Micheál Martin (Cork South Central, Fianna Fail)

The Finlay tribunal, which reported in 1997, noted that between November 1991 and December 1993, donors in the Munster region who tested positive for hepatitis C were not immediately informed of their test results. One of these donors, known to the tribunal as Donor L, gave evidence that he had made blood donations regularly between 1986 and July 1993. He expressed considerable distress and anger that he had tested positive to HCV antibodies in December 1991 and that from then until November 1993, despite making donations on a number of occasions, he was at no time informed that they were being used for the purpose of testing only, nor was he informed that any form of positive test had arisen.

It is important to note that the Munster director of the IBTS gave evidence to the Finlay tribunal that the HCV screening available in 1991 was insufficiently precise to warrant the risk of upsetting a donor who was tested in the ordinary way, as was Donor L, by informing him of a positive result. She felt that the best course to adopt was to continue screening his blood on a regular basis by sending him an ordinary donor's notification card from time to time to see whether the apparent reaction would vary and also in the expectation that confirmatory testing of a more certain kind would become available very soon. She denied that this occurred inadvertently or through want of care. It was, she said, a conscious decision which she made with great difficulty concerning the position of donors who screened positive on the introduction of the test in October 1991. This was apparently implemented as a general policy and not merely in one case.

In 2000 my Department was advised by the Chief State Solicitor that Donor L had initiated proceedings in the High Court seeking damages arising from the delay in notifying him of his infection with hepatitis C. I have been cited, as Minister for Health and Children, as one of the respondents in that action. As part of the preparations for this, my Department made detailed inquiries of the IBTS, in particular seeking information on the number of other donors who had been treated in a similar fashion. It also brought the matter to the attention of Transfusion Positive and Positive Action, the main support groups representing persons infected with hepatitis C through infected anti-D or blood transfusions, to determine what action needed to be taken to promote the interests of the donors concerned. I and my officials had a number of meetings with the two groups and the IBTS during 2002. Arising from these discussions, the IBTS agreed to contact the donors regarding the delay in notification. This was done in August and September 2002 and appropriate counselling and other supports were offered to all.

The IBTS wrote to 30 donors in total. A total of 17 donors responded to the written communication from the IBTS — 11 by telephone, two by letter and four through their solicitors. In general, donors called to request access to the information held on file about their cases and they did not discuss any concerns in detail. Some donors were upset at having the matter reopened. A number of donors requested that the information be provided to their solicitors and this has been done. Following discussions between my Department and the support groups, it was agreed initially to establish an independent investigation of donor notification procedures, to be undertaken by senior counsel, in a non-statutory format, assisted by relevant experts. The board of the IBTS, however, considered that the matter should be subject to a judicial inquiry — again, on further investigation, of a non-statutory kind. Subsequently, the support groups indicated that the matter required the establishment of a tribunal of inquiry. The Deputy said earlier that she does not believe a tribunal is the correct response.

I have already informed the groups that the Commissions of Investigation Bill, when enacted, will provide an appropriate mechanism for such an investigation.

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