FF demand for McCole documentation rejected

A FIANNA Fail demand that the Government place before the House all the legal documentation relating to the Brigid McCole case in the hepatitis C scandal was rejected by the Minister for Health.

Mr Noonan said that while the State was still a defendant in other similar proceedings, it would not be appropriate for it to disclose legal advice relating to the litigation where comparable litigation was pending before the courts.

The Fianna Fail demand, made by the party's spokesman on health, Mr Brian Cowen, in a private member's motion, called on the Government to produce the documentation from the Chief State Solicitor's Office, giving the state of knowledge of the Government.

But Mr Noonan insisted there was a fundamental objection to any process whereby lawyers, advising a party to litigation, could be required to account to the legislature for their advice or indeed to account to the legislature for decisions made by the courts in the course of the administration of justice.

"Even a court of law is not entitled to inquire into the instructions given to a lawyer by his or her client or the advice given to the client by his or her lawyer; this is the basis of legal professional privilege and is a fundamental norm, without which the interests of justice could not be served.

"Were the legislature to insist on receiving an account of such advice, this could amount to an interference by the legislature with tile independent administration of justice, and constitute a breach of the doctrine of the separation of powers. It is not, therefore, appropriate that the State's legal advice be made public, or that the management of the litigation be analysed in the Dail."

Mr Noonan said his strong legal advice, both orally and in writing from independent senior counsel, was that the State, as distinct from the Blood Transfusion Services Board (BTSB), was not liable and that an admission of liability should not be made.

"The State's agents are obliged to follow the law in using public funds; this is a country governed by laws. If I had acceded to the demands being made on me that I admit liability on the behalf of the State in that case and similar cases, I would be accepting liability contrary to legal advice, on behalf of all Ministers for Health over the years, and in relation to pending court cases back to 1970 in respect of the hepatitis C infection of the Anti-D product."

He said that the State, through the Chief State Solicitor's Office, conducted the defence case on behalf of the State parties, namely the Minister for Health, the Attorney General and Ireland, and did not issue any policy directive, nor exercise any control or management of the defences cases which were being separately defended by the BTSB and the National Drugs Advisory Board (NDAB).

"It is also clear that the State and the BTSB had very different cases to answer. This is quite clear to anybody who has read the report of the tribunal of inquiry into the BTSB."

He recalled that he had informed the Government of the BTSB's admission of liability last September. "The Government noted the position. We neither made any decision nor gave any direction on any strategy or action."

He had not, he added, at any stage attempted to direct the BTSB in any decisions it took relating to the proceedings. "The BTSB is a separate legal entity and it would not have been appropriate for me to issue directives to the BTSB on the conduct of the proceedings. It would also have been totally improper for one defendant to compel another defendant in the case to take any particular course of action in the conduct of the proceedings."

Mr Cowen said that legal professional privilege arose in respect of communications between a lawyer and his or her client made in confidence for the purpose of pending litigation or for the purpose of obtaining professional advice. It would extend to communications between the lawyer or the client and a third party for the purposes of the litigation.

"It is fundamental that the privilege is the client's privilege and cannot be waived by the lawyer. Correspondingly, if it is waived by the client, the lawyer cannot claim it on his own behalf."

It appeared from a letter from the Chief State Solicitor, he added, that while legal professional privilege was specifically mentioned, there was no indication that the client was claiming it. The writer was seeking the best of both worlds, on the one hand citing the principle as "a fundamental norm", on the other hand not specifically claiming it on behalf of the client.

"There is no legal reason based on this principle which precludes the Minister as the Chief State Solicitor's client, from waiving the privilege which appears to be claimed by the Chief State Solicitor on his behalf."

Introducing the Fianna Fail motion, the party's spokesman on equality and law reform, Dr Jim McDaid, said that Mrs McCole was seriously ill for years, but she did not know what was wrong with her.

"All through those years of illness and litigation was the daily task of survival. The character of serious illness in Donegal is often somewhat different than it is in other places closer to the main centres of population. Illness in Donegal is often exacerbated by distance. It certainly was in the instance of Mrs Brigid McCole.

"Her daughter has spoken movingly of the loneliness of the journey her mother had to make down to Dublin at 5 a.m. on a dark winter morning by bus. That journey was part of Brigid McCole's life for years. Yet, through it all, that woman kept her dignity. Her family have done their mother proud in the way they have conducted themselves since her death. Their search has always been for the simple truth."

There was now the disturbing spectacle of the Minister and his Government colleagues ducking their democratic responsibilities.

Fianna Fail, he said, wanted to bring the Government to account. "We want to know who directed the resources of the State in this campaign of intimidation. Strip away the legal niceties and all you are left with is thuggery. Somebody in a position of great power and influence, using the resources of the State that had been democratically entrusted to them, gravely abused those powers. In the process they deliberately terrorised a dying woman."

The PD spokeswoman on health, Ms Liz O'Donnell, said there could not be proper accounting until the legal advice received by the Minister was known, and the only thing preventing proper accountability was the Minister's refusal to waive his privilege.

She said it was not good enough for the Minister to say that he was following legal advice. "Advisers advise, but it was for the Minister to decide, If it was the lawyers who decided to run the case in this way, it was only an abdication of responsibility by the Minister which let them do so."

It was, after all, the greatest public health scandal in the history of the State, said Ms O'Donnell. "Mrs McCole's case was no ordinary case. This was not a chancer's claim against the Corpo for tripping on a cobblestone. Mrs McCole was suffering from what the Minister, being the Minister for Health, surely knew was a very painful and probably fatal disease."

The debate on the motion continues.