A court ruling this week has dashed the hopes of women infected with hepatitis C that somebody would be held accountable for the scandal
VALERIE MURPHY has been left with a weak immune system, gritty eyes, a dry mouth, arthritis, liver damage, an allergy to the cold, and a tiredness that’s impossible to shake off. It’s her legacy from one of the biggest health scandals in the history of the State, the infection of more than 1,000 women with hepatitis C from anti-D, a product made by the blood bank and given to pregnant women at risk of reacting to their babies’ blood.
When a blood donation Murphy gave in 1994 tested positive for hepatitis C, she was subjected to rigorous questioning by the blood bank about how she might have contracted the virus. She was asked if she ever got tattoos or body piercings and, in the presence of her husband, was asked how many sexual partners she’d had.
She went away feeling sure she contracted the virus when she got her ears pierced. But just days later, it emerged that the blood bank, despite the awkward questioning, knew anti-D was likely to have infected her and many others like her. Thousands of women who got anti-D were recalled for testing.
Valerie, a mother of three, was stunned. But worse was to come. A liver biopsy indicated she had “moderate to severe liver damage”. At first she was put on “horrendous” medication, then another treatment was tried during the administration of which she developed septicaemia, from which she was lucky to pull through.
OVER THE YEARS she and many other women, whose infections occurred between 1977-1979 and 1991-1994, hoped somebody would be held accountable for the horror visited on them through no fault of their own, and they fought many battles in an attempt to reach this end.
They encountered cover-ups and denials at official level and heartache as infected friends died. They had to fight every inch of the way for free healthcare, a compensation scheme, and a tribunal of inquiry.
As Detta Warnock, one of the women who was infected and chairperson of Positive Action which supports the women, put it: “The only thing we got easily was hepatitis C. We had to fight for everything else, that is the truth”.
As an illustration of what they were up against, even when the Government and then health minister Michael Noonan learned in 1995 that the Blood Transfusion Service Board (BTSB), as it was then known, was negligent in making the anti-D which caused the infections, they went along with the advice of the Attorney General not to disclose this information as they wanted the women to go through a non-statutory compensation scheme in which there would be no admission of liability.
It was only following a public outcry over the way Donegal mother-of-12 Brigid McCole, who had contracted hepatitis C from anti-D, was treated after she insisted on pursuing a High Court action against the State, that the Finlay tribunal of inquiry was finally established. Ultimately, she settled her action for damages on her deathbed and received an apology from the BTSB. However, prior to that, she was warned the State would contest her case all the way to the Supreme Court and she could end up having to pay all the costs. Five days after her death, under intense pressure, Mr Noonan announced the establishment of the Finlay tribunal.
Unlike other tribunals, Finlay had begun its work, completed hearings and published its findings within a matter of months. The report, published in 1997, pulled no punches. It contained severe criticism of a number of staff in the BTSB, including Dr Terry Walsh, whom the report said received a letter in 1991 confirming the plasma used to make the anti-D came from a hepatitis C donor but he did nothing and appeared to have “a vague hope that by ignoring the problem it would go away”. It also criticised Cecily Cunningham, the BTSB’s principal biochemist, who ran the laboratory where anti-D was produced and who, the report said, “bore an important and serious responsibility” for the product being infected. It added that in 1991, she ignored warning signs arising from a form of positive hepatitis C test “due apparently to indifference”. A Garda inquiry into the infections followed, a file was sent to the DPP in October 1999 and in July 2003 Dr Walsh and Ms Cunningham were charged with “unlawfully and maliciously” causing a noxious substance, namely infected anti-D, to be taken by seven women – one of them being Valerie Murphy – thereby inflicting grievous bodily harm contrary to the Offences Against the Person Act.
Dr Walsh died in 2006 and Ms Cunningham took High Court proceedings to try and stop the proceedings, claiming her right to a fair trial was prejudiced due to the death of several of her superiors in the BTSB and other factors. In his judgement in 2007, Mr Justice Liam McKechnie said while there had been an “inordinate and inexcusable” delay on the DPP’s part in processing the case, he had to balance a person’s right to a speedy trial with the public right to have a trial on a serious charge brought to finality. He believed the public right prevailed.
However, the trial did not and will not now proceeded. This week, Dublin Circuit Criminal Court was told the State was dropping the charges against Ms Cunningham (66), of Hollybrook Road, Clontarf, Dublin. No reason was given in court.
