Limerick East): I move amendment No. 1:
To delete all words after "That" and to substitute the following:
"Dáil Éireann
(i) acknowledges the deep hurt caused to the McCole family and extends its deepest sympathy to the family;
(ii) acknowledges that the hepatitis C infection of the anti-D product and the blood supply has seriously affected the health and everyday lives of innocent victims and their families;
(iii) acknowledges that in the McCole case there were three distinct defendants, the BTSB, the National Drugs Advisory Board and the State — with separate legal teams — who conducted their defence cases separately; and
(iv) acknowledges that the Government's first priority and principal concern from the outset has been to put in place a unique, non-adversarial Compensation Tribunal, which has allowed all victims the opportunity of bypassing the court system and all the conflict, stress and risks associated with litigation in court.".
The death of Mrs. Brigid McCole was a major tragedy. Again, on my own behalf and on behalf of the Government, I extend my sincere condolences to the family on the death of Mrs. McCole. It is recognised by all Deputies that the hepatitis C disaster is a source of deep distress to those persons who have been diagnosed positive for the illness, and for their families. It is fully recognised that it has seriously affected their lives, their livelihoods, their health and their future. I have met many of the victims of this public health disaster and have been humbled by their forbearance and courage.
I have been subject to criticism which has centred on the State's defence of the High Court case taken on behalf of the late Mrs. McCole. The State did not admit liability in Mrs. McCole's case. My strong legal advice, both orally and in writing from independent senior counsel, was that the State, as distinct from the BTSB, is not liable and that an admission of liability should not be made. The State's agents are obliged to follow the law in using public funds; this is a country governed by laws. If I had acceded to the demand that I admit liability on behalf of the State in that case and similar cases, I would be accepting liability contrary to legal advice on behalf of all Ministers for Health over the years and in relation to pending court cases back to 1970 in respect of the hepatitis C infection of the anti-D product. If I were to admit liability I would be acting against all legal advice in a way which would be contrary to overall public policy for which I, as Minister for Health, have functional responsibility.
As I stated on numerous occasions, there were three distinct defendants in the McCole case — the BTSB, the NDAB and the State — and all three defendants had separate legal teams and conducted their defence cases separately. At the heart of the criticisms levelled at me is a refusal by the Opposition to recognise the statutory legal independence of the BTSB. I wish to emphasise that at no time were instructions given by the BTSB or the NDAB, now the Irish Medicines Board, to the State's legal team nor did the BTSB or the NDAB receive any such instructions from the State's legal advisers.
The State, through the Chief State Solicitor's office, conducted the defence case on behalf of the State parties, namely, the Minister for Health, the Attorney General and Ireland, and did not issue any policy directive or exercise any control or management of the defence cases which were being separately defended by the BTSB and the NDAB. It is also clear that the State and the BTSB had different cases to answer. This is quite clear to anybody who has read the report of the tribunal of inquiry by Mr. Justice Finlay into the BTSB.
There have been many allegations about specific aspects of the way the State conducted its defence. I propose to address these allegations during this debate. It has been alleged that I had known for some time that the BTSB intended to admit liability in the McCole case and did not inform this House. I wish once again to inform the House that the BTSB notified officials of my Department on the 16 September 1996 of its intention to admit liability and on 17 September 1996 I was told by my officials of the BTSB's intention. The admission of liability was conveyed by letter of 20 September 1996 by the solicitors for the BTSB to the solicitors for the plaintiff. This letter, contrary to what is alleged, was not issued by the Chief State Solicitor's office. It was issued by the solicitors for the BTSB.
On 24 September 1996 I informed the Government of the BTSB's admission of liability. The Government noted the position. We neither made any decision nor gave any direction on any strategy or action.
The BTSB informed me at that time that it undertook with counsel an extensive review of the facts of the case which went back over 25 years. The various allegations made in the proceedings were put by the BTSB to such witnesses as were available to give evidence and a range of experts at home and abroad were also consulted. On consideration of this extensive review and following legal advice, the BTSB admitted liability in the late Mrs. McCole's case in relation to her claim for compensatory damages for negligence. I did not attempt to direct the BTSB in any decisions it took in relation to the proceedings. The BTSB is a separate legal entity and it would not have been appropriate for me to issue directives to the BTSB on the conduct of the proceedings. It would also have been improper for one defendant to compel another defendant in the case to take a particular course of action in the conduct of the proceedings.
