An examination of all the relevant legal documents appertaining to the defence of the State and the BTSB in the case of the late Mrs Bridget McCole has been undertaken by an independent Senior Counsel, Fidelma Macken, at my request. Ms Macken represented the public interest at the Finlay Tribunal of Inquiry into the BTSB which reported to my predecessor on 5th March last.
I am indebted to Ms Macken and on behalf of the Government I thank her for her work in assisting me in this matter.
Ms Macken has produced a factual assessment, based on the legal documentation, of the approach adopted towards the proceedings by the State and the BTSB. This assessment and the accompanying documentation reveal a number of important points relating to the State's approach and the resultant legal strategy.
The Key Points
When the Expert Group reported in January 1995 the State obtained a legal opinion as to the question of liability.
A Memorandum for Government of the Expert Group Report was prepared by the Minister for Health and brought before Government on 3rd April 1995. This Memorandum is of central significance in understanding what happened in the case of Mrs Bridget McCole. Amongst other things, it outlines the legal strategy adopted by the Government in respect of any Court proceedings initiated on foot of the Expert Group Report. It also details the terms upon which the Government were prepared to compensate the victims of the Hepatitis C scandal through a Compensation Tribunal where no liability would be admitted. The Memorandum illustrates 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.
The Attorney General's advice to Government in this Memorandum confirmed inter alia that: (1) The BTSB was negligent in its manufacture of Anti-D in 1976/77. (The BTSB had advised the Minister that it had estimated that 90 per cent of the 1,055 women who had then tested positive for Hepatitis C antibodies, received Anti-D in 1976/77). (2) The BTSB was negligent from October 1991 onwards in failing to inform persons who had received Anti-D prior to October 1991 of the possible risk of acquiring Hepatitis C. (3) The BTSB was negligent in relation to the manufacture of Anti-D from 1991 to February 1994.
The Attorney General further advised the Government that in any claim made in Court proceedings which he clearly anticipated following the publication of the Expert Group Report, a person would have to make a casual connection between their own Hepatitis C and the BTSB's negligence. The advice was that it would be a matter for the claimant to obtain expert opinion that the infected Anti-D was the more probable source of their Hepatitis C infection from 1976/77 onwards. Importantly, the Attorney General stated that there was no evidence available to him to suggest that a source other than Anti-D was the probable cause of infection.
Finally, in relation to how legal proceedings were to be defended by the State, the BTSB or the NDAB, the Minister for Health Memorandum to Government recorded the advice of the Attorney General that it was imperative that none of these three parties, or any spokesperson on their behalf, should give any indication of negligence or legal liability on the part of any of them. In effect, this meant that the State was to remain silent about the BTSB's negligence.
Minister for Health's Memorandum to Government of 3rd April 1995 included the legal strategy to be adopted in all cases initiated by those who sought relief in the Courts against the State, the BTSB or the NDAB.
The first person to take the Court route was Mrs Bridget McCole.
Once Mrs McCole initiated proceedings, the legal strategy outlined in the Memorandum of 3rd April was set in motion. During the course of the proceedings, the Government steadfastly maintained that there was no sharing of information as to how each defendant was to defend the case. The only common factor between them was they all denied liability.
It has been clearly established as to when the State formed the view that the BTSB was negligent. (That view was on the basis of Counsel's legal opinion sought by the State in March 1995 and incorporated in the Memorandum for Government of 3rd April 1995). The State's advice on negligence was not disclosed or furnished to the BTSB (not even a courtesy copy was furnished). 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. These were crucial acts of omission.
Clearly, had the BTSB made any assessment as to its own liability, and if such an assessment coincided with the State's own assessment, the only requirement for Mrs McCole to succeed would be to establish the causal connection between her own Hepatitis C and the BTSB's negligence. This would have been successfully established as soon as it became clear that she was recipient of infected Anti-D product from Batch 250. As a consequence, the lone outstanding matter would have been the assessment of damages in her case.
Had this approach been taken, together with the promise to establish the Finlay Tribunal at an earlier stage, the State could have avoided much anguish for Mrs McCole and others.
No doubt, Mr Noonan will seek to justify his actions by reference to the legal advice which he obtained that it would be improper for him to attempt to force the BTSB to admit liability. He had, however, many opportunities to communicate to the BTSB the State's view of its own position on liability without being deemed, in any way, to be improperly interfering in the conduct of the BTSB's defence of Court proceedings. There is no doubt that in the circumstances of this case, where the State had already determined to be the paymaster, the State was in a position to call the shots and arrange an early solution to the problem.
