Approach taken was fearful, narrow and defensive
The McCole report clearly shows that the legal strategy adopted in the case of the Co Donegal woman was conducted by the State as though it were simply an ordinary personal injuries case. No cognisance was taken of the fact that the woman involved had been infected by a negligent State agency, in the biggest health scandal since its foundation. Instead a narrow, conservative and highly defensive attitude was adopted. The Minister for Health, Mr Cowen, yesterday described the policy adopted as "standing on legal niceties".
The previous Minister for Health, Mr Noonan, seemed to fearfully follow the advice given by the legal experts, forgetting the human element. Rather than bringing his much-vaunted political nous to bear on the situation, he opted to embrace what transpired to be a harsh and insensitive strategy.
Most of the advice came from the rainbow coalition's attorney general, Mr Dermot Gleeson. An interesting insight into Mr Gleeson's approach is contained in a letter from the chief state solicitor's office to the Department of Health on September 28th, 1995. The issue of whether Mrs Bridget McCole should be allowed to retain her anonymity in her High Court case was under discussion.
The letter reveals Mr Gleeson's thoughts on the matter and sums up the State's attitude to this case and those of other women infected with hepatitis C and their determination that these victims would pursue compensation through the the tribunal rather than the courts.
Mr Gleeson said that it was "a fine point" as to whether or not the State should contest the matter of anonymity. On balance, he said, the State probably should contest it because of "the tactical value" it afforded to the compensation tribunal.
"It can be conducted on a relatively mild basis, drawing attention to the Hamilton judgment and the provisions of the Constitution and indicating that any hardship which might occur in some cases is relieved by the availability of the Tribunal in this case.
"You might get a final policy direction from Health in relation to this, but I think it is open to us to make this case, without hopefully causing too much of a stir," he said.
Mr Gleeson mentioned the Hamilton judgment in which haemophiliacs who were suing the State were able to use aliases.
But there is no evidence in the legal papers that the State ever drew the court's attention to this earlier precedent, or suggested the same approach be adopted in the McCole case - as Ms Fidelma Macken SC, the independent counsel who examined all the legal documents pertaining to the State and the BTSB defence, notes in her report for the present administration.
Ms Macken, who represented the public interest at the tribunal of inquiry into the hepatitis C scandal, says that it might well be asked why the State did not insist on the BTSB admitting liability once the Report of the Expert Group was published.
"But again it would have to be borne in mind," she said, "that the BTSB was not under the control of the Minister nor answerable to him. I have looked at the provisions of the Regulations establishing the BTSB and can find nothing (other than in connection with its charges) which gives the Minister any control over its activities or how it operates. It obliges the BTSB to assist the Minister in certain circumstances but that is as far as it goes."
That is the correct legal position. But as the current Minister for Health pointed out, Mr Noonan had many opportunities, without improperly interfering, to communicate to the BTSB the State's view that the Board had been negligent in its production of anti-D in the 1970s.
"There is no doubt," Mr Cowen said, "that where the State had already determined to be the paymaster, the State was in a position to call the shots and arrange an early solution to the problem."
Mr Cowen argued yesterday that Mr Noonan should have posed further questions to the Attorney General, since it was known by the State that the BTSB was liable and that the State was going to have to pay at the end of the day. "This overly conservative and unimaginative approach to solving this serious problem was probably caused by a lack of courage and led to unnecessary suffering for many and in particular for Mrs McCole," Mr Cowen said.
Mr Cowen said it is evident throughout the State papers that the existence of the Compensation Tribunal exerted a powerful influence on the mind of Mr Noonan in maintaining these various tactics. He appears to have adopted a "carrot and stick" strategy.
"The carrot was the existence of the Compensation Tribunal where negligence would not have to be proved, where the anonymity was preserved and where a claimant would not be subjected to crossexamination. In contrast, in the strategy adopted in the McCole case, Mrs McCole was denied anonymity, an application for an early trial was resisted and the full rigours of the adversarial system were applied." Mr Cowen said that where people infected with hepatitis C have decided to go to court rather than going before the Compensation Tribunal, he was authorising State legal teams to begin settlement negotiations.
He has ordered a review of how these cases are being dealt with so that in the future they may only have to be assessed in terms of damages. His objective, he said, was to achieve a situation where nobody will be required to prove negligence to get compensation. But the legal advice remained that the State should not admit liability.
However, the Minister was less than clear on what any new option would mean for women who are taking court action in pursuit of aggravated damages. There were echos of legal fudging in his explanation and a reluctance, not unlike his predecessor, to say anything that might open the floodgates to further claims for aggravated damages.