Dáil Éireann debate -
Thursday, 20 Mar 1997

Vol. 476 No. 6

Report of the Tribunal of Inquiry into the Blood Transfusion Service Board: Motion.

Minister for Health (Mr. Noonan,

Limerick East): I move:

That Dáil Éireann,

(a) notes the Report of the Tribunal of Inquiry into the Blood Transfusion Service Board (BTSB) and acknowledges the gravity of the findings made against the Blood Transfusion Service Board, its servants and agents;

(b) accepts in full the recommendations of the Report;

(c) fully understands the extraordinary anguish and distress experienced by the victims and their families;

(d) notes and acknowledges the widespread sense of public outrage at the matters disclosed in the Report;

(e) supports the Minister for Health's request to the BTSB to make known its position on liability in all outstanding cases forthwith, in the light of the findings in the Report;

(f) supports the Government's intention to reappraise and amend the Scheme of Compensation and its Terms of Reference, including the question of whether the Tribunal should be established on a statutory basis in the light of the Report, the reappraisal to take place following consultation with representatives of the victims and with the Chair of the Compensation Tribunal, and consideration of any necessary legal advice;

(g) notes the Government's decision that the benefits of any adjustment to the Compensation Scheme will be made available to all victims, including in particular cases which have already been determined by the Tribunal, or which will be determined between now and the date any adjustments are put in place, and

(h) notes that the Government will not seek to resile from or repudiate any of the findings of fact in the Tribunal Report in any proceedings either in Court or before the Compensation Tribunal.

Before I deal with the terms of the motion it is incumbent on me to make a number of points of relevance. I know I speak for everybody in this House and throughout the country, regardless of political affiliation, when I say it is almost impossible to come to terms with the enormity of the scandal surrounding the hepatitis C infection of the anti-D product and the blood supply. Notwithstanding our best efforts to do so, it will take a considerable length of time for all of us to comprehend fully the horrendous effect which this scandal has had, and continues to have, on the health and everyday lives of innocent victims and their families. I truly believe no words of mine can ever adequately apologise to the 1,600 women and men for the damage done to them by a system in which they had previously placed their fullest trust and confidence.

Trauma and fear has been engendered in many innocent people by this experience. There is some recompense in the recognition that grievous wrongs were committed. There is some recompense too in the unequivocal allocation of responsibility for these wrongs by the tribunal of inquiry. There is some minor recompense also in the monetary awards to the affected victims — awards which we can only hope alleviate the suffering and distress expressed so heartrendingly by the victims and their immediate families. Nothing, however, can ever fully or irrevocably compensate them for being infected with hepatitis C — a condition for which as yet, unfortunately, there is no cure.

The formidable task of disentangling the complex facts of this tragedy, of putting order on them and setting them out plainly, in language which precisely and exactly conveys the awfulness of these events, was entrusted by this House to Mr. Justice Finlay, and has been discharged by him with unprecedented efficiency and expedition for which I wish to record my thanks, the thanks of the Government, and of the House.

The end product of this House's decision to establish this tribunal is that there is now available for all who wish to avail of it — victims, participants, politicians, doctors, the public as a whole — a clear and coherent account of this matter, of who is responsible, and of what is now to be done. The truth has now been laid bare, a number of recurrent controversies laid to rest, and responsibility allocated in a fair, just and impartial manner.

It does not make happy reading. No citizen, whether victim, participant in the events described, or mere concerned observer, can fail to be moved and humbled by the account of the distress and fortitude of those who have suffered and continue to suffer from the events described.

The report gives us a coherent account of what has occurred and why, but it is considerably more than merely a history. It is an unemotional indictment of past procedures at the BTSB, and is unequivocal in its apportionment of blame to certain named members of staff.

It offers welcome and succinct illumination on a number of difficult legal issues, for example, the application of the Therapeutic Substances Act 1932; but it also looks to the future. From the victim's point of view it sets out the factual basis upon which claims for compensation, either in court or before the tribunal will henceforth be based, and the State will not seek to repudiate or resile from any of the tribunal's findings in any such forum. From the point of view of the blood supply it sets out a number of important recommendations, all of which are being accepted in full. The exceptional command of the facts exhibited by Mr. Justice Finlay lends to his recommendations an authority and a widespread acceptance that ensures that the implementation of his recommendations in full will provide a sound basis for restoring full confidence to the blood supply.

I cannot allow this opportunity to pass without commenting on the most recent incident involving the BTSB, namely contacting an infected victim with a view to obtaining blood. Mistakes such as these, even when there is no risk to the blood supply, are simply unacceptable. I have made my views known trenchantly to the chairman and chief executive of the BTSB and, while I accept that great strides have been made in reforming the operations of the BTSB, it must be fully recognised that this latest incident has added to the negative perception of that organisation which the current management has done so much to dispel. Notwithstanding the real difficulty people may have in coming to terms with what has happened, the truth is that we need blood, our hospitals need blood, and it is grossly irresponsible to call for the closing down of the BTSB or for the sacking of a public servant who has devoted such an enormous amount of time, effort and dedication to resolving the problems of the BTSB.

Undoubtedly, mistakes were made but I will not be satisfied until such time as we can with total confidence rule out even the most minor error, because each such error, no matter how small, can undermine confidence in the BTSB.

Huge strides have been made to improve standards at the BTSB. The work of Mr. Liam Dunbar and Professor Shaun McCann has been invaluable in reorganising the BTSB and in setting and implementing new standards and procedures which ensure that the mistakes of the past will not recur. Management has drawn heavily on the recommendations of the Bain Consultancy report in forming a strategic plan, much of which is already implemented.

The acceptance of recommendations in Mr. Justice Finlay's report will further improve standards at the BTSB. I will deal with these recommendations in some detail. I have already stated publicly that the Government accepts the recommendations of the report. These recommendations will be implemented as quickly as possible. The report makes six significant recommendations on the future workings of the Blood Transfusion Service Board and the Irish Medicines Board.

Those portions of the development plan for the BTSB for the period 1996-9 which have not yet been implemented will be implemented without delay. I will ensure that the 1999 target date for completion will be met. In particular, I have approved the relocation of Pelican House to the campus of St. James's Hospital, which will be the site for a new headquarters for the BTSB. This new building will ensure that state-of-the-art laboratories, including all the necessary equipment and staff, can be put in place to ensure that our national blood service will have the required range of facilities to carry it through to the 21st century. Likewise the renewal or replacement of the BTSB unit in Cork will be commenced immediately. The estimated capital cost for the completion of the development plan is £20 million.

The tribunal has made detailed recommendations in relation to the monitoring of the BTSB by the Irish Medicines Board. In response to the expert group report of April 1995 I have given the Irish Medicines Board statutory responsibility for the inspection of the collection, screening, processing and quality control facilities and procedures in respect of blood, blood products and plasma derivatives with a view to ensuring their safety and quality. The tribunal has recommended that the Irish Medicines Board should carry out at least two full inspections of the BTSB each year. This has already been implemented in that the arrangement now is that the IMB carries out four inspections of the BTSB each year.

My Department has commenced discussions with the Irish Medicines Board with a view to implementing a recommendation that it should be required to make an annual report to the Minister, for publication, on the outcome of these inspections and also on any reports received by the IMB of abnormal reactions to blood or blood products from any person or institution. The tribunal, in what is a very important recommendation, has recommended that there should be a statutory obligation on medical and nursing personnel to report contemporaneously all abnormal reactions to blood or blood products to the IMB and the BTSB, and that the BTSB should also be obliged to report to the IMB on all abnormal reactions of which it becomes aware. The tribunal also recommends that failure by any employee of the BTSB to report such abnormal reaction if committed intentionally or by gross negligence should be a criminal offence. I am accepting this recommendation. There are potentially difficult legal issues which will have to be teased out in the course of its implementation, and I have instructed my Department to proceed immediately with this work.

A Blood Service Consumers' Council, including representation from those who regularly receive blood and those who regularly donate blood, will be set up in the immediate future. This will make a major contribution to the maintenance of public confidence in the supply of blood and blood products. It is vital that members of the general public should have an advisory role in the BTSB.

The report of the tribunal is critical of the recall of the anti-D product undertaken by the BTSB in 1994 and has recommended that the BTSB should forthwith prepare a new standard operating procedure for a recall of any product the safety of which is suspected. I have instructed my Department to commence the process of implementing this recommendation with the BTSB.

The tribunal has also looked at the difficulty which could arise if it was again necessary to stop using a particular blood product at short notice, but there was no product authorisation in place for alternatives which could be imported quickly as an emergency replacement. The tribunal points out that a commercial undertaking may not be concerned to undergo the trouble or expense to obtain a product authorisation on the off-chance that its supplies may be needed in an emergency. The tribunal has asked that a possible solution should be considered whereby the present regulations would be amended to provide for what it terms "standby" or "emergency" product authorisations to cover such situations. This is a most worthwhile suggestion which I have instructed my Department to investigate without delay. I am accepting the tribunal's recommendation that, if such a scheme is feasible, the BTSB should be required to make use of it so that "standby" authorisations will be in place for products such as anti-D and factor VIII.

The implementation of the tribunal's recommendations will build on the work already carried out by the new management in the BTSB to ensure as far as possible the safety of blood and blood products into the future. The necessary groundwork has been put in place by the new management of the BTSB in the past two years in respect of many of these matters.

Hundreds and thousands of people in this country have over decades given freely millions of donations of their blood in order to maintain, sustain and extend life for those critically ill or critically injured. Our blood supply system is among a small handful of unique voluntary blood supply systems. I appeal to people on all sides of this House to approach the current debate on how best to protect and promote the integrity of the national blood supply with humility, with a sense of proportion and balance and with a real sense of responsibility for a public duty in its broadest meaning. In the interests of the nation as a whole, Deputies on all sides of the House, while exercising their absolute right to scrutinise Government policy at all times, will accept that the voluntary blood supply is a national asset which should not be unfairly exposed to partisan politics, whatever about particular criticisms.

As Deputies will be aware, I met with representatives of Positive Action last evening in response to a letter it sent to me on 14 March last outlining its views arising from publication of the tribunal report. Positive Action has requested a full reappraisal of the compensation tribunal. The reappraisal which the Government is embarking upon is required principally because the state of knowledge has been altered drastically by the publication of this report.

The Government has decided to place the compensation scheme on a statutory basis but has resolved that the operation of the compensation tribunal should not be disrupted or delayed while the scheme is being prepared and the statute drafted and enacted. The Government will give this work priority, but the House is well aware that even with full co-operation on all sides, legislation takes time, and I want the facility of the compensation tribunal to be in place continuing its work for the benefit of those who wish to process their claims through that tribunal. As the terms of reference in the motion state, any advantage conferred by any reappraisal of the terms of the tribunal will also apply to those who have already had their cases processed by the tribunal or those who in the interim will seek to process claims through the tribunal.

Considerable public attention has been given to the prohibition in the existing terms of reference of any award of aggravated or punitive damages. It has been pointed out that the option of awarding such damages is available to the High Court but not available to the tribunal, and that it would be preferable if the compensation tribunal had precisely the same freedom as the High Court in this regard. Accordingly, I will be proposing that this restrictive provision be removed from the terms of reference of the tribunal, and that it will be free to award damages on exactly the same basis as the High Court. It will be for the tribunal to decide whether such charges are appropriate and how they should be measured when that question arises. In considering that question, the compensation tribunal will be informed that the Government accepts the findings of the tribunal of inquiry, and that the report's findings of fact should be accepted by the compensation tribunal. I will proceed with the reappraisal of the compensation tribunal in full consultation with representatives of the victims. This is the Government's first response to this issue, but we intend to hold ongoing consultations to ensure that a satisfactory statutory scheme can be brought before the House.

Mr. Cowen

That is a welcome U-turn.

Mr. Noonan

(Limerick East): Last night I informed the chairman of the compensation tribunal, Mr Justice Egan, of the Government's proposed changes and I propose to hold detailed discussions with him at the earliest possible date to ensure his experience, and that of his colleagues who sat on the tribunal, is available when decisions on improving the scheme are being made.

Mr. Cowen

This is a well executed somersault.

Mr. Noonan

(Limerick East): I have also asked the BTSB to make known forthwith its position on liability on all outstanding cases in light of the report's findings. I met the chairman and chief executive of the BTSB yesterday and requested them to let me know their position. I will put that request in writing today and ask for the support of the House. I am confident from my discussions yesterday that a favourable reply will be forthcoming.

In regard to the National Drugs Advisory Board the tribunal concluded that:

In the period 1975 to 1994, successive Ministers for Health and the Department of Health failed adequately and appropriately to supervise the NDAB in the exercise of its functions concerning the licensing of the manufacture of products by the BTSB and the authorisation of products by the BTSB, in that they failed to provide to the NDAB the appropriate resources for carrying out those functions.

The tribunal found that the levels of staff, particularly on the technical side, including inspectors, was inadequate. Consequently, the NDAB did not carry out regular and adequate inspections of the BTSB. While the tribunal found that such inspections would not have revealed the particular breaches which gave rise to the infection of anti-D, except by some form of chance, it states that:

If those resources had been provided and if there had been appropriate inspections and investigations, it is possible that the reactions of the recipients of Anti-D in the period 1976 and 1977 to the contaminated product, would have been revealed and that the persons involved in the BTSB would have made further investigations than they did if they were aware of the likelihood of further inspection and interrogation.

As a result of the steps I have taken in the past two years, the position is very different now. On foot of the Irish Medicines Board Act, 1995, the NDAB has been replaced by the Irish Medicines Board. Under statute all the statutory licensing functions previously held by the Minister for Health have been transferred to it to eliminate the unnecessary additional layer of administrative processes which contributed to the backlogs in the licensing system in the past.

A major management consultancy exercise was commissioned in 1995 to identify the staffing, systems and operational procedures which the new board would require to carry out its functions properly, and the previous organisation has been restructured in line with the recommendations which emerged. In particular, the licensing fees charged to industry have been set at a more appropriate level to ensure the board has adequate resources to carry out its functions thoroughly, efficiently and without undue delay. The organisation is now driven by a streamlined board, with a management rather than a technical orientation. It has also been relocated in new premises since those used by the old NDAB were inadequate and a hindrance to increasing the efficiency of the organisation. In short, since coming into office I have addressed and resolved the organisational and resourcing problems which the tribunal found to have beset the NDAB for the previous 20 years.

