do so. I am informing the House that I based my view, when I issued the press statement in support of the Minister of State, Deputy O'Shea, on the report of the expert group. I believe that a letter subsequently on 27 May 1996, from Dr. Miriam Hederman O'Brien to Deputy Pattison, Chairman of the Select Committee on Social Affairs, supports my position.

We must remember that in respect of the information on the file in question, donor X's treating clinician did not speak to the expert group. If he gives evidence before the tribunal of inquiry, this evidence may be of great significance. I am stating the position as I understood it on 1 May 1996. I gave the House my interpretation of what the expert group was saying in its report. I did not mislead the House on that or any other occasion.

I now wish to return to my position in respect of the BTSB. In addition to my Department I have statutory responsibilities and obligations in relation to health boards and specialist bodies under the aegis of my Department, such as the Blood Transfusion Service Board and the Irish Medicines Board, successors to the National Drugs Advisory Board. My role and responsibilities in relation to the BTSB are governed by the provisions of the Health (Corporate Bodies) Act, 1961, and the assumptions on which it is based; the terms and intent of the relevant establishment order and the accepted conventions of our public service regarding the responsibilities of Ministers and their Departments in relation to executive agencies under their control.

The Health (Corporate Bodies) Act was intended to provide the Minister with a legally efficient means of establishing a body which would discharge a specialist executive function, under the governance of a suitably constituted board, which would be likely to discharge that function more appropriately and expertly than could be done from within the Department; which would be a centre for expertise and which would have a large measure of autonomy in the discharge of its task, subject to the controls set down in the relevant establishment order, mainly in relation to personnel, finance and audit matters. The model relies heavily upon the professional competence and integrity of the specialist staff employed in agencies such as the BTSB, and the general competence of boards to exercise their role, to identify and address potential problems and to bring those they cannot address to notice in a timely fashion.

It would not, therefore, be either appropriate or viable for me or my Department to separately engage the expertise to enable me to question the minutiae of the operations of bodies under my aegis. Neither would it be appropriate or effective for me to issue directives to the body on the conduct of its business including the defence of cases taken against it in the courts. The BTSB is a separate legal entity; in this instance the case against it is different in content and range from the case against the NDAB and the case against the Minister for Health. As I have already informed the House, and as I will now outline in greater detail, I did not at any stage attempt to direct the BTSB or the NDAB — now the Irish Medicines Board — in the decisions they took in defending any of the court cases taken against them.

I have been criticised for not admitting liability on behalf of the State as if it and the BTSB are one and the same entity with the same case to answer. They are not the same entity and they do not have the same case to answer. They are separately represented and have separate legal teams. If, as certain Deputies suggest, they are one and the same, why are all the plaintiffs proceeding separately against both?

As Minister for Health I have a supervisory function in respect of the Blood Transfusion Service Board, and arising from the exercise of that function I would like to deal with three issues. They are the appointment of the acting chief executive officer and CMO, the lodgment issue and the acceptance of liability by the BTSB. Deputies have criticised me as Minister for Health for taking measures to restore public confidence in the blood supply. The House must appreciate the essential importance of our blood supply to the daily workings of our acute hospital services. At any one time we have only a three day supply of blood to meet the demand for blood in our health services.

I make no apologies for the action taken on 5 April 1995 in assigning Professor Sean McCann and Mr. Liam Dunbar to the medical and administrative posts at the BTSB. The urgent need to take steps such as management restructuring to restore public confidence in the BTSB as a means of ensuring continuity in blood supplies did not allow for any avoidable delay in vacating the posts of chief medical consultant. Given the terms of Dr. Walsh's contract of employment, any alternative to voluntary early retirement would not have produced an outcome for many months, if not years.

I also make no apology for the approval I gave to a major consultancy project at the BTSB undertaken by Bain & Company who had world wide experience in the area. A consultants' report was published in May 1995 and the recommendations made complement the recommendations made in the expert group report concerning the organisation and management of the BTSB.

In regard to the lodgment issue, on 15 May last, on the advice of its lawyers, the BTSB made a lodgment into court in accordance with Order 22 Rule 1 of the rules of the Superior Courts. It was open to the lawyers for the late Mrs. McCole to advise her to accept this lodgment at the time. The lodgment was not accepted. I reiterate that the lodgment by the BTSB in this case was made in accordance with the rules of the superior courts and is a procedure open to all defendants involved in litigation. This lodgment was made by the BTSB on its own behalf. I was not aware the lodgment was being paid into court by the BTSB prior to its being made. I was informed by the BTSB subsequent to the lodgment.

Order 22 Rule 1 (1) states that pleadings should not disclose the fact that money has been paid into court or the amount thereof, nor can communication of such moneys be made to the judge. I have been criticised for not disclosing the fact of the lodgment to this House. I am sure Deputies will understand that I was not in a position to make such a disclosure.

On the question of admission of liability, a further accusation has been made by some Deputies that I knew for some time that the BTSB intended to admit liability and did not inform the House. The BTSB informed officials of my Department on 16 September 1996 of its intention to admit liability in the case in question. On 17 September 1996 I was informed by officials of my Department of the BTSB's intention to admit liability. I understand the admission of liability was conveyed by letter on 20 September 1996 by the solicitors for the BTSB to the solicitors for the plaintiff. On 24 September 1996 I informed the Government of the BTSB's admission of liability.

The BTSB has informed me that it undertook, with counsel, an extensive review of the facts of the case which go back over 25 years. The various allegations made in the proceedings were put to such witnesses as are available to give evidence and a range of experts at home and abroad was also consulted. On consideration of this extensive review, and following legal advice, the BTSB decided to admit liability in the late Mrs. McCole's case in relation to her claim for compensatory damages for negligence. I am not aware that the admission of liability by the BTSB is due to any so-called "new revelations" in relation to the case as claimed by some Deputies.

There is much speculation about the ultimate settlement in the case and a Deputy has alleged that the State's "fingerprints are all over the settlement agreed with the late Mrs. McCole's solicitors". In relation to the settlement in the case in question, I was not consulted by the BTSB in this regard. This settlement was a matter between the plaintiff and the BTSB and the State was not involved.

I am pleased to get this opportunity of making a statement to the House setting out the facts as I know them in relation to a range of issues which have been the subject of controversy in recent months. Later I will endeavour to respond as fully as I can to the issues which Deputies raised during this debate.

With the establishment of the tribunal of inquiry, which we will discuss tomorrow, we will have put in place the ultimate mechanism available to this House to establish the truth of one of the greatest and saddest of public tragedies since the foundation of the State. We must address the mistakes of the past, deal fully with their implications and implement what we learn about how to make matters better. The Government has already agreed a comprehensive health care package for the victims of this tragedy and put in place a scheme of compensation which is working very well. If, as a result of the findings of the tribunal of inquiry, there is a need to amend the terms of reference of the compensation tribunal, I will do so promptly.

I am committed to funding research on hepatitis C so that we can understand more about this newly described disease and assist the medical and scientific community throughout the world in its efforts to improve the outlook for all those who suffer from the illness, however acquired.

It is necessary and proper that we address the failures of the past. It is also important that we give support to those who provide a vital public service, based on the generosity of voluntary donors and the confidence of users in its services. It is a truism that it takes a long time to build the reputation of a blood bank, but a very short time to destroy it. Those of us in this House have a particular duty of care in how we address any issue which impinges on the supply of blood and blood products. Those who serve on the board of the BTSB, those who are charged with its management and those who bring their technical expertise to bear on trying to provide a safe and reliable service must, at this difficult time, be given our wholehearted support in implementing fully the many changes that have been recommended in the consultant's report on the BTSB and the expert group report. Equally, we must be careful not to do anything which would discourage voluntary donors or increase the stress on those who must receive blood or blood products as part of their treatment and care.

Every country in Europe currently has some problems with blood or blood products. There is an acceptance that one can never do enough in ensuring quality and safety in this vital area. It is not an easy job in the best of times. It is certainly not easy now for the BTSB to cope with implementing improvements while dealing with the legal and other demands arising from the problems which occurred in the past. The board and staff of the BTSB are fully committed to ensuring that we never see a repeat of the mistakes of the past.

I would, therefore, make a special appeal to my colleagues in the House, and to the media commentators, to be mindful of our ongoing need for a safe, reliable and trusted blood transfusion service. Many people in the BTSB and in the hospitals are devoting their time and energy to ensuring this. We should not do anything which makes their already difficult job even more demanding or indeed impossible.

I do not intend to take up the 30 minutes available to me because it is important this evening to establish facts and get answers to a number of questions many of us have to ask. I am appalled by the tone of the Minister's contribution. I do not believe he has yet understood the anger, frustration and bitterness felt by all victims of hepatitis C. It is a tragedy that members of Positive Action and other victims of hepatitis C walked out of the public gallery in protest at what they heard in the Minister's contribution. I do not believe the Minister has shown any sympathy or compassion for, or understanding of, the level of anger and frustration being experienced.

The Minister's lack of compassion, understanding and sympathy is proven in an issue I raised here with the Minister regarding the performance of the State's legal team during the second court hearing following Mrs. McCole's death. I condemn again, in the strongest possible terms, the fact that every other legal team represented in court that morning offered condolences to Mr. McCole and to his 12 children, with the exception of the State's legal team. Will the Minister outline the reason for that? Was an instruction given to that effect? Who was the State's legal team? The Taoiseach accused me this morning of using the privileges of the airwaves to make certain allegations that I was not prepared to make in the House. That is extraordinary considering that an eminent predecessor of his could say, "do not bother me with the practice, what about the theory?"

