Dáil Éireann debate -
Wednesday, 14 May 1997

Vol. 479 No. 3

Private Members' Business. - State's Legal Strategy in McCole Case: Motion (Resumed).

The following motion was moved by Deputy McDaid on 13 May 1997:

That Dáil Éireann calls on the Government and the Minister for Health to waive their claim of privilege so that an explanation can be given to the McCole family and to the public for the adoption and use of the offensive legal strategy in the particular case of the late Brigid McCole; calls on the Government and individual members of it, given the admission by Minister Howlin, to clarify their state of knowledge of the strategy and to divulge in full the circumstances in which that strategy was devised and executed when it was known the Blood Transfusion Service Board had no defence; and calls on the Government to furnish in full to the Dáil and lay before the House all documentation, including documentation from the Chief State Solicitor's Office, giving the state of knowledge of the Government.

Debate resumed on 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.".

—(Minister for Health)

Mr. D. Ahern

I wish to contribute to this debate because of a number of incidents in recent times regarding the Select Committee on Social Affairs. I would also like to say a few words on the substantive issue. A game of cat and mouse has been going on in relation to the hearings of this committee. Fianna Fáil Members and the media arrived at the committee room at 2.30 p.m. today on the understanding the committee was to meet a matter which had been discussed in the Chamber on a number of occasions prior to that. For some reason, people absented themselves from the meeting, which was not held.

As a result of that, I wrote to the Clerk of the committee on behalf of Fianna Fáil Members asking that a meeting be held forthwith. I received a message from the Clerk saying that a meeting of the committee is scheduled for 2.30 p.m. tomorrow. In view of what we seem to know about an election being called tomorrow morning, I take it that no committee meeting will be held at 2.30 p.m. so why has one been arranged? Perhaps Government Deputies or the Minister of State might enlighten us. There is a sad irony here in that this Dáil is in its final days.

In its Programme for Renewal this Government, which came to power by default, said the relationship between Government and the people it serves has been damaged by a lack of openness and that the relationship must be renewed. The three parties in this Rainbow Coalition pledged themselves to: "the reform of our institutions at national and local level to provide service, accountability, transparency and freedom of information." The document, which has mostly been ignored by the three parties since they got into Government, states that reform of the Oireachtas must be fundamental and radical and must aim at ensuring that the various organs of State and holders of high office in the State are more answerable and accountable to the Legislature and ensuring that Dáil Éireann has real powers to investigate matters of serious public concern.

When this Government had been in office for some time Geraldine Kennedy of The Irish Times said: “John Bruton is presiding over the most closed and least transparent administration for more than twenty years”. This Government does not like telling the truth and does not like being straight with the people. The Taoiseach has kept away from the people and the media at every turn. Ministers surround themselves with handlers and press officers at the taxpayers' expense. The record of evasion, economy of truth and incompetence speaks for itself. It is fitting to quote the Minister for Health, who said in this Chamber in December 1994 that truth is the currency of accountability. However, accountability does not mean telling cover stories to the Dáil; it means telling the truth even when it is uncomfortable and works against the personal interest of those who tell it.

In December 1994 the Taoiseach said: "Every voter is entitled to expect the Government to operate to high standards, to be answerable for every action it takes and to be open." In November 1994 he said: "We have to find the people a Government they will believe in, a Government they can trust and above all a Government of truth." He also said Ministers must not conceal the truth from the Dáil and that without truth there is no foundation for good Government. In December 1994 the Taoiseach said the Government must go about its work without excess or extravagance and as transparently as if it were working behind a pane of glass. How that pane of glass has frosted.

Dick Spring said——

An Ceann Comhairle

The Tánaiste.

Mr. D. Ahern

Not for long. The Tánaiste said: "This is the correct and appropriate place for those who hold public office and are responsible for decisions of public concern to account for their accounts and omissions". He also said: "The key issue, throughout this entire episode is accountability — the right of the public to secure adequate explanations and the responsibility of the holders of high office to take responsibility for their actions. Semantic distinctions between responsibility and culpability, however interesting they might be in their own right, do not meet the needs of this case."

In December 1994 the Minister for Justice said: "At the very centre of the political character there has always resided the principle of accountability". Some months ago when debating a motion on payments by Dunnes Stores and Ben Dunne during which the Government rejected a proposal by the Opposition to hold a tribunal, the Taoiseach said:

We must do everything we can to bring all the facts into the public domain and then the action that needs to be taken can be taken. If it is political action in respect of a matter that is not a criminal offence but which is within the area of political unacceptability, then political steps can be taken.

As regards the McCole case, the Minister for Health made the case that he was obliged to act on legal advice that the State was not liable in negligence. No legal opinion has the status of law and does not prevent the client, the Minister for Health in this case, from concluding a settlement acceptable to both sides. Such settlements are routine in the High Court where the majority of cases listed for hearing are settled by agreement between counsel on both sides, although the defendant has formally denied liability in the proceedings.

Deputy Cowen and Deputy Geoghegan-Quinn adequately instanced how Fianna Fáil endeavoured to raise these issues during 30 debates on hepatitis C and ten debates on the McCole case, not to mention Question Time. Anyone who suggests we were electioneering in the past week is flying in the face of the truth. When this issue first arose, it was raised by Fianna Fáil and the Progressive Democrats.

I found it annoying and worrying that the State rejected the use of an assumed name by Brigid McCole. I cannot fathom how any one came up with such reasoning and why they would not allow a woman who was on her deathbed, which the State would have known, that anonymity in her dying days. I do not understand how there could be a legal strategy in adopting that approach. Somebody had to give instructions on the rejection of the assumed name by Brigid McCole, on the use of the statute of limitations and on the lodgement. It is no good saying it was the BTSB because it is not the paymaster. The paymasters are the Department of Health and the Department of Finance.

It was revealing when the Minister for the Environment, Deputy Howlin, said on "Liveline" that the legal strategy was decided by the Government, that is a question which needs to be answered. He went on to say the Government made the decision as to how all these things happen. Yet the Government is trying to revise history. It is no use saying the Finlay tribunal dealt with the matter. The terms of reference were decided by this Government to exclude the fifth question to which the McCole family wanted an answer. It is a shame on this Government which professed openness, transparency and accountability. At every turn, not only on the McCole issue but on a matter as basic as Dáil reform about which it promised action, the Government changed its mind.