On the basis of the legal advice given the Minister should have posed further questions to the Attorney General since it was known by the State that the BTSB was liable and that the State was going to have to pay at the end of the day. Given those facts, the Minister should have asked the Attorney General to tender further advice on whether there was any legal impediment to the Minister attempting to proceed to settle the case. The question has to be asked: Was the motivation for not seeking further advice the realisation that so long as the case continued the Minister could avoid having to establish a Tribunal of Inquiry? His public statements suggest that it was intended to have all outstanding issues that remained to be dealt with thrashed out in the High Court hearing of the Bridget McCole case. It should be noted that when her High Court case did not go ahead, arrangements were immediately made to have a Tribunal established.
The Minister placed himself in an unreal position, whereby, despite having very regular contact with the BTSB on matters of routine importance, he restrained himself from communicating on this matter of utmost importance.
For instance, there appears to be no evidence of any attempt by him to seek legal advice as to whether he could engage in discussions with the BTSB with a view to an early settlement of Mrs McCole's case, given that the State was the ultimate paymaster. In addition, he treated this case as if it were an ordinary personal injury action instead of acknowledging and reacting to the true position, which was that Mrs McCole was a victim of the greatest health scandal in the history of the State.
This overly conservative and unimaginative approach to solving this serious problem, was probably caused by a lack of courage and led to unnecessary suffering for many and in particular for Mrs McCole.
It should be noted that by taking this conservative approach, the McCole proceedings, which commenced in July 1995, did not conclude until the BTSB finally admitted liability to Mrs McCole in a letter of 20th September 1996, almost 18 months after the Government had been advised that the BTSB would be found guilty of negligence in potential proceedings.
Throughout the 18-month period the implementation of the inflexible legal strategy was demonstrated during several hearings brought on behalf of Mrs McCole relating to a number of matters of particular concern to her.
For example, Mrs McCole sought to process her claim under as assumed name. This was contested by the State on the basis of previous judgements relating to Article 34 (1) of the Constitution. It is evident from the papers that a precedent existed in the haemophiliac cases when a compromise was agreed whereby the plaintiffs were allowed to proceed under an assumed name. This compromise was not drawn to the attention of the High Court in Mrs McCole's case by the State's legal team. Mrs McCole had to proceed under her own name against her wishes.
In the defence filed to Mrs McCole's case the State pleaded the Statute of Limitations in the following terms: "Insofar as the date of acquisition of the Plaintiff's condition alleged in the Statement of Claim was in or before 1990, and no date of knowledge as defined in the Statute of Limitations is pleaded, such claim herein if any is barred by the provision of the Statute of Limitations."
It is acknowledged that the wording of this paragraph in the defence was intended to draw attention to the fact that Mrs McCole had failed to identify in her pleadings the date on which she first realised she was suffering from Hepatitis C. Nonetheless, the inclusion of such a plea in the defence, although strictly speaking legally correct, appears to have had a devastating effect on Mrs McCole in that it appeared to indicate that the State was attempting to preclude the Plaintiff from recovering compensation on the grounds that she had not brought her claim within time. As is well-known, nobody knew they were suffering from Hepatitis C before February 1994.
It follows that Mrs McCole was completely unaware of her condition until that date, and as she had instituted proceedings in the summer of 1995 it was quite clear that she had brought her case within time. In the circumstances, it is very difficult to understand why such a technical issue should have been raised in the defence with such devastating effects.
Throughout the papers it is evident that the existence of the Compensation Tribunal exerted a powerful influence on the mind of the Minister for Health in maintaining these various tactics as he appears to have considered the appropriate adoption of a "carrot and stick" strategy.
The carrot was the existence of the Compensation Tribunal where negligence would not have to be proved, where the anonymity was preserved and where a claimant would not be subjected to cross-examination. An early hearing was also an advantage. In contrast, in the strategy adopted in the McCole case, Mrs McCole was denied anonymity, an application for an early trial was resisted and the full rigours of the adversarial system were applied.
It is readily acknowledged that the papers disclose that the State was unaware in advance of the BTSB's intention of making a lodgement in May 1996. As is well-known, the making of a lodgement is a strategy to pressurise the Plaintiff into settlement. It does make an offer of settlement but carries with it the threat that if the settlement is not accepted and the injured party ultimately receives a lesser sum in compensation from the Court, the injured party must pay all the costs of both sides from the date of lodgement.
