Regulations governing the BTSB would not have prevented the former Minister for Health, Mr Noonan, passing on information about its legal liability, according to a litigation expert. The McCole Report on Friday revealed that Mr Noonan had been advised by the Attorney General in April 1995 that the BTSB had been negligent. This information was not given to the BTSB, which did not admit liability in the McCole case until 17 months later, shortly before Bridget McCole's death.
Mr Noonan has said he was prevented from passing this information to the BTSB by the regulations setting up the board.
"There is nothing in the regulations to say that information in itself could not have been passed on to the BTSB by the Minister," the legal source said last night.
The BTSB was established under statutory instrument in 1965. In her report Ms Fidelma Macken SC said the regulations did not give the Minister "any control over its [the BTSB's] activities or how it operates".
However, the legal expert said there was a difference between controlling the board's activities and communicating information relevant to its case.
Mr Noonan said in an RTE interview on Tuesday that he was "not permitted to communicate" the AG's advice to the BTSB "because I would be seen to be trying to influence the manner in which they ran their case. So I didn't have the option of communicating it to them, unfortunately."
However, the legal source said there was no question that the "mere open flow of information between the Minister and the board" would be seen as an attempt to influence the BTSB's defence.
"If the argument was being made that the BTSB was abdicating responsibility for its own defence then this would be against the regulations. But there was no question that the passing of this information could have been prejudicial."
Mr Noonan said he was also prevented from passing on the information because of the BTSB's insurance policy. However, the expert said, "the simple fact of passing information, in my view, would not put at risk the BTSB's indemnity".
Under the regulations, the Minister can "give direction" on the charges set by the board for blood and blood products. The 12-member board is appointed by the Minister and he can: ask a board member to resign, appoint the chairman; approve travel and subsistence allowances to directors and order an audit of the annual statements of accounts.
Mr Noonan said the Department of Health's position as a co-defendant with the BTSB in the McCole case, meant he was unable to share information with the BTSB.
But the legal source said: "There is nothing in the statutory instrument which indicates that the Minister would have the power to interfere with the board in its decisions. But as a matter of a line of communication, they would be entitled to impart information to the other side without in any way being seen to be influencing the case."
