HAVING done such a fine job of public disclosure in its hearings, what remained for the Hepatitis C Tribunal was to judge the significance of the terrible facts it had brought to light.
The most pessimistic expectation of Mr Justice Finlay's report was that those judgments would be equivocal: harsh on those who are no longer involved in the BTSB, gentle on those who still are, taking a severe attitude to officials in the Department of Health, a largely forgiving attitude to their political masters.
In the event, the pessimists have been vindicated.
It was simply not open to Judge Finlay to find any excuses for the behaviour of those at the top of the BTSB, especially its medical directors between 1976 and 1995, Dr Jack O'Riordan and Dr Terry Walsh, and its principal biochemist Mrs Cecily Cunningham. He does not do so.
In relation to the use of infected plasma from Patient X in 1976 and 1977, Dr O'Riordan is found to bear "the major responsibility" and Dr Walsh is found to have neglected his duty in 1976 and to have "massive" responsibility for subsequent failures to put things right. Mrs Cunningham's evidence, in which she tried to deny any real role in the events of 1976 and 1977 is rejected, and she is found to bear "an important and serious responsibility".
In relation to the second episode of infection, which started with the taking of plasma from Donor Y in 1989, the finger is pointed very clearly at Dr Walsh, Mrs Cunningham and at the then chief technical officer of the BTSB, Sean Hanratty (now deceased).
Their actions are, at heart, inexplicable, and the tribunal can only speculate as to the motives behind them. Its conclusion "a blank refusal even to contemplate the consequences of what had been done in 1977 and a vague hope that by ignoring the problem it would go away" - might be more bluntly summarised as a fatal combination of arrogance and incompetence.
When it comes to the role of Dr Emer Lawlor, who is currently at the BTSB, however, the judge is much more forgiving. On her own evidence, Dr Lawlor was told in December 1991, that a fax from the Middlesex Hospital had confirmed that the plasma used to make anti-D in 1976 and 1977 was infected with hepatitis C. Her evidence was that she failed to act on this information - which was not made known to the Department of Health for another two years - because it "just totally slipped my memory".
Mr Justice Finlay concludes, however, that it would be "unreal" and "unjust" to find that she bears "any responsibility" at all. Given that, in her evidence to the tribunal, Dr Lawlor herself pointed out that "about 30 people wouldn't have got the virus had that fax been acted on" this seems a remarkably chivalrous conclusion.
There is a similar contrast in the report's treatment of the Department of Health as an institution, and its attitude to the ministers who led it. The report finds that "from 1975 to 1994, successive Ministers for Health and the Department of Health failed adequately and appropriately to supervise" the National Drugs Advisory Board in its oversight of the BTSB. Staffing levels at the NDAB were "quite inadequate" at all relevant times, and the Department of Health was well aware of this.
And, crucially, Judge Finlay suggests that this failure contributed to the disaster, since BTSB staff might "have been less content to make the decisions" they did, if they had expected to be questioned regularly about their practices.
The Department is also blamed for its failure to agree to the introduction of hepatitis C screening between February and September 1991, though the blame is spread between "the medical and administrative sections" of the Department.
The report also finds that an official in the Department - without the knowledge of his superiors - committed "an irregularity and an impropriety" by having a back-dated licence for anti-D issued after the scandal broke. But it takes a benign view of this impropriety, insisting that this was done for no other reason than to protect the official in question.
Yet, given such a degree of failure on the part of the Department, there is remarkably little criticism - of the way the two ministers at its - head - Brendan Howlin and then Michael Noonan - dealt with the crisis once it had broken. The report finds some damning failures by each of them, but the general thrust is one of exoneration.
In relation to Brendan Howlin the report clears him of wrongdoing in respect of some of his actions. It finds that he behaved properly in ensuring that the replacement product for anti-D was safe, that he and his Department were not at fault in the long delays in putting a targeted look-back programme into operation, and that it was appropriate for him to leave many of the people who had created the crisis - most notably Dr Terry Walsh - in charge of dealing with its consequences.
It also finds that he was right to establish an Expert Group rather than a tribunal to look into the scandal. Some of these findings will be bitterly disputed by some of the victims, but they will certainly bring Mr Howlin some comfort.
