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Lindsay Tribunal Reports – Shit happens
21st September 2002
Of all the Tribunals created over the last number of years it is undoubtedly the case that the Lindsay Tribunal is the most important though it has received by far the least media coverage. Set up almost exactly three years ago to investigate the infection of haemophiliacs with HIV and Hepatitis C through contaminated blood products supplied by the Blood Transfusion Service Board (BTSB) it faced an issue of startling importance. Following the previous Finlay Tribunal which looked at the infection of pregnant women with the Anti-D vaccine, the issue was nothing less than the question whether the state had poisoned its own citizens through wilful negligence motivated by monetary considerations and subsequently attempted to cover up.
Of course the issue at stake was never posed so clearly, so it can come as no surprise that the verdict of the one person Tribunal was that no one was to blame. Even, however, within the narrow terms set by the political establishment that ordered the Tribunal and legal establishment that enacted the process the issue could not be entirely obfuscated. The verdict of the Tribunal has therefore met with ill-disguised scorn from those who have reported it and honest enough to confront the evidence without deference to the powers implicated.
If the whole sorry story has little, if any, political impact it is not, as has been asserted, because the affected population is small – around 400 people with haemophilia in the state- it is because right from the start the simplicity of the issue could not be so boldly stated. This and the fact that Ireland is a country with no political opposition that sees in the state its mortal enemy rather than a power to supplicate means it is well nigh impossible that any other verdict would be arrived at.
The Lindsay Tribunal was set up only after haemophiliac campaigners walked out of the previous Finlay Tribunal, claiming it effectively wrote them out of its terms of reference, and began a long campaign for a fresh investigation. It reflected a deeply felt need by relatives, friends and patients themselves for the enormity of the tragedy affecting them to be recognised and explained. It was also seen a means of bringing those responsible to account and in so doing help prevent similar tragedies in future. Its utter failures in these latter respects thus also impinge on the former.
It is this which justifies Marxists in saying that such investigations, whether ‘independent’ or not, that have been regularly called for on a variety of issues, both north and south, are not only incapable of providing justice, or of providing full explanations, but also, because of these facts, incapable of satisfying the justified need for recognition of the pain and injustice suffered. While not opposing calls for enquiries into wrong doing by the state, closure can only come from ending the source of the injustice.
The Lindsay Tribunal is thus yet one more example of failure.
At least two hundred and fifty two haemophiliacs contracted the AIDS virus or hepatitis C while receiving treatment from the BTSB according to the Tribunal and this is a ‘minimum figure.’ To date seventy nine have died. It was not possible to link patients’ infections with definite treatments because the ‘state of treatment records’ made it ‘impossible’ and this ‘was exacerbated by the fact that despatch records of the BTSB in regard to relevant blood products had been destroyed in 1993, for reasons which remain unclear.’
Haemophilia is an inherited blood condition affecting males who lack certain blood proteins (Factors) which promote blood clots and without which the person may bleed to death from the slightest injury. These Factors can be gleaned from blood and plasma donations and given to haemophiliacs through transfusion. Most of this comes from local donations but some was sourced from US drug company suppliers whose blood included that from prisoners and drug addicts that had a much higher risk of infection.
The issues dealt with in the Tribunal revolved around how the BTSB and other health facilities dealt with the possibility of infected blood products. A backdrop to this was the all pervasive culture of cuts that affected the health service during the nineteen eighties. For example while staff at the National Haemophilia Treatment Centre (NHTC) in St James’s hospital in Dublin were praised for their skill, courage and dedication ‘the inadequacies in the available facilities and resources in some areas created additional problems and strain for the staff.’
So for example while tests for HIV were taken in 1985, some patients were not informed of the results until 1987! Professor Ian Temperley, Director of the NHTC, at the centre of proceedings, received results from England in March and April 1985 but then took a sabbatical from May to October without putting in place a system for informing patients of the results. Locums informed some patients but the Tribunal found that it was ‘most unfortunate’ that the Professor was absent at this time. Unfortunate indeed.
During this time one locum drew his attention to the need for heat treatment of blood products that would lessen the chance of infection but the Professor did not instruct the doctor to switch all patients to the heat treated product. The Tribunal criticised the ‘unacceptably long’ delay in the NHTC preparing a response to the risk of AIDS. The Professor had received a letter referring to a possible case of AIDS in a patient with haemophilia in June 1983 but a policy was not introduced until December. Among the findings of the report were that:
· The Centre should have reviewed the policy of routinely starting patients on home treatment with commercial concentrates, made ‘strenuous efforts’ to use another product and informed patients and their relatives of the risk. This wasn’t done.
· Unheated products supplied by the BSTB should have been immediately recalled once heat-treated products became available. The NHTC could not say whether such a recall was ordered but the Tribunal found that this was unlikely.