There followed on the admission of liability by the BTSB much speculation about the ultimate settlement in the case and it was alleged that the State's "fingerprints" were all over the settlement agreed in the late Mrs. McCole's case. In relation to the settlement in the case in question, I was not consulted by the BTSB in this regard. Mrs McCole's case was settled between her lawyers and the BTSB by agreement. I appreciate that the settlement was arrived at in particularly tragic circumstances.
In the motion tabled by Fianna Fáil it is suggested the State adopted an offensive legal strategy in the McCole case. It has in the past been alleged by the Opposition that the State delayed and obstructed the plaintiff from beginning to end. I deny this because it is simply not true.
It was alleged, for example, that the State delayed in entering its defence. This is not true. The State delivered its defence when the plaintiff's claim was adequately particularised. This issue was the subject of an application to the court and was resolved by the court in favour of the State. It was alleged the State delayed the discovery of documents while, in fact, the dates for completion of discovery were set by the High Court and adhered to by the State. The State sought and was granted, without objection by Mrs. McCole's counsel, two working days extension of time for filing its affidavit of discovery. Between 4,000 and 5,000 documents were discovered and made immediately available by the State, of which a small number became the subject of dispute which was resolved without ultimate recourse to the court.
On a previous occasion in this House, I reflected on the manner in which issues in relation to legal cases are prepared for the adversarial court system with which we are familiar. I stated that pleadings are the means by which the issues to be tried by the court are both netted down and clarified, so that not only the parties but also the court, which otherwise knows nothing about the matters in controversy, can become familiar with the matters which require to be adjudicated upon and the evidence which will be required to establish or refute these matters. What may appear to be convoluted or tortuous descriptions of highly charged allegations are sometimes recited and must be denied in detail. Otherwise they are deemed to be admitted.
I have previously informed the House that in Mrs. McCole's case a large variety of allegations of wrongdoing on the part not only of the BTSB but also the State parties and the NDAB were made. The State rightly called for matters to be properly established by Mrs. McCole's lawyers. It was open to Mrs. McCole's legal team to either provide documentary evidence of the matters as the case proceeded or prove them by evidence in court. Exchanges of correspondence and documents between parties, with other pre-trial proceedings such as discovery and interrogatories which occurred in the McCole case, even further netted down the matters at issue.
There was also much criticism of the State's position in relation to the statute of limitations. It was repeated tonight by Deputy McDaid. In respect of the statute of limitations, one should look at the defence delivered by the State parties to understand what precisely was pleaded. It was:
In so far as the date of acquisition of the plaintiff's condition alleged in the Statement of Claim was in or before 1980 and not the date of knowledge as defined in the Statutes of Limitation is pleaded, such claim herein, if any, is barred by the provisions of the said Statute.
A plaintiff is required to give reasonably specific details of the occasions on which important events are said to have occurred and this detail was omitted from Mrs. McCole's Statement of Claim. In pleading this, and in the notice of particulars, the State required her lawyers to specify the occasion on which she contracted hepatitis C or the occasion on which she became aware of having contracted such a serious condition. It was not unreasonable for the State to require this detail which is after all basic information necessary for a full evaluation of the case.
Criticism was also made of the decision by the State to contest anonymity in the McCole case. I would like to give the background to this decision. A number of plaintiffs represented by the same firm of solicitors, issued writs against the BTSB, the NDAB and the State using aliases and giving their solicitors' offices as their addresses. On 7 September 1995, the solicitors notified the defendants of the true identities and addresses of the plaintiffs. However, in Mrs. McCole's case, they did not notify the State of her identify until 27 September 1995.
On 22 September 1995, Mrs. McCole's counsel was told that, while the confidentiality of her medical condition and other intimate matters would be maintained by the State parties, as a matter of constitutional law the client could not proceed under an assumed identity. This was confirmed in subsequent correspondence. Mrs. McCole's counsel and solicitors took a different view and ultimately they brought a motion before the High Court seeking a ruling on the point. Their application in this regard was decided on 14 February 1996 by Miss Justice Laffoy, who dismissed it. The court in its judgment stated it had no jurisdiction to allow the plaintiff to prosecute her proceedings using a fictitious name and to do so would contravene Article 34.1 of the Constitution which required justice to be administered in public. This judgment is available to anybody who may wish to read it.