In a controversy that has run for two years one would expect the anger to abate after that period of time. It has not abated. This is the 22nd time the Opposition has had to raise this issue in the House. As each new disclosure came, the anger increased. It increased also when, as it seemed to everybody, the truth was being continually hidden. Every attempt made to get at the truth has been frustrated, regardless of what the Minister said in his lengthy contribution.

The expert group was not given the full facts. It was established by the previous Minister for Health, Deputy Howlin, and I am glad the Minister accepts that was the right decision at the time and that had he been Minister, it is the decision he would have made. When the expert group reported to the Minister, he accepted, as did everybody including lawyers and Members of this House, that it was the bible, that all the facts were contained in that document. We have now discovered that the expert group was not given the full facts.

I want to ask the Minister some specific questions that have failed to be answered. When did the file in relation to infective hepatitis come to the attention of the board of the BTSB? When was that information delivered to his Department by his Department's representative on the board? When was it subsequently brought to his attention as Minister? Why was that information not given to the House? Why did the Minister and his Labour Minister of State, Deputy O'Shea, continue to tell this House that the bible was still the bible and that nothing had changed in relation to it?

The Minister had an obligation to state in the House that an element of the report was not full and accurate. If he had given that information, there would not have been a need for all the debates we have had in the House. It would not have been necessary for the Minister to wait for a television programme to admit that, because the expert group did not have the full facts, their report was not final. I still believe, as I did at the beginning, that the files should have been passed on to the Director of Public Prosecutions, and I still feel that should be done by the Minister.

The Minister for Health has all the information and has not been prepared to give full and frank answers to parliamentary questions. A judicial inquiry is always the last resort. That is what we now have. It would not have been necessary if the Minister had honoured the promises made by Fine Gael in Opposition that they would fully answer parliamentary questions and hence avoid the necessity ever again for a tribunal of inquiry. In the past 18 months we have pursued the Minister relentlessly — he acknowledged that fact during our last debate on the hepatitis C affair. Throughout that time there was an attempt in this House to cover up the scandal. Part of that cover-up was when the Minister told the House the expert group had the full facts although he knew, for quite a substantial amount of time before he faced up to it and stated it here, that they did not have the full facts.

The result of that cover-up, and of all the dragging of information from the Minister and his Department that went on in this House and outside it, was that many victims were forced to go through torture. They wanted the truth, but they did not get it. For 18 months the Minister put them through the torture of having to establish the truth by pursuing actions through the courts. The court case related to compensation but it was, above all else, an attempt by the McCole family, and by Mrs. McCole in particular, to answer a number of questions that, it is hoped, will now be answered by the tribunal of inquiry in relation to how she got the infection, when she got the infection, and who was responsible for it. Those questions were not answered.

I welcome the Minister's and the Government's U-turn on the matter. It is clear from the terms of reference, particularly in paragraphs 3, 6 and 8, that the Minister has capitulated. It is only because the cover-up was foiled that the truth can now finally emerge. It is an awful tragedy that the truth only came out in instalments, in the same way as the Blood Transfusion Service Board, ignoring its own simple management regulations, delivered death by instalments to people.

We are not talking about beef, cattle or export credit insurance. We are talking about men, women and children, but mostly women, who were infected with a deadly disease by a statutory agency under the aegis of the Minister. The State knows all the information and has known it for quite some time, but we have to have a judicial inquiry to establish the facts. Although the Minister knew the facts surrounding the controversy he refuses to answer parliamentary questions or to tell when he first knew of the 1976 file. I accept that quite late last night he answered 18 of the 21 parliamentary questions and supplied answers to the other three questions, but I still believe that, even though he told me in relation to one of the questions today that he would make a statement on the matter to the House today, there are still aspects of that parliamentary question which have yet to be answered. I hope we will get those answers before the end of the debate this evening.

Is there a policy now on admission of liability, not by the State but by the Blood Transfusion Service Board? It admitted liability in the McCole case. It will now admit liability in the case currently before the court. Is this to be done piecemeal or will it say straight out that there is a policy on admission of liability and the board will not force every single victim to get that admission in court?

I found extremely discouraging yesterday's disclosure that up to 40 people who had tested positive for hepatitis C in 1991 were not told until 1993. I found it even more disturbing to hear a Blood Transfusion Service Board official say if it were to happen all over again she would handle it the same way. I was criticised for calling that a guinea pig project. That criticism is not warranted. These people were being used as human guinea pigs. It was suggested last night that there was no reliable test for hepatitis C available during those years. Let me remind the Minister that in paragraph 3.85 of the Hederman O'Brien report it is stated:

It is clear, therefore, that a sufficiently reliable test for routine screening of blood donors for hepatitis C became available in 1991. This test was introduced in Ireland on 1st October 1991.

(Limerick East): Who suggested there was no test available?

The person representing the Blood Transfusion Service Board last night stated she had no difficulty with the fact that from 1991 to 1993 patients' blood was taken as if it were a donation that would be manufactured into various blood products, but it had been taken not for that purpose but to be sent to the Munster division of the Blood Transfusion Service Board to be tested there for hepatitis C. The implication was that the test for hepatitis C was not sufficiently reliable at that time for the persons to be told they had hepatitis C. There was no suggestion, for example, that they should undergo a biopsy. Such testing was carried out without their consent and without their knowledge. They were not told during those three years that there was a question mark over their blood, or that it was being taken for testing purposes. Permission was not even sought for that to be done. Yet, in the Hederman O'Brien report it is clearly stated that there was a sufficiently reliable test from as early as October 1991. To be fair, the Minister of State, Deputy Hyland, made that clear when he came into this House to answer questions from quite a large number of Opposition Deputies.

(Limerick East): Who was in Government in 1991 and 1992?

That is not the point. The point is that there was a sufficiently reliable test, and the Blood Transfusion Service Board continued to take blood from donors, send it to Munster, and have it tested as if there were no sufficiently reliable test. The Blood Transfusion Service Board was playing with people's lives, and those persons who had hepatitis C and who tested positive for it were denied health care over that two year period. The Blood Transfusion Service Board now tell us there was minimal risk. I suggest they tell that to the McCole family.

Should the Blood Transfusion Service Board not at that time have referred all of those victims for liver function tests or indeed for biopsies? They should have. One specific question that perhaps the Minister could answer is whether the same standards were applied in Dublin as in Cork. If all of this work was going on between 1991 and February of 1994 in the Blood Transfusion Service Board, why was that information not made known by the board to the Minister or the Department, or was it made known to the Department or the Minister?

The Minister referred in his interview on Sunday on RTE radio to the fact that there was infection in the 1970s, the 1980s and the 1990s. I would like to know what he means by that because the 1980s contamination, as far as I am aware, has not emerged before — donor X related to 1976 and donor Y related to 1993.

(Limerick East): It was 1989. Read the Hederman O'Brien report.

Perhaps the Minister would elaborate on that when replying to the debate.

We strike a raw nerve every time we criticise the Minister and he gets terribly upset. The reason I criticise him is that I believe he is the first Minister for Health who is in possession of all the facts. Therefore, political responsibility rests with him. He is the person charged with that political responsibility in respect of the Blood Transfusion Service Board. I feel strongly that the Minister has failed to keep the public health interest to the fore in all this. Nobody is looking after the public interest and on that basis the Minister's judgment has been flawed. The Minister as the political master with responsibility should have made the decision that the State should not continue the cover-up that was going on. They looked for the victims, the truth, admission of liability, an apology and a statutory tribunal.

I regret that in some of the questions answered last night the Minister started to hide behind either today's debate or the tribunal. I want to know very specifically when did the Minister first know of the file on infective hepatitis? When was he first told about it? When was the Department told? When did his official who was nominated to the Blood Transfusion Service Board become aware of it? Despite the Minister's claim in this House that he would give full and frank information, as of yet we have not been able to secure the names of all the board members of the Blood Transfusion Service Board since 1976. I appreciate the Minister may not have that information with him but I would appreciate if he would make it available to me this evening. It would be important for us to have the names of all the divisional heads in the Blood Transfusion Service Board during that same period.

I want to ask a specific question in relation to the tribunal of inquiry. Was any assurance given when the former chief medical officer of the Blood Transfusion Service Board was given his severance payments that that would absolve him of being called in front of any inquiry or court case ever again in the future? It is important for us to establish that in this House.

The Minister said he was given legal advice that the State should not admit liability and he has repeated it this evening. Who gave him this advice? I do not accept there is a distinct difference or a Chinese wall between the Department of Health and the Blood Transfusion Service Board. In the terms of reference of the tribunal he has broken down the Chinese wall.

The Minister indicated in the House last week that he would look at the possibility of amending the scheme of compensation. He seems to be indicating in his speech this evening that that amendment would only take place in the context of a report coming from the tribunal of inquiry. Is it not necessary now to amend the scheme of compensation because of various events that have taken place? It is not meeting the needs of all the victims going before it. It is important that that would be established now.

I repeat what I said publicly about the tribunal. It is absolutely essential and necessary, and would be in line with decisions made by previous Governments, that a Government decision be made directing Government Departments and State agencies to produce all documents and all information in their possession for the period which the tribunal covers to the tribunal so that any attempt at frustrating the work of the tribunal would not be successful.