Shame on this Government.

Mrs. T. Ahearn

With the agreement of the House I wish to share my time with Deputies Moynihan-Cronin and Connor.

An Ceann Comhairle

I am sure that is satisfactory and agreed.

Mrs. T. Ahearn

I have been involved in this very tragic issue from the time it first came to light in February 1994. I have been involved in it since then for personal reasons but more especially through my relationship, communication and work with Positive Action.

When the enormity of this tragedy emerged I had three main concerns: first, that proper and adequate compensation be provided to its victims; second, that the best health care this State could provide should be made available to victims and their families and, third, that the truth be established.

I am glad to have negotiated for some time with the Department of Health on behalf of Positive Action. While I am glad that the vast majority of that organisation's requests on behalf of victims have been granted, my regret is that it took so long. Two years later it is difficult to look back and fully realise all the painstaking arguments advanced for what has been granted to date. As the Minister said last evening, had he known then what he knows today, probably different decisions would have been taken.

As someone who has been through the mill with victims and their representatives, who has intimate knowledge of all the negotiations, arguments and communications that took place between the Department of Health and Positive Action, I contend Positive Action are due all the laurels. They never ceased in their determination and were more than realistic and fair in their requests. While they have obtained 99 per cent of their requests, it should not have taken so long.

Information became available at different stages. It is very easy, with the benefit of hindsight, for all of us to say what should have been done two years ago. I ask all Members to look into their hearts and ask if they would have done better. Would they have listened to and believed Positive Action? There is one important message to be learned from this tragic saga not only for politicians but for the general public, which is that people should be believed when they have a tragic case to relate and it should be accepted that they are telling the truth.

I also want to acknowledge the bravery, courtesy and dignified manner in which members of Positive Action negotiated and campaigned on behalf of its members. Many of us in politics could learn many lessons from that representative body and all those it represents. I am so glad it has been successful.

One cannot speak about this tragedy without referring to the deep hurt and sadness of the McCole family. Many other families are experiencing similar hurt and difficulties today and will for a number of years to come.

The hepatitis C disaster must never recur. We could argue forever who is to blame but, if we do not learn the important lesson that we must never cease to be vigilant about the operations of all the bodies and agencies responsible for the welfare of our people, we shall have failed the community at large. It is most regrettable that a tragedy of such enormity should have occurred in this State and that its victims will continue to suffer.

After innumerable inquiries and investigations the truth finally emerged. Would it ever have emerged but for the bravery of the late Mrs McCole? We must now look forward because the many victims want to get on with their lives whatever the quality. It is our duty to ensure that they are given all the resources to enable them do so. Positive Action will become part of the history of this country. Theirs was a very brave campaign from which all of us can learn.

Had it been predicted that such a tragedy could have occurred, I am sure none of us would have believed it possible. In the future it will probably be difficult for people to understand the reason it took so long to establish the truth and obtain the benefits, resources and help for the victims. One would almost have had to experience it to accept that it could occur in this State.

We must take every possible precaution to ensure it never recurs because any tragedy that affects the health of our people is most serious. We cannot undo what has occurred but, through our vigilance and continuous scrutiny, we can ensure it will never recur.

The other important point is that we should believe people when they raise concerns and suspicions. That is imperative. Those responsible for this enormous tragedy should have to answer for their negligence. The victims continue to suffer but as yet nobody has had to answer for the cause of this tragedy. While that would be of no real help to those suffering from contamination with anti-D, in the interests of justice we must ensure that those who may have contributed to this disaster pay the price.

As a Parliament, as a society, I am concerned that we learn from this enormous tragedy. Within the lifetime of the next Government, if other issues do emerge or are raised by the victims, they must be treated in a very sympathetic, caring manner.

Mrs. Moynihan-Cronin

This is not the first time I have contributed to debates on this enormous scandal but it is the first time I have spoken on a motion that addresses an individual case.

All of us in this House should pause and consider carefully what it is we do. Much of our time is expended on scoring points or coldly dissecting the merits or demerits of a proposed plan of action, whereas this evening and yesterday we have been required to confront something often omitted from our business. We must remember that our actions here have an impact on everybody within our society.

As a female Member of Dáil Éireann, I feel the anguish and pain visited on many families as a result of this affair. No amount of money or remuneration can repair the damage done to those people's lives. We must acknowledge the level of pain, sorrow and anger which exists as a result of what happened. Of all the subjects and topics I have dealt with since I was elected to the Dáil five years ago, I have found this matter to be the most harrowing and painful. This has not been an issue for normal political debate. It challenges all in this House to remember that we are human beings working for human beings. Even now, I am still unsure about this issue.

This is obviously an issue of public significance and policy but we, as public representatives, must deal with the issue in a sensitive and humane manner. Attacking Deputies on the other side of the Chamber is inappropriate but we must not allow courtesy to the victims and their families get in the way of a rigorous examination of what must be done. As the Tánaiste and Minister for Foreign Affairs, Deputy Spring, said to the Labour Party regional conference in Cork last October and before the tribunal began its work, "We are all damaged by our inability to say we are sorry. Of course, there are legal constraints but there are human imperatives too. We are a community, each dependent on one another. As a community, we have seen hurt and suffering where it should not exist and we should be able to express regret for that in a human way". These sentiments express how I feel about what has happened. This issue has caused great pain and anguish to many women and families.

Since the tragedy first became public, there has been a long and comprehensive judicial investigation chaired by the former Chief Justice, Mr. Thomas Finlay. The Government accepts the findings and has given a solemn commitment to implement all the report's recommendations. The Government must make every resource available to ensure our blood supply is not open to known infection or contamination ever again. We owe it to the victims of the hepatitis C affair to ensure the integrity and the quality of the blood supply is beyond question.

I know what this is about. I was ill for 13 months, faced theatre five times and waited for blood five times. I had to have confidence in the Blood Transfusion Service Board and I want people who are in accidents tonight, who are haemophiliacs or who must go into theatre, to have confidence in the blood supply. Anyone who receives blood does so in good faith. The country's blood supply is an integral part of our health service. The blood many patients require in the form of transfusions must be of the highest standard known to science at any given time. We must ensure people who need these emergency supplies can have faith in the blood they receive.

