Hepatitis C pledge raises McCole case questions

IN Labour's manifesto there is a promise to deal with the compensation claims of the victims of the hepatitis C scandal with "speed and sensitivity". This inevitably raises the question of the outgoing Government's handling of the Brigid McCole case.

In answering that question at the introduction of the manifesto, Mr Dick Spring said that the Blood Transfusion Service Board (BTSB) had decided its legal strategy - making a lodgment in court and threatening Mrs McCole with the full legal costs of the case if her eventual award did not exceed it - without consulting the Government. The Government, he said, was informed of this some days after it was implemented but "I am not aware of any co ordination between the State and the BTSB".

This is the third version of these events we have been given by members of the outgoing Cabinet.

The Minister for Health, Mr Noonan, gave the clear impression that the BTSB was conducting its own legal defence in the McCole case, completely separate from that of his Department, and that neither he nor the Government was responsible for the threats to Mrs McCole.

On October 3rd, 1996, he told the Dail that while he had been informed of the BTSB's conduct of its defence, "I was not asked for my permission. I was not asked to make a policy decision. Whether deputies like it or not, the BTSB is a separate legal entity... It would be totally improper of me to try to give a direction on the matter."

In March Brendan Howlin produced a second version. On Liveline on RTE Radio 1, Marian Finucane asked him: "Why was the BTSB allowed to make legal threats to the McCole family when it was known they [the BTSB] had no legal defence?" Brendan Howlin said: "Well, the legal strategy was decided by the Government ... in relation to the advice that was given and the strategies that were taken by the Government ... The Government is collectively responsible for Government strategy in all these matters and advice comes through the Minister at the time, and the Government made the decision in relation to how these things happen."

Dick Spring's third version of events on Tuesday lies somewhere between these two positions: the Government didn't decide the strategy but neither was the BTSB acting entirely alone.

Assuming that Dick Spring's version is now the correct one, it is in itself rather extraordinary. For if there really was no Coordination between the State and the BTSB, the threatening letter sent to Mrs McCole is even more inexplicable. In the first place, it announced that the BTSB was now in a position "to meet and satisfy" all damages and costs that might be agreed with her lawyers. How, without the approval of the State, could such an offer be made by a State funded institution?

And second, if there was no coordination between the BTSB and the State, how come the BTSB made an offer to Mrs McCole on behalf of the State: "If your client discontinues her claims against the National Drugs Advisory Board and the State defendants, our client will pay such party and party costs as may be sought by those defendants or either of them. Again we are instructed that our client is in a position to discharge any such liability for the costs of those defendants".

Why, if there was no coordination, was the BTSB so anxious that Mrs McCole should drop her case against the State? And why, in its own defence to the action did the State see fit to make the most extraordinary claims on the BTSB's behalf, including one that it had neither manufactured anti D immunoglobulin nor administered it to Mrs McCole? Why did the State use exactly the same legal strategies as the BTSB did, including an unsuccessful attempt to stop her taking her case under the statute of limitations, and a successful action to force her to use her real name in the hearings? Was all of this mere coincidence?

Labour in its manifesto claims with a great deal of justification that it has introduced "historic legal reforms" in the area of open government, and points to the Freedom of Information, Ethics in Public Office and Electoral Acts. That record contrasts favourably with Fianna Fail's behaviour over the beef scandal, which was vigorously defended in 1994 by Brian Cowen, now the leading proponent of full disclosure.

But Labour itself has always pointed out that legislation for open government will not work unless the culture of the State itself also changes. And in the biggest public scandal ill the State's history, the pane of glass behind which John Bruton promised to govern is stiff encrusted with evasions.