THE State was not admitting liability in the hepatitis C controversy, the Minister for Health, Mr Noonan, said in the Dail yesterday. "My legal advice is that the State is not liable," he added.
He said the roles of the parties involved were distinct, adding that the Department of Health had a supervisory role over the Blood Transfusion Services Board.
Strongly rejecting opposition claims that he was inventing "some kind of fiction", Mr Noonan said he had made it quite clear previously in the House that there were different defendants.
"And the different defendants are being sued for negligence in respect of negligence in exercising their functions, and they have different functions, and the different defendants are all represented by different legal teams," said Mr Noonan.
The Minister was speaking during an emergency Dail debate on the controversy, which was demanded by the Opposition following the revelation that solicitors for Ms Brigid Ellen McCole, the woman who died on Wednesday after being infected with the hepatitis C virus reached a compensation settlement with the BTSB shortly before her death. There were expressions of sympathy with Ms McCole's family from all sides of the House.
Mr Noonan said he had been told in advance that the legal advice to the BTSB, after reviewing its position, was to admit liability. "But I was informed. 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."
He added that the BTSB was run by a board which made decisions in accordance with the legal advice it received. "It would be totally improper of me to try and give a direction on the matter."
Replying to questions from the FF and PD spokeswomen on health, Ms Maire Geoghegan Quinn and Ms Liz O'Donnell, the Minister opposed the setting up of a judicial inquiry. "I sat in this House when people were shouting for a judicial inquiry to get to the bottom of the beef scandal in the country. And £35 million of legal fees after, did we get to the bottom of it? I would suggest to the House that we are a lot farther down the road in respect of this issue.
The Minister said there had been an implicit accusation that he had concealed from the House the court lodgement made last May. The lodgement had been made under the rules of the superior courts. One of the rules was that it was so confidential it was not even to be mentioned to the judge. It was to be communicated between the legal team of the plaintiff and the legal team of the BTSB.
In the same way, he added, it would not have been proper for him, within two weeks of a High Court trial, to come into the House and announce that there was an exchange of letters between solicitors which would involve an admission of liability and an apology.
Mr Noonan said a theory was being canvassed that there was a settlement because people had been informed on a particular night that Ms McCole would not survive very long. "If the people involved in the negotiation were of that frame of mind, they need not have admitted liability at all. They need not have made any apology . . . We all know that once a person dies, there is very little money paid."
He added that before the very serious deterioration occurred in Ms McCole's condition, the BTSB had communicated that it was prepared to admit liability and apologise. Any medical information that came to light to suggest that Ms McCole was dying, or was going to die before the High Court case, might have triggered the monetary settlement at the end. But it did not trigger the admission of liability which was made.
Mr Noonan insisted that there was a ready made scheme which was working very well in the compensation tribunal to measure the quantum of damages.
"And it seems to me that once this is given some thought it will be possible for the tribunal to continue to measure the quantum of damages and for the BTSB to apply what it has done in the case of Ms McCole to the other plaintiffs, some of whom are going through the courts and some of whom are going through the tribunal," he added.
"That is a view I am giving. I have had no discussions on this matter, but it seems to me that it would be very peculiar indeed if the admission of liability did not apply to other plaintiffs as well, even if they were going to the tribunal."
The Minister said he should remind the House that the events they were talking about, and the infection of "poor Mrs McCole", had occurred in 1976, 20 years ago. The other significant date in the entire saga was 1991, a time in which the opposition deputies were in government. "So do not get into the blame game."
He added that, no more than himself, the opposition deputies were without culpability. "I would like the same rules to apply to me as I apply to deputies opposite." He said that the opposition should have the decency to apply the same rules to him and not be running political agendas" against him.
On the question of criminal negligence, Mr Noonan said he understood that the group, Positive Action, and some deputies had deferred the matter to the DPP. "I understand they were told that it was not a matter for the DPP."