I pay tribute to the women of Positive Action for their perseverance and strength in voicing the case of their members. I welcome the Government's decision to enact a Bill which puts the hepatitis C compensation tribunal on a statutory footing. It will not be for whatever Minister is in power to play around with it. The tribunal will not go away in a few months and the victims will not have to depend on the colour of the Government of the day. As the Minister for Health said last night, this has been the worst tragedy ever in our health service. In what is probably my last contribution to this 27th Dáil, I sincerely hope I never have to take part in a debate like this again.

Mr. Connor

Like previous speakers, I find no joy in contributing to this debate which has come on the heels of what has just been described as the greatest tragedy ever in the health service. Its history dates back to the mid-1970s but the full horror and import of what took place has only recently become known. It is extraordinary the Blood Transfusion Service Board could be the subject of so many blunders in such awful and tragic circumstances. It is a lesson to us all about what can happen when a culture of secrecy pervades the discovery by such a body that it is doing something wrong.

We have devised a political system in which whoever is at the top takes the blame. In this case, the Minister for Health has taken some very unfair pillorying in recent months. He has dealt with it with great dignity although he was subject to the most abusive verbal vilification in this House by leading Opposition spokespersons. Everyone knows the history of this dates back much further than the tenure of this Minister, probably to the tenure of the previous four Ministers for Health. This emotive debate has been unfairly politicised.

We all apologise and feel greatly diminished when we face the people who have been affected by this tragedy. Words cannot express sympathy to Mrs. McCole's family but genuine regret is felt in this House and by the public. We share a part of the guilt, being Members of this House and being so much an integral part of Government. Therefore, it is disgraceful that, when an issue such as this arises, the debate conducted should be politicised and political advantage should be seen to be gained. It is appalling and does no credit to the spokespersons of the Opposition parties who have tried to exploit this issue for base political ends.

I was delighted the Minister clarified many things in his speech. This debate has become clouded because of the slants put on so many of its salient points. Because so many people tried to blame him and his Department, the Minister clarified that, in the case of the late Mrs. McCole, the Blood Transfusion Service Board admitted liability and settled the case with the representatives of her family. The BTSB is a separate legal entity with its own legal advice and insurers and is distinct from the Department of Health. The Minister went on to say the State had independent legal counsel at all times who advised it had no liability and that remains its position. It is important these matters be re-emphasised. The Minister said court cases are conducted according to legal rules governing civil liability and they are presented in accordance with the adversarial rules in cases of that kind.

I notice the letter from the solicitors for the BTSB to the solicitors for Mrs. McCole, which offered a settlement, included provisions whereby the BTSB accepted it would pay the costs of the State and the National Drugs Advisory Board. Many commentators and political spokespersons have suggested for mischievous reasons that this shows collusion between the State, the BTSB and the National Drugs Advisory Board. That is wrong and those who suggested it know it to be so. There may be a misunderstanding of what was involved and the record should be put straight. As I understand the law, where a plaintiff sues a number of defendants, only one of whom admits liability, by settling with that party the plaintiff may face a claim for costs by the other defendants who have not admitted liability. They could say that since they are innocent the plaintiff must pay the costs. For that reason a plaintiff settling with a guilty defendant will require, as a usual condition, that the guilty defendant pays the plaintiff's costs and the costs of the innocent defendants. That is an established rule in such cases. Only by securing that agreement, which is customary, can a plaintiff ensure he will not lose out in claims for costs by innocent defendants.

The Blood Transfusion Service Board accepts liability and it also accepts that neither of the other two defendants is liable. It is important to re-emphasise that there is no implication of contact between the State and the BTSB or that Mrs. McCole's advisers were not prepared to settle unless they were given protection against the cost of claims from the State or the National Drugs Advisory Board.

It is no pleasure for any Member of this House to engage in this debate. We are dealing with a disaster and all of us know people who have been affected. At least ten people in my constituency infected by anti-D have approached me. Many of them have lost their health and their quality of life while others are in failing health and know that their lives are shortened. The quality of life for those people is greatly diminished and in many cases destroyed. It is a great tragedy, and we must never allow it to happen again.

The Government, particularly the Department involved, must be vigilant at all times, and independent boards such as the Blood Transfusion Service Board must be more answerable and accountable to the Department and this House for their actions. Independence is important in the commercial semi-State area. Nevertheless, with independence comes major responsibility. There must be accountability and systems must be put in place by which bodies are made accountable so that when things go wrong they cannot hide. Mistakes should be revealed early.

This tragedy has been compounded by the fact that the truth was not revealed in time. Too many people ran for cover. Unfortunately, we have a system by which such people can find cover. That position must be changed. I hope the incumbent Minister will be back in the Department because he has been an excellent holder of that office. He has been innovative and adventurous and has solved many problems in the health area, such as long waiting lists and shortage of beds and facilities in hospitals, yet he has endured much grief on this issue which has nothing to do with him. Because the buck stopped with him, he had to deal with the issue, and he dealt with it very well. We must never allow this to happen again to the victims or to the people who have ultimate political control. I hope, in passing legislation to put the compensation tribunal on a statutory footing, the outcome will be comprehensive enough to deal with all future eventualities.

Miss de Valera

Yesterday and today we addressed the Hepatitis C Compensation Tribunal Bill. There was a protracted battle to ensure that Bill was brought before the House and, even at this late stage, I welcome it. For the past two years and four months it has been evident that the best approach to this sad and tragic case would be to set up a statutory tribunal. The putting in place of such a tribunal may be seen as a major victory for the victims of hepatitis C. Nobody in the House appreciates the tremendous pain, suffering, insecurity and anxiety felt by the victims of hepatitis C. Neither can we understand the pain and suffering of their families since this tragedy came to light.

