An appeal by a biochemist who featured in the hepatitis C scandal against her dismissal by the Blood Transfusion Services Board (BTSB) was adjourned yesterday when the board claimed she could not take a case as she was unable to work due to illness.
The Employment Appeals Tribunal will hear legal arguments today on whether the fact that Ms Cecily Cunningham, who was engaged in the manufacture of the blood product anti-D and has been on sick leave since December 1996, means she cannot appeal against her dismissal in July 1997.
Her counsel, Mr Michael McDowell SC, will argue that she was off sick from stress and the aggravation of an arthritic condition due to the manner in which she was treated by her employers during and after the Finlay inquiry into the contamination of blood products, including anti-D, with hepatitis C.
Ms Cunningham began working in the BTSB in 1967, where she was engaged in the manufacture of anti-D, a blood product used in treating pregnant women at risk of reacting to their babies' blood.
In the report of his inquiry, Mr Justice Finlay found that Ms Cunningham shared some of the responsibility for the contamination of the blood product. However, the Employment Appeals Tribunal has already ruled that his report is not admissible, though the transcript can be used.
Mr Roddy Horan, counsel for the BTSB, said yesterday his clients had "reasonable belief" that Ms Cunningham had failed to carry out her duties in a responsible manner. She was in charge of producing anti-D. "While not a doctor, she has a knowledge of blood-related matters which would surpass that of the majority of the medical profession", he said. "She has adopted the approach she was a mere technician. She has sought to divorce herself from any decision-making." The charges laid against her by the BTSB included that when in May 1977 she was instructed not to manufacture any more anti-D from the plasma of a woman known as patient X, she continued to issue the product already manufactured from this patient, up to the end of 1977; and that in 1994 she continued to manufacture and issue anti-D from the plasma of patient Y until November of that year, although patient Y had been confirmed as suffering from hepatitis C in January. Ms Cunningham claimed the written positive result for hepatitis C was verbally overruled, but she never obtained a written withdrawal of it.
Mr McDowell said she had never been shown the full letter confirming the positive result.
He said on March 18th, 1997, Ms Cunningham, who was on sick leave from the BTSB, read in the Sunday Tribune that her position was under consideration by the board. She instructed her solicitors to write to the board saying she contested the findings of the Finlay inquiry.
Referring to the senior people in the BTSB at the time of the hepatitis C contamination, he said: "Dr Riordan and Dr Walsh were treated in a very different way to the way my client is being treated.
"She was persuaded against independent representation at the tribunal by the board. She was told her best interests would be served by being represented by the board's solicitors. She spent many hours helping the board's solicitors prepare the case.
"At the inquiry, she noted the BTSB was in damage limitation mode and not in any position to defend any individual. She found herself being slowly isolated.
"She asked for an opportunity to reopen her case. She was precluded from defending herself. Then she got a letter with a list of concerns. A deadline was unilaterally set and on July 23rd, 1997, Mr Dunbar [chief executive of the board] sent her a letter dismissing her. She had never been given an opportunity to orally defend herself. We believe that Ms Cunningham should not have been prejudiced by what was published in the Sunday Tribune, that she should be given the opportunity to confront the people again, with her representatives, in front of the board, and contest what they said."