It is not an option for the State, or any other litigant, to selectively ignore, or turn a blind eye to Article 34.1 of the Constitution. This provision has hard outcomes in some cases, but it is a very basic protection of civil rights. The State is obliged to uphold, not to ignore, the requirements of the Constitution.
There has been an allegation that the State opposed an early hearing in the late Mrs. McCole's case. I would again like to inform the House that Mrs. McCole's initial application for an early hearing was withdrawn by her lawyers and when it was ultimately re-entered on 26 April 1996 it emerged that the case would not be ready for trial in June as her lawyers had requested. The President of the High Court adjudged it should proceed on 8 October 1996 and the President of the High Court said that in exceptional circumstances the court will give priority to cases and fix an early trial date but that this power must be exercised sparingly as it affects other litigants. The judge also stated that the defendants had met the plaintiffs claim fairly and stated that they would be in a position to go on in October. The judge added that the rights of both parties have to be weighed and also considered it relevant that should Mrs. McCole's condition deteriorate, the compensation tribunal was available to her. In fact, the tribunal indicated its willingness to sit at short notice to facilitate the claim if that was the desired option. The fact that the case was put down for hearing for October enabled Mrs. McCole's lawyers to amend her statement of claim substantially on two subsequent occasions and to make a considerable number of interlocutory/pre-trial applications to the court for reliefs considered necessary in the late Mrs. McCole's case, even into the summer vacation.
While the State indicated that the case would not be ready for trial in June, it is clear that the case on behalf of Mrs. McCole was not ready either. In fact, a new issue in the case, which was also an issue specifically for the Tribunal of Inquiry into the BTSB, that is, the issue in relation to the Therapeutic Substances Act, 1932, was introduced for the first time by the plaintiff's solicitors by way of an amendment to the statement of claim on 23 July 1996. As a matter of interest, it should be noted that the tribunal of inquiry found that anti-D was not a therapeutic substance under the 1932 Act and that the grant of a manufacturer's licence under that Act would not have been appropriate because it would have been of no legal effect.
The judge adjudicated that 8 October was the appropriate date for the early hearing on the basis that neither side was ready.
Rather than there being any delay or obstruction, as has been suggested, this complex trial which was estimated to require six weeks had it proceeded in October 1996 was processed with considerable expedition. It commenced by plenary summons in 1995, involved four parties, dealt with numerous motions and other applications to the court, was the subject of an extraordinary volume of discovered documents, including the invoking of sworn interrogatory procedures and yet was ready for trial within 15 or 16 months. All this could not have been done in the normal course without extensive co-operation between all those parties and the good offices of the courts and court staff.
The BTSB has also been criticised for paying a lodgement into court in the legal case in question. On the advice of their lawyers, the BTSB made a lodgement into court in accordance with Order 22 Rule 1(1) of the Rules of the Superior Courts on 15 May 1996. The lodgement was not accepted. I would like to reiterate that this lodgement by the BTSB in this case was made in accordance with the Rules of the Superior Courts and is a procedure open to all defendants involved in litigation. This lodgement was made by the BTSB on its own behalf. I was not aware that the lodgement was being paid into court by the BTSB prior to it being made. I was informed by the BTSB subsequent to the lodgement being paid into court. It is open to all defendants to take this particular action. Once again, I would like to reiterate that the BTSB conducted its case separately and the State did not issue any policy directive nor exercise any control or management of the BTSB's defence case.
At this point, I wish to summarise the points I have just made because, surprisingly, misunderstandings are still current about the McCole case.
1. In the McCole case, it was the BTSB which admitted liability and which settled the case with the representatives of the McCole family. In law, the BTSB is a separate legal entity, had its own legal advice and its own insurers.
2. The State was at all times advised by independent senior counsel who advised that there was no State liability and this remains the State's position.
