Court rules Minister cannot appeal Hepatitis C tribunal finding

The Minister for Health cannot appeal a finding by the Hepatitis C Compensation Tribunal that a woman probably contracted Hepatitis C as a result of being given infected blood products after the birth of her daughter some 40 years ago, the Supreme Court has ruled.

The Minister had sought to dispute whether Hepatitis C was the cause of injuries suffered by the woman in his cross-appeal against her appeal over the level of a €400,480 award made in 2009 to her by the Tribunal.

The High Court had in 2011 found the Minister was not legally entitled to maintain a cross-appeal over the issue of causation when the woman’s appeal concerned only the amount of compensation.

The High Court certified two legal issues arose for determination and the five judge Supreme Court’s decision on Tuesday has implications for the scope of appeals over Tribunal decisions.

In 2016, the Tribunal had some 458 cases still awaiting hearing.

Giving the court’s judgment, Mr Justice William McKechnie noted some €960m was paid in compensation between 1997 and 2016 to those who contracted Hepatitis C from infected Anti-D blood product produced by the Blood Transfusion Service Board from plasma taken from a Patient X in 1976 and 1977.

"It is a sobering figure which gives a real sense of the degree of harm inflicted on the unfortunate victims, many of whom died (estimated as around 260 deaths), and their families." A further €169.8m in total was spent on legal costs during the same period, he noted.

This case arose after a woman sought compensation in 2000 over injuries sustained as a result of allegedly contracting Hepatis C from human immunoglobulin administered to her in 1977 at a Dublin maternity hospital. The Tribunal found, as a matter of probability, she contracted Hepatitis C as a result of being given contaminated anti-D following the birth of her child.

The tribunal heard the woman’s clinical history was consistent with severe post-viral chronic fatiguye syndrome, associated with Hepatitis C infection, and she suffered other symptoms such as arthralgia and fibromyalgia. Her fatigue was so considerable she was unable to complete a professional qualification and the tribunal’s award of €400,000 incouded €250,000 for loss of opportunity.

The woman appealed in 2009 over the amount of the award and the Minister cross-appealed in 2010, including over whether she had contracted Hepatitis C in 1977 as alleged.

The Minister referred to a medical opinion that her symptoms of depression and and fatigue pre-dated the alleged infection in 1977, that she tested negatively for Hepatitis C on all tests and no other recipient of the allegedly contaminated batch had tested positive.

Having analysed the relevant law and authorities, Mr Justice McKechnie said Section 5.15 of the Hepatitis C Compensation Tribunal Acts 1997-2006 (the 1997 Act) provides the Minister’s right of cross-appeal relates only to the appeal as brought by the claimant.

Because this appeal did not raise issues of causation, the Minister cannot engage with that point, he held. This appeal only concerned the amount of compensation.

Because the 1997 Act is a "redress" statute, it shoud be given as "claimant-friendly" an interpretation as its terms will allow, he added.

The second legal point was whether the Minister is required to formally cross-appeal in relation to any appeal if all he wished to do was stand over and support a decision of the Tribunal.

It is not necessary for the Minister to formally cross-appeal, the judge ruled. However, if the Minister wished to argue, in any appeal over the sum of compensation awarded, that sum should be less, a cross-appeal would have to be brought, he said.

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