THE Minister for Health, Mr Noonan, knew at the time the report of the expert group on the BTSB was published by his Department in April, 1995, that it contained inaccuracies which obscured the role of the Department itself in the scandal.
The report not only failed to reveal that the BTSB had been allowed to make anti-D for 14 years without the licence required under the Therapeutic Substances Act (TSA), but also implied no such licence was required. The issue was brought to Mr Noonan's attention by the Assistant Secretary of the Department, but he allowed the report to be published without amendment or a covering statement.
Mr Noonan's willingness to issue the report without informing the public about this serious deficiency is all the more notable because the misleading section of the report was in effect written by the Department itself.
The report was presented to Mr Noonan on January 27th, 1995, but not published until April. In the meantime, one of the officials dealing with the hepatitis C crisis, Ms Dolores Moran, noticed the absence of information about licensing of anti-D under the Act. She wrote a memorandum pointing out the expert group report said: "The BTSB first required a manufacturers' licence for anti-D immunoglobulin in 1975", and that this statement would make it seem "that a manufacturers' licence was not required under the Therapeutic Substances Act 1932". That would be untrue - a TSA licence was required by law and the BTSB did not have one when it made anti-D between 1970 and 1984.
Ms Moran's memo triggered research in the Department to establish the true position under the TSA. This information was in turn given to the Assistant Secretary, Mr Donal Devitt. He told the tribunal that although he did not consider the matter to be of "any major significance" he informed Mr Noonan that the expert group "didn't make any reference" to the fact that the BTSB had been operating without a licence for 14 years.
Mr Noonan accepted Mr Devitt did indeed discuss the matter with him. He also accepted that "it would be an important matter". He said all he could now remember of what Mr Devitt told him was that the TSA was mentioned in an appendix to the report and "that the report did not draw any conclusions from it". He knew, he told the tribunal, that the TSA dealt with licensing and that it had "a possible relevance to what the expert group was investigating", but he did not know what the expert group's view was "because they were silent on the matter".
At the very least, therefore, Michael Noonan knew the report he was publishing as the definitive investigation of a terrible public scandal did not deal with a key aspect of public oversight of the BTSB. And he knew - because the expert group report says so - that the information on licensing had been supplied to the expert group by the Department itself. Yet he believed he had no role in bringing the omission to the attention of the expert group.
Nor did he see it as his role to investigate the fact that his Department, as he knew from the expert group report, had been backdating licences issued to the BTSB under EU law. "As far as I was concerned, the expert group had reported fully and it wasn't for me to reinvestigate as Minister." He insisted: "At no time did I feel that I should do anything further, and I was not so advised".
And even when, in 1996, he was again told that contrary to the impression given by the report, the BTSB had been in breach of the Act for 14 years, he did not move to make that fact public, because he told the tribunal, he was preparing to fight the Brigid McCole case in the High Court and "if I was to put anything in the public domain, I would be criticised for it."
That same determination that the expert group report must not be undermined lay behind the second area of difficulty for Mr Noonan this week - his long and vehement insistence that the discovery of documents in the McCole case had not revealed significant new information.
In the Dail last March and June, the Minister of State for Health, Mr Brian O'Shea, in statements which Mr Noonan stood over both at the time and in his evidence yesterday, warned: "It is of the utmost importance that the correct information is presented in all discussions on this matter." He attacked "certain sections of the media", including The Irish Times, for the "dissemination of misleading information" suggesting that the fact that the BTSB knew in 1976 that Patient X, from whose blood anti-D was made, had been clinically diagnosed with infectious hepatitis was new information not evident in the expert group report.
This was wrong, he told the Dail in March, 1996, because "it is obvious from the information in the report that the expert group... was informed by the BTSB that the donor in question was clinically diagnosed as having infectious hepatitis in 1976."
He insisted: "At the time of the establishment of the expert group, the Department of Health, the then Minister for Health, and the members of the expert group were in no doubt that the donor to the plasma pool had an episode of infectious hepatitis." Around the same time, Mr Noonan repeated this assertion a number of times.
Yet this week the two senior officials of the Department of Health dealing with the hepatitis scandal, Mr Devitt and Ms Moran, told the tribunal that the first time the Department knew that Patient X had been diagnosed as having infectious hepatitis was in the spring of 1996 when a new file was discovered for the McCole case - two years after the establishment of the expert group. Ms Moran told the tribunal the information had only become known to the Department because of Mrs McCole's High Court case. Mr Devitt said the "first knowledge" the Department had that Patient X had been diagnosed as having infectious hepatitis was in February, 1996, after the search for documents for the McCole case.
He subsequently qualified his evidence by saying that he and the Department understood that "infectious hepatitis" and "jaundice" were synonymous, and that the Department had known - as is stated in the expert group report - that Patient X had jaundice. It was nevertheless entirely clear that the Department regarded what had been revealed in the McCole case as new information - otherwise it could not have been learning it for the first time.
In his evidence yesterday, Mr Noonan was rather ambivalent on this issue. On the one hand, he fell back on claims that the terminology had changed, and "stood over the accuracy" of the statements made to the Dail by Mr O'Shea and himself, including the claim that the BTSB had informed the expert group that Patient X had been clinically diagnosed as having infectious hepatitis in 1976. Yet he subsequently told Mr John Rogers SC, for Positive Action, that he did not in fact know what the BTSB had told the expert group on this issue. "How could I deal with the state of knowledge of the BTSB?" Yet the state of knowledge of the BTSB was the precise issue on which new information had emerged.
Mr Noonan seemed to admit for the first time the possibility that what he told the Dail might not be accurate. He told Mr Rogers he had been briefed to the effect that the information coming from the McCole case was not new and that this is what he told the Dail. But he added: "I may be wrong."
And this was not a mere point of detail. The significance of the new information to the scandal's victims was immense, not just in terms of their need to know what had happened to them, but in terms of their legal rights. At the time the new information emerged, Mr Noonan was supporting the BTSB in a refusal to admit liability in court.