The setting up of Positive Action should be acknowledged. That group has done tremendous work with dignity and professionalism on behalf of hepatitis C victims. It must have been very difficult for it to fight this case given that the circumstances were so tragic and emotional. It took part in every level of debate with the Minister, whether on television or radio, without allowing emotions to take over. I take this opportunity to extend to Positive Action my gratitude. I recognise the tremendous work it has done. At this late stage, after many months of difficult battles on behalf of its members, the Government is listening to its arguments and action, however little, is being taken.

The concerns of Fianna Fáil about this Bill were addressed by our spokesperson on Committee Stage. It was most unfortunate we had to wait so long for initiation of the legislation. We are talking about the greatest scandal the State has faced. I have underlined the distress, anxiety, fear and feelings of hopelessness experienced by victims and their families, which is palpable. Therefore, the Government has an obligation to address this problem not only in a legal fashion but in a humane way. Why has it been so difficult for the State to apologise to the victims and ensure their future, financially and medically, is secure? Why has the Government been so secretive about its legal dealings in the late Mrs. McCole case? Where are the tests of openness, transparency and accountability of the Taoiseach and the Government on the whole hepatitis C scandal? All we have heard from the Government has been hollow rhetoric as far as openness, transparency and accountability are concerned in the tragic McCole case.

It should not have been necessary to table numerous Private Members' motions on the matter during the past two and a half years or to table Priority and Oral Questions. Immediately on learning of this tragedy, the Minister and the Government should have given a full, open and true explanation. Unfortunately, we are still trying to find the truth with regard to the legal strategy employed by the Government in the McCole case, hence this debate. All the Opposition is trying to do is find out the truth for the victims of hepatitis C and what brought about the offensive legal strategy which has been employed by the Government against Mrs. McCole and her family. Why have we had a cover up and an unwillingness to come clean on the strategy? Why have the Minister for Health and the former Minister for Health, Deputy Howlin, not been prepared to speak up? Why do they insist on hiding behind their claim of privilege, especially in this specific case? Our spokesperson, Deputy Cowen, who has a legal training, has pointed out that the debate on privilege can be got around quite simply by looking at a specific case, in this instance the McCole case. The arguments put forward by the Government and the Minister seem to be an opportunity to hide behind the question of privilege rather than finding a comparatively simple way of getting over that hurdle.

The hepatitis C scandal is due to blood transfusion negligence and not in any way to the victims. Since the whole tragedy came to light, many victims of hepatitis C have been made to feel it has been due to some error on their part. This feeling has created even further difficulties, concerns and anxieties for the victims and their families. That is why an early apology and an open approach to the problem by the Government may well have helped to ease the anxieties that have developed during the past couple of years.

Surely the victims have suffered enough without the Government contributing to further delay and anxiety. Positive Action, on behalf of its members, sought a number of simple things: health care — physical and psychological — compensation and the truth. On listening to Members on the opposite benches, it is distasteful to hear them accuse the Opposition parties, particularly Fianna Fáil, of making this sad situation a political football. Nothing could be further from the truth. The Government must recognise that any Opposition has an obligation to seek the truth. We have an obligation to fight on behalf of the people whom we represent to ensure the Government is questioned closely on each and every issue. Equally the Government has an obligation to ensure such answers are forthcoming. It is distasteful that this charge should be thrown at the Opposition when we have an obligation to seek the truth on this and every other issue. It is most disconcerting to listen to some Opposition Members' remarks on the issue of hepatitis C. In many ways, and especially from the medical point of view, it is a complicated issue. What we do not want is a debate which further clouds the issues. That has happened in regard to many aspects of this debate and the debates we have already had. That has been due to the lack of clarity by the Government. Why will the Government, through the Minister for Health, not state the facts and give the answers which the family of the late Mrs. McCole and the public have a right to know?

We are all aware of the Minister's reference to question 5 and that it has not been answered. I hope, even at this late stage, the Minister for Health will recognise the right of the people, but particularly the right of the hepatitis C victims, to hear the whole story with regard to the political and legal approach to this case. This could be done by attending the Select Committee on Social Affairs. The members of that committee wish to question the Minister and perhaps others. If that was done it could clear the air and we would know the truth.

The Minister, in trying to discuss the whole question of privilege, is trying to get the Government off the hook by saying the main thrust of the case was between the legal teams. As our spokesperson said, the lawyers were representing the State and, therefore, had to consult their clients, namely, the Government, before any action was taken. It is not a simple question of allowing the public to believe that lawyers went off without having a particular strategy from their client. We want to know what that legal and political strategy was. There is such a thing as political responsibility and accountability. It is sad, in a tragic case such as this, that any excuse is given, whether it be privilege or otherwise, to try to prevent the truth coming to light.

Anyone who listened to Brigid McCole's daughter, Brid, giving her statement last Sunday was moved. Her statement was quoted by the spokesperson for health earlier in this debate but I would like to refer to it again. She said:

Today I am speaking to the press on behalf of my family to ask the Minister for Health to give us answers as to why our late mother, Mrs. Brigid Ellen McCole, was threatened because she pursued her compensation claim through the courts. I have come from my home in County Donegal today to ask the Minister and the Government to give us the answer to that question. Many other issues have been resolved in recent weeks but our fifth question has not been answered.

I appeal to the Minister for Health and the Government to answer that question so that this issue can be resolved for the McCole family. It would help them to get on with living the rest of their lives — I am sure in great sadness — and in some small way would alleviate much concern and sadness. By so doing, the Government would make up for the tremendous distress which has been caused by the delay and its attempts at a cover up. The Minister and the Government have an obligation to the McCole family and the other victims. They have an opportunity to show some humanity by answering the questions asked by the family which every other victim of hepatitis C and their families wish to hear.

Miss Coughlan

I wish to share my time with Deputy Batt O'Keeffe.

An Ceann Comhairle

Is that agreed? Agreed.

Miss Coughlan

Cuireann se brón orm mar Theachta Dála don cheantar bheith anseo arís mar gheall ar cás Bhean McCole go mórmhór toisc an brú a chuir an Stáit ar a clann. People do not realise where the McCole family comes from or the type of life and simplicity to which they have been accustomed. They come from a remote part of Donegal outside Crolly, two or three miles from the nearest road. Like 99.9 per cent of the population they are simple people. However, for the last two years or more, it is distressing that we have had to discuss ad infinitum the pressures imposed on the family and the entire crisis of hepatitis C and related health issues.