The Minister has made a case in relation to the court case and anonymity. While some are quite happy to be named publicly, there is great concern which I think the Minister appreciates among certain of the victims. They may not have told their extended families, their neighbours may not know and most of them have not told their employers that they have hepatitis C. If they want to go before the tribunal of inquiry, and it is necessary that some should, will the Minister by way of amendment to the terms of reference or by way of statement to the chairman of the tribunal ensure that certain of the work of the tribunal can be done on a confidential basis or in camera? When I talk about certain of the work I am talking about the victims. That is a genuine concern. Those who wish to remain anonymous have important evidence that should be brought to the attention of the inquiry.

Who authorised the legal strategy in the Brigid McCole case? Now that the Blood Transfusion Service Board has admitted liability in that case and in a subsequent case, what extra was discovered by the trawl of documents in the Blood Transfusion Service Board that its legal team advised it had no option but to admit liability? The Minister told me in response to a parliamentary question that no person was appointed by him in 1996 to look at all the documents. Was any person either within the Department, an adviser to the Department or somebody appointed by the Government, a civil servant, a non-civil servant, a lawyer, a medical doctor who may have visited the Blood Transfusion Service Board at some stage during this controversy between 1994 and now to look at the documentation and to see for himself or herself what the actual position was? I have a concern in relation to that and I would like the Minister to get advice on that before he answers, as he did in the parliamentary question, that no such——

(Limerick East): That is a legal matter. Document solicitors went in to help on the discovery of documents.

At whose request?

(Limerick East): They were purely technicians.

At whose request?

(Limerick East): It was done on behalf of the board of the Blood Transfusion Service Board to make sure everything was got on time. That may be what the Deputy is thinking of. I cannot think of anything else that applies to the Deputy's question.

I am very anxious to establish whether at any time anybody on the Minister's behalf or on behalf of the previous Minister or the secretary of the Department went to the Blood Transfusion Service Board to see for themselves or to satisfy himself or herself that the Department had all of the information or to look at all the documentation? Was anybody appointed specifically, since this controversy arose in the past 18 months, to examine the files and did something come out of that examination that brought the Blood Transfusion Service Board to change its mind? I have several other questions on which I am anxious to get answers from the Minister and to move on.

I am amazed that the Minister in his contribution entered into the blame game which he vilified last week. Referring to Mrs. McCole's solicitors, he said:

Was it in the interest of their client to attempt to run her case not only in the High Court but also in the media and in the Dáil simultaneously?...

On reflection, would not the solicitors for the plaintiff have served their client better if they had advised her to go to the compensation tribunal early this year?

The Minister scorns the solicitors for the late Mrs. McCole. Will he accept, even at this late stage, that the truth would not have come out but for that court case? We would not be debating the establishment of a tribunal tomorrow were it not for the determination of the late Mrs. McCole to continue with her court case despite the overwhelming attractions of going to the compensation tribunal which is so extolled by the Minister even today. I am not surprised Deputy Geoghegan-Quinn is appalled at this because I am equally appalled.

This debate deals mainly with the public accountability aspect of the matter. Tomorrow we will debate the terms of reference of the tribunal. The Dáil record on the handling of this matter, which has become known, to use the Minister's words, as the hepatitis C scandal, speaks volumes about the inability of this House to be an inquiring body or to hold the Government of the day to account. Much is said about parliamentary accountability. This is not merely a trendy slogan, it is fundamental to our system of parliamentary democracy. This Administration, which owes its existence to the failure of a previous Administration to be accountable in terms of the extradition of a priest to Northern Ireland to face charges, has shown it has the memory of a goldfish when it comes to learning lessons about accountability. Whenever the State is confronted with allegations of maladministration or a degree of culpability across a range of areas — for example, justice, health, health boards, the probation service etc. — this House does not have any chance of getting information. It is important to remember that the Government is not only accountable to the Opposition but is accountable to all Members of the Dáil. When asked questions by Deputies, including backbench Government Deputies, the Government must account to the Dáil which represents the public.

Yesterday the Taoiseach volunteered as a courtesy, and only while under severe pressure, to have answers given to questions which had been ruled out of order last week on the grounds that they anticipated a Private Members' debate and which fell victim to the same rule this week because of this debate. Deputy Geoghegan-Quinn and I received replies to these questions last night and today. However, these replies follow the same tired minimalist pattern which has become depressingly familiar to Deputies who table questions. Last week the Minister had the gall to say that we had not put down enough questions and that the Progressive Democrats had a new found interest in the matter as it had never tabled questions on it. However, the Official Report will show that one third of our priority questions to the Minister since he took office have related to hepatitis C. It is a depressing indictment of Dáil Éireann and of our powers to hold the Government to account that we have been forced to resort to the establishment tomorrow of a judicial tribunal to establish the facts, all of which are within the possession of the State or the State authorities.

From the very beginning the exhausted women and their representatives have led the charge. When we were being thwarted with minimalist replies to parliamentary questions their anger kept them going. When we were obstructed either by being ruled out of order or receiving unsatisfactory replies from the Minister it was the women who kept on going. They continued to brief Opposition leaders, they negotiated their own medical services, they negotiated with the Department of Health and they ensured that they would get the best. While the medical package they received was good and to their satisfaction, they wanted their rights vindicated and to know what happened. They were always entitled to this information.

During the past ten days further information on this matter has continued to emerge from private sources, documents given by frustrated victims and leaks. There has been some accountability by the Minister today and we have received decent replies to the questions we continually put to him. However, up to now the Minister has been more forthcoming to the media than he has been to the House. We recently had a debate on supposed Dáil reform. Of course, this was not radical Dáil reform as the Government rejected the proposal for changing the system of answering parliamentary questions. The Progressive Democrats proposed a root and branch reform of the way in which parliamentary questions are vetted and ruled out of order under the repeat rule or the anticipatory debate rule, all of which are procedural objections to the giving of information. Any procedure which subjugates the right of the Dáil to receive replies to questions legitimately put should be abolished. What aspect of the public interest is served by the anticipatory rule which ruled our questions out of order last week and this week?

(Limerick East): It does not serve any aspect. I will answer questions any time. It was an embarrassment for me not to be able to answer those questions.

They were replied to as a matter of courtesy. The Government promised openness and a type of glasnost in terms of the workings of the Dáil, yet we have had none of this. Instead this Administration has been very retentive in terms of information and has followed the same old pattern of giving Deputies as little information as possible and using the same old answers such as "The Deputy did not ask the right question" or the famous remark by a civil servant during the beef tribunal in respect of a reply drafted by another civil servant, "That should confuse the Deputy". This is still happening on a daily basis, as can been seen from the way I am thwarted by the replies given to my parliamentary questions. Nothing has been done to enhance or improve the role of this House as an inquiring body. While the Government has grown more influenced by spin doctors and the media, the role of the Dáil has been further diminished.

The terms of reference of the tribunal were announced last night. Apparently they include — and I welcome this — the responsibility of the Minister for Health and his Department in their handling of the matter from the beginning up to the present. It is clear that the demands of the Opposition and the concerns expressed by many people who have an interest in this matter have been taken into account. The Minister has separately agreed to fully account to Dáil Éireann and the tribunal. When I asked the Minister yesterday the precise nature of the material obtained on discovery relating to the BTSB in the late Mrs. McCole's case prior to the settlement of that case he replied: "Material discovered between parties to legal proceedings are exclusively for the use of these parties and cannot by law be disclosed to anybody not involved in the proceedings".

(Limerick East): Does the Deputy wish me to break the law?

Will these documents be available to the tribunal if it is a breach of the law to disclose them?

(Limerick East): They will be available to the tribunal.

When I asked him the specific acts or omissions, if any, which gave rise to the liability of the BTSB the Minister replied: "The issues raised by the Deputy are a matter for the tribunal of inquiry to be established under the Tribunals of Inquiry (Evidence) Act, 1921, into the hepatitis C infection of blood and blood products manufactured and distributed by the BTSB". Are we to take it from this that all future questions will be ruled out of order or answered in this fashion, in other words referred to the tribunal?

Now that the tribunal is to be established, the Minister probably envisages that today will be the last day he will be asked to account for this matter.

(Limerick East): That is not the case.

I am glad to hear it.

(Limerick East): If the question deals with negligence or culpability I cannot answer it; it is a matter for the courts. I did not invent that rule — there is a separation of powers. If the Deputy puts down questions asking me to blame people I cannot answer them.

The BTSB has admitted negligence.

(Limerick East): General negligence.

I will deal with that matter later. Of course, the transfer of the issue from the political arena to the tribunal of inquiry suits the Minister.

(Limerick East): That is not the case.

Yesterday we learned that up to 40 blood donors who tested positive for hepatitis C in routine screenings in 1991 were not told they had the virus until two years later. Yet again we are getting the truth by instalments. During the past ten days more information on this matter has been forthcoming than was the case. This has not come from official sources or in replies to parliamentary questions to the Minister or indirectly to the Department of Health, but has been obtained slowly by extraction. This follows the pattern of accountability by this Administration.