3. Cases in court are conducted according to the legal rules which govern a civil liability. The cases are presented in accordance with the adversarial rules in use in cases of that kind.
4. It is for this reason that an alternative channel was and is available which removes the adversarial element and ensures privacy, namely the hepatitis C compensation tribunal. Every claimant is entitled to use it and or is perfectly entitled to decline to use it and opt for the adversarial and more public court system. What is not possible is that the rules which govern cases generally should be ignored or broken for cases that are brought through the courts.
5. Again, I emphasise that the State, following the normal practice in cases of this kind, took independent legal advice from highly reputable independent counsel, were advised that the State was not liable and the case was settled by another party who admitted liability.
I have been criticised in relation to a letter which issued from the Office of the Chief State Solicitor on 21 July 1995 which set out the State's legal position in relation to the legal cases in question. Contrary to what has been alleged, the letter did not issue to the late Mrs. McCole. However, the solicitors who acted for the late Mrs. McCole also act for Positive Action, and the late Mrs. McCole was a member of Positive Action. These solicitors wrote to the Chief State Solicitor on behalf of their client, Positive Action, seeking, among other matters, that the State admit liability. The Chief State Solicitor wrote a letter in response describing the benefits of the compensation scheme which could not be achieved in litigation, and pointing out that it was difficult to understand how any of their clients could choose to ignore the scheme in favour of the uncertainty, delays, stresses, confrontation and costs involved in High Court litigation.
It was entirely appropriate and necessary to inform the solicitors for Positive Action in clear terms in July 1995 of the State's legal position, so that no client of theirs would embark on litigation against the State under any misapprehension as to the fact that the State intended to fully defend any litigation initiated. Any litigation which has subsequently been brought against the State in relation to the infection of the anti-D product has been defended.
In all proceedings brought against the State in the hepatitis C issue the State defendants, acting on strong independent legal advice, have not admitted liability.
In a letter to me dated 16 April 1997 the BTSB stated its intention to admit liability in certain proceedings. The following is the statement of its position:
The Blood Transfusion Service Board has decided that it will admit liability for negligence in court proceedings where claimants were directly or indirectly infected with Hepatitis C through Anti-D Immunoglobulin supplied by the Board. In such proceedings and in other court proceedings where claimants allege infection with Hepatitis C from blood, blood components or derivatives supplied by the Board, the Board will admit the findings of fact contained in the report of the Tribunal of Inquiry.
The Board is not in a position to decide whether aggravated or exemplary damages should be awarded in any case, as this is a legal issue which falls to be judicially determined. The Board notes that the Government has decided that the terms of reference of the Compensation Tribunal will be amended to empower the Chairman of the Compensation Tribunal, Mr. Justice Egan, to decide whether such damages should be awarded in individual cases. Similarly a judge in court proceedings would determine this issue in individual cases.
As I have said on many occasions in this House, I do not consider the courts a suitable vehicle for awarding compensation in such circumstances where there are a large number of plaintiffs who have broadly similar claims. There appears to be a refusal on the part of the Opposition to recognise the adversarial nature of the courts. I cannot change the way in which court cases are conducted. That is a matter outside my control. For that reason I established the compensation tribunal for the hepatitis C victims and later this evening I will commend the Hepatitis C Compensation Tribunal Bill, 1997, to the House, which will place the compensation tribunal on a statutory basis.
The most recent criticism of the State's position in the McCole case is contained in the Fianna Fáil motion put down for debate this evening which, inter alia, calls on the Government and myself as Minister for Health to waive the claim of privilege in the McCole case. The late Mrs McCole's action was one of a number of actions which are at various stages of progress through the courts. Mrs McCole's case was the first of these cases to be set down for hearing. A second case, to which Deputy Cowen referred, is listed for hearing on 1 July. It is not necessary to know anything about the rules of privilege, or even to be a lawyer, to understand that where cases are decided in an adversarial courtroom and where a party to litigation has many other cases of a similar kind at various stages in the court system, that party is put at an obvious disadvantage if its detailed legal advice is made public, especially if that is done before all the cases are finished. The House is aware that the Government, while recognising a person's right to take court proceedings, has put in place a non-adversarial compensation tribunal for certain persons who had contracted hepatitis C since December 1995. While the State is still a defendant in those other similar proceedings, it would not be appropriate for it to disclose legal advice on this litigation where comparable litigation is pending before the courts.
