That, pursuant to section 4(4)(c) of the Commission to Inquire into Child Abuse Act, 2000, Dáil Éireann approves the draft order:
Commission to Inquire into Child Abuse Act, 2000 (Additional Functions) Order, 2001
a copy of which, in draft form, was laid before Dáil Éireann on Thursday, 17 May 2001.
Deputies will be familiar with the background to the making of this order. Initial concerns in this matter first surfaced a decade ago, raised by a number of former residents of children's homes. A number of vaccine trials which had been undertaken on children in care in Ireland in the 1960s and 1970s were brought to public attention in the early 1990s. A question was answered in the Dáil in May 1991 and in 1997 my predecessor, Deputy Cowen, promised to have inquiries made into the matter, following which he would consider what was the most appropriate course of action to take. The chief medical officer of the Department of Health and Children, Dr. Jim Kiely, was asked to investigate and his report, "Report on three Clinical Trials involving babies and children in institutional settings 1960/61, 1970 and 1973", was laid before both Houses in November 2000.
Trial No. 1, published in 1962, looked at what would happen if four vaccines – diptheria, whooping cough, tetanus and polio – were combined in one. At the time the standard approach was to administer tetanus vaccine – DPT – and polio vaccines separately, at different times and at different injection sites. Trial No. 2, published in 1971, was to find out if German measles vaccine, administered intranasally, could spread to susceptible contacts. Trial No. 3 was carried out during 1973 but was not published. It compared the propensity of commercially available batches of Trivax vaccine and Trivax AD vaccine to produce adverse reactions, as against the capacity of a modified equivalent vaccine to produce the same reactions. The modified vaccine had fewer organisms per dose.
From the moment I became Minister for Health and Children I have been aware of this issue. I have, on a number of occasions, met representatives of past residents of a number of children's homes and I am aware of and understand their anxieties in this matter. Following the publication of the chief medical officer's report, I arranged with the chief executive officers of relevant health boards that, where supporting documentary evidence is available, former residents could be immediately informed whether they were part of any of these trials. In addition, I have ensured that a counselling service is available from the health boards for any former resident of a children's home involved in such trials.
The chief medical officer's report indicated that the trials appear not to have had medically negative consequences for the children involved. The trials were looking at marginal degrees of difference in the vaccines administered, not at experimental, unproved or dangerous drugs. We must also remember that the protocols of the time are not necessarily those which apply today, more than 30 years later. From my reading of the chief medical officer's report I am not satisfied that it has been established that solid informed consent was given by the people who were entitled to give it. The issue of consent is fundamental. These children were in the care of the State and we must establish if the State fulfilled its obligations to them.
Having read the report with great care and discussed it in some detail with the chief medical officer, I was convinced that further investigations were warranted. The State must act to protect and safeguard the rights of all children in its care. Having considered the report in the context of available mechanisms for investigation, I decided that the most appropriate route for further inquiry would be through the Commission to Inquire into Child Abuse, chaired by Ms Justice Mary Laffoy. For that reason, in November last year, I referred the chief medical officer's report to the commission so that it could be considered as part its investigations.
The Laffoy commission offers the best mechanism available to us to probe these issues and to ensure that the totality of issues can be examined in an expeditious and rigorous manner. The commission has a full range of powers and personnel, an experienced secretariat, a strong panel of experts with the requisite qualifications and an investigative and legal infrastructure, all up and running. Much of what the Laffoy commission is currently investigating runs parallel in timescale to the chief medical officer's report, so the search methods for documents going back to the 1950s is already in place.
I am grateful to have this opportunity to thank Ms Justice Laffoy for having agreed to take on this additional task. At the time of referring the report to the Laffoy commission last November, some questions were asked about its capacity to deal with an issue such as this. At the time, the Attorney General advised me and the Taoiseach that the subject matter of the chief medical officer's report falls within the definition of "abuse" in the 2000 Act and that the commission has the competence to inquire into the vaccines report. Ms Justice Laffoy agreed with this view. While the issue of the commission's competency to investigate had been clarified to the Government's satisfaction by the Attorney General's advice, the Taoiseach and I also stated that the issue of whether the commission might require additional powers by way of a Government order to assist the inquiry into the vaccines report would be a matter for further consideration by the commission and that if such an order were deemed necessary it would be brought before both Houses for approval.
Subsequent communications between Ms Justice Laffoy and the Attorney General concerned the aforementioned question of additional powers which might be required by the commission to assist in its inquiries into the chief medical officer's report. It was ultimately agreed between the commission and the Attorney General that any possible conflict of interest difficulties on the part of the current membership of the commission, presented by the vaccines report, could be resolved by the expansion of the commission. The proposed expansion of membership will facilitate the commission in its investigation of the vaccines report and my Department is currently working with the Department of Education and Science with regard to the selection of an appropriate nominee. I expect to be in a position to agree a suitable nominee with the Minister for Education and Science within the next few days.
During the course of discussions between the Attorney General and the commission, Ms Justice Laffoy also requested that, for the purposes of clarity and certainty, the parameters of the inquiry into the chief medical officer's report be incorporated into a Government order. The Attorney General agreed with this approach and suggested a Government order in this regard. My Department was advised of this conclusion in February this year and the drafting of the proposed order commenced shortly thereafter. Consultations subsequently took place with the commission itself, the Attorney General's office, the Department of Education and Science and the parliamentary counsel's office, following which the draft order was submitted for Government approval earlier this month and laid before both Houses last Thursday, 17 May.
The purpose of the draft order is to define the parameters of the commission's inquiry into the vaccines report. The Government may, under section 4 of the Commission on Child Abuse Act, 2000, by order confer on the commission and its committees additional functions or powers connected with their functions and powers. The pro posed order provides for additional functions to be conferred on the commission as follows: to inquire, through the investigation committee, into the circumstances, legality, conduct, ethical propriety and effects on the subjects thereof of – (i) the three vaccine trials referred to in the report and (ii) any systematic trials of a vaccine or the mode of delivery thereof to test its efficacy or to ascertain its side effects on a person found by the investigation committee to have taken place during the period commencing on 1 January 1940 and ending on 31 December 1987 and to have been conducted in an institution, following an allegation by a person that he or she as a child in the institution was a subject thereof; and to prepare and publish to the general public, in such manner and at such time as the commission may determine, a report in writing specifying the determinations made by the investigation committee in its report under article 4 of this order.
Under the provisions of section 4 of the Commission to Inquire into Child Abuse Act, 2000, a draft of the order must be laid before each House of the Oireachtas and the order shall not be made unless a resolution approving the draft is passed by each House. A resolution approving the draft was passed in the Seanad yesterday.
The issues raised in the chief medical officer's report require investigation by the Laffoy commission. These are important questions concerning fundamental issues of the rights of children in care and the nature of consent which needs to be asked in a context which offers the competence to thoroughly investigate the issues. The draft order and the proposed expansion of the commission's membership will allow the commission to progress matters without delay. I ask Members of this House to support the resolution.