Minister Noonan knew what this meant. He has subsequently attempted to justify this approach by characterising the lodgement as an offer in settlement. He should have been aware that not only was this completely inaccurate but must have been aware that the lodgement amounted to further pressure on Mrs McCole.
The BTSB admitted liability in Mrs McCole's case in a letter on 20th September 1996. In the letter, the BTSB denied liability for aggravated damages or exemplary damages and informed Mrs McCole that should she seek to continue her action in pursuit of these damages, the BTSB would seek all costs if she failed in her bid. The Minister for Health was shown this letter in advance of it being sent to Mrs McCole. There was no alteration made following the Minister's review of the letter.
The issue which has greatly troubled the McCole family and which they highlighted in their correspondence with Minister Noonan in a letter dated 8th October 1996, is what has become known as the 5th Question. In that letter, the McCole family posed five questions. Four of those questions were dealt with by the Finlay Tribunal. The 5th Question is:
"In their letter of the 20th September 1996, the Blood Transfusion Service Board did two things, they admitted liability and apologised but only in the context of a threat that were she to proceed with a case for aggravated/exemplary damages and not to succeed they would pursue her for costs. What was the justification for this threat?"
In the letter of 20th September 1996 the legal advisers, under the instruction of the BTSB, informed Mrs McCole that it was not admitting liability for aggravated/exemplary damages and should she wish to seek such damages by continuing her proceedings and that the BTSB would look for costs against her in respect of that part of the case. In doing this they were seeking to protect their own client's interests and warning the Plaintiff of the consequences. Once again, whereas this may have been, strictly speaking, legally correct, we know that it had a devastating effect on Mrs McCole.
We also know from the available documentation that the Minister was aware of the letter set out in these terms before it was sent to Mrs McCole.
It is in stark contrast to the Advices given to the Minister on 10th June 1996 that it was unlikely that the Court would award costs against Mrs McCole.
The rationale for the threat was, in substance, that the BTSB was advised not to concede on aggravated/exemplary damages under any circumstances. It was the only liability issue that the BTSB could, in its view, hope to successfully defend. It was regarded as a critical issue for the BTSB. In the view of its Counsel, such a finding that the BTSB ought to pay aggravated/exemplary damages would have had quite disastrous consequences. It was felt that it would encourage many people to continue proceedings in the Courts rather than seek compensation from the Tribunal.
It was strongly felt that it would have a destructive, if not fatal, effect on the BTSB as a whole, and in particular the services that it offers. In essence, it was their view that public confidence in the BTSB would be undermined, if not destroyed.
The McCole family have also asked why the 5th Question was excluded from the Terms of Reference of the Tribunal of Inquiry into the BTSB chaired, by former Chief Justice Finlay.
The answer to this question is to be found in the letter of October 13th 1996 written by the Attorney General to the Minister, advising him on this point. In the letter, the Attorney General states that, in his view, the separation of powers is violated if Parliament seeks to pressurise, by inquiry, as to how any party conducts its litigation in the Courts. "Parties are free (provided of course that they stay within the law and within the rules of Court - there is no suggestion to the contrary in this case) to defend their cases as they see fit and in accordance with their legal advice, and not to have that legal advice the subject of scrutiny by the Dail or Seanad".
The Attorney General goes on to say "I should say that this is a point of fundamental principle as far as I am personally concerned. I would not assist in a process by which Parliament could now interrogate any Party (even if it was only a semi-state body) as to the conduct of its litigation". The Attorney General was concerned that the new Board of the BTSB should not be scapegoated in this inquiry.
The fact remains that the question from the McCole family could have been answered at any time by the Government, by simply stating that the letter was framed so as to protect the interests of the BTSB against a claim for aggravated damages.
It is legal terminology that is commonly used when a Party to proceedings is seeking to have the other Party desist from pursuing an earlier course of action.
The question of whether that terminology was necessary at the final stages of these proceedings is quite a different matter, particularly when one takes into account the Advices the State received from Counsel on 10th June 1996 and given Mrs McCole's deteriorating state of health at the time of the drafting of the letter.
Conclusion
Having considered these and other facts contained in Ms Macken's report and the accompanying documentation, it is obvious that the approach adopted by the State had a substantial influence on the legal strategy adopted by the BTSB in defending Mrs McCole's proceedings.
