Vol. 526 No. 2
I move:
Notwithstanding anything in Standing Orders or the Order of the Dáil of this day that the following arrangements shall apply in relation to No. 23: (i) the speech of the Minister or Minister of State and the main spokespersons for the Fine Gael and Labour Parties shall not exceed five minutes in each case and (ii) the speech of each other Member called upon shall not exceed five minutes.
Is that agreed? Agreed.
I move:
That the report of the Chief Medical Officer of the Department of Health and Children following his enquiries into three clinical trials involving residents in children's homes, copies of which were laid before Dáil Éireann on 9th November, 2000, be referred to the Joint Com mittee on Health and Children for its consideration.
I appreciate the interest of Members in the report of the chief medical officer. There are two clear issues. The first is the model of subsequent investigation which should take place into the report and the second is the legalities for rounding the powers the Laffoy commission has or may seek, to deal further with the issue.
I firmly believe the Laffoy commission is the best vehicle for the further examination and investigation of this issue. I made that point to the House last week. There is a clear synergie between what the Laffoy commission is currently engaged in and this issue. A strong research team has been built up as well as a secretariat and legal infrastructure. A raft of preparatory work has been undertaken which will be conducive to dealing expeditiously with the issue.
It is wrong to infer, as has been done, that to refer the matter to a commission which was established by the Oireachtas is an attempt to long-finger or bury the matter. My motivation in sending the matter to the Laffoy commission is to make absolutely sure it can be thoroughly and comprehensively dealt with and that no one, least of all the Department, any of its agents, or any of the agencies or health boards which may or may not have been involved, can avoid being questioned about the issue. The suggestion that sending the matter to the Laffoy commission lets someone off the hook defies logic. The commission is a statutorily based inquiry with the capacity to summon health boards or the Department of Health and Children if that is deemed necessary. It is the better model in this instance. The institution was established by the Oireachtas. It is wrong to suggest that people are being devious and I take issue with that suggestion. My motivation is to get to the truth and the Laffoy commission is a guarantee that the truth will be found. It has the capacity to search for the truth and to establish it.
The Labour Party has queried the legality of referring the issues raised in the report to the Laffoy commission. I appreciate the good faith of the Labour Party and I accept that its amendment was intended to be helpful. The advice of the Attorney General on this matter was stated to the House by the Taoiseach earlier this morning.
The Attorney General's advice is that the definition of abuse in the Commission to Inquire Into Child Abuse Act, 2000, includes any wilful infliction of physical injury or failure to prevent such injury to a child and any failure to care for a child or act or omission towards a child which has serious adverse effects on the child's behaviour or welfare.
In so far as clinical trials are alleged to have been conducted without the appropriate consent and in so far as these trials are alleged to include the use of injections and internasal administration of drugs, quite clearly an issue arises as to whether any such trials amounted in law to an assault or an unlawful invasion of the physical integrity of the children involved. Likewise the consequences of participating in any such trials are matters that relate to the welfare of children. All these issues fall within the scope of the commission as expressed in section 1 of the Act.
The suggestion made by Deputy McManus that acts must be proved to amount to abuse and to have affected the welfare of a child before the commission can inquire into them is erroneous. The wording of the Act, and particularly section 4(1) (b) makes it clear that one of the functions of the commission is to establish whether acts capable of amounting to abuse actually occurred, whether, as a matter of fact, such acts amounted to abuse and what the effect of them was on the children concerned. That is the advice the Government has received.
The Attorney General has also been informed that the Laffoy commission proposes to consider the issues raised by the report as a separate heading within its inquiry and that the commission is considering whether any order under section 4(4) is necessary or appropriate to assist the commission in this respect. It is the Government's intention to consult fully with the commission on that issue, as is envisaged by the Act, and to make any necessary order under section 4(4). If any such order is made it will, of course, require the approval of the House.
The Laffoy commission offers a comprehensive vehicle for dealing expeditiously and rigorously with the totality of the issues involved. The Government motion proposes to refer the report to the Joint Committee on Health and Children for its consideration. The joint committee may wish to raise other issues. That is a matter for the committee.
