The former Minister for Health, Mr Michael Noonan, said in a statement yesterday.:Prior to and during the election campaign, the Minister for Health, Mr Brian Cowen TD, had promised that he would publish all the legal documents and correspondence in relation to the State's role in the McCole case. This commitment was unqualified and based on specific legal advice, which Mr Cowen said would enable him to publish the documents.
Amplifying his views in the Dail on 13th May, 1997, Mr Cowen demanded "all documents formal and informal relating to the matter must be identified and made available . . ." They should, he said, be simply collated and placed before the Dail as a matter of gravest urgency.
On election to Government, Mr Cowen immediately changed tack and instead commissioned a re port on the legal strategy pursued by the previous Government.
Ms Fidelma Macken, who had previously acted for the public interest at the Finlay tribunal, agreed to draw up the report. This eminent lawyer examined and evaluated the relevant legal documents and then reported to Minister Cowen.
In addition, Ms Macken also provided clear and unambiguous answers to a series of questions put to her by the Minister on behalf of the Fianna Fail/PD Government. Answers to all of these questions were provided to the Minister for Health in a separate document.
In both the Macken report and the attached questions-and-answers document, the decisions I took as Minister for Health in respect of the legal strategy pursued by the State were fully upheld. Ms Macken's conclusions accord fully with the explanations I gave to the Dail and have repeated in public.
The Macken report which has largely been ignored by commentators exonerates my position.
The Macken report quite clearly did not suit Mr Cowen's political purposes. His objective to politically assassinate me would not be fulfilled by relying on the Macken report. The Minister was consequently in a fix. He got out of it by drafting his own so-called report in which he re-makes a series of unsubstantiated allegations he made in opposition.
It is in effect a polemic; a political preface to the real report. It is totally biased in its opinions, judgment and conclusions, and was marketed and spun to the media as the real report.
The Macken report deals effectively with all the main issues regarding those legal strategies which had been so long in contention.
In respect of why the State did not insist on the BTSB admitting liability once the report of the experts was published, Ms Macken says, inter alia, "that the BTSB was not under the control of the Minister or answerable to him", and that she could find nothing in the regulations "which gives the Minister any control over its activities or how it operates".
It is also her view that it would not have been permissible for the BTSB to have in fact abdicated its decision on how the case would be run to the Minister because "this would likely jeopardise its indemnity entitlement under its insurance policy". She also says: "For the State then to try to direct how the case would be run could leave everyone unstuck."
This section of the Macken report on pages four and five fully explains the absolute difficulty I had in giving any indication to the BTSB on how they should run their legal case.
I did, of course, take action. I set up a compensation tribunal which has been extremely effective in dealing with the compensation claims of hepatitis C victims. In particular it has enabled compensation to be paid without the use of the High Court's adversarial system.
I also introduced legislation to provide full ongoing health services and ancillary services free of charge for life for all victims.
The Macken report also deals with the issues of (a) anonymity (b) the application for an early hearing and (c) the question of the raising of the Statute of Limitations. Any fair-minded reader of the report will acknowledge that the State acted quite properly in respect of all these issues, and that I reported the State's position fully and accurately to the Dail.
As well as seeking to subvert the Macken report which he himself commissioned and the answers to the questions which he himself drafted, Minister Cowen has launched a series of personal attacks on me. He claims I saw the letter of the BTSB solicitors to the McCole solicitors before it was issued and implies that I could have amended the letter if I so wished. He is wrong on both counts.
If Mr Cowen has evidence to the contrary he should produce it.
Mr Cowen makes a further series of allegations effectively claiming that if he were in office he would have managed the legal issues differently. There is, however, no evidence of any change of policy by Mr Cowen.
In the section of his statement on page 19 enti tled "The Next Steps to Address Hep C Victims Concerns", every single commitment simply re peats the commitments already made by me in of fice. His promise to implement the findings of the Finlay tribunal simply reflects work in progress at the Department of Health, the BTSB and the Irish Medicines Board arising from a decision of the previous Government last March.