· The Tribunal found it ‘unacceptable’ that the NHTC did not have a policy on providing special products for previously untreated patients and that the risk of hepatitis C was not discussed with patients starting home treatment with commercial concentrates. The Professor could not recall if patients were informed of such a risk. The Tribunal was critical of ‘a completely unacceptable failure’ to tell a mother ‘Felicity’ that her three sons were hepatitis C antibody positive. The results were available in 1991 but ‘Felicity’ only heard the news in October 1995 and then from another doctor. Professor Temperley was also criticised for not discussing the risk of AIDS with ‘Jackie’, the mother of a boy who died from an AIDS-related illness.
· There was no formal means of communicating with regional centres on policy matters and there did not appear to be the resources to inform doctors of the risks. The Tribunal found that the Centre should have informed regional treatment centres of its decision to stop using unheated products after November 1985.
· Professor Temperley was described in some personal testimonies to the Tribunal as ‘unapproachable, arrogant or dismissive’ but despite this long list of personal and professional failures as Director of the Centre the Tribunal found that he was ‘remarkably honest’ and had ‘ a deep professional and personal commitment to the welfare of his patients.’
It was not only the National Treatment Centre that failed, the failures of the BTSB were even more central to the problem. It failed to heat-treat Factor IX which would have killed HIV and then failed to withdraw non-heat treated Factor IX. It also failed to warn doctors treating haemophiliac patients of the risks from using these products.
This is where the charge of cover up arises. The Tribunal report notes that the risk of infection through Factor IX was not recorded in BTSB minutes or disclosed to relevant people, such as patients or hospital doctors, and that this ‘allowed an ambivalence and blurring of the facts within the BTSB and a failure to disclose them which...persisted in the dealings between the BTSB and the Department of Health.’
The language of the report, concealment is called ‘ambivalence and blurring of the facts’ has been commented on in the press, but this is far from the only example.
Did the BTSB dump unsafe products on doctors against their wishes? The BTSB issued more than double the monthly average of non-heat treated Factor IX to St James’s three days after being requested by the hospitals locum doctor to supply heat-treated product. This, the Tribunal noted, was ‘clearly inappropriate.’
It was further noted that no steps were taken to withdraw the untreated product between October and December 1985. ‘While there was a failure to cease to use and to withdraw non-heated BTSB Factor IX in 1985 with due expedition, the tribunal does not believe that such failure was caused or motivated by financial considerations.’
It was ‘inexplicable’ that the BTSB failed to pursue an agreement with a Scottish centre to deliver safer products. While later heat treatment appeared to eliminate the possibility of infection with HIV a threat from hepatitis C remained. The Tribunal came to the view ‘that the BTSB were not, at this time actively pursuing inquiries into alternative methods of viral inactivation which might be more effective against the risk of non-A non-B hepatitis.’ (hepatitis C)
Instead the BTSB continued to source its products from the Armour company in Canada despite that company refusing a BTSB request to provide additional safeguards against infection in its Factor VIII product. Instead the company demanded an indemnity against infection! In December 1987 it became known that six haemophiliac patients had become infected with hepatitis C after receiving the company’s Factor VIII. Yet in June of 1988 the BTSB renewed its contract with the company while the offer from Scotland for safer product was available. The failure even to consider this option was described as ‘quite inexplicable.’
Nevertheless despite the decision of the BTSB to supply commercial concentrates on which it made a profit the Tribunal did not accept that it was ‘motivated or brought about by financial considerations.’
So while things were ‘most unfortunate,’ ‘unacceptable,’ ‘clearly inappropriate’ or ‘quite inexplicable,’ no one was to blame.
The ministers of Health at the time were not accountable because ‘the tribunal said it was satisfied from Mr Desmond’s evidence that he had almost no direct input or involvement in the formulation or implementation of the Department’s policy in respect of blood products.’ A minister with no involvement in policy? The later minister Dr O’Hanlon gave inaccurate information to the Dail but ‘he was doing no more than providing information given to him by his officials.’
What about the officials then? ‘It
was reasonable for the Department to rely on its (BTSB) expertise’ although
there is some criticism of it, for example it taking 17 months to respond
to letters from St James’s about counselling facilities for haemophiliacs’
and it ‘could and should have pursued more vigorously its recommendation…that
only heat-treated blood products be used.’ (Irish Times 06/09/02)
But after all this we come back to the BTSB itself and here we have
only ‘ambivalence and blurring of the facts within the BTSB.’
