A CONSULTANT pathologist who gave evidence at the Tribunal of Inquiry on the Blood Transfusion Service Board was given leave in the High Court yesterday to challenge part of the report which criticised him.
Dr James Kirrane wants to quash the part of the report published on March 11th last that concluded that he "bore some responsibility for the contamination of blood products by failing to insist on a greater investigation of the reaction of patients to the Anti D blood products".
Dr Kirrane is seeking a declaration that he was not in any way responsible for, or did not in any way contribute to, the contamination of blood products, the subject of the report.
The defendants in the case are the chairman of the tribunal, Mr Justice Finlay, Ireland, and the Attorney General.
Dr Kirrane is seeking damages against Ireland and the Attorney General only for breach of constitutional rights to fair procedures and to good name.
On the application of Mr Michael Collins SC, for Dr Kirrane, Mr Justice Kelly gave him leave to seek judicial review.
Mr Collins said Dr Kirrane had been a witness at the tribunal. At no stage had he been told there would be any allegation against him. He was merely a witness, he said.
Dr Kirrane had been afforded no formal right of legal representation at the tribunal and had not been given the right to cross examine persons giving evidence adverse to his interests. He was not allowed to make submissions in respect of the evidence.
He never knew and was never informed by the chairman that any allegation had been made against him prior to his giving evidence, or that there was any possibility that the chairman would come to an adverse conclusion about his conduct.
Dr Kirrane claims he was not given any opportunity to consider documents which were handed to him as he gave evidence. He had never seen some of these papers before and others of them he had not seen for approximately 20 years.
His professional and personal good name and reputation had been gravely prejudiced and impugned by the report, he claims.
Dr Kirrane says his sole role at the BTSB was in relation to his expertise in protein fractionation in the production of various products (including Anti D) which the BTSB had decided to manufacture. It was not the protein fractionation process which had given rise to the contamination of Anti D products.
The chairman thereby erred in law in concluding that Dr Kirrane had a duty to "press for further investigations" arising from his reporting of such reactions to the BTSB.
Dr Kirrane says entire responsibility for the safety of plasma rested completely on the clinical team at the BTSB.
The chairman could not properly have concluded that Dr Kirrane, whose entire function at the BTSB related only to protein fractionation, had any responsibility for a matter far which he had in fact no responsibility.
The chairman did not specify the "further investigations" which he concluded Dr Kirrane should have pressed for. However, investigations of a clinical nature were not a matter for Dr Kirrane but the responsibility of the BTSB clinical team.
Dr Kirrane further claims that there was no factual basis for the finding that "the damage might have been avoided or limited".
The damage commenced following the issue of the infected batches of AntiD throughout early 1977. Patients were reported to have been infected from May 1977 and were possibly infected earlier.
Dr Kirrane says he only became aware of the test results of these patients much later in the year, by which stage five of the eight batches had already been issued.
According to Dr Kirrane, "significant damage had already been caused and the finding that the damage might have been avoided is without factual basis".
"I was, and am not, a clinician and I had no clinical role with BTSB," he said. He was never consulted about donor selection nor had he any obligation or responsibility for plasma procurement and he was vindicated in this regard by the tribunal report.