The legislation putting the compensation tribunal on a statutory basis was put through the Houses of the Oireachtas by me and the drafting of the regulations and commenced before I left office.
The establishment of the compensation tribunal in two divisions was decided by me, and the solicitors and barristers required to do so were appointed before I left office. The decision to seek to settle cases outside of the courts or the compensation tribunal was also taken and announced by me.
Minister Cowen had an opportunity to change the State's legal strategy, if he wished to do so, when he oversaw the State's legal strategy when the Quin lan case was settled on July 1st, 1997.
In this settlement, the State refused to admit liability; the BTSB refused to admit liability for aggravated, exemplary or punitive damages, and Minister Cowen confirmed that there was no overall legal strategy being pursued by all defendants but that each defendant acted separately in accordance with their legal advice. (Dail Question 195, 196 & 197 on July 9th, 1997. See attached)
I know of no change of policy by the State in respect of the costs issue. The position as set out by the Chief State Solicitor in his letter of July 21st, 1995, remains the policy of the Government in respect of costs.
The Minister's admission in a reply to a Dail question that the State would not admit liability is especially interesting in view of the statement he made in the Dail on May 13th, 1997, "the State has still not admitted liability for this affair. Will the Minister explain tonight why this has not happened? The victims of this controversy should be spared further difficulty and the State should not accept responsibility for the injury caused them and their families. The Minister has vacillated and manufactured fallacies in relation to the difference between the liability of the State and that of the BTSB."
In the end of the day, it seems to me that despite the allegations made by Minister Cowen, he in office is following the legal strategy he criticised in opposition.
Questions Nos 13969/97, 13970/97, 13971/97 Chun an Aire Slainte - To the Minister for Health
To ask the Minister for Health the grounds on which he formed the view that the State should not admit liability in a case (details supplied) which was settled on 1 July 1997.
Michael Noonan
For written answer on Wednesday, 9th July 1997.
To ask the Minister for Health his views on whe ther the Blood Transfusion Service Board acted properly in refusing to admit liability for punitive, exemplary or aggravated damages in a case (details supplied) which was settled on 1 July 1997, and if he will make a statement on the matter.
Michael Noonan
For written answer on Wednesday, 9th July, 1997.
To ask the Minister for Health, if he, on behalf of all the defendants, organised and co-ordinated the legal strategy which led to the settlement of a case (details supplied), if not, the person who took the decision to settle the case on behalf of each individual defendant; his policy if any, in dealing with cases of a similar nature in future, particularly in respect of the admission of liability by the State; and if he will make a statement on the matter.
Michael Noonan
For written answer on Wednesday, 9th July, 1997.
Reply
Minister for Health (Mr Brian Cowen, TD): I propose to take Question Nos 13969, 13970 and 13971 together.
The decision of the State not to admit liability in this case was based on legal advice.
I understand that the decision of the BTSB not to admit liability for punitive, exemplary or aggravated damages in this case was also based on legal advice.
As to the settlement of the case, I understand that lawyers for the plaintiff first made an approach to the BTSB on 11 June 1997 seeking to settle the case before the court hearing which was due to commence on 1 July 1997.
I understand that settlement talks continued between the legal team for the plaintiff and the legal team for the BTSB. After assuming office as Minister for Health, I was informed on 27 June 1997 that settlement talks were still ongoing. I did not organise or co-ordinate the legal strategy on behalf of the different defendants in this case.
On Monday 30 June 1997, I authorised State counsel to settle the case insofar as the State was concerned. As part of the settlement I authorised that State counsel should express regret to the plaintiff in court on behalf of the State. I understand that a request by the plaintiff for such an expression of regret was not acceded to by my predecessor as Minister for Health.
As to the other two defendants in the case, I understand that Mr Liam Dunbar, c.e.o. of the BTSB authorised the terms of the settlement on behalf of the BTSB. As regards the Irish Medicines Board, I understand that the plaintiff withdrew her claim against the Irish Medicines Board and the case was dismissed.