Mary Harney (Dublin Mid West, Progressive Democrats)

Some 12,000 people received the product between 1991 and 1994, and of those 139 tested positive. My point on the KL case was that there was no evidence that the claimant received an infected batch of the product or had gone to a GP or other medics in the long period of time that elapsed. Yet on the basis of symptoms that can be related to other diseases, for example fatigue, the claimant got a substantial award. Given that the legislation required no specific diagnostic test, the court had no alternative. That causes difficulties for the tribunal. If I thought even one infected person would be denied entitlement to compensation, insurance or a health card, this would not be pursued. I have put much thought and discussion into this.

Although it is a medical and not a legal issue, it has legal consequences. Everybody here is aware of that. I am not making a point about Mr. John Rogers SC because I have the height of respect for him and it was 1995 and 1996. However it is interesting that this was put forward at that time. In 1998, which is more interesting, the expert group, including liver consultants and a representative of Positive Action said the health card should be given only if there is a positive test.

One cannot say a person may receive compensation without a positive test but may not receive the health card as that would be inconsistent. As infected people have serious health problems, they probably need the health card more than the compensation. As a gesture of goodwill I have decided that, in the context of this legislation, anybody who has received compensation or who has made an application that has not yet been determined either by the tribunal or the courts will receive the health card even if he or she does not test positively. Anybody who has received compensation but does not qualify for the health card because he or she did not test positive will receive the health card from now on. This is a gesture of goodwill and because I am concerned about them.

This will bring consistency, as everybody who received compensation will also get the health card and insurance. However from 20 June, when this legislation was published, to qualify for compensation, insurance or the health card, people will have to have a positive test, ELISA, RIBA, PCR, or any other test that emerges, or have had jaundice up to 16 weeks after the administration of the anti-D product. That is accepting a clinical diagnosis or a scientific test. Nobody could argue that we should base the compensation scheme on the word of a doctor. We would not do it in any other area. It is not that I do not respect or trust doctors, but they make mistakes. We must go beyond doctors and have a scientific basis. Some 52,000 of these tests have been conducted in the centre in UCD by Professor William Hall and the personnel there have strong comments on the sensitivity of this test. I accept that some conditions, such as back pain or depression, are difficult to diagnose conclusively. We spent some time in this House in the context of personal injury insurance discussing whiplash. Some conditions have grey areas, but this does not.