There has developed an artificial divide or border as between the two aspects of the hepatitis C scandal. After all the questions, whether they were taken, ruled out or replied to by way of courtesy, we still do not know when the Minister for Health was first aware of the diagnosis of infectious hepatitis in donor X and the existence of a file which clearly indicated that diagnosis. That is a crucial question in terms of the Minister's accounting to the House, and that is the main question today, but I do not think we will get an answer to it. The Minister will not say when he was first aware of the diagnosis of infectious hepatitis in donor X, and that goes to the heart of our questioning today.

The Minister said that the BTSB informed officials in his Department on 16 September 1996 of its intention to admit liability in the McCole case. That admission of liability was conveyed by letter of 20 September by the solicitors of the BTSB to the plaintiff's solicitors and on 24 September the Minister informed the Government of the admission of liability. He claimed that he was not consulted by the BTSB on the settlement and that he did not brief the Government on it. I find that difficult to believe. Is he saying that even after the discovery of the crucial file in the course of proceedings in March, six months earlier, he was not informed by anybody, even his legal adviser, that the discovery of this document was of monumental importance, that the game was up and liability would have to be admitted?

Why did the Minister of State, Deputy O'Shea, inform Dáil Éireann on 28 March 1996 that the discovery of this document and file, showing that the BTSB had known of the existence of infective hepatitis since 1976, was not new information? That baffles me and the Minister in his statement today still has not properly explained how the Minister of State could say that was not new information. Why were we accused of codding women? Who is codding who? Why did the Minister continue to strongly encourage victims to opt for the compensation tribunal? Why did he ignore calls from Positive Action and Members on all sides of the House for an extension of the closing date for the compensation tribunal?

The McCole family made public the harsh, narrow and threatening terms on which settlement was offered to it by the BTSB on 20 September. In a letter of 21 July 1996 the Chief State Solicitor pointed out, on behalf of the Minister, that the scheme of compensation approved by the Government offers the women seeking compensation a number of benefits which cannot be achieved in litigation. They were outlined as privacy, informality, speed, compensation in two stages and a lack of requirement to establish negligence, everything but the truth. There was no problem with money, but the truth was not forthcoming. The compensation tribunal skirted the issue of liability. It skirted the truth.

Immediately following the admission of liability the Minister, on behalf of the State, distanced himself from it, and the State still maintains that position. I expressed my surprise at the time and referred to it as a politically convenient fiction, and perhaps it is also a legally convenient fiction. We do not know what precisely is the case against the State in this matter. All we know is that the State vigorously denies liability. To quote the Chief State Solicitor, liability is "repudiated", and that remains the case. Yet the terms of the settlement in the McCole case were based on Mrs. McCole dropping her case against the State and the National Drugs Advisory Board as well as the BTSB. There is, therefore, a connection. If the settlement was based on her dropping the case and her claim against the other two defendants, they must be connected.

(Limerick East): The legal team wanted to get their fees.

What legal team?

(Limerick East): The legal team in respect of all litigation.

As a legal person, the Deputy should know that.

The fingerprints of the State are all over that settlement. Since the settlement involved the case being dropped against the other two defendants, those two defendants are also involved.

At 1 p.m. today I received a reply, as a matter of courtesy, to one of the questions previously ruled out in which I asked the Minister for Health whether proceedings were initiated or pending against the BTSB from outside the jurisdiction in regard to hepatitis C infection or blood products, if so, the status of such proceedings, the jurisdiction involved and that a statement be made on the matter. The reply, which is confusing, as it is probably meant to be, states:

I have been informed by the Blood Transfusion Service Board that it has been advised by its legal representatives that proceedings have been initiated in seven cases from persons outside the jurisdiction claiming that they have contracted hepatitis C from blood or blood products made available in Ireland by the Blood Transfusion Service Board. All cases are at the preliminary summons stage of proceedings before the Irish courts.

Do these cases relate to contaminated blood or blood products here or abroad? For example, were they received here or abroad?

(Limerick East): They were received in this jurisdiction and the persons infected have moved abroad and are suing from abroad.

Will those persons be entitled to bring their case before the compensation tribunal? I note the Minister's official is nodding in reply.

From the expert group report we know that the BTSB exported 225 doses of anti-D product to other countries over a number of years. Some doses were supplied for research purposes while others were for clinical use. Most of the product went to the United Kingdom but some doses went to the United States, Switzerland, Finland, Denmark and Germany. The report states that the BTSB has written to all those supplied with the product. It was confirmed to the expert group in a letter dated 16 August 1994 that "to date, no report of seroconversion following use of product supplied abroad has been received". I presume it is still the case that there have been no reports of seroconversion in respect of any of the products supplied abroad.

The establishment of the expert group was debated in this House on 22 February 1994. The then Minister for Health, Deputy Howlin, informed the House that the BTSB had informed him on Thursday, 17 February 1994 that evidence had emerged that there was a "possible link" between the product anti-D immunoglobin and hepatitis C. From the Minister's contribution at that time it is clear that he was not provided with adequate information. In light of what we now know, it is interesting to read his contribution, which illustrates how little information he was given by the Department of Health. There was no mention of the 1991 letter from the Middlesex hospital. To say that there was a possible link, three years after that letter was received, is inaccurate because at that point it was a scientific fact that there was a definite link. The then Minister went on to reassure the public, as was his duty, that there was no need for alarm. Since he was not aware of all the facts at the time, he stated that the BTSB had been magnificently proactive.

The Deputy would have said the same at the time.

The Minister also stated that we have a blood transfusion service that is the envy of Europe and that, "the board is determined, as I am, to ensure that that fine reputation is preserved, and that will be done in a completely open way so that the people's anxieties are allayed". In light of what we now know, that makes compelling reading.

The then Minister appointed the expert group to look into all aspects of the matter. It is now clear the BTSB did not give access to vital documents which were subsequently revealed in the late Brigid McCole case. It is clear it had inaccurate information about the six women who had developed clinical jaundice some weeks after receiving anti-D in 1977.

The report of the expert group makes interesting reading. There is hardly a mention throughout of the Department of Health, the extent of its knowledge, involvement or supervisory role. It is very much focused on the BTSB. We now know, because the Minister admitted as much, that the expert group did not receive full co-operation from the BTSB in its inquiry and that these matters will be fully examined by the tribunal of inquiry.

The Minister's response to the events during his term of office was to accept the report of the expert group and to establish a tribunal which was specifically instructed not to inquire into the circumstances in which 1,600 women became infected. Its purpose was to pay the money. Does the Minister now accept that if his preferred approach of the compensation tribunal had been accepted by all the victims, including the late Mrs. Brigid McCole, the most serious cover up in Irish medical history would have gone undetected? It is palpably true that if the court case had not gone ahead we would never have seen the documents which were concealed and a tribunal of inquiry would not have been established.

The Minister has alleged that he always wanted the truth to come out by way of the Brigid McCole case but I still believe that every trick in the book was used to obstruct the case by claiming the statute of limitations, forcing the plaintiff to reveal her name, threatening costs if she pursued aggravated damages, opposing an early hearing and putting forward medical evidence to contradict the late Mrs. McCole's medical evidence as to her state of health.

The Minister justified forcing the plaintiff to reveal her name on the basis that it was a decision of the court. If the defendants, the State or the BTSB, had not objected and agreed to the plaintiff's request for anonymity as happened in the haemophiliac case, she would not have been forced to reveal her name during the case. They did not have to play hard ball.

The big battle appears to rest in the State's repudiation of a claim for aggravated damages. Given that the BTSB has admitted liability which is no longer at issue, is prepared to pay compensatory damages but continues to deny aggravated damages, I went to the trouble of looking up a recent case in the Supreme Court which described the difference between the two. Ordinary compensatory damages are calculated to recompense a plaintiff for the harmful effects of a wrongful act and-or for moneys lost or to be lost and-or expenses incurred or to be incurred by reason of the commission of the wrongful act. That is what the BTSB was willing to admit and what the compensation tribunal pays out without an admission of liability.

In 1991 the Supreme Court described aggravated damages as follows: compensatory damages increased by reason of (i) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage; (ii) the conduct of the wrong doer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong or (iii) conduct of the wrong doer and-or his representatives in the defence of the claim of the wrong doer plaintiff up to and including the trial of the action.

The terms "aggravated", "exemplary" or "punitive" are interchangeable and arise from the nature of the wrong committed and-or the manner of its commission which are intended to mark the court's particular disapproval of the defendant's conduct in all the circumstances of the case and its decision that it should be publicly seen to have punished the defendant for such conduct by awarding such damages, apart from its obligation, where it may exist in the same case, to compensate the plaintiff for his damage.

The victims of the negligence of the BTSB which has been admitted under the circumstances which have become public, even as far as we know them, would merit the awarding of aggravated damages. Does the State or the BTSB or anybody else have a leg to stand on in light of the following: to knowingly use plasma from a donor who had infective hepatitis to make anti-D; to continue using anti-D even after six women became jaundiced in 1977 as a direct result of receiving anti-D; to ignore the 1991 Middlesex letter which confirmed the link between anti-D and hepatitis C; to fail to report that fact to the Department of Health until 1994; to fail to tell donors who tested positive in 1991 for two years of their infection and to give misleading information to an expert group established by the Minister to examine the whole matter? How many negligence acts does one need for a finding of aggravated damages?

Compensatory damages is what the compensatory tribunal offered. The reason the late Mrs. McCole was so determined and so strong right up to the end was that a finding of aggravated or exemplary damages in her case would have marked the courts' and the people's particular disapproval of the defendants conduct in all the circumstances of this awful case.