I will now deal with the supervision of the BTSB by the Department of Health since February 1994. Members will be aware that the former Minister for Health, Deputy Howlin, and myself gave a full account of our supervision to the tribunal of inquiry. In chapter 13, the report of the tribunal deals with my response and that of my Department and predecessor on the hepatitis C issue. This response included the establishment of many programmes and schemes to support the victims of this terrible tragedy and to alleviate as far as possible the human suffering occasioned by the hepatitis C infection of the anti-D product and the blood supply.

A national blood screening programme was announced by my predecessor, Minister Howlin, on 21 February 1994, to screen all women who had received the anti-D product to identify those who had been infected with hepatitis C. For persons diagnosed positive for hepatitis C under the screening programme, acute hospital services were put in place in special units in six designated hospitals: Beaumont Hospital, the Mater Hospital, St. Vincent's Hospital and St. James's Hospital in Dublin, Cork University Hospital and University College Hospital, Galway. These services, provided under the Health Act, 1970, are free of charge and include access to both in-patient and out-patient treatment, as required. Special funding has been, and will continue to be, provided by the Department of Health for those services. In 1996, a special sum of £2 million was provided and a similar sum will be allocated for 1997 in the near future. The tribunal of inquiry has concluded that: "The overall picture appears to be that treatment as far as treatment has been developed by the medical profession in general for this unfortunate disease was adequately provided in these units".

The special secondary health care services are included in the health care package agreed with the groups representing persons with hepatitis C.

I do not intend to deal in detail with most of the other examinations of decisions made by Minister Howlin or myself, but it is important to refer briefly to the report's conclusions on them. The tribunal of inquiry stated that the ex-gratia expenses scheme has apparently worked “reasonably satisfactorily”. It also concluded that the decision of the then Minister for Health, Deputy Howlin, to set up an expert group was “an adequate and appropriate response to the problem of trying to find out what actually happened in regard to this infection of anti-D”.

The Minister of State, Deputy O'Shea, and I were accused of misleading the House on a number of occasions. It was widely alleged both inside and outside this House that I engaged in a cover-up by failing to immediately set up a tribunal of inquiry in March 1996 when laboratory test request forms and quantitation reports, indicating the clinical diagnosis of infective hepatitis discovered by the BTSB in the action being brought against them by the late Mrs. Brigid McCole, became public. The Minister of State, Deputy O'Shea, and I informed the Dáil that these test request forms did not constitute any fundamental difference in the information available with regard to the wrongful use of patient X's plasma. Many Members claimed these quantitation reports were of fundamental importance and altered the entire position concerning the events of 1976 and 1977. We were both trenchantly accused by many Members of deliberately misleading the Dáil.

The tribunal concludes that the quantitation information "did not constitute new, dominant or fundamental medical evidence" and "did not form a foundation for any particular conclusion which would not have been reached without them in regard to the general wrongdoing in the use of the plasma for patient X". It further concludes that my decision not to set up a tribunal of inquiry at that time "was an adequate and appropriate reaction to the facts as they then were". In addition, the tribunal indicated that "the attitude taken by myself and Minister O'Shea in reply to the Dáil Questions in relation to this issue would appear to have been correct". In fairness, I ask those Members who made those charges against me and Minister of State, Deputy O'Shea, both inside and outside the House to withdraw them. The tribunal concluded from the evidence of the communications between the Department and the BTSB with regard to the targeted lookback programme that at all relevant times it would appear to indicate an adequate and appropriate reaction.

I announced on 12 September 1995 the national optional testing programme. This programme was introduced to ensure that all recipients of blood transfusions and blood products who might have become infected with hepatitis C through the receipt of transfusions or blood products were given the option of being tested free of charge.

The health care package agreed with the representative groups includes primary health care services as provided for in the Health (Amendment) Act, 1996. The tribunal concludes:

On balance the position would appear to the tribunal to be that the health care package, when finally provided, was appropriate and that it was, when provided, adequate but that some element, although not a great one, in the delay in bringing such a package into statutory form was not an adequate response to the particular urgency which attached to that task.

In relation to this conclusion, I would like to outline the timing of the various stages of the passage of the Bill in both Houses of the Oireachtas and the consultation and arrangements for its implementation which took place. This is an important item because when a Bill comes to the Dáil it becomes the possession of the House and Deputies can judge for themselves whether the delay was undue.

In November 1995 negotiations took place with Positive Action on the health care services and on 4 December 1995 the Government authorised the drafting of the Health (Amendment) Bill, 1995. On 11 December 1995 I sought Government approval for the text of the Bill and on 12 December 1995 the Government approved the publication of the Bill.

The Second Stage debate on the Bill took place in this House on 27 and 28 February 1996. During March and April further negotiations with Positive Action and other representative groups on amendments to the Bill took place. On 8 May 1996 the Committee Stage debate took place in the Select Committee on Social Affairs and Report and Final Stages were taken in the Dáil on 30 May 1996. The Second Stage debate in the Seanad was on 13 June 1996 and the Committee and Final Stages in the Seanad on 20 June 1996.

In July and August 1996 negotiations took place, including negotiations regarding fees, with professional organisations, GPs and health boards on the implementation of the provisions of the Act. Consultations with the representative groups on the design of application forms, health cards and arrangements for service delivery followed. On 28 August 1996 I signed the commencement order bringing the Act into effect on 23 September 1996. I will leave it to the House to decide whether that was an undue delay but I have pointed out to the House the finding of the tribunal in respect of this matter.

On 17 December 1996 I informed the House of my intention to establish an optional HIV testing programme, offering screening to blood transfusion and blood product recipients who might be at risk, however small that risk might be. Before commencing this programme, it is absolutely essential that the risk, if any, involved for recipients, according to the year they received the transfusion or blood product and depending on the risk, if any, of particular products, must be determined, as far as possible, so as to enable each recipient to make a fully informed decision, in consultation with his or her general practitioner, in relation to availing of screening. I am hopeful that the preparations for the optional HIV screening programme, which are well advanced, will be completed in the coming weeks. In the meantime, the HIV targeted lookback is continuing.

On 28 January 1997 I informed the House of the Government's intention to establish a tribunal of inquiry to examine specific urgent matters of public importance, first, the HIV infection of blood and blood products manufactured and distributed by the BTSB and, second, such further matters in respect of blood and blood products as may require investigation in the light of the report of the hepatitis C tribunal.

I informed the House it would not be possible to submit the terms of reference to both Houses of the Oireachtas for approval until the report of the tribunal of inquiry had been submitted to me, as it would not be possible to say what matters of urgent public importance would remain unaddressed. As Members are aware, the report was submitted to me on 6 March 1997 and the detailed terms of reference will be finalised, in consultation with the Irish Haemophilia Society, at an early date. The success of the hepatitis C tribunal of inquiry can, in part, be ascribed to its very specific terms of reference. Accordingly, great care will be taken to ensure the terms of reference of this proposed tribunal will be very tightly framed to address very specific issues.

As the House knows, the Government has agreed at my request to refer the report of the tribunal of inquiry to the DPP. This issue was argued before the tribunal of inquiry and the tribunal considered it would not be appropriate for the tribunal to make such a referral. However, because of the enormity of the tragedy and the contents of the report I have, with the authority of the Government, referred the report to the DPP.

All parties in this House who have served in Government must bear some responsibility for the events which have occurred. The tribunal comments adversely on the failure of successive Ministers for Health to adequately fund the NDAB between 1975 and 1994.

I am aware that no member of the Progressive Democrats has held office as Minister for Health. The Progressive Democratss, however, were in Government between 1989 and 1992 when some the most shocking events occurred, namely, the lack of action when the Middlesex letter clearly informed the BTSB that patient X had suffered from hepatitis C and the use of patient Y's plasma when she had tested positive. They must also bear collective Cabinet responsibility for the inadequate funding of the NDAB during their period in office. Spokespersons opposite should remember this before they launch political attacks on me and the former Minister for Health, Deputy Howlin.

I welcome and invite contributions from all sides of the House regarding the management and delivery of the blood supply service. What I would not welcome would be unfounded or ill-advised headline seeking or sweeping statements about matters requiring clear medical direction or medical expertise.

Mr. Justice Finlay has produced a report of great clarity and candour. It does not shirk any of the hard questions posed in the terms of reference, and it has thrown clear light and imposed order on medical, administrative and legal controversies which were previously shrouded in mystery and confusion. I welcome it unreservedly.

I have no doubt that we will debate these issues again in this House. I hope, however, that the acceptance of the motion in my name by this House when it votes on Tuesday will mark a significant step forward in dealing with these tragic events.

Mr. Cowen

I move the following amendment:

To delete all words after "Board (BTSB)" and insert the following:-

"condemns the Minister for Health for failing, yet again, to make the victims a first priority, following the publication of the report;

condemns the political handling of the scandal by Ministers Howlin and Noonan;

condemns the refusal by Minister Noonan at the time of the establishment of the Judicial Inquiry to allow an investigation into how the State and State agencies acted when legal proceedings were instituted by the late Mrs. McCole;

calls on the Government to give an unreserved apology to all victims of the Hepatitis C scandal;

calls on the Government to make a full admission of liability to persons infected with Hepatitis C through the wrongdoing of the State and State agencies; and

calls on the Government to amend the terms of reference of the ad hoc Compensation Tribunal to provide for

(a) awards of aggravated and/or exemplary damages;

(b) a right of appeal to the High Court; and

(c) a procedure whereby victims (including victims since deceased) who have accepted awards from the State can apply for aggravated and/or exemplary damages in addition to sums already awarded to them."

The Government, in putting this amended motion to the House, has made a significant concession. It has conceded something which, as a matter of principle and policy, it refused to concede since this debacle happened under the stewardship of the former Minister for Health, Deputy Howlin. The Minister, Deputy Noonan, stated he has agreed to the setting up of a statutory tribunal. That is a major victory for the victims who have to suffer as a result of the criminal negligence of a State agency. However, let it not be seen as a generous response proactively provided by this Government. It is, in fact, a somersault of a huge magnitude, given the Minister's stated position and the policy of this Administration when he was questioned on this issue at the tribunal some weeks ago.

Minister for Transport, Energy and Communications (Mr. Dukes)

He is the first Minister who invited——

Mrs. T. Ahearn

It is some somersault for Deputy Cowen to speak on this issue.

Mr. Cowen

I have listened in silence.

An Leas-Cheann Comhairle

Let us hear the Deputy.

Mr. Cowen

There are people who do not understand I have a right to free speech in this House, which I will have today.

Mrs. T. Ahearn

I checked the record of the House and he has never spoken on the issue before.

(Interruptions.)

An Leas-Cheann Comhairle

I will have the same order, Deputy Ahearn, as obtained for the previous speaker.

Mr. Cowen

On page 160 of the transcript of the tribunal report the Minister, Deputy Noonan, was asked by counsel:

In relation to your dealings with Positive Action, could I ask you about the period in November 1995 when you were in negotiation with them? Would you agree with me that at that point in time they were seeking a statutory basis for any compensation provision?

The Minister replied that was correct; it was one of their requests. In response to further questioning, he confirmed it had not been conceded and that it was his position, as a matter of policy, not to concede it. When asked if he would agree that in his dealings with Positive Action he conveyed to them at all times that he was prepared to give them everything besides a statutory scheme of compensation, the Minister replied he did not think that was correct. Asked if he had indicated to Positive Action that all issues in relation to compensation were negotiable, save the issue of a statute, the Minister replied that in the formal negotiations that took place between himself, the Department and Positive Action it was said that there were issues of principle which were not negotiable.

The Minister has now conceded the principle he claimed was not negotiable as a matter of policy by his Administration and during his tenure as Minister. It has been dragged out of him by the courageous women who fought the valiant fight and won their battle this morning. I salute them but I do not salute the Minister or the Government. It is to the Minister's discredit that since November 1995, he denied them the right to have the compensation tribunal on a statutory basis where they could get an admission of liability by the State that they were fundamentally wronged and that they and their families have suffered a grave injustice.

One year ago, during Private Members' time, my party sought the agreement of this House to a statutory compensation tribunal. Those on the other side of the House, who are now trying to cover their chances, voted it down. Let nobody tell this House, least of all the Minister or any supporter of the Government, that this amounts to a major breakthrough or concession by this Administration. It was dragged out of it.

The terms of reference of the tribunal circumscribed the ability of Mr. Justice Finlay to make any comment on issues relating to political accountability in this House or the primary responsibility of Ministers for Health to answer this House for the way they carried out their responsibilities during their tenure of office throughout this crisis. He was circumscribed in his comments in terms of determining the adequacy or otherwise of those responses by reference to the strict terms of reference insisted upon by the Minister. These included the circumstances in which anti-D was contaminated by hepatitis C; the circumstances of what the BTSB knew; the implications and adequacy of the action it took and the adequacy of its response to the letter dated 16 December 1991; when the NDAB supervisory role was properly carried out; whether supervision of the BTSB and NDAB was adequate and appropriate, given the responsibility of the Minister and any other relevant circumstance.

However, the issues of what political actions were taken, what political strategies were devised, how they were implemented and who insisted that they be implemented were outside the terms of reference of the report. Anybody who seeks to evade those political responsibilities will find no home in the report because it is this House that, having established the tribunal and received the report by Mr. Justice Finlay, will decide on the terms of political accountability. We will do so bearing in mind that the present Administration took up office on the basis that it would set higher standards of accountability than had prevailed in any previous Government since the foundation of the State.

The basis on which the tribunal was established was such as not to address the political accountability issue. This was deliberately done by the Minister when he delimited the terms of reference of the tribunal to exclude Question 5 in the McCole family's letter of 8 October 1996, which got to the heart of the matter. It stated:

In their letter of 20th September 1996, the Blood Transfusion Service Board did two things, they admitted liability and apologised but only in the context of a threat that were she (Mrs. McCole) to proceed with a case for aggravated/exemplary damages and not to succeed, they would pursue her for costs. What was the justification for this threat?

This question was excluded from consideration by the tribunal. What justification was given by the strategists who were devising the defence by the State in the Brigid McCole case? What was the justification for threatening to pursue that dying woman for costs when she insisted on having her day in court?

