The Government's order directing an inquiry, under the aegis of the Commission to Inquire into Child Abuse, into the conduct of vaccine trials on children in State institutions was held to be invalid by the High Court yesterday.
Mr Justice Ó Caoimh gave his decision in a challenge brought by retired professor of microbiology Prof Irene Hillary. However he said his decision was not to be construed as suggesting that there might not be issues relating to the trials which might be the subject of an appropriate form of inquiry. Other machinery may exist for an appropriate inquiry.
The disputed order was made by the Government under the provisions of the Child Abuse Act 2000, and arose out of a report by the chief medical officer (CMO) of the Department of Health entitled "Report on three clinical trials involving babies and children in institutional settings 1960-61, 1970 and 1973".
Prof Hillary claimed the question of vaccine trials in institutional settings was a matter of particular concern to her as she had worked for 33 years at University College, Dublin, and participated in the tests relating to the administration of vaccines conducted in 1960-61 in a number of State institutions.
Mr Justice Ó Caoimh, in a 71-page reserved judgment, said that in June 2001 the Government exercised power vested in it under Section 4 (4) of the 2000 Act giving the Commission to Inquire into Child Abuse the function to inquire into the vaccine trials.
He said the question he must decide was whether the Government's order was valid by referring to the terms of that order itself, and the report of the Department's CMO.
He was satisfied the report disclosed nothing which suggested that the conduct of the trials was such that they could be said in any way to amount to "abuse" as defined in the 2000 Act.
He was conscious of the fact that the term "abuse" was widely defined in the Act, but it was clear that none of the issues raised in the CMO's report even suggested the existence of abuse as so defined.
The issue was whether anything else referred to in the CMO's report or in the impugned order could be said to show that the additional functions sought to be conferred on the commission by the Government's order were "connected with" the commission's powers as they stood at the time of the Government making its order.
He said he had been unable to discern anything which could be said to be connected with the pre-existing powers and functions of the commission other than that the persons in question, the subject of the trials, were children in State institutions.
He was satisfied that the fact that they were vulnerable children in such institutions was not such as to amount to any connection of substance to enable the making of the Government order.
He believed there must be some real connection before an "additional function order" could be made, and it was "idle to speculate whether any of the children, the subject of the vaccine trials, may ever have been the subject of any 'abuse' as defined in the Act of 2000".
Mr Justice Ó Caoimh said he was satisfied the decision of the Government could not be adjudicated on on the basis of material that came into existence after the making of the Government order.
In all the circumstances he was satisfied that the Government's order was invalid.