The difference between compensatory damages and aggravated damages is that it contains an element of culpability beyond that of a mistake. Such culpability can arise from one individual's acts or omissions or from the collective acts or omissions of a State authority or of the State.

In relation to the DPP, one of the questions was ruled out on the grounds that it anticipated the debate today and tomorrow. It was submitted to the Minister for Justice and asked whether there is a Garda investigation into matters relating to the hepatitis C scandal whereby persons were infected by a blood product supplied by the BTSB; whether there was ever a Garda investigation into these matters; whether a file has or will be sent to the DPP in this matter. The Taoiseach showed courtesy in allowing questions to be replied to. Will he show the same courtesy in the case of this question? The DPP took the unusual step of making at statement to the effect that no papers were sent to him in this matter. It is important to know whether anybody has made any effort in any Department in this regard.

We now proceed to the questions and answers session. It will proceed in the same way as Question Time in accordance with established practice. To facilitate as many Deputies as possible questions should be brief and concise.

(Limerick East): A Leas-Cheann Comhairle——

I may not call the Minister at this stage. Under the Order of the Dáil which is specific the Chair is obliged to hear questions which the Minister will answer.

The Minister, whom I have criticised for the manner in which he has handled this matter must be a very angry man. From the point of view of my own profession I find this very frightening. The hundreds and perhaps thousands of patients in hospital must also find it very frightening. Will the Minister assure those patients in hospital theatres, beds and casualty departments as a result of the BTSB's investigations that the blood they will receive is of the purest form and that there is no need for them to worry? I should also point out——

We must proceed by way of questions. I will not hear a statement.

Was it not Professor Joan Power who brought this entire matter to our attention, and discovered the bulk with anti-D? If she had not been so vigilant we would not be discussing this matter today. Perhaps Dr. Power has been forgotten in this matter. Did she not bring this matter to our attention? How many false positive cases did Dr. Power have in 1991? The PCR test could only be carried out over a number of years, yet she found 40 patients who were true positives. It was Dr. Power's vigilance which highlighted this matter and made her a heroine at that time.

The Minister said it was pointed out that the case would not be ready for trial in June as her lawyers requested and that the President of the High Court adjudged that it should proceed on 8 October. Is the Minister saying her lawyers were not ready to proceed on 8 June having lodged their case one year previously? They were ready, but the BTSB's lawyers were not ready and the President of the High Court made a decision on that basis. Did the BTSB get an independent medical opinion on which the President of the High Court based his decision rather than basing it on the opinion of a consultant who had seen Mrs. McCole and had stated that she was gravely ill? Surely a decision should have been made on the basis of the consultant's statement? Will the Minister ensure that patients in Donegal, for example, are facilitated in nearby Altnagelvin Hospital, although this problem occurred in our jurisdiction?

Limerick East): I am not angry about being questioned in the House. Sometimes I am angry and concerned about what happened, but I have no problem answering Deputies' queries. I know Deputies are aware that a series of serious allegations were made against me and were presented as facts. I have the right to forcefully refute those allegations. However, I am not motivated by anger but by a desire to ensure that I am accountable and that what is merely an allegation is not taken as an established fact, which is what has happened in the House and in the media. All the suggestions of cover-ups are allegations.

The Minister should answer the questions.

(Limerick East): This situation is frightening for the patients. All the people now in charge in the BTSB are not the people who were in positions of authority at the time. The chairman of the board is Mr. Joe Holloway, a former secretary of the Department of Energy. He was brought in by the last Government when the Minister for the Environment, Deputy Howlin, was Minister for Health. Everyone on the board was appointed after the period of contention, which is up to 1993-94. There are many experts on the board who are applying their expertise.

Will the Minister give me the list of names?

(Limerick East): I will give the list to the Deputy this evening.

Mr. Liam Dunbar, who was the administrator at St. James's Hospital, and Mr. Shaun McCann, who is now professor of haematology at Trinity College and is presently attached to St. James' Hospital — Deputies know him from his reputation as the bone marrow transplant man — came in on the night Members accuse me of allowing people to retire. I explained why retirement was the option available. The post subsequently became a permanent post and Mr. Liam Dunbar became the permanent chief executive. Professor Shaun McCann wants to return to Trinity College so a new haematologist, who has wide experience abroad, has been appointed. I understand he will take up duty shortly. In the meantime, Professor Shaun McCann has decided to stay on until 1 December.

The substantial elements of the recommendations of the Miriam Hederman O'Brien report and of the Baines consultancy group have been implemented. Anyone who knows donors will know that the forms they must now complete are more searching and detailed. The screening is also more rigorous than heretofore. There are now fewer donors, not because there are fewer volunteers but because people are being screened out. However, there is a greater volume of blood from fewer donors. This arises from the fact that when the blood is subsequently tested, the initial screening screens out what would have got caught in the blood testing afterwards. We now have blood and blood products which can match anything internationally in terms of safety. As a result of this experience, we have internationalised the issue. As President of the Health Council of Ministers, it is one of my priorities to ensure that European Protocols on blood safety and blood products are put in place. It is the main item on the Council's agenda for November and I have the full support of the Irish Commissioner for Social Affairs in this regard.

The compliments paid by Deputy McDaid to Dr. Joan Power are apposite. In the course of research in 1994 she matched the incidence of hepatitis C in women to the fact that they had received anti-D product. I know many women in this House had anti-D. Almost 60,000 women in Ireland have been screened. There is no one who does not know someone in their families or among their acquaintances or friends who did not have to be screened. Fortunately, the number who screened positive is relatively small as a percentage, but as a number it is significant. That is why I described this as a national health crisis.

Dr. Joan Power must now answer questions about the incidents. It is easy in politics and in high profile professions to be a hero one day and a villain the next. We owe it to Dr. Joan Power to put her statement of explanation on the record of the House because it answers questions which have been raised by a number of Deputies. The statement was issued on 15 October 1996 and it states:

In introducing screening tests to enhance the safety of the Transfusion Service for recipients, there is also a reciprocal responsibility to understand implications of a test for donors. This means the transfusion specialists must interpret laboratory information for donors and their General Practitioners and providing guidance on choices in the donor's further health care.

Hepatitis C was first described in 1989. However, laboratory tests have undergone several developments since then. Screening of blood donors, introduced in late 1991 in Ireland, most commonly gives rise to a false positive reaction. The interpretation of laboratory results of Hepatitis C virus is complex. The BTSB decided it was important to understand why people were screening positively for Hepatitis C and set up a study to understand better the reliability of the screening tests and the nature and implications of this for the donor's health.

Because of prior interests in this area, the Munster Director undertook a pilot study of donors screening positive for Hepatitis C in her area, in collaboration with Cork University Hospital and University College, Cork. [I am sure the House is aware that Dr. Joan Power is an employee of the BTSB's unit in Cork.]

It was this donor study that established the association between the administration of BTSB Anti-D in 1977 and transmission of Hepatitis C.

It took many months between the time when basic screening was initially introduced and supplementary testing becoming available and a further year before this became more reliable. It was also necessary to establish a collaboration with a research facility to test for presence of virus and the viral type. This also took time. Once these were in place, however, donors were invited from November 1993 to February 1994 to a specialist consultation.

This approach is accepted by the medical profession in general as reasonable and responsible. As a result of the Munster's HCV Donor Study, the link with Anti-D and Hepatitis C was established and we now know more about testing for Hepatitis C and the virus itself which was invaluable in setting out the subsequent screening programme for Anti-D recipients. Furthermore, as a result of the study, these people were the first blood donors to be fully informed, after complete screening for Hepatitis C, of their condition and to be referred for full investigation at a Hepatology Unit. None of those involved in the Munster Donor Study had any prior knowledge of the association between Anti-D and Hepatitis C transmission.

There is also a supplementary note here which states:

The Munster Donor Study was structured in collaboration with Dr. Michael Whelton, consultant in Cork University Hospital, and Professor J.K. Collins at the department of microbiology U.C.C. The aims of the study were to afford identification and treatment to those found Viraemic with hepatitis C, to review blood donor behaviour patterns in the Munster region and determine hepatitis C viral types and subtypes. Under 30 donors who had initially reacted on mass Eliza screening and subsequently on Riba antibody testing were invited to consultation where their screening tests were interpreted and they were offered the opportunity of further testing for the hepatitis C virus, viral type and subtype. Of the 25, six had first screened positive in 1991, 11 in 1992 and eight in 1993. The average number of screened positive donations was two per donor.

I have said that when the case came to court for early hearing before the President of the High Court, Mr. Justice Costello, the decision was made on the basis on the defendant's application that this case was not ready to proceed.

They were not ready?

(Limerick East): Yes, the defendants were not ready to proceed. Mr. Justice Costello did not refuse an early hearing. He decided to grant one. He said the defendants had met the case properly and he fixed 8 October for it. Subsequent to that court case, the solicitors for the plaintiff took the opportunity to change significantly their statement of claim. An issue now arises with respect to the Therapeutic Substances Act, which was not in place from 1970 to 1984 but is now considered such a major issue that it is a separate term of inquiry in the tribunal. It was only added to the case by the plaintiff's solicitors by way of amendment to their statement of claim on 23 July, significantly after the time they sought an early hearing.

Is the Minister suggesting that his case——

Let us hear the Minister. I have a number of other Deputies offering.