That question was not put to the tribunal and was not included in its terms of reference. All on the other side of the House, the so-called political progressives who wished to ensure that the women's rights were vindicated, voted down an amendment moved by my party and supported by others that this question be included in the terms of reference. It was excluded because it would have meant that Mr. Justice Finlay would have had to investigate deep in the labyrinth of the Department, the Minister's Office and the Office of the Chief State Solicitor to ascertain who gave the political directions for that strategy to be devised and implemented? This was the issue that heralded the public concern and outrage when people recognised that a dying citizen of the State, seeking to vindicate her rights, was being threatened with every bullyboy legal tactic that could be devised by those who claimed they had a defence when they knew that there was no defence, as is now admitted by the Minister in his proposal to establish a statutory compensation tribunal which will allow for the aggravated and/or exemplary damages which that woman sought in court and which she could not get at the compensation tribunal because the Minister ensured that such an issue could not come before it.

The critical issue is in the question "what was the justification for the threat"? It was raised because it asks who was the political person who knew that the BTSB had no defence yet still allowed it to pursue a legal strategy that included every bullyboy tactic in the book?

The tribunal report is a largely technical one. It examines the logistics of how the affair happened and was allowed to happen. It will be clear to those who bother to read the transcripts of the tribunal that Mr. Justice Finlay had to intervene on many occasions to say who was right or what was said in the Dáil or whatever was not within the remit of his consideration. He was specifically prescribed and delimited by the nine terms of reference insisted upon by the Minister. The issue of political accountability remains to be investigated and concluded upon. I will make my contribution in so far as I have competence to do so on such matters.

Regarding what the report has shown, what we know about the approach and behaviour of the Minister, Deputy Noonan, in the McCole legal action, his insults to the victims which led them to walk out of the gallery of this House and his deliberate exclusion of Question No. 5 in the McCole family's letter, it should be a matter of personal honour now for him to go. The limiting of the tribunal's remit to technical issues also explains why the Minister, Deputy Howlin, escapes the criticism he justly deserves. Unless the terms of reference were narrowed, why would Mr. Justice Finlay have ignored the fact that the former Minister for Health, Deputy Howlin, misled his Cabinet colleagues in an aide mémoire to the Government of 9 March 1994? In a memo circulated to the Government the Minister, Deputy Howlin, failed to mention he had been informed two weeks previously that there was also a problem about anti-D infection in 1991. I was at the meeting and to my certain recollection no oral evidence relating to that matter was given at it. That was not mentioned in the memo which states “a problem does exist for 1977 but indicates a low prevalence of antibody positive for hepatitis C among women who received anti-D in years other than 1977”.

This evidence of the infection of the current batch of anti-D, which was a matter of major public importance, was also not included in the press releases issued by the Minister in February-March 1994. Not only did the Minister, Deputy Howlin, mislead his Cabinet colleagues, he also withheld critical information from the victims, the public, the Dáil and the GPs. The consequence of that withholding of information was that victims were questioned about their sexual behaviour and partners. As a colleague of the Minister, Deputy Howlin, and someone who was present that day, I regard it as an outrage that that information was withheld. What the tribunal has revealed about its actions, exposing an unbelievable incompetence, merits his resignation also.

The Minister, Deputy Howlin, is a member of a party that walked out of a previous Government on the basis that his party claimed the Dáil had been misled. Now a Minister from his party has been shown to have misled the Government, the Dáil, the victims, the medical profession and the public and he expects to get commendation. The Tánaiste has demanded of others that there be accountability to this House. He said that giving full information and truth is the essence of Government, yet a Minister of his party has been proved to have misled at every level of the State. The Minister, Deputy Howlin, should consider his position as a member of the Government in the light of these damning revelations.

It is galling to hear the Tánaiste, the prefect of the high moral ground, claim such exoneration for his ministerial colleague, Deputy Howlin. Political accountability is a matter for Dáil Éireann, and will remain so, and not for his whim. Wishful thinking by the Tánaiste will not change the facts or excuse the failings of Ministers, Deputies Howlin and Noonan, in this abomination against the people.

The claim by the Tánaiste during yesterday's Order of Business reflects the political arrogance of the rainbow coalition. His arrogance is a perfect mirror of the institutional arrogance the BTSB displayed throughout this controversy. When the Government came to office it claimed to aspire to higher standards than any other Government in the history of the State. It promised to offer the victims of this tragedy fair compensation. The then Taoiseach said on 16 November 1994: "We need a new Government that will reform the institutions of this State to make every Member of this House who holds office truly accountable." On the same day Deputy Spring said:

If the House were to accept that a Minister would never be accountable to the Dáil without direct culpability on his or her part, the principles of accountability would wither away. Without accountability, the value of a parliamentary democracy would be fatally undermined.

Where has the accountability of the Taoiseach and the Tánaiste, the leaders of our country, been throughout this affair? Where has their concern been expressed? What have they ever said publicly about the way this scandal has been handled? Where have they been throughout the political chaos of this crisis and scandal and what about the quality of leadership they promised? The Taoiseach has displayed the same indifference as some of the chief culprits in the BTSB, otherwise how in the name of the people could scandalous tactics be used to try to browbeat the late Brigid McCole? How else could there have been approval for an attempt to use the statute of limitations for a challenge to the date for an early hearing as she lay dying in her bed, a threat from the Chief State Solicitor that the case would be challenged all the way, the making of a lodgement to raise the threat of costs and an attempt to get the McColes to sign off any claims they might have to damages after their mother's death? Such was the stonewalling, the barracking and the blocking. That political decision was made by this administration from top to bottom and every one of its members is responsible for it. How could the Government shore up the position of the BTSB in the full knowledge that it had no defence? For that reason alone the Minister for Health should be considering his position. The old maxim, that he who does not learn from history is doomed to repeat it, is an apt one for this Minister.

As we debate this matter the newspapers report that the State is engaged in McCole Mark II. Another victim of this awful scandal is being put through the wringer by the State despite everything that emerged in the tribunal report. Obviously, the Minister, Deputy Noonan, has not learned anything from the McCole case and he persists in allowing offensive legal strategies to be pursued in the name of the State and, by extension, in the name of the people. At least the Government had the sense last night to withdraw its offensive holding motion. Fianna Fáil welcomes the U-turn by the Government as signalled by the new motion submitted by the Minister. It follows our amendment calling on the Government to amend the scheme of compensation to provide for aggravated and/or exemplary damages. The original motion tabled by the Government was a disreputable credit seeking minimalist one and it was right to withdraw it. However, we note the Government's new motion is vague and conditional and promises only to reappraise with a view to amending the scheme of compensation. The Minister has been more clear in his statement this morning than was apparent from the motion last night. I have again stated and I will reiterate that was a principle upon which he said there would never be a concession. He conceded this morning and it was dragged out of him like everything else that these extraordinary people have done in the course of this outrageous scandal.

Our amendment, which we will be pressing, provides for the amendment of the scheme of compensation rather than aspirations in that regard. We call for a full admission of liability by the Government rather than what is being attempted in this motion, to pass the buck to the BTSB as the Minister has done here. The Minister, Deputy Noonan, persists with this fiction of building Chinese walls between him and the BTSB. Under the regulations establishing the Blood Transfusion Service Board, the Minister can take over any legal action being taken by the BTSB. What he proposes in paragraph (e) of his motion is a cop-out, where he seeks to support the Minister's request to the BTSB to make known its position on liability in all outstanding cases in the light of the findings. His attitude is to let the public know the BTSB is liable but to keep him out of the fray. That seems to be what paragraph (e) is about, but it will not wash. The blind spot remains. When will he learn? When will he accept his responsibility as Minister of a Department and a member of the Government in this mess? The Government did not signal that it will give an unreserved apology to the victims. Promises of reappraisal are no substitute for a fundamental change of attitude recognising the just cause of the victims' concern.

The Minister for Health has been called on by the victims to give commitments rather than vague promises. The victims and the Opposition are all too well aware that the Minister made many promises in the past — which have not been honoured — to the victims of hepatitis C. The controversy surrounding the hepatitis C scandal has meant that the human suffering and misery caused by the scandal is often forgotten by those who are not victims. Men, women and children have had their lives destroyed by the indifference, incompetence and recklessly criminal actions of a handful of experts at the Blood Transfusion Service Board.

Before the Minister, Deputy Noonan, begins any celebrations he should recall the pain and misery suffered by the victims. More than 1,000 mothers caught hepatitis C from contaminated blood products. Those mothers contracted a serious and potentially life threatening virus for which there is no effective cure. Half of those women have the full virus, while more than one dozen children of the mothers and some partners have also been infected. More than 500 others have been infected with hepatitis C through blood transfusions. People who thought they were getting a new lease of life with a transfusion of blood were infected with a serious virus. Those people include women at childbirth, transfusions administered to children, car accident victims, those who received transfusions during serious operations and those with rare blood diseases. Haemophiliacs and kidney dialysis patients have also been victims of this virus.

According to the virus reference laboratory at University College Dublin, up to 75 per cent of those infected with hepatitis C developed chronic hepatitis. Hepatitis C is a most uncertain disease and there is no known treatment available. The type of hepatitis C which most of those infected through anti-D have is the least responsive to the standard Interferon treatment. About one in five patients with chronic hepatitis C virus infection develop cirrhosis of the liver. Those with hepatitis C antibodies continue to undergo testing and it is not known how many of them have a hidden virus which current tests cannot discover.

Hepatitis C infection is associated with several diseases not directly related to the liver. Side effects experienced include rheumatoid arthritis, extreme fatigue, eye problems and auto-immune diseases. Hepatitis C is often a silent disease and many patients do not know they are sick until they encounter irreversible liver damage. Hepatitis C infection also almost universally recurs in a newly transplanted liver.

Apart from the infection, victims have encountered many other problems, including difficulties in personal relationships. Young people have had a particular difficulty and many victims have not told even their closest family of their infection. Work has also been a problem. Some people have been forced to stop work or their partners have had to stop work to mind children. This has forced people to resort to social welfare entitlements. Others have had difficulty applying for jobs as infected persons are significantly disadvantaged if there is a medical examination prior to engagement. Promotions also go out the window as the person does not have the energy to compete. Life assurance is impossible to get, mortgages are restricted and leave from work is unpaid. The treatment of victims is by injection into the abdomen. This is painful and causes serious side effects. The presence of the injecting materials in the fridge of a victim's home is a constant reminder for families of the presence of the virus in their lives.

As the Minister for Health has finally acknowledged, the hepatitis C nightmare has been the worst in the history of the State. It has been a nightmare because the health system caused the disease and infected healthy people. As well as breaching the BTSB standards, these people ignored the warnings from tests and from GPs. There was recognition that a problem existed but there was a scandalous failure to act and people must be held politically responsible for that. This is expected in a democracy worth its name.

The most abhorrent fact to emerge from the judicial inquiry was that the BTSB was so aware of the problem in 1977 that somebody decided to keep a list of the destinations of the infected batch 238. This list was to facilitate the recall because they knew there was a serious problem but nobody shouted `stop'. Dr. Jack O'Riordan, Dr. Terry Walsh or Mrs. Cecily Cunningham did not shout `stop'. In 1991, Dr. Emer Lawlor did not shout `stop' when the Middlesex letter arrived. Dr. Lawlor told the tribunal: "It just totally slipped my mind." Approximately 30 people would not have the virus if that fax from Middlesex had been acted on.

When the scandal emerged in 1994, and up to now, there has been a serious degree of failure in the Department of Health. Yet there is little criticism in the tribunal report of the way the Ministers at the head of the Department dealt with the crisis once it broke. There is a reason for this. It is excluded from the terms of reference in the context of Mr. Justice Finlay's interpretation of them and his many interventions during the tribunal when counsel sought to broach that subject. It is not a document from which Ministers can claim political exoneration as the open, accountable and transparent Tánaiste and Minister for Foreign Affairs tried to arrogantly suggest on the Order of Business yesterday. The tribunal is the Minister for Health, Deputy Noonan's inquiry. It was a good tribunal but the report is confined because the inquiry was established on very narrow terms. The result is a largely technical report.

The Minister's failure to learn from this scandal is also clear in this week's revelation in the catalogue of revelations about the incompetence of the Blood Transfusion Service Board. Once again the necessity to restore confidence is highlighted. This confidence has been shattered by the continuing series of bungles which culminated in this week's revelation that a hepatitis C victim was called to donate blood. This latest disclosure is most remarkable and it is complete nonsense to blame it solely on an antiquated computer system. Yet again, there is to be no accountability.

There should be just one confidential master list which should indicate to BTSB officials the names of people who should and should not be donors. There should not be five lists that need to be cross-checked against one another. The confidentiality of victims must be maintained but it is possible to develop a fail-safe system and this must be done as a priority. The inability of the BTSB and its supervisors, the Minister for Health and his Department, to manage something so simple is shocking. It beggars belief.

The blood bank and the Minister are trying to make it appear as if everything is fine now. However, it is only today, three months after the event, that the woman involved will get a letter of apology. This episode and the way it has been handled leads one to believe the same defensiveness, the same arrogance and the same cavalier and outrageous conduct still applies at the blood bank. Based on what the Minister for Health did yesterday at his meeting with the BTSB management, it appears he is still willing to condone it.

This episode is not an isolated one that has occurred under the supposedly reformed blood bank. Last year it emerged that the blood bank knew a Kilkenny nurse was infected with HIV from a contaminated blood transfusion in 1985 but failed to inform her. She found out while she was in a foreign country on holiday. The blood bank, in an attempt to trace the batches of HIV infected blood products that infected the nurse, wrote to hospitals but deliberately omitted to say that the problem related to HIV. A separate tribunal of inquiry into this affair is to begin soon.

There has been the revelation that the BTSB knows of people who received infected batches of blood or blood products who have not been contacted by the blood bank to attend for testing. A woman infected in the 1970s only discovered recently she had the hepatitis C virus when she went for testing. It was discovered that the blood bank had on file the fact that she received a suspect batch, but had not bothered to trace her.

I recently asked the Minister by way of a parliamentary question to indicate how many people have been identified who are still alive and who received potentially hepatitis C infected blood or blood products but have not been contacted. Despite the fact that the blood bank did major research for the tribunal of inquiry, the Minister told me the information was not available because the BTSB is still collating it. Given everything that has happened, surely the Minister must ask such questions of the BTSB. If the BTSB is aware there are more than 335 people who are now deceased who received potentially infected batches, surely it must have worked on those still living?

As I said previously, and as was said by the victims and the BTSB at the tribunal of inquiry, although in a recent interview its chief executive did not appear to be aware of it, there is now a need for a national study to establish the true number infected. However, there is a much deeper question; if the blood bank cannot be trusted to even get donor selection right, how can people have faith in its more complex operations? In its evidence to the tribunal, the BTSB made much of its new system for donor screening. Yesterday we saw at first hand that this system is not fail safe. The Minister needs to act quickly on the recommendations of the tribunal on establishing a new blood bank. A new culture needs to be introduced and more staff should be recruited. I understand the establishment of the BTSB at a new site is some time away due to the lease on Pelican House which lasts up to the end of the decade. The transition needs to happen faster and the Minister must make it a priority.