The infected women, who are extremely disappointed, have been told the main reason for the dropping of the charges is that one key State witness, a Prof JJ Hoppe from Germany, has died. His method in manufacturing anti-D was meant to have been used by the BTSB but allegedly wasn’t. In addition, two other key witnesses are ill and would be unlikely to ever be fit to give evidence at a future trial.
Ann from Limerick, who passed on the hepatitis C virus to her son before she ever knew she had been infected with it herself through anti-D, is very angry that the case has been dropped.
“I feel very very bitter. Being quite honest I feel there is no justice in this country . . . they have basically got away with murder as far as I’m concerned because so many women have died,” she said.
“I’m angry at the fact that my child was infected with this through no fault of my own or his own . . . and nobody will be brought up for it,” she added.
She feels Ms Cunningham delayed the trial by taking legal action to try and stop it and in the end the delay went in her favour. “The law was on her side rather than ours.
“It’s the end of the road for them but it’s not the end of the road for us . . . my health is deteriorating ever year.”
VALERIE MURPHY attended every court case involving Ms Cunningham since 2003. “It’s so distressing to see her passing us by with her head held high,” she said, adding that in the meantime women are dying from the contaminated anti-D product.
Does she feel bitter? “I do. If I didn’t have tax on my car, I would have to pay a fine, but she may even end up getting her costs paid. If her costs are paid, I will be extremely bitter. I don’t feel we have justice.”
Ms Cunningham, in a statement after the charges were dropped, said that throughout the lengthy legal process, she had at all times maintained her innocence and asserted her position that she did not at any time set out to unlawfully and maliciously cause infected anti-D to be taken by any person causing them grievous bodily harm.
Welcoming the dropping of the charges, she said: “I believe, and am so advised by my legal team, that there was never any substantive evidence which could have objectively supported these charges notwithstanding the very large book of evidence produced against me.”
However, her statement went on to acknowledge “the pain, suffering and distress” suffered by the recipients of infected anti-D. “I again express my profound sadness and concern as to the adverse effect the affected product had on its recipients and their families,” she said.
Furthermore, she said she had been offered no reason by the DPP as to why the charges had been dropped “nor indeed have I been offered any explanation as to why in 2003 it was possible to charge me with offences which in 1997 it was decided there was no basis for so doing. I am distressed at the absence of reasons for the various decisions”.
Detta Warnock, who has had to have one of her knees replaced twice as a result of the anti-D contamination, says she doesn’t see the dropping of charges against Ms Cunningham as a vindication of her by any manner or means. “The Finlay tribunal of inquiry found her culpable,” she stresses. “We are very disappointed that nobody has been held accountable. It’s gone now.”
While the women are distressed that nobody has been brought to book, this outcome had been predicted by those in legal circles. At the time the Finlay tribunal reported almost 12 years ago, a legal source was quoted in The Irish Times that prosecutions were unlikely against the BTSB, any former employees or any Department of Health officials. “There is no culture in this country of people being brought to book for this type of thing,” he said. How right he was.
Tracing the Victims
Not all women who received the contaminated anti-D product manufactured by the BTSB have yet been traced.
In the past year, three Irish women living in the UK found out that they had the hepatitis C virus after being finally contacted and told they received contaminated anti-D years earlier.
One of the women, who received anti-D when having a baby in 1977, is amazed the blood bank didn't try to trace her at her home address in Ireland as her mother still lives there. She has put others at risk of infection in the intervening years by being unaware of her condition.
The Irish Blood Transfusion Service, in a statement, said over 20,000 vials of anti-D were distributed over the risk periods between 1977-1979 and 1991-1994.
It said 13,000 known recipients of potentially infectious anti-D have been traced and tested but "due to lack of information, the remainder of the vials have not been matched to a recipient", though it said many of these may have received more than one vial and may have tested negative.
It said the reasons why some recipients remain untraced include the fact that anti-D records were not returned from hospitals in 50 per cent of cases; or because people have emigrated, got married and changed their name, or moved city or county.
"We would recommend people who have family members living overseas who might have received anti-D in the risk periods to contact them with this information and ask them to contact us to check their details," it said.
The information line for the recipient tracing unit is open during working hours at 1800-222111