It seems that no government is ever going to get things just right on the subject of hepatitis C. The previous government - and particularly its minister for health - took a great deal of stick on several issues relating to the scandalous tragedy which surrounded the infection of many women by a potentially lethal virus which had been allowed to contaminate blood products given to the women to protect their children from being affected by incompatibilities between their and their mothers' blood groups. Now the present Government seems to be in some trouble as a result of its handling of the case taken in the High Court by Dr James Kirrane, a part-time consultant to the Blood Transfusion Service Board, who was a witness at the tribunal set up by the previous government to investigate the hepatitis C scandal.
Positive Action, the group representing the infected women, has asked the Minister for Health and the Attorney General why the State did not reconvene Mr Justice Finlay's tribunal to deal with the matters complained of by Dr Kirrane, and has described as 'bizarre and incomprehensible' the outcome of the High Court case in light of assurances given to the group by Government officials last week. And, while the group accepts Dr Kirrane's right to take his case to the courts, and the Court's independence in dealing with the issue, it still insists that, on the substantive issues dealt with by the Finlay tribunal, the tribunal's report was final and, further, was endorsed by Dail Eireann. There is also criticism of what some see as a failure of the Government's resolve to defend its, and its Dail-endorsed tribunal's, position in the High Court case.
The agreement reached between the parties in the High Court appears to have been based on considerations of natural justice concerning the manner in which Dr Kirrane's testimony was taken by the tribunal rather than on the substantive issues investigated by Mr Justice Finlay. The State has agreed to publish 'clarifications' on the basis that it was responsible for publishing the tribunal's report, and Mr Justice Finlay has apparently conceded that those sections of the report relating to Dr Kirrane may be quashed. Compromises have also been made by Dr Kirrane's side in the case's settlement: the request for damages and for a declaration of innocence appear to have been dropped. But such is the nature of adversarial hearings in the courts: compromises tend to be made by both sides in their search for resolution.
This is, in part, why court proceedings are not well suited for dealing with issues as complex as those dealt with by tribunals where, in theory at least, facts are to be objectively established by way of public inquiry. But the events now attending the outcome of the hepatitis C tribunal have muddied the clear water of truth which both the Dail and the public thought had flowed from that tribunal's report. This must not only create acute unhappiness among those directly affected by the transmission of the hepatitis virus in blood products, but it must also throw into some uncertainty the use of tribunals in the investigations of other public scandals and mysteries. Are all of the recent and current tribunals to be re-visited by the courts in a manner which will make their findings uncertain at best and unpublishable at worst?