In investigating the infection of haemophiliacs, the Lindsay Tribunalhas found that a terrible tragedy occurred but not a terrible wrong, writesJoe HumphreysIn assessing the motives of the BTSB, Judge Lindsay discounts thepossibility of wrongdoing
Imperfect? Of course it is. But then what tribunal report is otherwise.
Terse in places, vague in others; one thing's for sure, Judge Alison Lindsay's 580-page publication won't receive a wide readership. But then it was never likely to.
The tragedy she investigated had little impact on society at large. Rather, it was confined - in horrific proportions - to a small community of people suffering from a rare blood disorder.
Of about 400 haemophiliacs in the State, more than 260 were infected with HIV and/or hepatitis C over a 20-year period up to the late 1980s. Some 79 have since died.
The tribunal itself was the haemophiliacs' second bite of the cherry in attempting to discover the truth. Their first opportunity came in 1995 with the Finlay tribunal. But they walked out of the inquiry as it started over concerns that they had effectively been written out if its terms of reference.
Thereafter, the Irish Haemophilia Society began a lengthy campaign to establish a fresh tribunal, which would also take in issues not fully dealt with at Finlay, such as the case of a Kilkenny health worker infected with HIV through a blood transfusion.
Eventually, their pleas were answered and the Lindsay tribunal was established. Whether it has put the issue to rest, however, is open to debate.
The report will generate mixed emotions within the haemophilia community, not least because of its recommendation against referral to the Director of Public Prosecutions.
On the one hand, haemophiliacs will be glad to see the report laying bare the core details of their tragedy. On the other, they may feel angry that no one has been brought to book.
Plainly, Judge Lindsay is anxious not to produce a fall guy. She declines even to address the claims of IHS lawyers that treating doctors were guilty of "gross negligence". Her view can be fairly summarised thus: a terrible tragedy occurred but not a terrible wrong.
As to specific questions of key concern to haemophiliacs, the sole member gives answers of varying exactitude.
"Was there a cover-up?" haemophiliacs asked. More specifically, did the Blood Transfusion Service Board (BTSB), with the help of the Department of Health, conceal the extent of the State's role in infecting haemophiliacs with HIV?
The report gives an inexact response. In its section dealing with the BTSB, it notes a failure in 1986 to inform the board of the agency about the discovery of infections caused by BTSB Factor IX.The fact that the infections were not recorded in BTSB board minutes or disclosed to parties "allowed an ambivalence and blurring of the facts within the BTSB and a failure to disclose them which ... persisted in the dealings between the BTSB and the Department of Health."
The language is key. An ambivalence occurred rather than being created. Nowhere is there reference to a claim by IHS lawyers of "State-sponsored concealment".
Another key question was whether the BTSB dumped unsafe products in hospitals against the wishes of treating doctors. The charge refers to the BTSB's decision to issue St James's Hospital, Dublin, more than double the monthly average of non-heat treated BTSB Factor IX three days after being asked by the hospital's locum doctor Dr Helena Daly in August 1985 to supply it with heat-treated product.
Judge Lindsay's reply is that what the BTSB did was "clearly inappropriate". She further notes the BTSB took no steps to withdraw untreated product between October and December 1985.
Blame, however, is notable by its absence.
In fact, in assessing the motives of the BTSB in this and in other decisions, she positively discounts the possibility of wrongdoing. "While there was a failure to cease to use and to withdraw non-heated BTSB Factor IX in 1985 with due expedition, the tribunal does not believe that such failure was caused or motivated by financial considerations," she says.
This leads to another key question: Did the BTSB put profit ahead of safety?
Here, Judge Lindsay is perhaps at her most unambiguous. In respect of the BTSB's decision to begin supplying commercial concentrates, on which it made a profit, at a time when there was growing concern about their safety, she says the tribunal does not accept it was "motivated or brought about by financial considerations."
But perhaps the most interesting aspect of the report is how it deals with the treating doctors, professionals who had ultimate clinical responsibility for haemophiliacs.
The report puts them central to the narrative yet again refrains from apportioning blame. That said, there are specific failures which Judge Lindsay highlights, which will make uncomfortable reading for the doctors involved.
Of Prof Ian Temperley, the report says he ought to have started preparing treatment guidelines to guard against the risk of HIV infection by June 1983. The time which elapsed until preparation of a draft policy in November and a final policy in December 1983 "involved an unacceptably long period of delay."
The doctor is also criticised for not instructing Dr Daly to stop using untreated BTSB Factor IX in August 1986, and for taking sabbatical leave at that time before putting in place arrangements for informing patients of HIV test results.
Perhaps most painfully for Prof Temperley, the report says he should have discussed the risks of AIDS with the mother of a haemophiliac when advising her to start her son on home treatment with commercial concentrates. The boy in question was subsequently infected with HIV and has since died.
Cork-based consultant Dr Paule Cotter is also cited for criticism. The report says she should have "pursued more vigorously" the objective of ending the use of untreated product.
Perhaps the saddest aspect of the report is that it has not brought closure to the issue, something for which haemophiliacs have been yearning for years.
In the course of the inquiry, Judge Lindsay turned down a request by the IHS to examine the role of overseas drugs companies in the tragedy. The society will be disappointed by her decision not to make a subsequent recommendation on the matter to the Minister for Health and Children, Mr Martin, who is considering establishing a new inquiry.
The IHS is expected to continue demanding one. But, with the Minister's budget dwindling by the day, such a tribunal is looking ever less likely.
Imperfect as it is, Judge Lindsay's report may well be the last word on the matter.