The Minister for Health, Deputy Noonan, and his predecessor, Deputy Howlin, made much of the actions they took with regard to the BTSB. The tribunal supported the current Minister, for Health in his work in reforming the blood bank, using words such as "adequate" and "appropriate" to describe his actions. In the context of this latest episode, apart from the other ones in the last year, this conclusion of the tribunal is not correct. I say this because the upshot of all the episodes is that the public does not, unfortunately, have confidence in the BTSB. While, there are still many donors, — thankfully, citizens want to supply blood to ensure there is a blood supply for the health services — the real measure of confidence is that of the public and of recipients of blood and blood products. These people are still nervous and the reason for that lies at the door of the Minister for Health, Deputy Noonan, and the Government. People do not have confidence because there is no reason to have faith in the Minister for Health or the Government's ability to stem the haemorrhage of confidence in the BTSB.

This time the Minister for Health cannot try to pass the buck and play the despicable political blame game he has tried so often. All these episodes at the BTSB have occurred on the Minister, Deputy Noonan's watch. He told us things have changed under the new management he put into Pelican House. I hope that is the case. Improvements have been made, but how could there not have been? The Minister is accountable because these events happened during his tenure, his management and his supervision.

Once the expert group report was published, the Government thought it had got away with it. It was the ultimate cover-up and it thought the escape was executed.

Mr. Noonan

(Limerick East): The Deputy's Government set it up.

Mr. Cowen

It argued that the expert group had given the full information and there was no need for further inquiries or questions. It was one of the most cynical acts of any Government in the history of the State. That cynicism was apparent even in the original motion put before the House by the Government. A Government seeking commendation for sending a computer disk to the printers is a new low. Given the Minister's inability to supervise the BTSB, we should be grateful that the report arrived on the right day and without major cockup. However, even when it was printed, the Minister, as our amendment points out, failed yet again to make the victims a first priority, giving just one copy to the executive committees of the victims' action groups. There were boxes of copies in the Sycamore Room that day at the press conference——

Mr. Noonan

(Limerick East): They got them.

Mr. Cowen

——when the news management began and the spin doctors told us how well everybody had done in relation to this affair. Victims waiting in a room in Dublin, who represented 1,200 victims, received one copy of the report delivered by a courier on a bike. That is what is happening on the watch of the Minister.

The Government motion was cynical in relation to the taking on board of the recommendations of the judicial inquiry, the most significant of which relates to moving the blood bank to new premises. That proposal was first put to the Minister in February 1995 by the British Medicines Control Agency. It was taken on board at that time but not highlighted. Presumably this was done so that at some time in the future, such as now, when the Minister needed to appear positive he could announce the setting up of the blood bank on a new site. That recommendation must be acted upon this time.

The recommendation to establish the blood users consumer council cannot be implemented fast enough. Haemophiliacs and other regular users of the blood supply must have had a grim day on Tuesday last when the latest BTSB cockup was announced. Our amendment condemns the political handling of the scandal by the former Minister, Deputy Howlin, and the Minister, Deputy Noonan. While both Ministers gloated when the report was published it was soon recognised that the conclusions of the Finlay Tribunal, in relation to both Ministers, were limited and even where they exist will not stand up to scrutiny.

It is remarkable that Justice Finlay at one and the same time criticises the Ministers and yet finds they acted properly. This can only be because he was not allowed to make findings on political accountability. Since the publication of the report both Ministers have been keen to give the impression they have landed on their feet. Anyone who knows anything about this affair is aware that the political responses of the former Minister, Deputy Howlin, and the Minister, Deputy Noonan, were chaotic and it is nonsense for them to claim otherwise.

In Minister Howlin's case the tribunal notes serious failures on his part. They were put in muted language but were nevertheless serious. His failures include the fact that he left the State response in the hands of those who caused it — a pretty basic error; he did not inform the Dáil, the Government, the GPs or the public that the 1991 infection had also occurred. I disagree seriously with the tribunal on this point. It is extraordinary there is no criticism of the Minister's failure to disclose such a central fact. How could it have been adequate, as Justice Finlay has said, to withhold this information? The President of the Irish Medical Organisation has said that if the Department of Health and the Minister had received information that raised a significant question about the safety of any products he would consider it wrong not to have informed the medical profession. There is a persistent belief that only the 1977 infection occurred because this information was withheld at the start. This may explain the reason there are still missing victims as people are not aware that in 1994 the current batch of anti-D was also infected. The former Minister, Deputy Howlin, withheld this information even when questioned by victims about it in June 1994. In the transcript he said: "I may have given partial information". This is from a Minister who had a reputation for being open, transparent, competent and willing. When asked about it he did not answer. Who will be accountable for that? As a Cabinet colleague at the time I am disgusted the Minister was making top of the head decisions about a killer disease.

Mr. Noonan

(Limerick East): Did the Deputy discuss it in Cabinet? He was sitting at the table.

Mr. Cowen

I will come to that. That is no problem.

Mrs. Owen

The Deputy is talking like Pontius Pilate.

Mr. Cowen

I listened in silence.

An Leas-Cheann Comhairle

Deputy Cowen to continue without further interruption from either side.

Mr. Cowen

So far as we are concerned it was wrong not to include that information about the 1991 infection in the aide mémoire in specific terms. Neither did he mention it in the press release. The Minister failed to step in when the victims were getting the run around from the BTSB about circulating other people with hepatitis C. The Minister should have stepped in to sort out the matter. He failed to respond adequately to the approach by liver specialists in relation to their concerns and the treatment the victims were receiving. He failed to kick start the lookback programme which did not commence until 1995, and even then was limited, even though he had information from Dr. Boothman in the Department of Health, within weeks of the screening programme beginning, that one would have to go beyond the cohort of anti-D recipients between 1970 and 1994. The medical evidence in his Department confirmed that and no lookback programme commenced under the tenure of the former Minister, Deputy Howlin.

The Minister failed to make considered judgments on the advice he was getting especially in relation to independent counselling for the victims. The explanations he has given on that issue do not amount to much.

A botched job was made of the recall of the anti-D products. The former Minister, Deputy Howlin, did not check on it at any time and did not ask if it had been recalled successively. Ten doses of the infected product were administered during this time with one of these still not traced. He is criticised strongly for this in the report of the tribunal. Both he and the Minister, Deputy Noonan, are criticised in relation to the speed at which the health care package was put in place. He knew the BTSB was not co-operating with the expert group but he did nothing about it. His antennae never raised when the BTSB gave him wrong information on the FDA licence for the replacement of anti-D products. His concern for himself rather than the victims was clear during the famous absolutely shafted conversation we heard from the tribunal. None of these scandalous failings of the Minister would have come to light but for the tribunal. It has been said in this saga that the former Minister, Deputy Howlin, has shown the moral fibre of a second-hand car salesman, although that is probably doing an injustice to second-hand car salesmen.

Let us look at the extraordinary testimony of the former Minister, Deputy Howlin, at the tribunal outlining his approach during his tenure to this "unprecedented scandal"— to use his own words. He became Minister for Health on 12 January 1993. He was over a year in the job when the famous letter of 17 February 1994 arrived in the Department from the BTSB. The question is what happened after that date? The former Minister, Deputy Howlin, agreed with Mr. Nugent, counsel for the tribunal, about what he had to do as Minister to deal with the situation. He had to ensure there was no further infection; find a replacement anti-D product and ensure it was obtained; establish who already had been infected; sustain confidence in the blood bank and blood supplies; arrange treatment, counselling and help for the victims; establish what had happened and deal with the manifest problems in the BTSB.

Let us take them one by one. The way to ensure there was no further infection was to withdraw the product. The former Minister, Deputy Howlin, said on 18 February "it was one of the gravest issues that had arisen in recent times". He allowed the BTSB to arrange for the withdrawal of the product but the Department did not oversee this operation nor did it instigate any cross-checking procedures to ensure it was withdrawn properly. He initiated a publicity campaign directed towards alerting people to an infection in 1977 even though he admits that from the very beginning, during that first weekend, there was at least a suspicion that contaminated anti-D products made in subsequent years were still in circulation.

Subsequently he did not inform the public that, as of July 1994, eight women had been treated with pre-February 1994 products supposed to have been withdrawn. Who is to be accountable for that? Remarkably, he states he had no knowledge of this fact until after the expert group had published its report in April 1995, some 14 months later. His first priority was to withdraw the product, yet he did not know for 14 months subsequently that there were eight people who had been contaminated by pre-1994 products which he understood had been withdrawn.

Mr. Noonan

(Limerick East): There was no contamination.

Mr. Cowen

That is not the point.

Mr. Noonan

(Limerick East): That is what the Deputy said.

Mr. Cowen

The Minister allowed the BTSB to arrange to withdraw the product but the Department did not oversee this operation nor did it instigate any cross-checking procedures. In addition, he initiated the publicity campaign straight away.

Remarkably the former Minister states he had no knowledge of this fact until after the report of the expert group was published in April 1995. Had he known he would have asked for a review of every single component or issue of anti-D to ensure it was completely withdrawn. He did not know of this fact during his tenure because he did not put in place any information system between his office and the BTSB.

I was in Government at the time and will draw a comparison, not a very good one because here we are talking about people whose lives have been put at risk. It would be like saying to me, as Minister for Transport, Energy and Communications during the crisis in Aer Lingus that there would not be any communication between me and the chairman of Aer Lingus, Mr. Bernie Cahill. Is anyone seriously suggesting to me that a Minister's responsibility is met when he is not prepared to confront those who have been involved — on his own admission on 25 February — in covering up a scandal unprecedented in the history of the State? He admitted that he did not have any direct contact with the BTSB from the time the problem entered the public domain in February 1994 until he left the Department in December 1994. That is some statement. He admits that the letter of 25 February — one week after the initial problem had been brought to this attention, written by the then chief executive of the BTSB to the Secretary of his Department, Mr. Hurley — was brought to his direct attention. That letter of 25 February confirmed the further admission that the BTSB had broken all its own protocols by taking blood from patient X who had jaundice. On receiving that letter Mr. Hurley described its contents to the tribunal as "the single most significant event in his career as a civil servant". Knowing all of that, the then Minister for Health, Deputy Howlin, did not see it as his responsibility then, or throughout the remainder of his period in office, to satisfy himself that the contaminated product had been withdrawn from the market. From his direct evidence to the tribunal it was his view that the BTSB could be relied upon to do that important job to prevent any further infection, even though as early as 25 February he had been told by the Secretary of his Department that the crisis in the BTSB had escalated into an unprecedented scandal. In his direct evidence, the former Minister admitted there was reticence on the part of the BTSB to furnish the information his officials sought on his behalf; yet no alarm bells rang. The Minister was still prepared to rely on that discredited organisation to organise the withdrawal of a product when it had displayed not just lack of competence but potential criminal negligence. Departmental officials surmised that things were very much more serious than had been indicated initially by the BTSB to the Department. Without delving any further into his extraordinary testimony, that in itself, is a grave act of omission on the part of a Minister in whom was placed the public trust to avoid any further infection. Given that he was aware of the gravity of the problem from day one, he failed abysmally in that primary and immediate responsibility to stop further infection, having failed to have implemented his first decision to withdraw all anti-D products up to and including 17 February 1994.

From the very beginning it is a litany of failure. His first decision was to withdraw the product; that failed, yet he did not acknowledge there was a problem in withdrawing that product even though he knew that was the way to prevent further infection. On his own admission he did not even check to ascertain whether his first decision had been properly implemented. In everything he did he allowed the BTSB to remain centrally involved throughout the remainder of his tenure.

The second question the former Minister agreed he had to address to deal with the issue confronting him was: what could be done to ensure a replacement anti-D product was obtained in substitution for the contaminated product which it was his direct responsibility to ensure was withdrawn? The former Minister's evidence in that respect was that he accepted the BTSB view that the WinRho product was the best available. It is important to note that, in accepting the BTSB view, the Minister did not meet any BTSB official. On the Minister's admission the Secretary of his Department, Mr. Hurley, and the Assistant Secretary, Mr. Devitt, had no inherent medical qualifications though obviously competent in their administrative posts. It appears they were the conduit in communicating the BTSB view to the Minister. It should be remembered that there was an admitted crisis in the BTSB over that first weekend. It was about to escalate into an unprecedented scandal through the letter of 25 February, the following Friday. Yet it appears the last people to whom the former Minister, Deputy Howlin, wanted to talk, in regard to what the replacement product should be, were the personnel in the BTSB, even though he admitted they were the only people with a medical input in deciding what that replacement product should be.

He took a deliberate policy decision from day one to be at arm's length from the BTSB. There was no direct contact by the former Minister with that organisation at any time during his tenure of office. I find that extraordinary. If someone is trying to tell me he fulfilled his political responsibilities then his definition of accountability is very strange indeed, particularly given pronouncements before and on coming into office.

Deputy Howlin's direct evidence to the tribunal was that the chief medical officer of the Department may also have been involved but he just did not know. Neither did he inquire. He admitted there was difficulty obtaining information from the BTSB over that weekend but, despite that reticence, no alarm bells rang for the Minister. Mr. Nugent, Senior Counsel, put it to the former Minister that, if his officials were not getting answers and if, as he admits, there was a crisis, why did he not call in the chairman of the BTSB and demand answers without prevarication? In the circumstances one would have thought that a fairly reasonable action but the former Minister did not contact the chairman of the BTSB at any time about anything.

Extraordinarily, the former Minister, Deputy Howlin, suggested that a more thorough and effective route — given that he was trying to find a replacement product for something being withdrawn immediately — would have been to "fairly expeditiously have an independent and thorough review of the whole functioning of the BTSB to get to the bottom of the matter". This was over the first weekend when a vital anti-D blood product had to be withdrawn immediately and a new, alternative and safe blood product found in its place.

The former Minister's mind immediately worked overtime on how to put this scandal at arm's length from himself. Even in the first days of this crisis, he did not take the practical steps to confront those with the medical expertise in the BTSB, and its chairman, to ensure that this second decision to get proper replacement products was implemented effectively. This was a grave crisis of unprecedented proportions, but blissfully ignorant, he did nothing.

The extraordinary thing is that the former Minister when he discovered this replacement product had been obtained could not recall that the National Drugs Advisory Board had not even agreed to its importation; he did not know that either.

