The McCole family is considering further legal action against the State following the publication of the report into the legal strategy adopted by the Rainbow government in the case of their late mother Mrs Bridget McCole.
The McCole family says it is their intention to study the report and accompanying documentation and they will take "full advice" from their legal advisers as "to what steps should now be taken by them".
The information in the documents could assist the family to make a further claim on the State after their mother was forced to accept a comparatively low compensation award of £175,000 on the day before she died in October last year.
The report published yesterday shows that the previous minister, Mr Noonan, saw a letter sent to Mrs McCole by the Blood Transfusion Service Board (BTSB) denying liability for aggravated or exemplary damages and threatening Mrs McCole that if she continued her court action for these damages the BTSB would seek all costs if she lost the case.
Mr Noonan did not attempt to alter the letter sent on September 20th, 1996, the Minister for Health, Mr Cowen, said yesterday. The letter, in which the BTSB admitted ordinary liability, caused an outcry when it was published after Mrs McCole's death. The legal documents show that the then Attorney General, Mr Dermot Gleeson, in an aidememoire presented to the Government on April 4th, 1995, advised that the BTSB was negligent in its manufacture of anti-D in 1976/ 1977.
Mr Gleeson also advised in that memorandum it was imperative that the State, the BTSB and the NDAB, or any spokesperson on their behalf - should not give any indication of negligence or legal liability. This was to ensure any legal proceedings initiated against the three defendants would not be prejudiced in any way.
Mr Cowen said yesterday the State's advice on negligence was not disclosed or furnished to the BTSB. "Not even a courtesy copy was furnished," he said. "No contact was made by the Minister to suggest that the BTSB immediately seek legal advice on the significance of the Expert Group Report to determine the issue of negligence. The BTSB didn't even do this on their own initiative. There were crucial acts of omission," he said.
He also said the April memorandum "illustrated in clear and unambiguous terms the difference in tactics the Government was prepared to employ, depending on whether a victim sought to proceed to go to court or to the compensation tribunal."
In their statement the McCole family said they were angry over a number of issues:
That their mother had been "subjected to an alleged failure on the part of the State to communicate its views on liability to the BTSB at an early date".
That she was subjected to "the rigorous legal technicalities of practice and procedure".
That the request for an early trial in court should be affected by the existence of a non-statutory compensation tribunal which had no powers of determining issues of negligence or aggravated and exemplary damages.
The family, who received the documentation from Mr Cowen on Thursday evening, found it "hard to believe" that nobody either verbally or in writing advised the BTSB that it had no defence. They retain a suspicion that there must have been some communication between the State, and the BTSB about the board's liability. At the press conference yesterday to publish the report, Mr Cowen revealed that Mrs McCole's legal team have so far been paid approximately £800,000 in legal fees.
Fine Gael has reacted strongly to the report, describing it as "largely a re-hash of political charges made by Mr Cowen before the election".
With the former Minister for Health, Mr Noonan, out of the country on holidays, senior figures in the party defended their colleague and a preliminary statement accused the new Minister of Health of failing to find a political scapegoat.
It stated that Mr Cowen had engaged in "an extensive, retrospective and politically motivated examination of one aspect of his predecessor's work".
"The Minister's political report is in stark contrast to the careful report of the independent counsel, Fidelma Macken. The Minister posed a number of detailed questions to the independent counsel. She has answered them, but clearly not in a way that satisfies Minister Cowen's desire for a political scapegoat. Some of the answers may not have been to the Minister's liking," the statement says, and suggests that he had ignored the clear findings of the independent counsel's report.
Positive Action, the group representing women infected through hepatitis C, said the report "catalogues a litany of shame" on how Bridget McCole's constitutional rights were denied by the State. "The cover up in the McCole case, which also has significant implications for the other anti-D victims, is confirmed," the group said. Editorial comment: page 13