A retired UCD professor who was involved in the conduct of vaccination trials in 1960 and 1961 on 58 children in five institutions run by religious orders has won his Supreme Court challenge to an order requiring him to give evidence before the Laffoy Commission about those trials.
The five-judge court yesterday unanimously granted the appeal by Prof Patrick Meenan (86) against a High Court order upholding the commission's direction to him to give evidence before its Vaccine Trials Division. Prof Meenan had said he should not have to appear on grounds of his age and ill-health.
The commission was empowered by the Government, under a Statutory Instrument of June 2001, to inquire into the conduct of the vaccination trials after some concerns were raised as to the ethical propriety of the trials. No allegation of wrongdoing has been made against Prof Meenan, the commission has stressed.
In granting Prof Meenan's appeal, the Supreme Court held the commission had not adhered to fair procedures in that, prior to requiring him to attend before it in public and give evidence about his involvement in the trials, it had declined to consider medical reports about Prof Meenan's health and, if necessary, arrange for an independent medical examination of him. It had also failed to at least consider his claim that he had no central role in the matters being inquired into.
The Chief Justice, Mr Justice Keane, said there was no indication in the report of the Chief Medical Officer of Health, which report was said to have led to the Government directing the commission to inquire into the vaccination trials, of any abuse of children having occurred in the institutions as a consequence of the vaccination trials in which Prof Meenan was involved. No person had complained of adverse consequences from the trials.
It was not clear, he said, how it could have been concluded that the power conferred on the commission to conduct such an inquiry could be regarded as an additional power or function "connected with their functions and powers".
The Chief Justice noted Prof Meenan's consultant held the view he was not fit to undergo the stress of major examination and the commission was told of that view. He also noted Prof Meenan had given the commission a seven-page statement setting out his involvement in the trials. The commission had responded it envisaged his attendance would be required at further hearings. While the validity of the inquiry into the trials was not at issue in this case, the Chief Justice said that, in considering whether the procedures adopted by the commission accorded with natural and constitutional justice and vindicated Prof Meenan's right to privacy, the precise nature of the inquiry was plainly a relevant factor.
This, he said, was an inquiry into medical procedures used more than 40 years ago which, it would seem from evidence available to the courts, were conducted in accordance with then prevailing standards and which appeared to have only the most tenuous connection, if any, with the "appalling social evil" of the sexual and physical abuse of children in institutions.
In the early stages of correspondence between Prof Meenan's solicitors and solicitors for the commission, it appeared an appropriate concern was being shown for the difficulties he would encounter in being involved in such an inquiry at this stage of his life. Later, however, the commission appeared to think a far more formalistic and legalistic approach was required.
The correspondence indicated they were ultimately not prepared to settle for anything less than a public application on behalf of Prof Meenan to be excused on the ground of ill health.
While it was indicated that details of his medical condition would not be made known to the wider public, it was made perfectly clear the commission reserved the right to make those details available to third parties whom they considered had an interest in Prof Meenan being present at the hearings of the commission to give evidence on oath and be cross-examined.
The Chief Justice said the commission had offered no satisfactory explanation why it could not have acceded to Prof Meenan's solicitor's request that, before deciding whether it was necessary to have him present at public hearings to be examined and cross-examined on oath, they should consider the contents of those reports in private and, if necessary, arrange for an independent medical examination of him.
Fair procedures also demanded the commission should have borne in mind Prof Meenan's claim that he did not have a central role in the matters under inquiry.
Mr Justice Hardiman believed the commission failed to show sufficient sensitivity to the very great effort participation in the public forum sought might represent to a man in his 87th year.
