The gross negligence of the State and its agencies in relation to the hepatitis C scandal was fully documented in last April's report by Mr Justice Finlay. Yesterday's disclosures dealt with the legal strategy which underpinned the last government's response to the case for damages taken against it, against the Blood Transfusion Services Board (BTSB) and against the National Drugs Advisory Board (NDAB) by the late Mrs Bridget McCole. The report added little to what is known about the way in which the State and its agencies traditionally respond to threats of litigation within an adversarial system. And it provided no evidence of a concerted, co-ordinated political/legal conspiracy to deny that a terrible tragedy had occurred or that great wrong had been done to citizens.
From early in 1995, controversy surrounded the mechanism decided upon by the last government to deal with the situation. The establishment of a special tribunal to make quick payments to infected women - but without the formal acceptance of liability - was regarded both as a means of minimising official blame and of reducing the costs to the State. But there was considerable substance in the last government's contention that by providing a quick and easy mechanism of redress, it would keep down legal bills and facilitate many infected women. Yesterday's disclosure that while the late Mrs McCole received £175,000 in settlement of her case, her legal team got £800,000, offers little endorsement of the adversarial, High Court route.
The report by Ms Fidelma Macken, who represented the public interest during Mr Justice Finlay's investigation, sets out the situation with admirable clarity. A memorandum was brought to Cabinet by the former Minister for Health, Mr Michael Noonan, in April, 1995, in which he sought permission to publish a report by an expert group on the hepatitis "C" infections caused by BTSB transfusions; to establish a tribunal to provide fair compensation for victims and to effect urgent changes within the BTSB. There was also advice from the government's legal experts that the BTSB would probably lose any court case for damages.
Ms Macken raises the question as to why the State, or the Minister, did not insist on the BTSB admitting liability once it had received this legal advice. And she replies that the BTSB was not under the control of the Minister; that both the State and the NDAB were claiming indemnity from the BTSB and that if the Minister directed the BTSB to admit liability, such interference would probably have voided the BTSB's insurance cover. Such legal and financial considerations will seem poor justifaction to those people whose lives have been blighted by this medical catastrophe. And there is no doubt that the Government responded in an officious, rather than a generous and caring, manner. The new Minister for Health and Children, Mr Cowen, has spoken of "dereliction of responsibility to determine a just, fair and humane solution" and said that this must never happen again. Apart from that, all he promises is the implementation of the six recommendations of the Finlay report.