Lawyers for the Lindsay tribunal have opposed the Irish Haemophilia Society's application to broaden the scope of the inquiry to investigate overseas drugs companies that supplied infected blood products to the Republic.
Mr John Finlay SC, for the tribunal, said under its terms of reference it was not "entitled or required" to examine the "state of mind" of pharmaceutical companies.
He was responding to a submission by Mr Richard Nesbitt SC, for the IHS, who said the inquiry would run the risk of being "flawed" unless the companies were investigated.
The chairwoman, Judge Alison Lindsay, is to rule on the matter next week.
Mr Nesbitt, in written and oral submissions, argued for two matters: first, that documents submitted by a previous witness, Dr Peter Jones, on the drugs firm Armour Pharmaceuticals be admitted in evidence; and, second, that the tribunal "take further steps to inquire into certain actions or inactions" of the companies which supplied products that infected haemophiliacs in the State with HIV and hepatitis C.
Regarding Armour, Mr Nesbitt said Dr Jones, a leading UK haematologist, was in possession of internal company records that showed "an admitted failure" on Armour's behalf over the safety of one of its blood products.
The minutes of an Armour scientific committee meeting in October 1985 recorded company fears that it would lose market share and profits if it were to withdraw its heat-treated Factorate concentrate, over which concerns about HIV infectivity had been raised. It remained on the market and was believed to have infected an Irish haemophiliac in February 1986.
Counsel said he understood the tribunal had written to Armour asking for certain information but it "never came back with a satisfactory answer".
He said it would be irrational "to pull the drawbridge up" at this point, adding the work of tribunal would be diminished to a material extent unless Dr Jones's evidence was received.
Speaking of the need to broaden the investigations in general, Mr Nesbitt said it would be "a failure on the part of the tribunal" not to order companies to produce information. It "should at least try", even if it did not expect success.
He said one option available to the tribunal would be to seek access to documents used in litigation against drugs firms in the US and now stored in a depository in Pensacola, Florida.
Counsel said there was some urgency regarding the matter as he understood the depository was likely to close on January 1st, 2002, adding that November 1st, 2001 would be the last date for applications for access.
Under the Judicial Assistance Statue, Mr Nesbitt noted, any "interested person" or "international tribunal" could seek discovery and this should include the inquiry.
Replying, Mr Finlay said it was noteworthy there was no clause in the terms of reference which directed or entitled the tribunal to investigate the criteria, standards and procedures of manufacturers. Such a request could have been done "simply" if it had been desired.
He said the tribunal had heard more than 160 days of evidence and the chairwoman would have to evaluate the relevance or importance of the matters in question against the likely delay involved in examining them.
The tribunal was interested in investigating communications made by pharmaceutical companies to relevant persons in the State, he said. However, investigating "the state of mind of drug companies per se" would not be helpful or appropriate.
Rejecting the argument for recalling Dr Jones, he said "the tribunal is not directed or required to inquire into Armour". The mere fact that an internal memo had come into the doctor's possession did not qualify or entitle him to produce it in evidence, he added.
In reply, Mr Nesbitt urged Judge Lindsay to allow his submissions "get a little more air-time" than the tribunal legal team might consider worthy.
In doing so, Mr Nesbitt drew her attention to a letter of May 7th, 1998, from the former minister for health, Mr Brian Cowen, to the chairman of the IHS, Mr Brian O'Mahony, in which Mr Cowen said the tribunal would investigate the source of infected products whether they were from Ireland or abroad. The letter predated the tribunal's terms of reference.