Fianna Fáil has been accused of political opportunism by raising this matter prior to a general election. I take umbrage at such remarks. If every Member of this House was doing his or her job there would be no need for the Opposition to pick holes in the Government's actions. Our job is to ensure that the Government does its best for the people. Only for the Opposition and the women in this House this matter would not have reached any conclusions. This has been achieved in conjunction with the voluntary lobby groups, particularly Positive Action, who have given of energies they cannot afford in trying to ensure that truth emerges.

I will not get involved in political bargaining across the floor of the House. Before Mrs. McCole died she asked the State for answers to five questions. That is not a huge burden on the State. However, we have to come into this House in the final throes of this Dáil to try to get the answer to the fifth question.

Most Members are not legal experts and would not appreciate the minutiae of legislation. However, we have more legislation and less justice. Justice is all that people are seeking. One has to see what many ill people go through in Donegal, particularly those whose illness is not of their own making. One sets off for Letterkenny at 6 a.m. and then on to Beaumont Hospital where one sits about for a couple of hours and is in very bad form. One then has to return home, by which time it might be 11 p.m. or midnight. Such a routine increases the pressure on physical and mental health and the ability to cope.

With all due respect to Cork people, I heard it said in this House that they had to cross a bridge to go to a hospital. This took five minutes. It takes at least seven hours to get to Dublin from Crolly. One must appreciate that trauma for a patient. There is also the trauma of not knowing why one was ill for so many years while trying to look after and rear one's family. Mrs. McCole could be proud of the resilience and independence of her family, her daughters in particular, in pursuing the truth. It is pathetic to have a young woman go before the media on a Sunday evening trying to put pressure on the Government and raise public awareness of what is their natural right.

We tried to address the problems of hepatitis C in this House. Some years ago we pleaded with the Minister to establish the tribunal on a statutory basis. It was only after the distress of the victims became known that legislation was introduced. It was the same with the setting up of the tribunal in the first place and the admission of liability. I implore the Minister to look at this case again and to take a non-legalistic but humane decision to tell the McCole family why their mother was pursued with such vehemence on her death bed. This was very wrong. No one expects the State to put pressure on its citizens against their constitutional rights. It is a sorry day, not just in this crisis but in many other aspects of life, if that is the way we run this State.

I read the Minister's speech and heard what he had to say over recent years. We have to realise the human aspect of this crisis. We have to appreciate that people are unaccustomed to legal jargon. I spoke to a woman from Donegal who went before the tribunal. She recounted the discomfort of having to sit before a judge with lawyers present of not being asked to make a contribution and not being able to ask consultants for medical reasons for her illness. That is also wrong.

We have to appreciate where people are coming from and the trauma they and their families are experiencing. We need to provide a forum in which they can make their claim in the simplest form yet still receive justice. Will the Minister provide the McCole family with that justice? Will he answer the fifth question and allow them to mourn realising that they have the truth and that they were able to obtain something on behalf of their mother? I know the family and Donegal people and if it takes to the ends of this earth they will ensure that they get the truth and the answers. They should not have to pursue this in such a vigorous way to get the answers they deserve.

Mr. B. O'Keeffe

I am astounded that Government speakers have accused the Opposition parties of turning this into a political issue. It has been raised in the Dáil only because the family of the woman concerned and Positive Action want to know the truth. She was forced to take legal action in the courts to have her rights vindicated. The people will never forget the trauma she and her family had to endure. She showed exemplary dignity and determination and was an example to each and every one of us. We were all humbled by her.

Mrs. McCole was perplexed, she did not know what was wrong with her. She was tired and lethargic. When she discovered she had contracted hepatitis C as a result of receiving infected anti-D she became even more focused in seeking the truth. The appalling manner in which she and other sufferers were treated brought nothing but shame on the Government and the Blood Transfusion Service Board.

Deputy Theresa Ahearn asked if anyone else would have done better. I would have thought that is the last question any Government Deputy would ask at this late stage. Have Members on the opposite side of the House learned anything at all? On Sunday the Taoiseach apologised with reservations. It was insensitive in the extreme to ask that question. The Minister, the Taoiseach, the Tánaiste and Minister for Foreign Affairs, the Minister for Social Welfare and every other member of the Government have also shown insensitivity.

Does Deputy Ahearn recall the Minister's statement in the House at which the members of Positive Action were so outraged that they walked out? Does she recall the Minister's refusal to allow the woman concerned to retain her anonymity, forcing her into the open into the glare of the media? Does she find it easy to forget that the Government and the Blood Transfusion Service Board threatened to take legal action against the woman concerned in her last week of life and pursue her for the ensuing costs? Why has she not referred to the report of the Hederman-O'Brien committee which could not get at all of the facts? Is she aware the tribunal of inquiry could not address the question of the responsibility of politicians — the missing link — in particular the responsibility of the Minister, his predecessor and the Government? Does she recall the statement made by Deputy Kathleen Lynch in which she accused others of trying to make money out of this?

Last Sunday, the Minister, having listened to a grieving child indicate what she and the other members of her family wanted to achieve on behalf of their mother, linked this plea to political opportunism. Is he living in the real world? Does he know he has brought nothing but shame on the Government and has caused nothing but embarrassment for the rest of us? The member of the family concerned said it was her mother's dying wish to get at the truth and that her family will not rest easy until the wishes of her mother have been met.

The victims have a right to know. They cannot grieve until they know the truth. The woman concerned acted not alone on her own behalf but on behalf of all those who have suffered. The Minister should consider letting the McCole family and the members of Positive Action know who directed the action against helpless people. Until that is done, he will stand indicted forever within the State.

Minister of State at the Department of Health (Mr. O'Shea)

I extend my sympathies to the McCole family and fully understand the anguish and distress experienced by them and the other victims as a result of this major public health disaster.

In light of all the contributions made to this debate, it is necessary to reiterate some of the salient facts in this case. In law, the BTSB is a separate legal entity. It had its own legal advice and insurers. The BTSB admitted liability in the McCole case and settled the case with the McCole family representatives.

The State, following normal practice, took independent legal advice from eminent legal counsel. Counsel advised that the State was not liable in this case and that remains the State's position.