‘Damien’, a haemophiliac infected with HIV and hepatitis C said of the Tribunal , ‘she says mistakes were made but doesn’t say why.’ The daughter of a patient who died from AIDS through infected blood product imported from the US criticised the report for ‘holding no one accountable.’ Another daughter of an HIV infected patient, Linda Dowling, said ‘I was shouted down at the tribunal. I got the feeling they did not want me in there. They weren’t interested in hearing about pharmaceutical companies. But the buck stops with them.’ ‘Damien’ stated that ‘all the evidence on the financial side was more or less dismissed with very little explanation.’ (IT07/09/02)
The judge in the Tribunal did not address the claims of the Irish Haemophilia Society (IHS) lawyers that treating doctors were guilty of ‘gross negligence.’ She turned down a request by the HIS to examine the role of overseas drugs companies and although the current Health minister has promised an inquiry Linda Dowling said that ‘I don’t think there is the motivation to look into the companies.’ These were not the only omissions.
‘For instance, the conflict of interest of the late Mr Sean Hanratty, former BTSB senior technical officer, went unmentioned. Mr Hanratty was a founder shareholder in a company which imported products believed to have infected many haemophiliacs with HIV. He was also the BTSB official in control of key internal documents destroyed in 1993. But neither this incident, nor Mr Hanratty’s role in product selection, were openly factored into Judge Lindsay’s deliberations on the BTSB’s actions.’ (IT 14/09/02)
The judge found that members of the blood service’s board ‘were not entirely blameless’ but were not called upon to give evidence! The dismissal of any monetary considerations in the decisions taken stands in stark contrast to statements made by key players at the time. ‘In 1987, the then chief executive officer of the BTSB wrote: “Finance is the board’s biggest problem, particularly its cash flow.” In 1989 Prof Temperley wrote: “The board should understand that in the present period of financial stringency the hospitals could not be expected to meet a doubling of the cost of concentrates in 1989. Some balance will have to be struck between cost and the infection dangers associated with blood products.” (Fintan O’Toole, Irish Times 10/09/02)
That was then
So have things now been put right? There are two reasons for believing that this is still not the case. The language used in the findings of the Report carries over into some of the descriptions of the state of services today. Thus in relation to communication and demarcation between the NHTC and regional centres the report notes only that the difficulties have ‘become less.’ It notes that co-operation between the NHTC and Regional Centres ‘was and is somewhat haphazard.’ While ‘the Tribunal is satisfied that until recently the number of consultant haematology posts was grossly inadequate. It heard evidence of recent efforts to improve the situation. It is essential that these should be pursued to a successful conclusion.’ (IT06/09/05)
Secondly, a panel of independent experts on blood transfusion recently identified ‘serious management and organisational weaknesses’ within the Irish Blood Transfusion Service, the service’s new name. The report highlighted the lack of a unified computer system raising the possibility that a donor permanently deferred by one centre might be able to donate blood at the other: ‘correction of this deficiency is vital to the safety of the Irish blood system.’ A thinly veiled criticism of the political nature of appointments to the blood transfusion board was made. The panel also opposed centralisation of testing on one site, not least because of the need for a reliable back up service, and viewed the merit of having only one testing site as ‘the most obvious one’- to save money.
It is clear even from this unsatisfactory report that cuts in health service spending were at the root of the infection of hundreds and killing of several dozen Irish citizens. It is equally clear that no one will be held accountable. As we face into another round of cuts in the health service the argument that these cuts hurt the most vulnerable in society has received striking verification. It is galling to remember that while these cute were going on Charlie Haughey and his cronies were living a life of luxury resulting from gross corruption, partly financed by working class taxpayers.
These cuts were possible to impose because the only people who had an interest and had the power to stop them were led by the bureaucrats of the Irish Congress of Trade Unions. Despite truly massive public opposition to these cuts the trade union leaders entered into partnership with the state that was at the same time presiding over the wilful neglect of its most vulnerable citizens. No wonder that it is organisations like the IHS that have campaigned on this issue. What should be their natural partners, the organisations that claim to represent the interests of the class from which most of their constituency come, are in partnership with those responsible for their plight. Today these same organisations have just announced their determination to have another partnership deal with their only demand appearing as pay rises above inflation. The interests of workers in a decent health and welfare system don’t appear on their radar. Their claims to stand for more than the narrowest sectional interest lie exposed as empty for those that care to take even the most cursory look.
Calls have been made for the report to be referred to the Director of Public Prosecutions while the HIS has called for an enquiry into the role of foreign drugs companies. The government have said that they do not intend to take legal action in the US against these companies citing an internal report that such an action would have very little likelihood of success. At the same time they insist on not publishing this report because this would prejudice a successful case! Such unalloyed cynicism can only come from an arrogance born of knowledge that they face no effective opposition.
The scandal that has been uncovered would never have happened had the blood transfusion service and health service generally been run by health workers themselves. It is inconceivable that they, working with users of the service, would have allowed the catalogue of disasters chronicled in the Lindsay report to take place. A social system based on pursuit of private wealth in a society of massive inequality will inevitably throw up such tragedies. The solution is creation of a new society in which the interests of ordinary people, including the most vulnerable, are put first because these are the people in charge.