(Limerick East): I am simply saying what happened. The judge decided there would be an early hearing. He fixed 8 October and said this was reasonable and that the defendants had met the case reasonably.

What was wrong with a jury?

(Limerick East): The defendants asked that there would not be an early hearing because their case was not ready. The High Court judge decided there would be an early hearing and he fixed it for 8 October. Between June and October, the plaintiff's solicitors significantly altered their statement of claim. One alteration of major significance was the issue of the Therapeutic Substances Act, which first came in as part of the statement of claim on 23 July. That would indicate to any reasonable person that, if the judge had given an early hearing in June rather than fixing it for early in the next session in October, the plaintiff's solicitors would have had difficulty as well. They could have proceeded with their unaltered statement of claim, but they altered it subsequently. That is the only point I make. I am giving the full facts. Accountability does not mean one has to like my answers. My obligation is to give the facts as I have them. Medical advice was given to both sides and on the basis of that, and despite the statement that the case was not ready, the judge still went ahead with an early hearing but decided that 8 October would be appropriate.

I wish to ask the Minister a question which has been put to him many times but has not been answered. When did he first discover that the woman whose plasma was used in 1976 to make the anti-D product was clinically diagnosed at the time as having infectious hepatitis?

(Limerick East): I first realised she had infectious hepatitis when I read the Miriam Hederman O'Brien report some time in January 1995. The conclusion there was that the woman had hepatitis C which is infectious hepatitis. That was the first time I knew the nature of the problem. The new file of one of the 5,000 documents discovered is the basis of the charge laid against me that I misled the House. I have already outlined in my speech that the document was attached to the grounding affidavit on 22 March 1996 by the plaintiff's solicitor in support of an ex parte motion to amend the plaintiff's statement of claim. The documentation came to light in the discovery of documents of the Blood Transfusion Service Board. The first time my Department became aware of the existence of the documentation was on 22 March 1996 when the ex parte motion was sought in the High Court and it then became part of the plaintiff's amended statement of claim in the proceedings. A statement of claim in court proceedings is a series of allegations by the plaintiff against the defendant.

The fact that this document was not seen by the expert group on the Blood Transfusion Service Board is not disputed. What is at issue is the significance of this document in terms of the question of legal liability. My view based on the advice available to me and my understanding of the nature of the documentation remains as I set it out in May. I know that the treating clinician of donor X in 1976 was not interviewed by the expert group. I do not know why and am not sure of the circumstances. If that clinician is available for the tribunal and gives evidence before it then new evidence and information may emerge.

I am saying that, with the stated knowledge I had from reading the Miriam Hederman O'Brien expert group report, when I was informed that we had this new document attached to the grounding affidavit of 22 March 1996, it seemed to me that did not change the information the expert group had. I simply made a distinction between a file or document and the information contained therein. Maybe I am wrong. All this will be adjudicated before the tribunal. All I am telling parliamentary colleagues is that I did not mislead this House. My interpretation of what was in the Miriam Hederman O'Brien report and how it matched up to the new document is as my colleague, the Minister of State at the Department of Health, Deputy O'Shea, said when he came into the House. I am not claiming I will not be proved wrong subsequently. I do not know what new testimony will be cross examined. I know that Miriam Hederman O'Brien was not in a position to call witnesses or to cross examine under oath. It was an informal inquiry. I am simply dealing with what I was rightly brought in here today for, which is to account for myself. As part of that accountability, it is alleged I misled the House on the issue. I did not. I supplied the information which, in my mind, was the only information I had.

I knew donor X had infectious hepatitis when I read the Miriam Hederman O'Brien report, a long time before that grounding affidavit. It is as clear as crystal in the conclusions that donor X had hepatitis C which is infectious hepatitis. I also knew that, at some time between November and December 1976, the Blood Transfusion Service Board was so concerned about the fact that she had infectious hepatitis B that they not only sent tests to the viral laboratory in UCD but sent other tests to Middlesex Hospital. When both the tests came back negative, they decided it was environmental jaundice. As I said before, I will not say who was culpable but it is crystal clear they were wrong. They tested for hepatitis B, they concluded it was environmental jaundice and they were wrong on both counts—it was hepatitis C. The issues of negligence arise on the circumstances of making the decision. I cannot adjudicate on that but the High Court could. I thought it would be adjudicated upon in a case before the High Court but now the facts will be established before the tribunal. I presume that in due course it will be argued before the High Court also when someone proceeds, as Deputy O'Donnell said, towards a full High Court case. I did not mislead the House and that is the only charge I have to answer here. I am not the expert in this case.

As an aside to Deputy Harney's question, could the Minister say whether he or his Minister of State, Deputy O'Shea, have ever, during the course of this scandal, asked for the file which shows that the donor had infective hepatitis? He has stated on several occasions that he has not seen it. If either of them has seen it, when did that happen?

To return to 1994, when did the Department first know there was a problem? Who told the Department? When was the Minister told and who told him? As we now know, the BTSB manufactured anti-D unlawfully and without a licence under the Therapeutic Substances Act. Who issued the retrospective product authorisations and was it known that the authorisations were being issued for products which were known to be contaminated?

(Limerick East): First, as to who knew what in 1994——

That is what it is all about.

(Limerick East):——Deputy Geoghegan-Quinn would be in a better position to answer that question than I would——

No, I was not in the Department of Health.

(Limerick East):——because my colleague the Minister, Deputy Howlin, brought all that information to the Cabinet in which Deputy Geoghegan-Quinn was Minister for Justice.

He did not. We cannot talk about Cabinet confidentiality now. The Minister has the file; what is on it?

The question has been put, let us hear the reply.

(Limerick East): It is all in the Hederman-O'Brien report.

(Limerick East): The Deputy sat in Cabinet as Minister for Justice beside the Minister, Deputy Howlin and it is unfair of her to allege that he did not give the Cabinet full information.

I am not alleging any such thing.

(Limerick East): That is a ridiculous suggestion.

Do not interrupt, please, the procedure does not allow for interruptions.

I want simple answers to the questions I posed. When did the Department first know——

The questions have been put, let us hear the reply. Other Deputies are offering.

(Limerick East): I will give the sequence of events as listed in the Hederman-O'Brien report.

When did the Department first know there was a problem?

(Limerick East): On 17 February 1994 the BTSB informed the Department of Health of the anti-D/hepatitis C discovery and submitted a written report. On 18 February the BTSB informed the NDAB, withdrew anti-D product and made arrangements for emergency supplies of WinRho SD from Rh Pharmaceuticals of Canada. From 18 to 20 February there were extensive meetings between the Department of Health, the BTSB and representatives of hospitals to decide the next steps. These included arrangements for a national screening programme. On 21 February a BTSB press statement announced the establishment of a national blood screening programme. This is all in the report. A feature of what has been happening during the controversy over the last two weeks is that events mentioned in the Hederman-O'Brien report——

The Minister is missing the point.

That is no longer the problem.

Deputy Geoghegan-Quinn was in Government.

(Limerick East):——are being presented as exclusive new scoops.

The Minister said he did not get all the information.

(Limerick East): Anyone who was a Minister in the Government of the day and in possession of the Hederman-O'Brien report, which contains a summary of all relevant dates, should know this. Appendix 3.1 of the report contains a chronology of all the events.

That is not the problem.

(Limerick East): That is the information.

Did Deputy Geoghegan-Quinn not know all those facts in 1994?

Was she not interested?

No interruptions, please, from either side of the House.

The Minister did not answer the question, he made a speech.

(Limerick East): This is the problem all the time. An allegation is made, either in the House or outside. It is only an allegation but it is taken as a fact. The Minister denies it is a fact, because it is not, so then he is either covering up or he is a bully or an angry man.

All three are true.

Deputy Geoghegan-Quinn was Minister for Justice and that information was made available to her.

(Limerick East): No matter how good one's advocacy or how much rhetoric one uses what is being stated at present is a series of allegations. They will now go before a judicial tribunal which must decide whether the allegations are sustained. To listen to some Deputies this evening, one would conclude we do not need a tribunal because they know everything already and say there is a cover up. Why do we need a tribunal if judge, jury and executioner have come into the House and decided this?

We are uncovering the cover-up.

Deputy Geoghegan-Quinn could be called before the tribunal.

(Limerick East): The Deputy has now asked two further questions and put them in the form of allegations.

I did not, I asked questions.

(Limerick East): She said criminal offences had been committed because the Therapeutic Substances Act was not invoked between 1970 and 1984. However, this may not have been an offence because anti-D may not be subject to the Act and it is up to the tribunal to decide whether that is relevant. The tribunal will also have to decide if there is a connection between the fact that there was no licence, if a licence was statutorily required, and the infection. The Deputy is putting this to me as an established fact but it is an allegation made in the statement of claim late in the day, on 23 July.

Answer the question.

(Limerick East): I have answered it. The Deputy should reread the report because she has mixed up two points. She asked who gave the retrospective licences under the Therapeutic Substances Act. The Act is one issue but the issue of retrospective licences stems from the fact that the National Drugs Advisory Board should, in the normal course of events, have advised the Department of Health in respect of licensing. There were no licences applying at certain periods and that is all in the report. The chronological order is there.