There was, and is, an available alternative to court action for claimants, namely, the Hepatitis C Compensation Tribunal. This alternative, which has been available since December 1995, removes the adversarial element and ensures privacy for the claimant. However, any claimant is entitled to opt for the court system, if she or he so wishes. The rules which govern cases generally cannot be ignored or broken for cases brought before the courts.

A letter issued from the Chief State Solicitor on 21 July 1995 which set out the State's legal position on the legal cases in question. 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. The late Mrs. McCole was a member of Positive Action. The letter was issued in response to a letter from the solicitors on behalf of their client, Positive Action. It was issued 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.

Our courts system is adversarial by its nature. The hepatitis C compensation scheme was introduced to avoid the victims having to go through all the conflict, stress and risks associated with litigation. The Bill to place the scheme on a statutory basis is passing through both Houses of the Oireachtas.

In the motion Fianna Fáil has called on the Government to waive the claim of privilege in the McCole case, 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 giving the state of knowledge of the Government. The instructions given to a lawyer by his or her client or the advice given to the client by his or her lawyer is based on legal professional privilege. It is not appropriate that the State's legal advice be made public or that the management of litigation be analysed in the Dáil, particularly when similar actions are at various stages in the courts.

All litigants, including the State, are entitled under law to conduct their litigation in any lawful way they see fit. Any attempt by the parliamentary system to insist on inquiring into the instructions given or advices received in the conduct of the case would be an interference with the independent administration of justice and would constitute a breach of the doctrine of the separation of powers.

The Government set up the compensation tribunal because it did not consider that the courts were a suitable vehicle for awarding compensation in circumstances where there is a large number of claimants with broadly similar cases. However, if a claimant opts to take legal action against the State, as he or she is perfectly entitled to do, the State is obliged by law to conduct its litigation in accordance with the same rules as any other litigant. It is also entitled to take advice and is required to work in an adversarial system in the courts to the same extent as any other litigant.

The State is a defendant in thousands of cases each year and each of them involves important concerns for individual citizens. Any attempt to develop a parliamentary scrutiny of the conduct of any individual case by the State would set a precedent whereby the State would be substantially impaired in its ability to conduct its litigation. This would place the State at an obvious disadvantage in relation to any other litigant. I am sure all Members fully appreciate that the Government could not waive its claim to privilege in these circumstances.

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 to anybody who has read the report of the tribunal of inquiry into the BTSB that the State and the BTSB had very different cases to answer.

I want to re-emphasise that the BTSB conducted its defence of the McCole case in accordance with the legal advice it sought and received independently of the other defendants in the case. The BTSB did not receive any policy advice or directives from the Minister for Health or the Government. It conducted its defence in accordance with the rules of the court. The State took the legal position that it was not liable in this case and it has maintained this position. The BTSB took an initial position which it changed following a full review of the case. In doing this, the BTSB acted no differently from many other persons or bodies.

It is difficult to fully comprehend the devastating effect the hepatitis C infection of the anti-D product and the blood supply has had on the health and everyday lives of the persons affected. The fact that the injury was caused to them by a blood transfusion system in which they had previously placed their trust and confidence makes it more difficult to come to terms with. Again, I sympathise with the McCole family and with all the families affected by this tragedy. While recognising that nothing can ever fully compensate the victims of this tragedy for being infected with hepatitis C, the Government and the Minister for Health will continue to do everything in their power to assuage the pain and suffering of all the hepatitis C victims and their families.

Mr. Cowen

During this important debate the Government has unfortunately continued the same line, which is not defensible and is legally inaccurate. To add insult to injury, the Minister for Health dispatched a letter today to the Select Committee on Social Affairs in which he said he was not in a position to accede to the request to give details of the litigation in question "for the cogent and fundamental reasons which have been outlined by the Chief State Solicitor in his letter of 7 May 1997 to the Select Committee". The Minister suggested in his letter that he was very busy but said "of course I am prepared to attend the committee to explain my position directly".

Fianna Fáil asked the chairman of the Select Committee on Social Affairs to organise a meeting for later tonight or first thing tomorrow morning. I was informed this evening that the meeting will not take place until 2.30 p.m. tomorrow, hours after the Dáil has been dissolved and the committee has been disbanded. Does the Government think it can treat this Parliament with such contempt and expect to get away with it? It must regard the public as an idiot if it thinks it can get away with this stunt.

This is sharp practice and risible behaviour by a Government which claims to be open, transparent and accountable. It is contemptuous treatment of an Oireachtas committee. We have an arrogant Executive which does not care for issues of major public concern and which has completely lost touch with reality. Fianna Fáil will raise this evasion of accountability in the McCole case with the Taoiseach on the Order of Business tomorrow. The Taoiseach who was the champion of Dáil reform in Opposition is prepared in Government to preside over this cynical ruse to evade a committee of the House. The Taoiseach was invisible throughout the hepatitis C scandal until last Sunday when he offered a limited apology to the victims. If they thought things were about to change at Government level in relation to hepatitis C then they did not have to wait long to find out they were wrong.

Fianna Fáil will give a commitment in its manifesto which will be published on Friday morning that if it is returned to office it will publish in full all the relevant correspondence on the McCole legal strategy and investigate the matter in full. The McCole family deserve to have question No. 5 in its letter answered. It is in the public interest that this should happen. In his pre-emptory letter to the Select Committee on Social Affairs today the Minister attempted yet again to present his legal argument on why privilege cannot be waived as incontrovertible. This is not the case, and his argument is contested not only by Fianna Fáil but by senior legal figures. During a radio interview yesterday one of those figures said there was nothing to prevent a client waiving privilege in this case.

Last night the Minister for Health treated us to another instalment of Noonan's law. He stuck to a mantra of legal inaccuracy and tried to blind everyone with his own form of science. The bottom line is that there is nothing to stop the Minister for Health and the Government from freeing the Chief State Solicitor in relation to the McCole case. The Minister has sought to argue that what we want to do is to get the advice the Chief State Solicitor gave to him. However, this is a misrepresentation of our position. What we want to establish is who authorised the legal strategy. We have been told by the Minister for the Environment that the Government was behind it. We want the Chief State Solicitor to appear before the committee so that we can question him about who gave him instructions in the case. We want to know what the Minister for Health or his predecessor told the State's legal team to do on his behalf. For example, did the State take medical advice as to the likelihood of the death of the late Brigid McCole? Did the Minister and the State make an evaluation of Mrs. McCole's state of health before proceedings began? I want answers to those questions.