The Minister, Deputy Howlin, relied on the BTSB to get the replacement product and never knew that the National Drugs Advisory Board had to give prior authorisation for it to be imported. The BTSB had told him over the weekend that the product they were replacing the contaminated anti-D with had been agreed by the NDAB but he never went to the primary source and did not contact the NDAB about their supervisory function and their opinion of the Canadian product. He then said in his testimony that he was informed by Senator Mary Henry, luckily an interested spectator, that FDA approval for this product had not been granted. The Minister's response to this was that he was "deeply annoyed" but accepted the views of "those who knew better" that FDA approval was pending.

Therefore confidence was to be restored by withdrawing contaminated product, and the Minister did not check to ensure that the replacement product was properly imported or had prior approval for use in its country of origin and manufacture. No arrangements were made by the Minister to communicate with the NDAB on the serious situation concerning the replacement product. One is entitled to ask what the chairman of a State board is for. For the Minister they were a species with whom contact was to be avoided, particularly when there was a crisis.

After that stout defence of his position, we move to his third priority in dealing with the matter — finding out who had been infected. He referred to the setting up of a screening programme for anti-D recipients only and for the period 1977-84. This went well, he stated, although Dr. Boothman of the Department said in evidence that from the start the problem extended beyond the direct recipients of anti-D product because some of the women had come back as blood donors and, accordingly, recipients of blood transfusions and other blood products were then probably infected also. In other words, the official advice in his Department within weeks of the screening programme beginning, had he wanted to find out, was that the screening would have to extend beyond the category of people to whom he was allowing access to the programme. This would have been an important matter if the Minister had wanted his third priority competently and comprehensively dealt with. Having set up a screening programme, the medical evidence indicated broadening the cohort of people allowed to have access to it but nothing happened. The Minister could not remember when this was pointed out to him.

Mr. Nugent put it to him that it was clear a targeted look back programme was needed within weeks of the screening programme beginning. The Minister agreed with that but Mr. Nugent said no such programme was up and running when the Minister left the Department of Health in November 1994. The Minister said he was satisfied and that it was many months down the road, that he wanted to ensure that all potentially infected people were reached. In other words, the Minister was not interested in putting in an immediate screening programme open to every infected person; it was only available to the direct recipients of anti-D, despite Dr. Boothman, a senior official in the Department, saying it had to be broadened. The Minister said he did not recall when he was told that: "discussions on a targeted look back... I do not recall that being discussed in my time."

That contradicts his earlier evidence, when he said there was a need for a targeted look back programme at the time Dr. Boothman made her observations. Which is it? Did the Minister know or not? The evidence points to the Minister not wanting to know. A passage in the transcript shows the Minister's state of mind. He was asked if he was aware that in September 1994 the Department of Health wrote to the BTSB to find out how the targeted look back programme was progressing, only to find that it had not even started. The Minister answered that he did not recall that being brought to his attention. He was asked if he had any recollection of inquiring as to the number of anti-D women infected and if he recollected inquiring as to what steps were being taken to learn how much further the infection had gone. The Minister answered that he had obviously been periodically updated on these matters but had no recollection of that himself, saying that the specifics of the meetings would have been regular but he did not recall. The Minister was asked if papers would have been made available to him in order to improve his recollection if he had asked for them. He answered that he was sure he could have had anything he wanted in terms of papers, but he did not by choice rehearse every document that might have been germane to the case, saying he had current responsibilities and was kept busy 24 hours a day. Is that how a Minister treats a tribunal of inquiry regarding his tenure? That says a lot about his state of mind.

His fourth priority was to maintain confidence in the blood supply. Thankfully, people continued to supply blood but not because of the Minister's reasons. It is to the public's credit that they continued to donate blood and to recognise the importance of the blood supply to the country. The Minister's fifth priority referred to what he did as Minister for those who were infected.

Two months into the crisis, Anne Taylor, of the Council for the Status of Women, contacted the Minister and asked him to persuade the BTSB to allow Jane O'Brien's letter to be circulated to other victims. The Minister's policy was to have no contact with the BTSB officials but no reason is given for that. He had overall responsibility for handling the crisis but would not tell the chairman of the BTSB that he felt, for example, that these women should be facilitated in contacting each other. The BTSB was refusing to get involved in this at the time.

The Minister said that any support possible should be given but was not so strongly of the view that he was prepared to see it happen. Regarding Ms Taylor's request, he said that he presumed that it was conveyed to the BTSB who would make the ultimate decision and that he was not going to make directions of that nature in the middle of this crisis. The Minister was solemnly declaring that the BTSB was a statutory based agency with its own legal entity. Even in the relatively minor matter of directing the BTSB to facilitate contact between the victims to help them deal with the trauma, confusion and distress that had suddenly invaded their lives and their families' lives, Minister Howlin turns a blind eye. Instead of acting on Ms Taylor's request, he gets up on his high horse and rides away. He would have preferred if the BTSB had circulated the letter. He was asked three times if, in his personal opinion and knowing what we know, whether it was unreasonable of the BTSB to refuse to circulate that letter. On each occasion he refused to acknowledge that it was unreasonable not to direct the BTSB to do the decent thing. Save us from such political progressives.

The Minister's refusal to acknowledge the unreasonablness of the BTSB in this matter speaks volumes about his concerns in addressing the devastation and isolation of these women who were floundering in a sea of doubt, fear and outrage. It shows how little he realises that the coming together of the anti-D women has been a source of support and strength to them. He had the power and position at the time to demand that the BTSB circulate the letter, but his best effort under cross-examination was that it would have been preferable to have done so at the time. What does that tell us about his attitude to Positive Action? He said they were an extremely important group of people who had presented a reasonable document whose contents he was prepared, by and large, to accept at face value. The document gave the victims' view of the BTSB as being coldhearted and grossly insensitive in their dealings with the victims.

The Minister, Deputy Howlin concludes "... we felt they were best placed in terms of information to give the counselling and we made that decision". He goes on to say "It was certainly my view, in supporting the establishment of the counselling services we wanted to put in place immediately, that the people with the greatest degree of information could give the greatest degree of consolation." That is an extraordinary justification for leaving the counselling of the women to the BTSB. They had the information but the problem was that they did not give it to anybody. A characteristic of their information is that it was evasive and inaccurate. Far from giving the greatest degree of consolation to victims we have heard the testimony of many victims in the media since the publication of this report which confirms the humiliating nature of the encounters the victims had with BTSB personnel when they sought the information to which they were entitled and which was at the disposal of the BTSB at the time. Far from giving them the greatest degree of consolation, the BTSB actively exacerbated the problem by trying to explain away anti-D post-1977 infection on the grounds of sexual behaviour or intravenous drug use. Knowing that, the Minister, Deputy Howlin, was still prepared to go to the tribunal a few weeks ago and seek to justify what was clearly a wrong decision by suggesting that there was consolation to be found in the offices of the BTSB as it sought to actively shift the blame elsewhere and especially on to the victims.

Acting Chairman (Miss Coughlan)

The Deputy has exceeded the time allocated.

Mr. Cowen

I was not aware there was a limit on my contribution.

Acting Chairman

The limit is one hour.

Ms O'Donnell

I will concede some of my time.

Mr. Noonan

(Limerick East): The original arrangement was that the Deputy would have half an hour. In response to a request from the Opposition Chief Whip this morning that was extended to an hour. The problem is that other people are scheduled to speak.

Ms O'Donnell

I will give some of my time.

Mr. Noonan

(Limerick East): If an arrangement can be made with Deputy O'Donnell that is agreeable. The Minister for the Environment, Deputy Howlin, has been subject to sustained attack. He wishes to speak this afternoon and I wish to ensure he will have time to do so.

Mr. Cowen

I undertake to facilitate that.

Acting Chairman

Is the time sharing agreed? Agreed.

Mr. Cowen

The Minister, Deputy Howlin, also brought forward an ex gratia expenses scheme for victims. He was told in September 1994 that the expenses scheme was not meeting the needs of victims. He indicated they should consult their community welfare officers. He was surprised when these officers told the victims they could do nothing for them. The Minister explained that “ ... it was a suggestion that was made if you like, on the top of the head at the time ... “. No general alert was given to the community welfare officers who worked under him in the Department of Health when the officers' reaction to the victims was brought to his attention. However, he assures us that anyone who came to his clinic or wrote to him was followed through by the Department. Who says the politics of clientelism are dead and gone or are with Michael O'Leary in his political grave?

With regard to what he did for the victims during his tenure, the question of a compensation scheme had not been addressed by him nine months after the scandal first broke. He contended that the bulk of the screening process had to be completed first. He was not quite saying that until the last victim is known, the first victim cannot be compensated, but he was coming as close to it as makes no difference.

With regard to finding out what happened, the Minister, Deputy Howlin, agreed with counsel that it was vitally important that what went wrong would not go wrong again. He admits he was aware from the very beginning of the crisis that the chief medical consultant had got a letter in December 1991 which should have alterted him to this problem and that Dr. Walsh did nothing about it. By 25 February we had scandal on our hands and in addition to the 1991 letter, it transpired that blood had been taken from a woman who had jaundice. He turned his attention to finding out what had happened on the Monday 21 February. He decided to set up an expert group to find out as a matter of urgency what happened. He consulted just three people — the Secretary and Assistant Secretary of the Department and his adviser, Mr. Collins. He was told in June 1994 — such was the urgency involved in finding out what had happened — that the BTSB was not co-operating. He could not compel witnesses or demand that documents be given to the expert group which had been asked by him to find out what had happened as a matter of urgency.

Having been told in June about the non-cooperation, a most serious matter, he did not respond until September. Once again, he did not call in anyone from the BTSB and demand answers without equivocation or prevarication. He did not sack anyone in the management of the BTSB refusing to acknowledge his authority. He simply appointed a new chairman in September 1994, three months after having been told the expert group was not getting co-operation. We had to wait for Deputy Noonan to become Minister for Health in the current Administration which had come to power insisting on accountability. Far from sacking anybody the new Minister for Health arranged for a golden handshake to be paid to the chief medical consultant whose responsibility it was as far back as 1991 when he got the necessary information, to act on it. So much for accountability.

Finally, there was the problem of the BTSB and the Minister, Deputy Howlin's approach to it. He claimed the expert group would speedily address the issue but admitted that he did not give it a time frame within which to work. In other words, he told it to deal with the matter urgently but to take as long as it liked. A week after the news broke the Minister had a scandal and cover-up on his hands. When asked if he felt it was wise in retrospect, given that there was a serious problem in the BTSB, to wait nearly a year for the expert group's report, he replied tellingly "I was well gone in a year." The failure of the Minister, Deputy Howlin, to meet his responsibilities as Minister for Health in the face of the greatest scandal in the history of the State revolves around the simple salient fact that having recognised that there was a scandal in the BTSB he involved them in every step in seeking to resolve it.

The Minister for Health's failings are more considerable. It is because of him there had to be a judicial inquiry. Although he was the first Minister to have all the information, he refused to give it to the Dáil. The tribunal had to get it out of him and the State agencies under his aegis. He knew the BTSB had no defence for a legal action but he aided and abetted it in the cover-up in the McCole case. He established an ad hoc compensation tribunal despite the opposition of victims and the promise of the coalition Government to pay fair compensation. He unilaterally announced the scheme of compensation while still in negotiation with the victims. When he announced it he did not mention health care which was a primary consideration of the victims. The Minister continues to believe this is all about money and lawyers. This is a flawed belief which explains to a large degree his mishandling of the affairs. The compensation scheme continues to fail the fairness test on many counts but, despite numerous calls in this House and from the victims, the Minister refused to make any substantive changes until this morning.

The tribunal findings in the 1976 file make no sense. Mr. Justice Finlay is saying at the same time that the Minister's critics were right and that the Minister acted properly. The tribunal finds that the Minister's critics were right to contend that the expert group did not have all the relevant facts but that the Minister was right to insist that the tribunal of inquiry was unnecessary. Mr. Justice Finlay accepts that there was a great deal of detail which was not known to the expert group, which was our contention once the 1976 file was revealed. It was the basis on which we sought the judicial inquiry. The inquiry finds that the expert group was not told that patient X's plasma was used without her knowledge or consent; that it did not know of the existence of documents showing that she had been diagnosed as having infective hepatitis in 1976; that it gave a misleading impression of the role the Department of Health played in issuing licences and that it dealt inadequately with the role of donor Y.

The critical question relating to the 1976 file was put to the Minister by Mr. Rogers. He considered the critical question to be whether the expert group knew whether the BTSB knew in 1976 and the Minister agreed with him. During a further half an hour of cross examination the Minister studiously avoided answering it. He seeks refuge in the fact that no new medical information came as a result of the discovery of the 1976 file. However, that was not the Opposition's contention. Our contention is that the importance of the 1976 file was that it showed the state of mind of the BTSB as far back as 1976. Once it was produced in the discovery documents in the McCole case the State's case collapsed. It showed unequivocally that the State had no defence, although it pursued a legal strategy which brought the woman involved to her death bed and threatened her with costs if she dared seek her rights in court. The 1976 file is not significant for the circular argument in which the Minister engaged at the tribunal, seeking to talk about the fact that there was no new medical evidence. Although it was arguable, it was not contended that that was the fundamental point whether or not the infective hepatitis breached their Protocols in terms of not allowing that donor to continue donating.

The critical issue is that the McCole case was won when the discovery documents, including the 1976 file, were produced. The reason there are aggravated damages is that the defence of the claim by the State is such that justice demands that aggravated damages be paid in all those cases.

Ms O'Donnell

Exactly.

Mr. Cowen

This is why the Minister should resign. Because of the legal strategy adopted in the McCole case taxpayers will have to pay out much money. However, so be it if justice is seen to be done. The Minister made the political decision and is responsible for that strategy. However, this strategy fell apart when the 1976 file was produced and this is why we had a tribunal. The Minister's contention was that there was nothing new in the 1976 file. If there was nothing new in the 1976 file in April why was a tribunal set up in November? What happened in the interim was the McCole case and the tragedy which unfolded in front of our eyes. Everyone was appalled by the bully-boy tactics adopted by the legal team under the direction of the Minister who was a defendant in the case. It is incorrect to suggest that this matter was at arm's length from the Minister. People do not go into court and defend the position of the State without taking instructions from the State.

