Hepatitis inquiry must not be part of cover up

LAST April, in the High Court, Dr Garry Courtney, a consultant at Beaumont Hospital in Dublin, submitted an affidavit on the case of Brigid Ellen McCole versus the Blood Transfusion Services Board and the Minister for Health. He told the court he believed Mrs McCole "may develop decompensated liver disease within several months which could arise without warning". If so, he said, she would be "unlikely to be able to give evidence or to participate in any meaningful way in her legal proceedings".

On Thursday of last week, Brigid Ellen McCole's death certificate was filled out. The cause of death was given as decompensated liver disease" due to "hepatitis C infection".

Michael Noonan now tells us he saw Brigid McCole's court case as the opportunity to discover and make public the truth of the BTSB's actions. Yet, nearly six months ago, he knew there was a strong likelihood that case, in which the truth of the worst scandal in the history of the State was to be rehearsed in public for the first time, would be abandoned because of the death or incapacitation of the woman who was taking it.

He also knew that, in the discovery of documents for the case, very significant new information about the culpability of the BTSB, information which was not contained in the official Hederman O'Brien report published by his Department, had come to light.

This was the extraordinary fact that the BTSB, as its present chief executive, Liam Dunbar, subsequently told a Dail committee, had records of tests taken "almost on a daily basis" in 1976 showing infectious hepatitis in the blood of the woman whose plasma was being used to make anti D serum. The scandal, therefore, was not just a mistake it resulted from a wilful decision to ignore a known danger of infecting large numbers of women with an incurable disease.

Michael Noonan knew, in other words, that both the Hederman O'Brien report, which he had published, and the compensation tribunal which he had established, were based on incomplete information. He ought, therefore, to have done two things: to acknowledge that significant new information was emerging from the case and to throw the full weight of the State behind Mrs McCole's action. Instead, he did the exact opposite.

FIRSTLY, he and his Department denied any new information of significance was emerging in Brigid McCole's case, and attacked those who said otherwise. In the Dail, his junior minister, Mr Brian O'Shea, criticised media coverage, including a column I wrote on the subject last April, which pointed to the BTSB's knowledge of what it was doing, as disseminating "misleading information through lack of research and careless coverage".

Brian O'Shea also told the Dail the Hederman O'Brien expert group had been informed by the BTSB that the donor for anti-D had been diagnosed "as having infective hepatitis in 1976". This was somewhat less than the whole story: the BTSB itself acknowledged that the vital file had not been shown to the expert group. The Dail and the public were, on this vital issue, actively misled by the Department of Health.

Secondly, instead of allowing the McCole case to become in effect a public inquiry into the scandal, as he now claims he wanted it to be, Michael Noonan threatened infected women with dire consequences if they decided to go to court rather than to a compensation tribunal in which there would be no admission of liability and no investigation of the scandal itself.

On July 21st 1995, the Chief State Solicitor, acting on Michael Noonan's behalf, wrote to the solicitors for Positive Action (the pressure group formed by the infected women) to warn them that any litigation "will be fully defended by the State, if necessary to the Supreme Court". This would, he warned, involve "uncertainties, delays, stresses, confrontation and costs" for the women.

These threats continued almost up to Brigid McCole's death, and even after the BTSB had agreed to admit liability. The BTSB's solicitors wrote to Mrs McCole's solicitors on September 20th threatening to "seek all additional costs" from that date if she proceeded with her action against the State. It is entirely clear from the letter that its threats were issued with the consent of the Department of Health. Why, if he wanted Brigid McCole's case to reveal the truth of an appalling public scandal, did Michael Noonan allow these threats to be made to a dying woman?

IT IS good that Michael Noonan has at last been forced to establish a judicial inquiry.

But it is vital that its terms of reference should reflect the fact that the scandal has two parts. One is the infection of about 1,800 women by the BTSB. But the other is the effective covering up of the truth of those events by the BTSB and the Department of Health.

We need to know, for instance, how it was possible for a state institution to break at least two laws without the Department of Health doing anything to stop it. One is the 1932 Therapeutic Substances Act, which regulates the manufacture, import and sale of vaccines, sera toxins, antitoxins and antigens" and makes it a criminal offence to manufacture any of these without a licence. The BTSB manufactured anti D without a licence from 1970 until 1984.

The other is the 1947 Health Act and the infectious diseases regulations, which make it a criminal offence not to take every reasonable precaution to prevent the spread of infectious diseases including, specifically, hepatitis C. The BTSB failed to do so. The inquiry must ask not just why these laws were broken, but why no one was prosecuted.

We also need to know, for instance, why some dubious information was given, and some significant information was withheld, from the expert group. A "number of staff of the BTSB" told the group that a written report by a named Dublin consultant had explained an outbreak of hepatitis among anti D recipients in 1977 as being due to "environmental factors". Yet it seems no such report ever existed: the BTSB could not produce it, and the expert group was told by the named consultant he had never investigated the incident.

Rather disturbingly, the BTSB told the Dail committee in June it did not even know the names of its staff who had told this story to the expert group, never mind questioned them about it. The crucial file was not given to the expert group and only turned up in a "last trawl of everything" before the Brigid McCole case. Again, the BTSB has been unable to explain why this file was not found earlier.

It is crucial that the proposed inquiry be allowed to investigate both the withholding of vital information from the expert group and the insistence by Michael Noonan and Brian O'Shea inside and outside the Dail that no new information had come to light. Otherwise, the inquiry will be unable to fulfil its most important function - the restoration of public trust in the Department of Health and the BTSB. If it cannot look into the denials, evasions and obstructions of the truth, the inquiry will itself have been made, even before it is established, a part of the cover up.