(Limerick East): At certain times people issued retrospective licences when it came to their attention that their Department was acting in a way which was not in accordance with practice. I do not want to give a conclusive report but, speaking from memory, one of the retrospective licences was issued in 1986 and the other in 1994. I do not know whether there are others but it is all in the report and is not disputed. They were issued by the Minister of the day.

Does the Minister of the day have to sign the retrospective order?

(Limerick East): No, retrospective licences were issued under his control at the time he was Minister.

Is the Minister stating that the Minister of the day has to sign the retrospective authorisation or that the Minister nominates under the Act an official in the Department who does that job?

(Limerick East): As I understand it, the requirement was that an official, on the advice of the National Drugs Advisory Board, would go through the documentation and sign it. There is nothing new here but the Deputy is making a new allegation. No one at any point said this was a matter of contention or that Dr. Hederman-O'Brien's identification of a problem in respect of the supervisory role of the Department was not correct. There is no doubt there was a lapse but the proposition that it contributed to the infection has to be tested. It was part of the case against the State in the first High Court case and in the new cases which may or may not be heard. It will also be central to one of the issues before the judicial inquiry.

And the second part of my question?

(Limerick East): The Deputy asked about the Therapeutic Substances Act and I answered that.

Not that question. The Minister said that 1994 was the first time the Department knew there was a problem. When this official in the Department signed the product authorisation in 1994, did he or she know that the product was contaminated?

(Limerick East): No, as far as I understand it.

How could that be?

(Limerick East): The advice I had is that no one knew until the Minister, Deputy Howlin, advised the Government in which Deputy Geoghegan-Quinn was Minister for Justice——

The Minister is missing the point.

(Limerick East):——which subsequently decided to go public and inform the House.

Was it after 17 February?

The Minister told us, and we accept, that the Department knew on 17 February 1994. Was it after that date that the particular official signed or issued the retrospective product authorisation? If it was, the person signing it knew there was contamination of the product.

Has the Deputy read the Miriam Hederman O'Brien report? She was Minister in 1994.

Deputy Finucane, you are not being helpful. The Deputy should allow the Minister to respond without interruption.

(Limerick East): According to Appendix 5.3, page 95, of the Miriam Hederman O'Brien Expert Group report, the chronology of product authorisation applications for Anti D starts on 15 December 1975 and goes through pages of dates giving the chronology. Page 98 mentions 23 February 1994 when it is stated that the Department of Health, public health division, asked NDAB for a one page renewal authorisation for the BTSB's Anti D product. The Department told the expert group this was done to cover the already expired period, 1 April 1988 to 31 March 1993. The Department supplied details of revised procedures to ensure the need for retrospection would not arise in the future.

So it was signed?

(Limerick East): On 23 February 1994.

When the Deputy was in Government.

(Limerick East): Deputy Geoghegan-Quinn is making allegations. I assure her that I and my predecessor informed the Government at every step of the way on this very serious issue because we knew we were dealing with a public health scandal. The memorandums went to the Department of Justice also and the Deputy is being coy in pretending that something untoward happened on the Minister for the Environment, Deputy Howlin's watch.

I am asking a simple question.

(Limerick East): The Deputy knows this. She is involved in playing the away match on the breakdown of the last Government.

On "Questions and Answers" on 7 October the Minister said for the first time that the expert group had not been given all the information and certain witnesses had not made themselves available. That being the case will the Minister explain why, according to the Official Report, 1 May 1996, volume 464, at column 1795 he told the Dáil: "The essential point is that the expert group, ... had all the information available"? What led the Minister to change his mind on "Questions and Answers" on 7 October and to state that it had not all the information made available to it?

(Limerick East): That was my state of knowledge at the time. I found out subsequently a number of things. Whether the therapeutic substances legislation applied between 1970 and 1984 was an issue which I had not known about until this summer. That was new information. The second issue about which I was not aware until recently was that GPs and so on may have relevant information.

I supplied by way of a reply to a parliamentary question a list of the persons listed in an appendix here, who gave evidence before Miriam Hederman O'Brien. It was not a conclusive list, but it was only when I started to examine it and ask questions that I realised that some people who did not appear before Miriam Hederman O'Brien might have new information to give.

The reply I gave in the House on 1 May 1996 and the statement I made on "Questions and Answers" was not founded on the file about which everybody is talking. I am also informed that agreement to admit liability by the BTSB arose from a 25 year review of the case, looking at the allegations and seeing what ones would be put to the witnesses who were available, and medical experts, both at home and abroad, and that the change in their stance on the issue of liability did not run from the discovery of some new relevant document. The House may not like my answers but I am telling the truth.

Why did the Minister not say in his statement to the Dáil on 3 October 1996 that Miriam Hederman O'Brien had not been given all the information? Why did his knowledge change between 3 October, when he responded in the House, and 7 October when he appeared on "Questions and Answers"?

(Limerick East): I have consistently said that the Miriam Hederman O'Brien report was based on an informal inquiry. It was not suggested that she would proceed in any other way. Nor was there a suggestion that she and the two eminent people who assisted her would go through every document. They relied substantially on the new chairman, who was appointed by my predecessor.

Criticism in reports can be muted at times. However, Miriam Hederman O'Brien says that she got very little co-operation at the start, but after some time it improved. That was when the new chairman was appointed. I always acknowledge that Miriam Hederman O'Brien did not see all the documents. There were 5,000 documents on discovery. However, she would not even have seen routine matters which did not come up on discovery. She relied on having experts investigating matters with her and produced a great report. It is now being severely criticised. It may emerge that it has half, all or 90 per cent of the truth. However, a series of allegations have been made. It is not that I disbelieve the report, but I see why people now believe we should look at this again. There is a widespread belief that the full story is not contained in the report. It is, therefore, not only in the interests of the victims but in the public interest to have a judicial inquiry. If there was any other way of doing it I would suggest to the House that we proceed accordingly.

I had a number of choices. I could have reconvened the Miriam Hederman O'Brien group, but I do not know how long it would have lasted before it would come up against a brick wall when somebody refused to speak with it. If I then had to give it judicial powers to compel witnesses it would have become a tribunal and the chair would be Dr. Hederman O'Brien rather than a High Court Judge or a judicial person.

We should get serious about the situation. The allegation that somehow the Minister for the Environment, Deputy Howlin, knew what was going on while his colleague, Deputy Geoghegan-Quinn did not, is ridiculous.

When did the Minister see the 1976 file?

(Limerick East): There were ongoing court proceedings and there was a discovery of documents which consisted of 5,000 documents. I saw the dockets attached to the affidavit of 22 March 1976.

(Limerick East): Shortly afterwards. I have not got a date, but I was shown them at that time. That was not the full file but as far as I was informed it appeared to be the relevant part of the file.

The Minister did not tell the House of this?

(Limerick East): I did not deny anything. I did not deny that I saw the dockets. The Deputy had put me under pressure to examine every file in the Department.

I consistently asked the Minister in the House about this matter and he consistently refused to tell me whether he or his Minister of State saw it.

(Limerick East): I did not see the file. I saw the dockets which were attached to the affidavit and they were public.

(Limerick East): They were attached to the affidavit on 22 March and they first came to the notice of my Department on 22 March 1996 when the ex parte motion was brought to the High Court. That is the position. Nothing hinges on it; I gave the Deputy information on this previously.

It is now obvious that it was unfair to force women into the tribunal by 17 June, especially in the knowledge of the March file? Can the Minister now advise on the position with regard to the women and the effect of the tribunal of inquiry on the cases going before the compensation tribunal? I am especially interested in the women who have already accepted awards. If new information comes to light in the inquiry, what will be the position of these women?

The second group of women about whom I am concerned is those who have been given dates on which to attend the tribunal during the next three months. What information does the Minister have for them in terms of the re-examination of the entire issue? What should they do if their date is next week or the following week? Should they seek an adjournment? Will there be hundreds of adjournments over the next few months until the inquiry reports?

How many people have already sought adjournments, but have been denied them and forced to either proceed under the tribunal or go to court? As the Minister is aware, the women whose cases are due to be heard each day until the inquiry reports must reject or accept their settlement within a month. Will the Minister extend the one month deadline to at least one month beyond the tribunal? Did the Minister hear that question?

He was talking to his officials.

Will the Minister extend the one month deadline to at least one month after the tribunal of inquiry for all cases? How can a woman go before the compensation tribunal next week and make a decision before Christmas when the tribunal of inquiry may throw new light on the issue?

Will the Minister earmark when the tribunal of inquiry will conclude? If necessary, the tribunal of inquiry could later state why it cannot make that deadline, but the women facing this dilemma each day need to know when it might end. Women are getting dates in the post and they need clarification.

In this era of accountability and transparency, will the Minister explain why so many anti D mothers cannot get the details of their batch cards, particularly with regard to the relevant year? They can get various details about their batch cards but the relevant year in each case appears to be missing. Will the Minister explain why the relevant year is always missing?

(Limerick East): Difficulties come to my attention from time to time but I have no information that there is a general problem and I do not believe such a difficulty exists. In the past, Deputies have contacted my Department about individuals with specific difficulties. We have tried to establish the reason for them and get the BTSB to address the issue. While there were difficulties initially, I understand the BTSB is now helpful in the performance of this duty.

The relevant card is always missing.

(Limerick East): There may be individual problems but I have not heard general criticism about it for some time. Individual cases arise from time to time which require particular intervention.