He will need that comfort, however, for the tribunal has also found him guilty, albeit in very muted language, of some very serious failures. He failed to ensure that stocks of infected anti-D were effectively recalled. He failed to ensure that his Department responded adequately to an approach in July 1994 from liver specialists outlining concerns about the treatment of infected women. He failed to insist quickly enough that the victims be given counselling by independent counsellors, even though there were strong objections by Positive Action to the BTSB itself providing these services.
What seems extraordinary, however, is that Mr Justice Finlay makes no criticism of Mr Howlin's failure to disclose a central fact: that there were two sources of infection, one in 1976 and one in 1989.
On his own evidence, Mr Howlin knew this almost from the start of the crisis. It was important information, because, while all the publicity was about the 1976 infection, the current stocks of anti-D has been made using the 1989 plasma. By never once mentioning the 1989 infection in any communication with the Dail, GPs, the victims, or the public, he contributed to a serious understatement of the full extent of the crisis.
Mr Justice Finlay, however, takes a very limited view of the public's right to know. He suggests that it is "probable" that by April 1994 the GPs should have been told about the 1989 infection. But he also finds that there was nothing wrong with concealing this information in the press release issued to the public: "the balance seems to be appropriately one of caution rather than of risking alarming a greater number of people."
Likewise, in relation to Michael Noonan and his junior minister Brian O'Shea the report seems to be exceptionally kind, The only real criticism of his actions is that there was an unacceptable delay in introducing the statutory health care package for the victims, which did not come into effect until September 1996. Rather strangely, the report makes no mention at all of Mr Noonan's decision to publish the Expert Group report in the knowledge that it gave a misleading impression of the Department's role in the affair.
And on the most crucial question for Michael Noonan, Judge Finlay seems at one and the same time to find that there was substance in the criticisms made of him and yet to find that he acted properly.
The criticisms of Michael Noonan centred on his Dail and public statements during 1996, bed fore the establishment of the tribunal, denying that new evidence had emerged in the Brigid McCole court case. These denials were important because they supported both his insistence on fighting Mrs McCole through the courts and his refusal at the time to establish a tribunal of inquiry.
The tribunal's findings in this regard are difficult, if not impossible, to reconcile with each other. The critical issue was whether new information had emerged from the McCole case which was not available to the Expert Group. If it had, then it would seem to call into question Mr Noonan's aggressive attitude to Mrs McCole and refusal to admit that the Expert Group report was not the last word on the scandal.
In essence what Mr Justice Finlay has found is (a) that Mr Noonan's critics were right to contend that the Expert Group did not have all the relevant facts and (b) that Mr Noonan was right to insist that a tribunal of inquiry was unnecessary.
On the one hand, the judge accepts that there was "a very great deal of detail" which was not known to the Expert Group and that some of it had "significant relevance". He finds for instance that the Expert Group was never told that Patient X's plasma was used without her knowledge or consent, that it did not know of the existence of documents showing that she had been diagnosed as having "infective hepatitis" in 1976, that it gave a misleading impression of the role of the Department of Health in the issuing of licences, and that it deals inadequately with the case of Donor Y.
On the other hand, the report finds that the documents that emerged in the McCole case were not "new, dominant or fundamental medical evidence" and that therefore Michael Noonan was right not to establish a tribunal of inquiry. He and Brian O'Shea "took the attitude in reply to questions in Dail Eireann that this did not constitute any fundamental difference in information available with regard to the wrongful use of Patient X's plasma. Having regard to the conclusions above reached, this attitude would appear to be correct."
This, however, is not what Michael Noonan and Brian O'Shea actually contended. The claim they made was not about whether the documents contained new medical evidence, but about the state of knowledge of the Expert Group.
In Mr O'Shea's words in the Dail, they contended that "the Expert Group ... was informed by BTSB that the donor in question was clinically diagnosed as having infectious hepatitis." Mr Justice Finlay's conclusion about the documents that emerged in the McCole case is: "It is quite clear that the existence of these particular documents and of the diagnosis of `infective hepatitis' written on them was not information which was available to the Expert Group."
Both of these statements cannot be accurate. And if it was right for Michael Noonan to refuse to establish a tribunal in the summer of 1996, he ought not to have established a tribunal in the autumn, when the state of knowledge was exactly the same. If that was so, then the massive amount of new and damaging information in the report itself would be of little consequence.
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