The Hepatitis C/Anti-D issue is the biggest health scandal in the history of the State. Yet, despite the gravity of the crisis and the fact that over 1,000 people were directly impacted by it, Minister for Health Noonan chose to adopt a strategy which was more concerned with the pure legal principles and technical obligations, than effecting a fair, just and humane solution to Mrs McCole's plight. The approach adopted was bereft of compassion or sensitivity to Mrs McCole or to the interests of others who were infected through the negligence of a State institution.
As the facts clearly demonstrate, the Minister and the Government knew that the BTSB was negligent as early as April 1995. The Minister inexplicably chose not to inform the BTSB of the Government's legal advice. The Minister chose not to suggest to the BTSB that it should seek independent legal advice on the matter.
Given that the State was the ultimate paymaster, the Minister made no attempt to seek an early resolution to the McCole case through methods which would not compromise the legal principles of the BTSB. No imagination or initiative was demonstrated by the Minister or the Government to deliver a solution.
The State recognised that the claimants had an absolute right to go to the Court for re-dress. One is left with the clear view, in examining this case, that there was a qualitatively different approach adopted by the State towards those claimants who exercised this right, as Mrs McCole did in this case, compared to those claimants who chose the State's preferred route of going through the Compensation Tribunal.
Even allowing for the fact that Court proceedings are adversarial by nature, the fact that the State was aware, at an early stage, that the BTSB had a case to answer and because of the nature and magnitude of the problem, the adversarial approach should have been tempered and the contentious tactics dropped.
The "Question 5" asked to explain the justification for the threat contained in the BTSB's letter to Mrs McCole of 20th September 1996 which caused a dying woman great upset and anxiety. It is clear that the desire to discourage other claimants to proceed in the Courts rather than the Tribunal, together with the protection of confidence in the BTSB were the key influencing factors for this legal tactic.
The Government's decision to preclude "Question 5" from the Terms of Reference of the Tribunal of Inquiry was made on the basis of pure legal argument, rather than on the basis of seeking a pragmatic way of answering an entirely justifiable question from the McCole family.
The lack of desire to seek a solution which recognised that a fundamental wrong was done to a citizen of the State is the biggest indictment of the State's legal approach and strategy in Bridget McCole's case. This arises from the fact that in seeking to deal with this problem in the Memorandum for Government of 3rd April 1995, the Minister and Government failed to recognise that an admission of liability was as important to the victims as any measure of compensation that would be made available.
I can only conclude that the attempt to de-couple the issues of compensation and admission of liability was regarded by Mrs McCole as a dilution of the principle of accountability on behalf of those responsible for what had happened. That is why she chose to go to Court. She was seeking in her own way, for herself and her family, to uphold that principle.
The dereliction of responsibility to determine a just, fair and humane solution to the plight of those infected by Hepatitis C through Anti-D must never happen again.
The Next Steps to Address Hepatitis C Victims' Concerns
This Government is committed to the implementation of the six main recommendations of the Finlay Tribunal Report.
It is a matter of priority for the Government to have the Hepatitis C Compensation Tribunal established on a statutory basis. The necessary regulations are being drafted and other preparatory work is being undertaken. It is the Government's intention to have the statutory Tribunals in place when business resumes after the summer break. The Tribunal will operate in two divisions in order to expedite the process of applications.
As a result of the Hepatitis C Compensation Tribunal being established on a statutory basis, all claimants, including those who have already received compensation, will be entitled to an additional 20% of their reward in lieu of aggravated damages.
Section 8 of the Hepatitis Tribunal Act 1997 provides for a settlement of claims procedure in respect of claims coming before the Tribunal. It is anticipated that this will facilitate a greater throughput of cases for decision before the Tribunal.
Where claimants have decided to instigate Court proceedings rather than going before the Tribunal, I am authorising the commencement of settlement negotiations for these claimants.
I am instructing a review of the manner in which these cases are being dealt with, with a view to seeking to deal with those cases as an assessment of damages only. My objective is to achieve a situation where nobody will be required to prove negligence to get compensation.
I want to achieve a position where the person whose case is before the Courts will be required to establish no more or no less than the proofs that are required to obtain compensation before the Tribunal.
Finally, on behalf of the Government I would like to extend my deepest sympathy to the members of the McCole family. I hope that the exercise that I have undertaken will assist them as they seek to come to terms with their sad loss.