Regarding the Deputy's general question, I understand no claim for compensation has been withdrawn or postponed as a direct result of the admission of liability of the Blood Transfusion Service Board in a case before the High Court. Three claims have been adjourned following the admission of liability. One claim was not ready to proceed and two were adjourned by the tribunal for administrative reasons.

If a woman seeks an adjournment and is refused it, she is faced with the dilemma of going to the tribunal or the courts.

(Limerick East): During the last contentious debate in the House on hepatitis C in June I was pressed to extend the date for applications. At that time, I stated — although it was generally missed, like all good news — that nobody would be required to have their case heard before the tribunal on any particular day and the dates would be fixed by agreement. This is the position and nobody will be forced to take a specific date. On that basis, an application for an adjournment which was granted does not arise. Even when dates are fixed, the tribunal has allowed alterations to dates for personal reasons. There is no problem in this regard; it can be done in an informal tribunal. I understand dates have been fixed for cases up to mid-January and there are up to 50 cases where solicitors have prepared full papers and are ready to fix dates.

The essential point about the tribunal is that it does not depend on facts in the same way as a court case. If a series of new facts is established, it does not affect the tribunal. The only fact relevant to the tribunal is whether one can establish the medical link between blood and blood product and hepatitis C infection. Once an applicant establishes this point, and in the cases of most applicants the information is readily available from the screening programmes, it is just an issue of measuring the quantum of damages. The tribunal does not deal with negligence issues; the State, the BTSB and the NDAB are not represented. Only one fact must be established and then the tribunal measures the damages. The emergence of new facts will not influence the manner in which it proceeds.

However, if a matter emerges at the tribunal of inquiry — I cannot foresee what it might be at this point — which impacts on the terms of reference of the compensation tribunal, I will come back to the House and discuss necessary changes. I will make these changes if they are in the interests of the plaintiffs. A restriction placed on me is that I cannot change the terms in an adverse way. This provision was included to ensure that if public attention ever departed from this issue, a future Administration could not slip back regarding the tribunal's terms of reference. The terms can be changed to assist plaintiffs but the Minister cannot take away any rights already provided under them.

The Minister told the Dáil, as reported in the Official Report of 3 October 1996; volume 496, column 1405. that:

...it would be totally illogical for the BTSB to admit liability in Mrs. McCole's case and not to admit it in all subsequent cases that arose from the same series of events.

However, on Tuesday, 15 October, in reply to Question No. 14, which I tabled, the Minister stated:

I am informed by the Blood Transfusion Service Board that it has been advised by its legal representatives that the facts and circumstances of each individual claim that is progressed through litigation should be examined by them so that they may advise the board as to whether in the light of such facts and circumstances an admission of liability for negligence should be made in particular cases.

Which of the Minister's two answers is factual?

(Limerick East): I said on a media occasion that I would consider it illogical if the BTSB, after admitting liability in one case, continued to deny liability in other cases. I meant in other cases of the same type and class. The reply I gave to the House was based on a clarification of the board's intentions. I gave the Deputy the position as stated by the BTSB on legal advice. I do not know how the board will proceed beyond that point at this stage. However, as the Deputy is aware, the board has admitted liability in the second case.

Is what the Minister told me on 3 October now untrue?

(Limerick East): No, it is not a case of it being untrue. I gave an opinion on what the position would be, but the BTSB is a separate legal entity and it is up to it to deal with the situation as it sees fit in accordance with its legal advice.

Does the Minister now accept that what the board said is illogical?

(Limerick East): I gave the Deputy the information I had at the time. This was my position on all occasions and I am providing the same information now.

Given that the Minister has responsibility in the House for the Blood Transfusion Service Board, does he consider that what it is now saying is illogical?

(Limerick East): Different classes of action could probably arise on the basis of the different types and sources of infection. There could be a range of cases but I pointed out previously that, in terms of cases which arise from the one source of infection in the same circumstances, it would be difficult for the BTSB to sustain a position of accepting liability in one instance and not accepting it in subsequent instances.

Does the Minister know the grounds on which the BTSB has accepted liability for negligence? Was it because the board mistakenly concluded that donor X's hepatitis was due to environmental factors? Was it because it incorrectly diagnosed and concluded that the six women who received anti D developed clinical hepatitis as a result of environmental factors? Does the Minister know whether that is the reason the BTSB accepted liability for negligence for that wrong diagnosis and conclusion?

(Limerick East): The BTSB, on my understanding, has accepted general negligence but has not tied it into a particular incident.

The Minister said this is a scandal and we all agree. Will he accept it is scandalous that the State and the Department of Health threatened Mrs. McCole, who was seeking the truth, with dire financial and emotional consequences? This is a view shared by one of the Minister's colleagues — whom I heard on the radio today — Deputy Shatter, a constituency colleague of mine.

In relation to the Minister's comments — a number of my colleagues referred to this already — about Mrs. McCole's solicitors, in which he says they should have selected a test case from one of the hundreds of hepatitis C cases on their books who was in a better condition, does the Minister now accept that those comments were uncalled for and should be withdrawn? It is the democratic right of this individual and family to take this case and to engage solicitors to do that for her. It would be helpful if the Minister withdrew those remarks.

Will Positive Action get adequate funding in relation to its current offices, comprehensive counselling service, and the help it is giving these people? The home help service has up to now been funded byex gratia payments by the BTSB. Can the Minister clarify whether sufficient funding will be made available for that service? A rigid means testing system is in force in this regard. Will he look at this whole area to ensure that a proper home help service is provided and that Positive Action is adequately funded?

My main point is that it would be very helpful if the Minister would withdraw remarks which he made earlier and which I found very offensive.

(Limerick East): Funding for home help and other ancillary services comes from the Health (Amendment) Act, 1996. Those services have now been put in place and will be provided through the health boards.

As to my reference earlier this afternoon to the late Mrs. McCole's legal proceedings, I now realise they have caused understandable offence to her family, to other victims and to those in the organisation associated with the campaign and I would like to avail of this opportunity to apologise unreservedly for any offence. It was not intended in any way whatsoever. I certainly did not mean to question in any way the right of Mrs. McCole and her legal team to take the course of action which they did. It is a great personal tragedy for the family and Mrs. McCole and I apologise again for any hurt I may have caused. I was making criticisms of the adversarial legal system and in the course of an adversarial legal system sometimes contending parties can cause difficulty. I made the remarks in that context. There was no intention of hurting or offending Mrs. McCole's family in any way whatsoever.

Much criticism has been levelled at the Blood Transfusion Service Board, and quite rightly so, for the sins of the past. Was the Bain report the first consultant's report ever produced on the Blood Transfusion Service Board and to what degree have its recommendations been implemented? It is essential that those recommendations are implemented to restore credibility in the Blood Transfusion Service Board.

(Limerick East): There were a whole series of recommendations in the Bain report which were intended to improve the service which the Blood Transfusion Service Board supplies. Deputy McDaid raised the issue earlier of what procedures are in place under the chief executive officer and the chief medical officer. The Bain report was extremely helpful. Many new procedures have been put in place which have improved significantly the quality of the blood supply and which inspire greater confidence in the blood supply.

Will the Minister explain the present insurance position of the Blood Transfusion Service Board and indicate whether any of the contaminated product was exported for use in other countries?

(Limerick East): Since the summer of 1996 the State has carried the insurance for the Blood Transfusion Service Board. That is no different from the circumstances in many other European Countries. The previous insurer is in litigation with the BTSB and it would not be proper for me to comment on the details.

What about the product abroad?

(Limerick East): The product abroad is listed in the Miriam Hederman O'Brien report and no infected product has been exported, as we understand it. That was a conclusion in the Miriam Hederman O'Brien report.

Has the Minister established an internal Department of Health inquiry into the hepatitis C infection? When was this established and is he in a position to make the findings of that internal investigation in the Department of Health available to the Oireachtas? What were its main findings?

(Limerick East): The expert group under Miriam Hederman O'Brien was the only inquiry. There was no internal inquiry.

I put it to the Minister that he is still maintaining today, as he has done since 28 March, that the 1976 clinical diagnosis makes no difference. Does he accept that diagnosis clearly showed that the infection was blood borne and not environmental and that, therefore, the conclusions in the Miriam Hederman O'Brien report were faulty from the time it became aware of that file?

(Limerick East): There was no question but that the infection was blood borne. That is quite clear from the conclusion that the infection was caused by hepatitis C. There was a time in November and December 1976, when it seemed from the testing procedure in which the Blood Transfusion Service Board got involved that it was hepatitis B, which is also blood borne. I understand the latest information now is that hepatitis A could also be blood borne.

It was not caused by environmental factors?

(Limerick East): Yes, they were wrong in the conclusion. This is clear, but I have dealt with that already.

Time has virtually expired. I will allow one more question. I call Deputy Shatter.

I have one very brief question because the Minister has been put under considerable pressure on an aspect of matters that the BTSB should be put under. Does the Minister agree that in the context of court proceedings, both of a general nature in the civil area and involving the women who have been affected by this, that although the court proceedings are adversarial in nature, it is not compulsory that the BTSB exploit every procedural step open to it to make those proceedings difficult for those who are bringing them? Will the Minister say whether the BTSB has a public interest remit in determining the extent to which it exploits procedural steps in this context?

(Limerick East): As I said in the course of my remarks, the BTSB is a separate legal entity and I cannot instruct it on how to conduct a court case.