Tribunal's mandate allows key questions

LAST night's announcement of the terms of reference for a tribunal of inquiry into the hepatitis C scandal was an event that few people can have expected to see again. After the bitter experience of the beef tribunal, it was thought we would not see it's likes again. It had been so protracted, so costly and so inconclusive that the whole mechanism of judicial inquiries seemed to have been brought into disrepute.

Yet again, it is a last resort. All else has failed. The three basic mechanisms for enforcing accountability have proved incapable of delivering the answers to which the many hundreds of Irish families visited by this scandal are entitled. The criminal process has gone nowhere - no papers have been referred to the Director of Public Prosecutions. The expert group established to investigate the scandal was not shown a crucial BTSB file, and its January 1995 report is, therefore seriously inadequate. And questioning in the Dail has produced some less than frank answers. The public has to depend on a mechanism, for which few people feel any great enthusiasm, for basic truths about the operations of a public body.

Two lessons seem to have been learned from the beef tribunal. One is that there, has to be some check on an inquiry's progress. The provision for an interim report after 20 days, and the requirements for economy and efficiency, should provide such a check.

The other lesson is that its effectiveness depends critically on its terms of Mr Justice Hamilton's imposibly wide brief required him to investigate all allegations made in the Dail or on the World in Action programme about illegal activities in the entire beef processing industry. He had to consider the operations of dozens of companies, numerous state and semi-state agencies and four government departments. That he ended up grappling with a monster was hardly surprising.

Last night's announcement seems to indicate, that the Government realised it is better to have long terms of reference and a short inquiry than the other way around. Explicit terms of reference give the tribunal the power to prevent diversions and distractions. Tribunals need terms of reference that are broad enough to allow them to follow a trail of evidence to its conclusion but narrow enough to keep them on the straight and narrow. The Government seems to have got that balance about right.

The most important consideration was that the scandal has two parts - the infection of up to 1,800 women by the BTSB and the failure of the BTSB and of the Department of Health to make themselves accountable for their actions. A tribunal which looked at the first part and not the second would have run the risk of being an elaborate evasion of political responsibility. The terms seem to avoid this by giving the tribunal a mandate to look into both.

IN the first category, what has to be investigated is not so much what happened as why it happened. The basic facts of the infection are already in the public domain from the report of the expert group chaired by Miriam Hederman O'Brien, and it should be relatively easy for the tribunal to confirm them. What is, at the moment, in comprehensible is why the BTSB continued over, 18 years to treat women with anti-D product which it knew to be infected with hepatitis. None of those at the top of the BTSB at the time have spoken in public about their intentions and motivations. The tribunal's terms of reference clearly allow the crucial questions to be asked.

The second category of questions relates not to what happened but to why the normal mechanisms for making people accountable have failed so badly. The public needs to know how it was apparently possible for a State institution to break at least two laws the 1932 Therapeutic Substances Act and the 1947 Health Act over a long time without the Department of Health doing anything to stop it. It also needs to know why some very dubious information was given, and some very significant information was withheld, from the expert group. A number of staff of the BTSB told the group that a written report by a famed Dublin consultant had explained an outbreak of hepatitis among anti-D recipients in 1977 as being due to "environmental factors". Yet it seems that no such report ever existed: the BTSB could Cot produce it, and the expert group gas told by the named consultant in question that he had never investigated the incident.

And a crucial file showing that the BTSB knew from 1976 that the woman whose blood was being used without her knowledge or consent to make anti-D had infectious, hepatitis was not given to the expert group. It only turned up in a last trawl of everything" before the Brigid McCole case. The BTSB has been unable to explain why this crucial file was not found earlier. But Michael Noonan and his junior minister insisted over a period of months that the information in this was in fact known to the expert group. Last night's terms of reference effectively concede that this was not the case. They refer to the fact that "further documents ... not available to the expert group" may now be available. This obscure sentence, may turn out to be the most significant line in the terms of reference.

What makes the inquiry a genuine, search for the truth, though, is the fact that the supervision of the BTSB and "the functional and statutory responsibilities of the Minister for Health, the Department of Health, and the (health) boards" are included for examination. The fact that the BTSB manufactured anti-D without a licence for 14 years, raising all sorts of questions about statutory supervision, is specifically mentioned. The fact that the State and the Department of Health threatened women seeking the truth with dire financial and emotional consequences will be included in the inquiry's scope by way of its reference to "the questions raised by the family of Mrs Brigid McCole. One question is how Michael Noonan could justify the BTSB's threat to pursue the late Mrs McCole for costs if she pushed on with her action. Armed with this mandate, the tribunal should be able to ask not only why so many innocent citizens were so appallingly injured but why those whose first duty is to protect the lives and health of those citizens have, until last night, done so little about it.