I have been told that there was such an evaluation, but I am loath to believe that any Government would engage in such despicable carry on. The implications of the medical assessment are that the Government was into risk management on the McCole case. It appears the Government was trying to establish how long Mrs. McCole would live and whether a case would come to court by then. If it is true, it is the lowest moment in this tragedy. It shows that the Minister for Health not only had lost sight of his role as the defender of the public interest but was attempting to determine whether his cover would be fully blown if Mrs. McCole's case came to trial.

The late Mrs. McCole's case was the single most important event in the hepatitis C affair. It is the reason for the judicial inquiry and a statutory compensation tribunal, and why victims got aggravated damages of 20 per cent on the general award. The discovery of documents in the McCole case exposed for the first time that the report of the expert group was flawed. The discovery, which produced the dockets that showed the BTSB knew in 1976 that patient X had infective hepatitis, shattered any chance of the BTSB having a defence in the McCole case. The Minister was informed of this in March 1996 but he did not act on the information and maintained an appalling collusion with the BTSB in the cover-up. Liability was not admitted until Mrs. McCole lay on her deathbed, and the rest has now gone into the annals of how the State and a state agency got it so wrong.

Minister Noonan is still on the run in regard to this issue and is hiding behind a flawed legal argument. Last night, the Chief State Solicitor sent me a letter claiming he had addressed in his original letter the issues I raised about privilege being a matter for the client and that it could be waived by the Minister for Health. This is not correct. The Minister suggested last night that the Government was some how in the thrall of lawyers in this affair who were in an ivory tower deciding everything in relation to the Mrs. McCole action.

The Minister made the case that he was obliged to act on legal advice. A legal opinion does not have the status of law and it certainly does not prevent the client, the Minister for Health in this case, from concluding a settlement. Is the Minister seriously suggesting the lawyers were deciding policy in this case? He casts the State as putty in the hands of advisers and the whole trend of his contribution was that the State can have no input to a case. His mantra is: "We have had advice, what else could we do?" He also persists in presenting as fact that privilege cannot be waived. This is a point in contention and one that we categorically deny.

Given that the Minister has admitted the hepatitis C scandal was unprecedented, and that the McCole case was also unprecedented, does he not believe there are circumstances in which the State should disclose all the facts? Last night, the Minister said legal personnel should not be subject to scrutiny if they acted lawfully, but the McCole action was not a case that was morally defensible by the State and the BTSB. Both parties knew this for months but they maintained the cover-up in relation to the information. That was a self-protection mechanism for the Minister for Health and the Government. A Government that came to office on a platform of openness and accountability has put a blackout on all debate or questioning about the legal strategy in this case.

Where have the Tánaiste and the rest of the Labour Party been throughout this scandal? Why are they so silent? Why are they not asking questions? Is it another self-protection mechanism because of the exposure of Minister Howlin's disastrous handling of the crisis at the Finlay tribunal? The Sunday Business Post reported on 6 October 1996 that the Tánaiste put the Minister for Health under pressure and urged him in the early summer of last year to get the BTSB to settle the Brigid McCole case. That story came from a Labour source and has never been denied by the Tánaiste. It implies that the Government had knowledge of what the BTSB was doing in the early summer of 1996, long before the matter came to a head in September-October 1996.

Fianna Fáil calls on the Tánaiste to confirm that he spoke to the Minister for Health at that time about the McCole legal action and the plan to make a lodgement in the case in an effort to put pressure on Mrs. McCole in relation to costs. If the Tánaiste was aware a lodgement was being made, it confirms the Government was deciding the legal strategy. The lodgement was made and this means the Tánaiste also acquiesced in the legal strategy employed, and the attempts to force Mrs. McCole to go to the compensation tribunal rather than having an admission of liability in the courts.

The leadership of Democratic Left has also been silent and we call on its members to say what they knew. A matter that would have occupied all their time when in Opposition is glossed over now by Democratic Left in Government. Its backbenchers, who claim to represent the marginalised, have treated the hepatitis C victims with contempt. Deputy Kathleen Lynch made a most insensitive speech on the issue last June which greatly angered the victims. Deputy Lynch's message to the victims was that they should accept the charity they were being given by the Government and shut up. She suggested the victims were in the grip of those who wanted to peddle fear and to see the establishment of another beef tribunal. Deputy Lynch has not apologised for those insulting remarks, and I call on her to do so before the end of this Dáil.

Despite everything that happened, the Minister for Health was still in defensive mode last night. He listed a litany of reasons he could not act, and rewrote some of the history. He suggested the BTSB only found out it had no defence in September 1996 and then immediately admitted liability. This is not so. The BTSB and the Minister knew this six months before and throughout those six months they put Mrs. McCole through the wringer in the hope she would not continue her case before the courts.

Minister Noonan suggested last night it was par for the course that the statute of limitations issue arose and that the sole reason for this was to allow Mrs. McCole's lawyers to particularise her case. This is a falsehood. The statute of limitations does not become an issue unless it is pleaded, and it was pleaded by the State as part of the "harass Mrs. McCole" policy. It is ludicrous for the Minister to say the only reason the statute came into play was that Mrs. McCole could particularise her claim.

Last night the Minister listed many of the other tactics used against Brigid McCole such as contesting her anonymity application, the challenge to the date for an early hearing, the making of a lodgement to raise the spectre of costs, the refusal to admit liability and so on. The sad reality is that each of these legal bully-boy tactics was used when the State and the BTSB knew they had no defence.