The tribunal stated that the documents which emerged in the McCole case were not new, dominant or fundamental medical evidence. Only one of the four demands made by the victims have been fulfilled by the Minister, Deputy Noonan. These demands are truth, an admission of liability, an apology and a statutory tribunal. The Minister has not fulfilled the fairness test set by the victims for the compensation scheme and whether he does so now remains to be seen.

The Minister attacked anyone who said that the controversy gave grounds for criminal negligence. He oversaw the legal strategy in the Brigid McCole case and refused to allow the tribunal to investigate the issue by claiming the Oireachtas could not enter the territory of the courts. What we wanted was an inquiry into how the State and its agencies acted when legal proceedings were instituted by the late Mrs. McCole. However, the Minister precluded this from consideration by the Finlay tribunal. Even after Mrs. McCole's death the Minister allowed the BTSB to seek to get the McCole family to waive their legal rights to an action for damages. When the Minister published the Health Care Bill he broke the commitment to consult the groups representing victims prior to publication. He did not disclose in his reply to a parliamentary question that Mr. O'Riordan had not been interviewed by the expert group. Yet, the tribunal identified him as the man holding most responsibility for the affair.

At the release of the tribunal report the Minister adopted a false humility. However, I am afraid that the real Michael Noonan remains self-satisfied. He looked for commendation in the original motion and told the tribunal that the things he did right in this controversy far out-weighed the things he did wrong. However, I fundamentally disagree with him. When will he make an apology for the handling of the Brigid McCole case? When will be own up and say he regrets the way the State and the BTSB threatened this frail woman? No one stands over the lack of effectiveness of the Department of Health at any time. However, there is a significant distinction between failing to properly put in place the means to identify a problem and failing to properly deal with it when it has been identified and comes to a head. It is in the latter regard that Ministers Howlin and Noonan are found to be clearly deficient.

Fianna Fáil has referred the judicial inquiry report to the Garda Commissioner who has begun a criminal investigation. I call on the Government to do the same. Compensation is a matter of immediate significance for at least 26 victims who have less than three weeks to decide if they will accept their current awards from the compensation tribunal. This matter has to be resolved in time for them to make that decision.

As the Minister said, this is an outrageous wrongdoing by the State and its agencies. It requires full accountability. The administrative accountability has been dealt with under the terms of reference of the Finlay tribunal and it will be further dealt with by reference to the DPP and the Garda Commissioner. However, the question of political accountability still remains to be dealt with. I have outlined in some detail the major questions regarding the way in which this matter was handled by the people concerned. Rather than calling for the resignations of Ministers which will not be forthcoming, the tribunal of public opinion should decide this matter. We should ask the public if this is the way it expects its State to deal with its most vulnerable citizens.

Ms O'Donnell

My amendment No. 2 proposes:

To delete all words after "Board (BTSB)" and insert the following:

"condemns Minister Noonan and Minister Howlin for their refusal to answer questions in the Dáil on the findings of the report;

condemns the Government for its lack of accountability for the scandal;

calls on the Government to reappraise the ad hoc Compensation Tribunal and establish it on a statutory basis with provision for an appeal to the High Court;

calls on the Government to ensure that there be an admission of liability to all those persons infected with hepatitis C through the wrongdoing of the BTSB (including those before the courts) and calls for payment to them of aggravated and exemplary damages;

calls on the Government to make a full admission of liability by the State to persons infected with hepatitis C through the wrong-doing of the State and State agencies, including cases pending before the courts, in the light of the tribunal's findings of failures by Ministers and the Department of Health with regard to the supervisory role of the National Drugs Advisory Board;

calls on the Government to provide that similar treatment and damages be payable to those victims who accepted awards from the Compensation Tribunal before the facts as now revealed by the Finlay Tribunal were established (including those victims since deceased);

calls on the Government to investigate the circumstances whereby a person infected with hepatitis C was requested to donate blood in December of 1996 by the BTSB which event raises questions about the adequacy of current donor selection procedures;

calls on the Government to carry out a full independent epidemiological study to investigate dormant infections and/or transient infections of hepatitis C which subsequently cleared;

calls on the Government to provide a full explanation of the manner in which the State and the BTSB conducted the late Brigid McCole case and other cases before the courts; and

calls on the Government to disband the BTSB and reconstitute a new Blood Transfusion Service in order to restore public confidence in the blood supply."

Notwithstanding the spin doctoring which has gone on since the motion was drafted yesterday evening, the motion is only a considerable, not complete, U-turn. This is apparent from the reports in the media this morning that the Government has agreed to pay aggravated damages. However, this is not reflected in the language contained in the motion which is equivocal and conditional; any scrutiny of it reveals a conditional change of heart by the Minister and the Government. It refers to supporting the Government's intention to amend the scheme of compensation, including its establishment on a statutory basis following consultation and consideration of any necessary legal advice. If ever there was a kick to touch this is it. The Minister clarified the position to some extent but I am still concerned that the terms under which aggravated damages will be paid will be conditional. I will deal with this point in detail later.

The Government will present this motion as a generous concession to the victims. Like all the other concessions in this saga, it has been wrenched from this brutal Administration at the eleventh hour while it was in full flight from the people. What is Government policy today was not Government policy at the end of last week when the original motion was tabled. As Deputy Cowen said, the motion is a U-turn on the position which the Minister confirmed during his evidence to the tribunal was the policy of the Government in relation to aggravated damages. This is the political calamity stage. The Government was faced with voting down Opposition amendments to its motion which called on the Government to provide for aggravated damages and a range of other measures. It has agreed to some of those demands. For the first time the Government has indicated it will consider putting the compensation tribunal on a statutory basis, but only after consultation, examination of all the legal advice, etc. It also faced the prospect of having to face down some of its own backbench Deputies who were unable to stomach the original motion.

It has been a feature of this Administration that we have not seen one generous, self-motivated act which derived from the Government's own sense of responsibility, moral or legal, to the victims. Every single concession, be it medical treatment or the terms of establishment of the compensation tribunal, had to be wrenched from the Government. We have not yet had a generous act from the Government, even by the terms of this motion. The Government has not made an absolute, unequivocal apology to all the victims.

The Minister for Finance said this morning he was ashamed about this whole affair. He should be ashamed because this Administration presided over much of the grievance generated among the women concerned. Central to their claim for aggravated damages is the manner in which this Administration treated them when they tried to pursue their claim and search for justice either through the courts or in the compensation tribunal.

This Administration has trampled on women. Even when it knew a State agency was involved, it continued to bully these women. This Administration has political responsibility for driving the truly abhorrent legal strategy, the only motivation for which was to intimidate the women into going to the compensation tribunal. They did not want to go to the tribunal. They were suspicious of it because it was not based on statute. They knew if they went to the compensation tribunal the issue of liability would be skirted. They were right to be suspicious.

There is no mention in the motion of responsibility for that legal strategy, a major contributor to the grievance and hurt caused to these women. It was deliberately excluded by this Administration from the report's terms of reference. Because it was so excluded, the chairman of the tribunal could use words such as "adequate" in relation to the actions of the two Ministers who gave evidence. Had the tribunal been seized of the scandal of the legal strategy, the judge's findings would have been scathing in relation to the people who authorised the strategy.

It is remarkable that this State, which regularly goes into convulsions about the respective rights of mothers and their unborn babies — we regularly get ourselves into a complete tailspin about this — can be so callous to hundreds of women who, in their childbearing years and in the act of giving birth, were damaged by a State board. The constitutional rights of those women are being trampled upon by the very State which holds responsibility for that damage.

This has been a pitched battle with the State on one side and women on the other. Women were the victims, plaintiffs, applicants, negotiators and fighters throughout this battle. Similar to the battle other women had to fight on equality payments, the State held out to the bitter end and adopted the attitude that the women would put up with this because they were a large group without economic power. If this tragedy had affected men to the extent it has devastated so many women, the damages payable would be much greater. Would the battle have been so long and hard won?

Yesterday we had further revelations of more human and computer error in the donor selection process. Blood board officials railed in anger at our party's call for the board's disbandment. They alleged such comments were outrageous and irresponsible and would undermine confidence in the blood supply. Do they not see even now that that defensive mind-set is the classic genesis for the original cover-up? It was that absolute paranoia about undermining confidence in the blood supply which drove the health and BTSB officials, successive Ministers, to be in denial for so long. They could not face up to this scandal. It was an appalling vista. They hoped it would go away, but it did not. They wanted to shoot the messenger because the message, they alleged, undermined the blood supply.

Confidence in the blood supply is only warranted if it is justified. It is a matter of public interest if serious inadequacies remain in the donor selection process, and if many people have qualms about the administrations organising blood transfusions and the supply of blood products. That public interest is greater than the public interest the State believes must be covered up and protected. That same mind-set was adopted in relation to the people who made allegations about malpractice in the beef industry. There was talk of national sabotage. That mind-set is the genesis of the cover-up we are now discussing, which formed the basis of the tribunal's inquiries.

I want to deal in some detail with the legal strategy adopted by the State, which is important. It was foolish of us to imagine the tribunal of inquiry would be a vehicle for political accountability of Ministers. We were sold a pup. We imagined there would be some analysis of the manner in which the Ministers dealt with the matter in this House. I had the innocent notion that teams of lawyers would scrutinise the Official Report of debates on this matter, parsing the minimalist replies to parliamentary questions and examining the questions tabled to but not answered by the Minister because they were ruled out or changed. I thought there would be scrutiny of the manner in which the Minister for Health and his predecessor responded, or failed to respond, to questions in this House on the status of events in this scandal. No in-depth analysis took place because this House is the only place that can be done.

I congratulate Deputy Cowen on challenging statements made, as well as conflicting statements subsequently made in the tribunal. That is what should have been done. What was the team supposedly representing the public interest doing at the tribunal? I would like to have a schedule of the arguments it made and the questions raised. How many challenges were made to the evidence of the Ministers? Who instructed the counsel representing the public interest? The person who should have represented the public interest in this matter from the outset was the Minister for Health. This is the Chamber where that accountability is tested, but it was because of the failure of this Dáil that we had to establish the tribunal in the first place.

One of the most remarkable features of the tribunal of inquiry was the delicate political surgery which excised the issue of how the State had defended cases brought against it in the courts by persons infected with hepatitis C. Even what was written by the family of the late Brigid McCole in their open letter of October 1996 was carefully pared down so as to be relevant only to the questions posed by it in relation to other terms of reference of the tribunal. There was good reason for this. There was an imperative on the Minister for Health not to have the manner in which he defended the case examined by the tribunal. That is probably one of his most shameful episodes and it was an evasion of ministerial responsibility that he saw to it that his role in leading and authorising and having responsibility for that legal strategy was not subjected to scrutiny and analysis by the tribunal.

The House will recall what the Minister said in relation to Brigid McCole in a carefully scripted statement to the House which undoubtedly represented his own thinking and the carefully throught out strategy of those closest to him who were advising him. Not out of political cruelty but to put it on the record again, let me remind the House what the Minister said in relation to the late Brigid McCole — Official Report, 16 October; Volumn 470. column 430:

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?

At that point Deputy McDaid, who was sitting close to me, said "That is dreadful". The Minister continued: "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?"

Those words, for which the Minister later gave a half-hearted apology, and only under severe stress, convey the true coldness which lay behind the State's attitude not merely to Brigid McCole but to all the hepatitis C sufferers. In that single passage the Minister completely and deliberately ignored the patent truth that he would never have set up a tribunal of inquiry were it not for the death of Brigid McCole. If, as the Minister clearly wished, a healthier woman had chosen to fight the Minister through the courts, there would have been no tribunal, no admission of liability and no political embarrassment for the current Minister for Health, Deputy Noonan, or the former Minister, Deputy Howlin. Everything would have been swept under the carpet. That is why the Minister asked why Mrs. McCole's solicitors, in selecting from the hundreds of hepatitis C cases on their books, did not select a person in better condition to sustain the stresses of a High Court case. Was the Minister implying that Brigid McCole did not want to be a plaintiff in the High Court proceedings? Was he suggesting that she was used by others? Was he suggesting that taking the High Court proceedings had shortened her life? Of course he was, and that was a deeply dishonest, irresponsible suggestion. Here was an angry man, corncered, hardhearted and desperately trying to cover up his own embarrassment at being forced by others at the Cabinet to concede a tribunal of inquiry which he and his Department were most loath to concede.

Then we come to the question posed by the Minister: "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?" What was the meaning of that question? Was the Minister suggesting that somebody who had suffered a major injustice at the hands of his Department and who was confronted with an administrative cock-up of unprecedented proportions should sit meekly as a silent plaintiff in High Court proceedings while her life ebbed away without going public about what the Minister was doing to her? These words were calculated by a desperate Minister to spread the blame as he saw it that night when he was eating humble pie, establishing a tribunal. Those words underlined with an emphasis that no Opposition speaker could match just how wrong-minded the Minister's approach to that case had been.

We were never intended to review the role of the State in the conduct of that case. The Minister and his colleagues prevented the tribunal from reviewing the conduct of that case. They did so because it would have become abundantly clear that they attempted to bully, blackmail, frighten, intimidate, wear down and take advantage of a dying woman in order to cover up their own political embarrassment.

Lately the Minister has protested to RTÉ because they broadcast the true and stated feeling of some hepatitis C victims about him. Again he is shooting the messenger. Again he wants to suppress the truth, to suppress free speech. He wants the nation to think well of him, to think that he is a high-minded Minister who did his job. We know that he nothing of the sort in relation to this matter in this House. At every hand's turn obstacles were placed by the team representing the State, representing you and me — it is mortifying to think that that action was taken on behalf of the people, that, representing the people, the State obstructed an early hearing of this woman's case when she was so ill by contradicting medical evidence that she needed an early hearing, by denying her anonymity. We all know how bad that case was, and it goes to the heart of the claim for aggravated damages.

The State and the Minister were in no position to allow the BTSB to be sued by all the women in question. If they had been sued, the bill would have been colossal. Worse, the truth would have emerged, and the absence of supervision by the Department of Health would have been made clear. In so far as that has been examined by the tribunal, it is welcome, but had we not had a tribunal the Department of Health would have emerged unscathed.

The Minister and the mandarins advising him took the view that setting up a compensation tribunal without inquiring into the facts was the best way to avoid accountability on this matter. That was the favoured option, the option the Minister advertised so widely. It was the option he wanted women to adopt. Any fair-minded observer would conclude from the statements made by the Minister for Health in this House on 16 October 1996 that he deeply resented and bitterly opposed the fact that Brigid McCole had forced his hand, and he transferred that bitterness against the law-years of the late Brigid McCole.