I move amendment No. 1:
To delete the words "its consideration" and substitute the following:
"investigation, especially, into the role of the Department of Health and Children in authorising or approving vaccine tests on children in institutions and what connection, if any, exists between these tests and a batch of vaccine used in 1968 to 1970 which was manufactured by the same company and which caused adverse reactions, including brain damage".
I play the role of counsel for the prosecution. The Minister should not be surprised that I question him or his Department or raise issues which are in the public interest. I have always operated within decent standards as Opposition spokesman. However, when I smell a rat I call "foul smell" and I do not care if that upsets the Minister's nice guy appearance. I smell a rat in this case. The Constitution requires the Minister and his Department to account to Dáil Éireann.
This matter has not been handled properly. The Minister wanted this motion to be referred without debate. He did not want the statements last week referring the matter to the Laffoy commission or this morning's debate. He put this issue on the long finger throughout the summer when the joint committee was led to believe the report would be referred to it, not for consideration but for investigation.
It should not be left to the Minister, his Department or any of his predecessors who have questions to answer to decide where the report should go for investigation although I accept the referral of the report to the Laffoy commission is a fait accompli.The role of the Department of Health and Children needs to be examined. An expert group was established by the then Minister for Health in 1977 to examine persons who it was claimed had been permanently damaged by the whooping cough vaccination in the 1960s and 1970s. That group found that in 16 of the 93 cases presented to it there was a reasonable probability that the vaccine was responsible. An ex gratia payment of a paltry £10,000 was offered to each of the 16, and 15 took the payment. In 1992, the Supreme Court found in favour of the sixteenth, Kenneth Best. The vaccine was administered to at least 143 children in 1968 and 1969, according to research I have seen.
I raise this matter because there must be a reasonable suspicion that there may be a connection between the bad batch of whooping cough vaccination and the reaction to it by so many children and the trial tests subsequently carried out on children, particularly children in institutions, to which the report the Minister has referred to refers.
Is it coincidental that the children in the 1960s and 1970s fell foul of vaccine manufactured by Welcome, the same company which tested other vaccines – without lawful authority, according to the implication of the Minister's report to the House – on children, some of whom were in institutions and whose parents were not in a position to give consent?
That issue has been referred to the Laffoy commission and I can do nothing about that. However, the Minister and his Department have questions to answer on that to Dáil Éireann. Why should the Minister, who has those questions to answer, be the person to decide where it should go? That would be similar to an accused before a court—
I do not have any questions to answer in relation to 1969.
The Minister and his Department have questions to answer. It would be similar to an accused before a court determining how the jury should be made up. Therefore, my amendment seeks the deletion of the words "its consideration" and the substitution of:
investigation, especially, into the role of the Department of Health and Children in authorising or approving vaccine tests on children in institutions and what connection, if any, exists between these tests and the batch of vaccine used in 1968 to 1970 which was manufactured by the same company and which caused adverse reactions, including brain damage.
This would ensure the matter was sent to the Joint Committee on Health and Children for investigation.
This issue is separate from any issue of abuse that the Minister may have referred to the Laffoy commission. It is of relevance to the House and if there is any shade of doubt, the Minister should make a statement on it and answer questions about the role of his Department. His Department should not decide to where the report should be referred. It should account to the House for its actions.
The Labour Party does not want two parallel investigations. We support the referral of this report to the Laffoy commission but we are alarmed at the fact that the Government has refused to take on board the points we made.
The Labour Party did not think there should be any investigation at all. That is the problem. This is my point.
Carlow-Kilkenny): Deputy McManus without interruption.
The Labour Party is showing the way forward. Rather than using the issue as a political football, we want to ensure it is fully investigated.
The Labour Party said there should not be any investigation. That is the problem.
The vaccine trials apparently are to be referred to the Laffoy commission on the grounds that they involve the deliberate reckless and negligent infliction of personal injury. The only question that arises is whether a person asked to appear as a witness before or otherwise to co-operate with the commission might have an argument for refusing to co-operate on the grounds that these trials and the issues arising from the way in which they were organised did not involve the infliction of personal injury at all on any reasonable interpretation of that act.
The Government's argument appears to be that the use of a syringe to inject the vaccine means that technically an injury was inflicted and, therefore, the jurisdiction of the Laffoy commission can be invoked. There are two separate legal concepts if one wants to treat this as a technical issue of statutory interpretation. First, lack of consent or a lack of valid consent to an injection would, technically speaking, make the administration of that injection an assault and the victim of that assault could sue for damages. However, the Laffoy commission's jurisdiction does not turn on the question of whether a technical assault or any civil wrong was committed.