In its amendment to the motion, the Government has continued the fiction that the BTSB and the State remain as separate legal entities. The Minister tried to highlight this by saying they had separate insurance. In a response given to the Dáil on 16 October last, the Minister told the House: "Since the summer of 1996 the State has carried the insurance for the Blood Transfusion Service Board". If the State and the BTSB are separate legal entities, did the State serve notice of indemnity on the blood bank in the McCole case? This is normal in cases where there are three defendants who are completely and genuinely independent of one another and where one party claims they are not guilty. The Minister continues to ignore the fact that under paragraph 22.6 of the 1965 Statutory Instrument establishing the Blood Transfusion Service Board, there is provision for him to take over any legal action by the board, especially when he knows it has no defence.

This is the end of the 30th debate in the hepatitis C affair. Many have wondered why the issue has not gone away. It has not gone away because hepatitis C does not go away for victims. While the cover-up continues, the Government will be haunted by this controversy. I call on Deputies on the other side of the House, who have expressed concern for the victims, to vote with the motion so that the truth can finally emerge.

It is appalling that the Taoiseach today was at variance with the Minister for Health. The Taoiseach suggested there were no circumstances in which the Minister for Health could come before a parliamentary committee of this House today, yet we received a letter at 2 o'clock this afternoon from the Minister for Health stating he would come before a committee of the House but that he was busy in the plenary session of the House, as I have been. The Select Committee on Social Affairs is available immediately after Report Stage of the Bill setting up the statutory compensation tribunal, with which we have co-operated in full and to which we have tabled amendments to improve the lot of the victims; those amendments have been accepted by the Government. It is available tonight, tomorrow morning and certainly before the dissolution of this Dáil to insist upon political accountability to a parliamentary committee of this House.

Not many years ago we listened to the people who are now on the opposite side of the House lecture us about accountability and the withering of democracy. Are they so arrogant and stupid as to think this Parliament will allow itself be demeaned by a claim that a meeting will be held of a parliamentary committee in the full knowledge that this Dáil will have dissolved by then? Will anybody accept that type of nonsense from a Government that is running so scared it now resembles a deer facing into the headlights of a car careering down the road? The people will decide this issue if the Government is not prepared to face up to it before the election.

I do not seek to make the problems of a family an election issue. The way this issue has been handled and the arrogance and contempt the Government holds for a committee of this House will be the issues. That is the essence of public and political accountability. When will the Government's rhetoric meet the reality? The political hypocrisy of this Administration has been exposed for what it is in the dying hours of this Dáil. Fianna Fáil will stand up for the truth which will emerge when the next Government is formed under the leadership of Deputy Bertie Ahern. Those on the other side of the House who were responsible for that truth had better be ready for the consequences.

Amendment put.

The Dáil divided: Tá, 74; Níl, 54.

Tá

• Ahearn, Theresa.
• Barrett, Seán.
• Barry, Peter.
• Bell, Michael.
• Bhamjee, Moosajee.
• Bhreathnach, Niamh.
• Boylan, Andrew.
• Bradford, Paul.
• Bree, Declan.
• Broughan, Thomas.
• Browne, John (Carlow-Kilkenny).
• Bruton, John.
• Bruton, Richard.
• Burke, Liam.
• Burton, Joan.
• Byrne, Eric.
• Carey, Donal.
• Connaughton, Paul.
• Costello, Joe.
• Coveney, Hugh.
• Crawford, Seymour.
• Creed, Michael.
• Crowley, Frank.
• Currie, Austin.
• Deasy, Austin.
• Deenihan, Jimmy.
• Doyle, Avril.
• Dukes, Alan.
• Durkan, Bernard.
• Ferris, Michael.
• Finucane, Michael.
• Fitzgerald, Brian.
• Fitzgerald, Eithne.
• Flaherty, Mary.
• Flanagan, Charles.
• Gallagher, Pat (Laoighis-Offaly).
• Harte, Paddy.
• Higgins, Jim.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenny, Enda.
• Kenny, Seán.
• Lynch, Kathleen.
• McCormack, Pádraic.
• McDowell, Derek.
• McGahon, Brendan.
• McGinley, Dinny.
• McGrath, Paul.
• McManus, Liz.
• Mitchell, Jim.
• Moynihan-Cronin, Breeda.
• Mulvihill, John.
• Nealon, Ted.
• Noonan, Michael (Limerick East).
• O'Keeffe, Jim.
• O'Shea, Brian.
• O'Sullivan, Toddy.
• Owen, Nora.
• Pattison, Séamus.
• Penrose, William.
• Rabbitte, Pat.
• Ring, Michael.
• Ryan, John.
• Ryan, Seán.
• Sheehan, P.J.
• Shortall, Róisín.
• Stagg, Emmet.
• Taylor, Mervyn.
• Timmins, Godfrey.
• Upton, Pat.
• Walsh, Éamon.
• Yates, Ivan.

Níl

• Ahern, Dermot.
• Ahern, Michael.
• Ahern, Noel.
• Aylward, Liam.
• Brennan, Matt.
• Briscoe, Ben.
• Browne, John (Wexford).
• Byrne, Hugh.
• Callely, Ivor.
• Connolly, Ger.
• Coughlan, Mary.
• Cowen, Brian.
• Cullen, Martin.
• Davern, Noel.
• de Valera, Síle.
• Ellis, John.
• Fitzgerald, Liam.
• Fox, Mildred.
• Foxe, Tom.
• Geoghegan-Quinn, Máire.
• Harney, Mary.
• Haughey, Seán.
• Hilliard, Colm.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kenneally, Brendan.
• Keogh, Helen.
• Killeen, Tony.
• Kirk, Séamus.
• Kitt, Michael.
• Kitt, Tom.
• Lawlor, Liam.
• Lenihan, Brian.
• Leonard, Jimmy.
• Martin, Micheál.
• McDaid, James.
• Morley, P.J.
• Moynihan, Donal.
• Nolan, M.J.
• Ó Cuív, Éamon.
• O'Donnell, Liz.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Batt.
• O'Keeffe, Ned.
• O'Leary, John.
• O'Malley, Desmond.
• O'Rourke, Mary.
• Ryan, Eoin.
• Sargent, Trevor.
• Smith, Brendan.
• Smith, Michael.
• Treacy, Noel.
• Walsh, Joe.

Tellers: Tá, Deputies J. Higgins and B. Fitzgerald; Níl, Deputies D. Ahern and Callely.

Amendment declared carried.

Motion, as amended, put and declared carried.