We can say with certainly that there would never have been a tribunal of inquiry had the women who embarked on High Court litigation not stuck to their guns. Indeed they continue to stick to their guns in one case that has only recently been given a date for hearing. The same blackmail has gone on, the same haranguing of the plaintiff, the same obstruction. Everything we were made aware of in relation to the Brigid McCole case is still going on in relation to another plaintiff before the courts.

The terms of the Government motion contain nothing about aggravated damages applying to the compensation tribunal or to cases before the courts. I would like the Minister to respond to that point. It says nothing about cases pending before the courts, although it is still the constitutional right of any person who wants to seek justice before the courts to do so and not be cajoled into thinking that this new option is the real option. The words of this motion are cryptic and will need a lot of parsing, and I am distrustful of this Minister's words.

It was the realisation that this grand expensive strategy of suppression of truth had come unstuck that prompted the Minister to come to the House and attack the lawyers for Brigid McCole in the appalling way that he did. It was the political humiliation of having to establish a tribunal of inquiry because other members of the Cabinet forced him to do it that he resented most. Even to this day he blames others for his own problems. He blames RTE for broadcasting women's true feelings about him. The Minister cannot accept that he, personally, politically and legally, is the one who should take full responsibility for what he has done. He must accept that. The way in which he behaved falls far short of the way the people would expect any elected Minister to behave. All Ministers are elected by the democratic process. That unique aspect should ensure that at all times the interests of individual members of society are to the fore in their minds. They should not behave like cold-hearted defendants, as the Minister for Health has done.

When he became a defendant in the case, the Minister became emotionally bankrupt. He cut off his mind to the reality of the effects of the adoption of the strategy. He closed his mind to his parliamentary responsibility to all Members when challenged here on matters relating to the scandal during his term of office. He felt constrained in what he could say because he was a defendant in the action, but that is nonsense. The fact that the State is a defendant in an action does not mean the Minister for Health should preside over inappropriate behaviour and malpractice. That is nonsense and it would be a dangerous precedent to adopt.

The priority of all Ministers for Health should be the public interest, not the self-preservation of the Department or the Government, or the cover-up of mistakes and negligence of officials in State boards. Why did one of the people at the centre of the negligence in this whole affair receive a golden handshake which amounted to more than the damages paid to some of the women involved? That is a scandal and it could only happen in the event of a misplaced notion of the public interest. The Minister has failed in his statutory responsibility to be truly a Minister for public health, to be custodian of the public health. He is not there to protect his Department against claims by the public; he is there to protect the public. If any lesson is to be learned, it will come not from the tribunal but from our knowledge and experience of debating this issue. One lesson that must be learned is that Ministers must put the public first rather than their Department or the Government.

The Ministers involved, Deputies Howlin and Noonan, did not want the truth to come out during their term of office. The compensation tribunal was set up so that the issue of liability would be skirted, that gross criminal negligence would be set aside. Basically, the compensation tribunal is a cash dispensing mechanism where people tell their story, they do not have to prove anything, their bills are simply examined. I read one of the proceedings of the compensation tribunal and there was haranguing and nit-picking, with embarrassing challenging of women about their pharmacy bills, looking for receipts and so on, but the whole issue of liability was skirted. Whenever the issue of liability arose the chairman shied away from it and said that the tribunal was not allowed to discuss punitive damages or refer to possible negligent acts, that it was not its job to deal with liability but to pay out money on the basis of what the women were able to prove. They did not, however, have to prove any of the detail that would have been necessary in a High Court.

The Minister tried to save himself from the embarrassment of being in office when this matter was revealed, but the issue blew up in his face because Brigid McCole died. That is what awakened the public to this matter, which was complicated and which they previously did not understand. There were so many women involved that somehow it took away from the issue. The individual story told in court in the Brigid McCole case and discovered in the documents turned on the light for thousands of people. Suddenly what Deputies tracking this event had known to be a huge scandal was brought home to the wider population. They realised this was an enormous tragedy, too awful to contemplate. When they saw the way Mrs. McCole was harried and bullied by the State until the day she died they were rightly appalled. That is what forced the Minister to act.

The tribunal report, while it has many good points, is incomplete. I dislike the way it is written, in very cold, objective language, the language of a lawyer. There is much more to this scandal than issues of law. It is a political issue in the deepest sense. It is a legal issue of public importance which is the responsibility of our political masters, and the political master in this instance is the Minister for Health. The report is constrained by its own terms of reference which were craftily designed to exclude from the tribunal's remit any issue relating to the legal strategy and political responsibility.

The tribunal which was proffered as the answer to all public and political concerns raised in the Dáil and the media and by the victims of State negligence has merely confirmed what many of us already suspected but could not prove. The Dáil was forced to set up the tribunal, which speaks volumes about our failure in a parliamentary democracy to hold to account the Government of the day. All the facts revealed in the tribunal under cross-examination and by discovery of documents were in the possession of the State from the beginning. We had to go to great lengths over three or four years to find out what was going on, who was responsible, what the Minister and officials did and what the Department of Health knew. Even though all that information was in the possession of the State legal team, we had to set up a tribunal to extract the facts, reveal them in a public forum and to draw conclusions on the matter.

Why was this information revealed in a tribunal as distinct from Dáil Éireann? The answer is that the Dáil failed because it was misled by Ministers who, in turn, were misled by State authorities. The Dáil failed in one of its primary functions, to hold the Government of the day accountable for its stewardship of State authorities, and that is very dangerous.

Now that the full extent of the State's culpability has been exposed by the tribunal, the two Ministers involved are still in full flight from parliamentary accountability. They home in on the phrase, which probably originated from a Government press release, that the report exonerates them. They rejoice in the fact that the report centres its criticisms on the medical players and dwells, as if only in passing, on the roles of the two Ministers. It conveniently refers to the two Ministers together with previous Ministers in terms of the statutory supervisory role over the NDAB.

The report is framed in measured and emotionally bankrupt language. It uses words such as "adequate", "inadequate", "reasonable" and "inappropriate" to describe the most appalling actions of the major players, technical, medical and political. The reckless criminal incompetence which led to the catastrophe are described by the judge as resulting from "undue emphasis", "undue and unsupported belief" and "reluctance to admit the possibility of". A lay person could be forgiven for not knowing we are talking about a series of unforgivable acts and omissions by persons with responsibility which cost lives, significantly shortened others and deprived at least 1,600 people of their future plans. This was a harrowing experience for the women concerned at what should have been a joyous time in their life. Through the reckless fault of the State, these women were infected with a virus and deprived of their future happiness. Those who conspired in these acts and who wrongfully conspired to cover them up over many years have paid the mere price of public exposure. That is the extent of the penalty this Administration and State is willing to impose on the people who not only made many mistakes but compounded the original tort by trying to cover them up. This should not happen again. As part of the cover up some of these people were given golden handshakes before all the facts were uncovered.

It is claimed that we have a Civil Service culture of minimum disclosure and blame. Is that what we want? Is that the open Government to which this Administration is so committed? To establish the crucial facts of liability and responsibility in this case, the Dáil had to defer to a tribunal to get at the truth of this matter. There is no doubt previous Ministers for Health failed to establish procedures for the Department of Health to adequately supervise the National Drugs Advisory Board. However, the two Ministers who currently sit at the Cabinet table presided over this matter when it became public knowledge. How could we be expected to respond to something that was not in the public domain? That would be an impossible test of accountability.

The comments in the Finlay report on the saga of the expert group are interesting and titled in the same unusual language, "Information not available to the expert group". The phrase "not available" is well known by civil servents and politicians from all sides of the House in the context of parliamentary replies. It is usually used as a way to avoid giving formation. This chapter should be titled "Lies told to the expert group". It is obvious the BTSB gave evidence to the expert group knowing there was proof that doctors treating the six women infected with hepatitis C from plasma made from donor X in 1977 had immediately informed it of the connection with anti-D. The BTSB lied to the expert group. It is not a question of information not being available.

Brigid McCole should be alive today because before she received her lethal dose the BTSB was notified of a link between the blood given to the six women and the anti-D they had received. Those women developed symptoms within six weeks. Some women are terminally ill and others are living in a medical limbo of uncertainty. These women had to battle with the State and its agencies in an indecent fashion.

The next bridge to cross is that of aggravated damages as distinct from ordinary compensatory damages. A terrible game of obstruction was played out by the Minister for Health and the agencies concerned with those fatigued blameless women who seek only justice and truth. We now have the truth because of the heroic actions of the women who refused to give in to the bullying of the State.

On page 23 the report refers to the six women who developed clinical jaundice some weeks after receiving anti-D in 1977. It states:

We were told that these cases were fully investigated at the time... and that the jaundice in these women was, according to the B.T.S.B., attributed to environmental factors.

That was a lie and cannot be squared with the connection established by doctors in 1977 between that infection and anti-D. On page 31 the report states, "No immediate action was taken as the index cases were originally reported as having fully recovered...". They had not recovered, they are still sick. That was another lie told by the BTSB to the expert group. The report also states, "All patients had reverted to normal after 28 days". That is also a lie. The BTSB did not contact the women after their doctors had told the BTSB of their suspicions about the link.

We know that numerous lies were told later. Lies were told to the Minister for Health on 22 February 1994 when the motion of anti-D immunisation was taken here. Referring to the six cases of hepatitis C in 1977, the Minister stated that, "No cause for the jaundice had been found". That is a lie. The cause had been linked. His script opened with the statement that "Evidence had emerged of a possible link between the product anti D and hepatitis C". That was also a lie. The Minister was told lies by his officials and the BTSB.

In retrospect, the speech of the former Minister for Health, Deputy Howlin, makes pathetic reading. He praised the BTSB that night stating "the board has been magnificently proactive... we have a blood transfusion service that is the envy of Europe... fine reputation..." and so on. The statutory authorities knew in 1977 of a medical diagnosis of a link between hepatitis C and anti-D, which was confirmed in the Middlesex letter of 1991.

The question of political accountability has not been dealt with adequately, but I hope to deal with it in more detail at a future date. I understand Fianna Fáil will give me the time I have lost at another time.

Mrs. T. Ahearn

I wish to share time with Deputy Flaherty.

An Leas-Cheann Comhairle

I am sure that is agreed.

Mrs. T. Ahearn

It is difficult to speak on this debate without referring to the emotions of sadness and anger I always feel when the matter is discussed in the House. We are discussing one of the greatest medical scandals in the history of the State. Innocent people are suffering enormous trauma and tragedy as a result of negligence by the BTSB.

However, from listening to this debate one would think there were no human victims - there is just a search for a political victim. I find it extraordinarily difficult to listen to some of the contributions today. One would be inclined to think there were no sick women or that there were no families without an active and well parent as a result of that tragedy. I have failed to find any emotion of compassion, sympathy or understanding in the contributions by the Opposition. They are here today to use this scandal——

Ms O'Donnell

That is rubbish and I object to it.

Mrs. T. Ahearn

——for political gain.

An Leas-Cheann Comhairle

No interruptions. The Deputy had a clear run and will not interrupt other speakers.

Ms O'Donnell

It is an outrageous slur.

Mrs. T. Ahearn

I shared many debates with Deputy O'Donnell on this issue.

Ms O'Donnell

Sympathy is not much good when people are being abused.

Mrs. T. Ahearn

At all times my outlook was totally different to hers because——

Ms O'Donnell

Because the Deputy was doing nothing.

Mrs. T. Ahearn

—— I received anti-D on four occasions between 1978 and 1987.

Ms O'Donnell

We have heard this many times before.

Mrs. T. Ahearn

As a result of that, I was a constant traveller with Positive Action. I negotiated many human issues on its behalf with the Minister for Health. In every discussion I had on this in which Deputy O'Donnell was a participant, all she wanted, as did her Leader on Morn ing Ireland, was a political victim —“Give me a politician's head on a plate and this scandal will have been justified”.

I do not apologise for my emotion today because I have played my part. I kept in constant contact with Positive Action. I listened with understanding and supported many of its demands and requests. I spoke with the Minister, Deputy Noonan, who accommodated many of the requests we made. This is not a story of which any of us can be proud or want to recall when there are so many victims.

I walked out of the House today as Deputy Cowen gave his first speech on the anti-D-hepatitis C scandal. This has been on the political agenda since 23 February 1994. Last night I read every contribution on this matter from 23 February 1994 to 28 January 1997. Deputy Cowen did not make one contribution in those three years. There was no compassion, sympathy or human element in his contribution today. He was trying to settle old scores with the Minister, Deputy Howlin. That is an insult to those of us who could have been victims, but a greater insult to the women who have hepatitis C as a result of this. It is an enormous tragedy that they have to listen in this House to this tone of debate.

I know from working with Positive Action what they wanted from day one. They wanted the truth and the facts. Thank God, the tribunal of inquiry has established those facts. They wanted someone to apologise — I am sorry. They wanted fair compensation and medical support for their illnesses. This motion and the medical package introduced by the Minister will provide what they seek. They also wanted to ensure that such a tragedy would never happen again. The Minister, Deputy Noonan, and this Government have a deep passion to ensure such a tragedy will not happen again.

Many of the contributions today will do nothing for the sad victims of this enormous scandal. They are not interested in having political victims but in ensuring that no other person in this State will suffer such drastic consequences as a result of negligence within any section of our medical service. They are determined all the resources of the State should be used to ensure they have the best possible quality of life at this stage. They are also determined they should receive aggravated damages, which I believe they should.

This has been an enormous tragedy. I was shocked yesterday morning when I heard a senior Member of this House say to the nation on Morning Ireland that she would hesitate before taking a blood transfusion. Our responsibility extends not only to the victims of this scandal but to maintaining confidence in our blood service. If somebody in a hospital bed listening to Morning Ireland was about to receive a blood transfusion and took the advice of a senior Member of this House with tragic consequences, who would be to blame? As politicians, we must be very careful about what we say on this very serious issue. We must be responsible and our two priorities at all times must be to look after the victims and to ensure a safe blood supply and confidence in the Blood Transfusion Service Board. I would not do any service to anybody if my contribution did not help to achieve those two basic objectives.

I am not interested in political gain and no one should use this serious issue for mean political debate. I had to leave the Chamber this morning because I found it very hard to digest what was being said, particularly by somebody who never said a word in this House or issued a public statement on this issue in the last three years. Positive Action and the victims know who their supporters were during this tragic time. They need only look at the Dáil record to see the same names appearing time after time. It is very easy to conclude who took a passionate interest in this tragic saga. I suppose there is a temptation to get in at this stage.