The Fianna Fáil motion also calls on the Government to divulge in full the circumstances in which the State's defence of the McCole case was devised and executed and to lay before the House all documentation, including documentation from the Chief State Solicitor's office, giving the state of knowledge of the Government. There is a fundamental objection to any process whereby lawyers advising a party to litigation could be required to account to the Legislature for its advice or indeed for decisions made by the courts in the administration of justice. Even a court of law is not entitled to inquire into the instructions given to a lawyer by his or her client or the advice given to the client by his or her lawyer. This is the basis of legal professional privilege and is a fundamental norm, without which the interests of justice could not be served. If the Legislature insisted on receiving an account of such advice, this could amount to an interference by the Legislature with the independent administration of justice and constitute a breach of the doctrine of the separation of powers. It is not, therefore, appropriate that the State's legal advice be made public or that the management of the litigation be analysed in the Dáil.
A court system which is independent of the other branches of Government requires not only that the judges should be free of interference or influence from the Legislature or the Executive, but that the litigants who come before the court should be free to conduct their litigation in any lawful way that they are advised or see fit, without the prospect of themselves or their lawyers being required to answer to another arm of Government in respect of the exercise of that freedom. For the reasons I have outlined, I am sure that Members, in particular those who have a legal background, will appreciate that the Government could not waive its claim to privilege in all the circumstances.
The State is defendant in thousands of cases each year. Each of them concerns an individual citizen and that citizen's family and involves important concerns for individual citizens. Some of these cases are settled, others are fought and of those fought some are lost and others are won.
The State is obliged by law to conduct its litigation in accordance with the same rules as any other litigant. It is entitled to take advice and required to work in an adversarial system in the courts to the same extent as any other litigant. The State did not want to be in this position on the hepatitis C issue and for that reason I recommended to the Government that we should set up the compensation tribunal to settle cases non-adversarially. The attempt to develop a parliamentary scrutiny of the conduct of individual cases is liable to lead to a position in which the State will be substantially impaired in its ability to conduct its litigation in a way that does not apply to any other litigant.
It would be impossible to have debates about why the State denied liability, why it did or did not call certain witnesses or why it asked certain questions in the course of cross-examination in all the thousands of cases with which it deals every year. That is the precedent the Opposition is seeking to establish.
A system of parliamentary scrutiny of how any class of litigants exercise their freedom to conduct their litigation before the courts — provided they are behaving lawfully in doing so — comprises a breach of the doctrine of the separation of powers. An independent court system requires not only that the judges be free from interference, but that the parties who appear before them, provided they behave lawfully, can do so without fear of being made answerable to another arm of Government, namely the Oireachtas, for the exercise of that freedom. This is fundamental to the separation of powers under our Constitution and helps to guarantee a fair balance of rights.
The BTSB conducted its defence of the McCole case in accordance with the legal advice it received. It did not receive, nor did it request, policy advice from me or the Government. It conducted its business in accordance with the rules of the court. There is no mystery and nothing to be covered up. The State took and maintained its legal position. The BTSB took an initial position and changed it on a full review of the case. In this, it acted no differently from many other persons or bodies.
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 and to fully comprehend the devastating effect it is having on the health and everyday lives of those persons who have been infected and their families. As I said before, no words of mine could ever adequately make amends to the 1,600 women and men for the injury caused to them by a blood transfusion system in which they had previously placed their trust and confidence. In all these matters, I made decisions and acted on the basis of the best information available to me at the time and on the basis of independent legal advice. In retrospect if, when I first became Minister for Health, I had all the facts I now have, I have no doubt I would have made some different decisions. Arising from my review of the findings of the Finlay Tribunal, later this evening I will introduce a Bill to put the hepatitis C compensation tribunal on a statutory basis. I will include in the statutory scheme many concepts which are not included in the non-statutory scheme. If they had been included originally, it would have been a better scheme.
This has been the worst tragedy ever in the health services. As Minister for Health, I will continue to do everything in my power to ameliorate the pain and suffering of all hepatitis C victims and their families.
