Discomfited Noonan finds himself caught in hepatitis C dilemma

IT IS not often one sees Michael Noonan cornered, but the quandary in which he finds himself over the hepatitis C "scandal" (his word) makes him appear distinctly restive.

Up to 1,600 people have been inelected with hepatitis C by an agency of the State and he is finding it very difficult to distance himself from the dilemma this presents.

Swamped by a deluge of criticism over his handling of the controversy since Mrs Brigid Ellen McCole died last week just hours after her lawyers had reached a £175,000 compensation settlement with the Blood Transfusion Services Board the Minister has done an astonishing volte face and announced the establishment of a tribunal of inquiry.

Its brief is to investigate "all issues of doubt or uncertainty surrounding the infection of persons arising from the administration of anti-D manufactured and distributed by the Blood Transfusion Services Board".

We await the terms of reference and the membership of this one person tribunal, but these matters are to be finalised within a week and submitted to both Houses of the Oireachtas for approval.

However, the inquiry will have the power to compel witnesses to attend, to cross examine them and to discover documentation. All this authority was denied to the Expert Group which was set up by the then Health Minister, Mr Brendan Howlin, and chaired by Dr Miriam Hederman O'Brien.

It is a stark fact too that the tribunal of inquiry will cost money, a great deal of money. So enormous is the political conundrum now facing it, the Government has managed to set aside the legacy of reservations left by the £35 million beef tribunal and decided to go for what will undoubtedly be a multi million pound investigation.

Mr Noonan says legal fees will be set in advance, though presumably not at the £1,500 per day agreed for senior counsel in the beef tribunal. He also states that, unlike the beef tribunal, this inquiry will not drag on interminably and will be conducted within a fixed time frame.

Positive Action, the group representing women infected with the BTSB issued infected anti-D vaccine, have hunted politically for a tribunal with real teeth since last April. Seven months ago they passed a resolution at their general meeting calling for a judicial investigation into the "revelations and contradictions" that emerged in the report of the Expert Group.

But their motion fell on deaf ears, and Mr Noonan declared that to have such an inquiry "would serve no useful purpose".

So, why the change of heart? Why did the Government suddenly decide that the very thing needed was a judicial inquiry to pursue the truth?

The death of Mrs McCole has concentrated the collective Government brain immeasurably and, as one woman involved in the hepatitis C struggle said yesterday, "It has left the Minister with his back to the wall".

Amid allegations in the Dail of a cover up and accusations of cynicism and cold heartedness in the wake of Mrs McCole's death, the Government must isolate this politically embarrassing problem, to ensure that fallout is limited.

The Minister argued that he had expected the truth to emerge through Mrs McCole's case in the High Court, but unfortunately the mother of 12 did not survive to pursue her claim. Mrs McCole had also contested the findings of the Expert Group.

Meanwhile, the Minister must also, on a pragmatic basis, ensure that public confidence is not lost in the State's blood transfusion service. He must strike a balance between maintaining this faith and getting to the bottom of the scandal without sustaining too much political damage.

The BTSB has admitted liability in the McCole case and, according to the Minister, it is only "logical" that ft should do so in future compensation cases.

However, the State and another defendant, the National Drugs Advisory Board, are expected to stick tenaciously to the claim of non liability when other cases for damages come before the courts.

Reacting to the announcement last night, the chairwoman of Positive Action, Ms Jane O'Brien, echoed the sentiment of hundreds of women.

"We are relieved that a tribunal of inquiry is now being established and, at last, women may begin to learn the truth about the contamination", she said.

"It has been a long and difficult struggle for Positive Action, our advisers and all the infected women and their families. It took the courage and tragic death of the late Mrs McCole for the Government to comprehend the enormity of the hepatitis C scandal and how deep the search for the truth is".

The Expert Group's report appeared to give the full story when published last year. It told how antiD had been manufactured from blood from a woman who had been diagnosed as suffering from "jaundice".

However, discovery documents elicited during the McCole High Court action found that the woman had in fact been diagnosed at the time with infective hepatitis but that the BTSB had continued to use her blood nonetheless.

The shortfall of the Expert Group brief, despite the eminence of its embers, in not having the power to compel witnesses to attend is obvious in the latest U-turn by the Government.

THE group concluded that there were serious omissions by the BTSB in not releasing details of the anti-D contamination when it was officially notified of the problem in 1991 by the Middlesex Hospital. The hospital and held on to samples of the anti-D manufactured from the woman's food since 1977 and, when a test for hepatitis C became available, alerted the BTSB to the link between the infection and the vaccine. Nothing was done.

"On the available evidence, we conclude that the BTSB's product, Human Immunoglobulin Anti-D, became infected with the hepatitis C virus in the circumstances described to us by the BTSB," the report said.

We now know that the risk taken by the BTSB in using the infected woman's blood was far graver than the report had indicated.

It was, however, clear from the report that the Expert Group had difficulty in getting information from the BTSB. It concluded that the BTSB had ignored its own guide lines, though the full gravity of the breach only became clear later this year when the diagnosis of infective hepatitis was unearthed through the discovery process in the case of Mrs McCole.

The report also came to the conclusion that benefits offered by this rich source of materials "were considered by the BTSB to outweigh the risks involved". It was suggested to the group that there may also have been a robust confidence in the capacity of the manufacturing process to destroy any harmful agents in the raw material.

There is a lot riding on the new tribunal of inquiry. According to women involved in the protracted campaign for justice, it can get to the truth much information has already been gathered in the McCole case through discovery. This will be a full judicial hearing with witnesses undergoing cross examination.

But the judicial inquiry will fail if as some women infected with the virus fear, the BTSB takes more or less all the blame or if it drags on so long that a war weary public will either lose interest or drown in a sea of complex medical terminology.