It is not a happy story but we must go forward from here. We must do everything possible not to add further tragedy to an existing tragedy. The expressions in this House should be words of consolation and hope to the victims and words of confidence and assurance to those who will need blood transfusions in the future.

Miss Flaherty

I am glad to have the opportunity to speak in this debate. I welcome, with some relief, the redrafted motion by the Government which, in contrast with the analysis of the two Opposition speakers who preceded Deputy Ahearn, is a generous and wholehearted attempt to meet in full the remaining demands of Positive Action. The Minister met Positive Action yesterday and, as in the days since the tribunal report was made available, considered the report's implications and the situation arising out of its findings.

In redrafting its motion the Government made a genuine attempt to meet generously the remaining concerns of Positive Action. Those of us who have been campaigning with Positive Action received a summary last night of its remaining demands. It asks that the issues of the ad hoc non statutory and ex gratia nature of the scheme be addressed. This has been resolved by the Minister's indication that he will put the compensatory tribunal on a statutory footing. It also asks that the absence of an admission of liability to the affected anti-D mothers be addressed. Again, this issue has been resolved, although perhaps not as fully as it might wish, with a full admission of liability from the State. Nevertheless, the BTSB has been asked to make its position clear. It also seeks an assurance that the Government will not resile from any implications of the findings of the tribunal.

The absence of a right of appeal from the compensation tribunal to the High Court has not been resolved. Is it the Minister's intention that this right will be included in the reformed compensation tribunal? The issue of the payment of aggravated and exemplary damages is dealt with but it needs further clarification. Deputy O'Donnell interpreted the remit here in the narrowest possible sense. I hope the Minister will clarify that issue. He indicated he will remove the limitation of the tribunal and allow it the same powers as the High Court. Will he confirm that this is an adequate response? He has dealt with the remaining major demand of Positive Action, that victims, including the deceased, who accepted awards at a time when the true facts regarding the activities and behaviour of the State were concealed from them, would be open to seek aggravated and other damages, including renewed damages from the Sate via any tribunal which will be established on a statutory basis.

The Government must honour the spirit of the motion in full and concede the demands of Positive Action fully and generously. The analysis by the Opposition of the frustration shared by many, including Government backbenchers, such as Deputy Theresa Ahearn and me, at the cautious decisions made by Ministers and the inevitably conservative Civil Service advice proffered to them is correct. I also hope that the Minister will maintain substantive contact with Positive Action with regard to the deliberations of the new tribunal.

Deputy Cowen made a strong and aggressive speech which analysed all the issues. Deputy O'Donnell referred to the treatment of another large group of women on a separate occasion by another Government, where Ministers resisted demands through legal action and refused to outline legal advice to the Dáil. Deputy Cowen's party was the major party to that Government and I was one of the Deputies who regularly put down parliamentary questions seeking clarification. Given this, it was interesting to listen to his speech today, made with the benefit of the tribunal report and hindsight.

The Minister said it is almost impossible to come to terms with the enormity of the scandal surrounding the hepatitis C infection of the anti-D bodies in the blood supply. The tribunal analysed the situation and concluded that, given the information available to Ministers at the time, their responses in setting up the expert group and the health care package were reasonable. However, the word "reasonable" is unsatisfactory. I hope the substantive concessions indicated in the motion will be fully honoured and that there will be no more need to debate this matter.

The Minister also indicated he believes that no words of his can adequately apologise to the 1,600 women and men for the damage done to them by a system in which they had previously placed their trust and confidence. I regret that as a Government backbencher, my words and efforts did not lead to a speedier response and that in times of crisis we did not get the kind of response provided by this motion. However, people acted to the best of their knowledge at the time.

I was saddened that the two main Opposition speakers did not account for the period when their parties were in Government. The neglect by the BTSB went on for a long time and many Ministers were responsible. While it is appropriate that the Ministers, Deputy Howlin and Deputy Noonan, are called to account for what they did and how they dealt with matters when they came to light, the problems have been there for a long time.

The recent incident again throws the issue of the ongoing reassurance regarding the quality of the blood supplies into chaos. While the proposal by the Progressive Democrats to abolish the BTSB is inadequate, fundamental questions remain. The Minister addressed the issue, but there is need for an ongoing analysis of the operaction of the BTSB and the study of best world practices. Radical approaches, such as the American practice of supplying one's own blood, should not be ruled out given that so many people depend on these products.

I welcome the commitment by the Minister to establish a further tribunal to investigate those infected with HIV and especially the situation regarding haemophiliacs, which arose during the court case and this tribunal. I hope he will expand further on the Government's commitment to concede in full the five remaining substantive demands of Positive Action.

Mr. Lenihan

Deputy Ahearn made a vigorous attack on my party spokesperson, Deputy Cowen. While I understand her strong feelings on this issue, Deputy Cowen, who has been just appointed health spokesperson, has mastered his brief very well. It is not fair to rebuke a spokesperson for the Opposition and to allege he or she is morally defective because of not having made a previous contribution on a particular subject. It is the responsibility of those who are appointed spokespersons to take charge of their briefs and to make the best case they can in respect of them. In many ways this problem requires a fresh mind and approach. I was delighted to hear Deputy Cowen's earlier observations which brought a fresh approach to the problem.

I share with Deputy Flaherty the sentiment that I hope this will be the last debate we will have on this subject in the House. It is unfortunate and frustrating for Members that so many motions had to be introduced and special applications made from this side of the House to expedite this matter through the taking of various crucial steps. I welcome the Minister's outline of the various steps taken on foot of the report to implement its recommendations. I also welcome the Minister's acceptance that the victims of this great scandal should have included in the scale of compensation payable to them compensation on the basis of aggravated or exemplary damages.

The general approach of the courts in this jurisdiction has always been only to award aggravated or exemplary damages in the most unusual circumstances, generally where there is behaviour that amounts to unconstitutional, high-handed or contumelious conduct on the part of the defendant. The decision by the Government that compensation will be payable on an aggravated or exemplary basis to the victims is a clear acceptance by it that the conduct of the State agencies involved was contumelious and high-handed, if not unconstitutional, and was of an order and of a very serious character in relation to the proper administration of the State. That prompts certain reflections here on this day of days when we are in receipt of the report of the former Chief Justice.

I compliment him on the manner in which he discharged his task. From time to time we hear strong criticism of how tribunals of inquiry are conducted but this tribunal was conducted with great expedition and efficiency. Its example should be a warning of the danger of constituting ourselves into tribunals of inquiry, a notion canvassed in some quarters of this House from time to time. Where facts are in dispute an independent objective person needs to consider the circumstances, examine and evaluate the facts and make findings. It has been canvassed a good deal in this House in recent years that we should establish committees of inquiry. As the Minister of State is aware, legislation has passed several stages in the House to provide for Members conducting inquiries and compelling witnesses to come before them. In terms of what happened in this tribunal, one can see the fundamental undesirability of that approach. It would mean that Members would have to sit in judgment on disputed facts. That would put them in a difficult position, having regard to their political responsibilities and the different political parties to which they belong. Provided we can get the terms of reference right, it is far better to entrust that task to a judicial figure who can come back to us with a report.

As we pointed out some months ago, the terms of reference of this tribunal of inquiry were rather cunningly drafted in that questions of political responsibility were put to one side. One area of political responsibility, to which Deputy Cowen referred, is the conduct of the State in the defence of the litigation. We never established the full facts of how political responsibility was exercised in relation to the conduct of the State defence of the hepatitis C claims. That was not within the scope of the inquiry conducted by the former Chief Justice and we will never know the full story where that is concerned. Given what the victims were put through, the approach taken by the State towards the litigation was appalling.

As Deputy Flaherty said, one outstanding issue is the right of appeal, and that is a reasonable request. The State would not be exposing itself unduly in relation to liability in conceding a right of appeal. The Minister indicated this matter must be put on a statutory basis. That was another matter raised at an earlier stage from our side of the House. I am glad the Minister agreed he will consider that. If he is considering putting the scheme on a statutory basis, one would assume he would attend to the provision of a right to appeal. It is normal in a statutory provision of this type dealing with a scheme of compensation that a person who is aggrieved at a determination would have a right of appeal. If there was a right of appeal for the victims, in justice there would have to be one for the Minister. If a right of appeal were to be provided from the initial determination, it would have to work both ways.

With an election imminent, questions of politics have loomed somewhat larger in our discussions today than perhaps they should. It is a pity that this matter has been resolved only on the eve of an election because a great deal of it should have been resolved at an earlier stage. Deputy Flaherty hinted that as politicians we must ask ourselves if our political structures are adequate to respond to a crisis of this magnitude. The establishment of a tribunal of inquiry appears to have expedited matters a great deal, but it should have happened much earlier.

This report calls into question the basis of our public administration in this State. The reports related to the recent introduction by the Government of the Public Service Management Bill and the strategic management initiative introduced last year point to the conventional wisdom that we need more delegation of authority, to devolve responsibility and to ensure performance is consumer driven. Yet on reading this report one notes the type of administrative incompetence that was allowed in a State agency that was at one remove from a Minister for a long time and one begins to wonder about the wisdom of the policy we have been pursuing in this House. That policy was in place before I was elected but it was implemented in recent years with the constant establishment of new agencies, boards and authorities, all resplendent with their boards of appointees and all removed from the political control of this House. That policy has been pursued for some time by all sides of the House. It means that a humble backbencher like myself cannot ask a parliamentary question about the activities of these entities.

Although there is not a representative of the Labour Party in the House, it more than any other party seems to have invested some political capital in the creation of all these entities. I do not see the point of all this. Either there is accountability through the courts in regard to civil obligations and criminal matters or there is accountability on the floor of this House. If we will not have that type of accountability, we need to reconsider the structures of the House in terms of the committee system and powers of investigation to examine what is happening in these agencies. The Joint Committee on Commercial State-sponsored Bodies must proceed at a reasonably leisurely pace given the enormous scale of the commercial operations of some of the bodies. It takes a long time to carry out a comprehensive examination of even one of them. However, much more critical scrutiny must be devoted to this area. Ultimately, taxpayers look to the House to manage the vast public sector in a manner which ensures they get value for money.

It is not clear the procedures are tailored to ensure that level of accountability because the lack of accountability in the BTSB and the various matters which were allowed to obtain there for many years are a deplorable public scandal. It has now been brought to light, but, unfortunately, it is too late for many of the victims. The question the House must collectively address is our responsibilities in terms of monitoring and evaluating this area in the future. I wish to share the remainder of my time with Deputy McDaid.

An Leas-Cheann Comhairle

That is in order.

Dr. McDaid

This is the fifth time I have contributed to a debate on hepatitis C. While many of the points may be repetitive, it demonstrates the ongoing problems associated with this matter. In the past I exempted the current Minister, Deputy Noonan and his predecessor, Deputy Howlin, from responsibility for the cause of hepatitis C. However, the Minister has finally reached a conclusion today which would have been reached a year ago if he had listened to this side and had not dug his heels in so vehemently.

On Tuesday, 8 October 1996 the Minister moved an amendment to a motion on this issue. This was when I began to have doubts about his actions. The amendment stated:

Dáil Éireann commends the Minister for Health for the comprehensive series of measures which he has taken in discharging his responsibilities in dealing with the consequences of the hepatitis C infection and in particular confirms its approval to: (1) the Scheme of Compensation published by the Minister for Health on 1 December 1995 which will continue indefinitely as an alternative to court proceedings for persons who have contracted hepatitis C from human immunoglobulin anti-D, blood transfusion or other products;

The amendment continued:

(ii) the proposals set out in the health care document published by the Minister for Health on 1 December 1995 in relation to the long-term health care needs of persons diagnosed positive for hepatitis C which provides statutory guarantees in respect of the future provision of health care services; and (iii) welcomes the announcement by the Minister for Health of the decision of the Government to move a motion in both Houses of the Oireachtas establishing a tribunal of inquiry under the Tribunals of Inquiry (Evidence) Act, 1921,...

The Minister said he rejected totally the allegations and condemnations contained in the motion before the House that night. He said that since he became Minister in December 1994, he had fully accepted his responsibilities as Minister for Health in dealing with the consequences of a human tragedy which had its genesis in events which occurred 20 years previously. He said he had devoted more time to this problem than any other Minister in the past.

Today the Minister tried to apportion blame to other sides of the House. However, nobody said the Minister caused the hepatitis C infection, but he and former Minister for Health, Deputy Howlin, had responsibility. Following all the convoluted preparations in recent months, we have now reached a position which would have been reached a year ago if the motions put down by this side on the issue had been accepted.

Over 1,600 people have been infected with the hepatitis C virus. Apart from the 1,000 women infected through anti-D, a large number of other people contracted the virus as result of blood transfusions, transplants and surgery. Haemophiliacs infected with the virus have been totally ignored. These aspects should be taken on board to avoid the need for another debate in relation to the Transfusion Positive group. This matter should be dealt with once and for all today. This debate would not have been necessary if the Minister had listened to the views expressed by this side on many occasions.

The people involved in Transfusion Positive, particularly those who received transplants, are at a total disadvantage in comparison to women who contracted the virus from anti-D. They can receive treatment with Interferon but people who received transplants cannot use the drug. This issue will again arise unless it is considered now and the Government makes a positive decision about how it should be handled, once and for all.

The outbreak of hepatitis C is one of the recurring nightmares of people who have anything to do with practising medicine. Like most areas, medicine has been greatly enhanced by high technology and its resources. Perhaps some of the problems arise because we are inclined to apply the technology of today to the problems of 1976 and 1977. The technology available now was not applicable then. However, the series of events the BTSB overlooked without the benefit of technology cannot be excused because simple procedures were in place. I qualified in 1974 and I was told then that if a person has jaundice, their blood should not be used for transfusions. Such matters are obvious without technology. Medicine is a science which increasingly depends on the application of human resources. Therefore, it is also subject to human error. Something which might appear to be a small error, either in the performance of physical duties or in the correct keeping of records, can start a chain reaction. This happened in relation to hepatitis C and created this tragedy.

I intend to outline where the current Minister and his predecessor acted irresponsibly on this issue. Three patients have died, two of whom were from County Donegal, as a result of this tragedy. When this issue is debated the Minister is a different person from the competent individual we know. Given his actions in recent days, he exhibits the signs of some of the people who suffer from hepatitis C. The Minister actually knows the resultant problems that have arisen and one can see how irate and angry he feels that this whole scandal has led to us finding ourselves in this position.

Debate adjourned.