The jurisdiction of the commission turns on the question of whether a personal injury was inflicted. Since it appears to be agreed that the contents of the syringe, the trial vaccine itself, did not cause any personal injury, the Government's argument gets even narrower. It is claimed that the process of injection by a syringe involves inflicting a personal injury. This appears to involve a confusion about the meaning of words; not every act of assault amounts to the infliction of an injury. In ordinary English, an injury must, by definition, be injurious. Either a child suffered a personal injury or it did not.
Lack of consent does not make the small red mark on its arm a personal injury deliberately inflicted. The fact that it did not consent to the contents of this particular syringe being injected into its system does not make the mark around the pin prick on its skin, a mark it would have for a few days no matter what was in the syringe, any more a personal injury deliberately inflicted than it would be in the case of all the children who received the three in one vaccine in the normal course of events. Either all children suffer personal injury when they are vaccinated or these children did not suffer personal injury.
The issue of consent is not relevant to the question of whether the consequences of an assault are physically injurious. Having regard to the purposes for which the Laffoy commission was set up, the individuals to whom its enabling statute is addressed and its relatively non-technical language, it is straining that language beyond breaking point to claim that an issue involving much wider questions of consent and of medical ethical propriety can be investigated by it only because of the entirely fortuitous circumstance that the vaccine trials at issue involved a vaccine administered in a syringe and not a lump of sugar.
This important point has not been addressed by the Government. The Attorney General must take a fresh look at the matter. I hope it is not the case that personal pride is preventing the Minister from seeing the important and serious legal argument being made by the Labour Party in this regard. To avoid argument in the future, the issue needs to be put beyond doubt. That is all we are seeking. It can be easily done. We provided the Government with suitable wording for an order that can be made. It is not a difficult process.
I want to ensure that this matter is investigated fully, independently and properly with all the resources of the Laffoy commission. I do not have the same confidence in Deputy Mitchell that he appears to have in himself.
I do not have the same confidence in the Labour Party's bona fides on this matter. That is the problem.
Deputy McManus without interruption.
There is an apparatus that is capable of dealing with this issue, but the Government must ensure that, legally, it can carry out the work with which it is being charged.
I urge the Government to have a second look at this matter because the substance of our argument and our concerns have not been taken on board in an open manner. The Minister presents himself as having an open view on this issue, but that is not the response we are getting. I suspect the Attorney General may be taking a view that is different from the correct view in terms of making certain that the objective which we all share of having this matter fully investigated is achieved. If, ultimately, this is prevented because of a failure by the Government to fully address the legal questions, the Minister will not be allowed to forget it. It is a most important matter and it is in the Minister's hands.
I agree with Deputy Mitchell. Too many things were hidden in Ireland for too long. This is probably the most serious case that has ever arisen. For too long matters were hidden and what happened in the past should never happen again. Regardless of who must answer them, questions must be answered in this Parliament. The Committee of Public Accounts did an excellent job on another investigation and there is no reason the Joint Committee on Health and Children could not hold a similar investigation. This should be done. If necessary, people should be brought in and questioned and if their answers need to be questioned, that should be done. There is no reason that should not happen.
What happened to these children is probably the greatest outrage that ever took place in Ireland. However, the country has not changed much. It is still the case that matters are brushed under the carpet or hidden behind the curtains. The idea is that matters should not be made known and that the people involved must be protected. However, guilty people in this case, regardless of who or what they are, should not be protected. They should be brought before the courts and the committee and they should answer whatever questions are put to them.
For too long too many people in this country have been protected and innocent people have been hurt. The children in this case had nobody to fight for them or speak on their behalf. They had no representatives but at least the world is more modern now and people can ask questions on their behalf of the individuals who were supposed to look after them but failed to do so. The children were used by a company for drug trials and nobody knew the possible effects of the drugs.
The matter needs to be investigated and this should be done by a committee of the House rather than the Laffoy commission. We should ask the questions and get the answers. The people found wanting, regardless of whether they are in the Department of Health and Children, should not be protected. The people involved and the matter should be dealt with openly in the public domain.
