E.D. v The Minister for Health
| Jurisdiction | Ireland |
| Judge | Mr. Justice Bernard J. Barton |
| Judgment Date | 26 November 2019 |
| Neutral Citation | [2019] IEHC 944 |
| Date | 26 November 2019 |
| Docket Number | [2017 No. 7 C.T.] |
| Court | High Court |
[2019] IEHC 944
THE HIGH COURT
Bernard J. Barton
[2017 No. 7 C.T.]
Compensation – Hepatitis C Compensation Tribunal Acts 1997 to 2006 – Onus of proof – Appellant seeking compensation under s. 4 (1) (e) of the Hepatitis C Compensation Tribunal Acts 1997 to 2006 – Whether chronic Hepatitis C was a cause of death or a significant contributory factor to the cause of death
Facts: The appellant appealed to the High Court pursuant to s. 5 (15) of the Hepatitis C Compensation Tribunal Acts 1997 to 2006 from the decision of the Hepatitis C Compensation Tribunal given on the 15th September 2017, whereby the appellant’s application for compensation under s. 4 (1) (e) of the Acts was dismissed. The appellant brought these proceedings on her own behalf and on behalf of the other statutory dependants of her mother, who died on the 16th February 2008, aged 67. While a number of questions were raised on the appeal, the central issue which fell for determination was whether or not chronic Hepatitis C (HCV) was (i) a cause of death or (ii) a significant contributory factor to the cause of death.
Held by Barton J that the opinion of Dr McPherson, a member of the medical staff at the Mater Misericordia Hospital where the deceased, whom she attended, was an inpatient at the time of her death, was supported and her opinion was, in particular, corroborated by Professor Foster, Professor of Hepatology. Consequently, Barton J was satisfied that HCV was a significant contributory factor to the cause of the deceased’s death and thus the onus of proof carried by the appellant with regard to establishing the requirement contained in the second arm of s. 4 (1) (e) had been satisfied.
Barton J held that he would allow the appeal and remit the application back to the Tribunal for the purposes of assessing compensation and making an award.
Appeal allowed.
These proceedings come before the Court by way of an appeal pursuant to s. 5 (15) of the Hepatitis C Compensation Tribunal Acts, 1997 to 2006 (the Acts) from the decision of the Hepatitis C Compensation Tribunal (the Tribunal) given on the 15th September 2017, whereby the Appellant's application for compensation under s. 4 (1) (e) of the Acts was dismissed. This section in general makes provision for the categories of persons who may bring claims for compensation under the statutory scheme. The claimants with which s. 4 (1) (e) is concerned are the statutory dependants of any of the persons identified in sub paragraphs (a) (b) or (c) of s.4 (1) whose death was as a result of contracting Hepatitis C or where Hepatitis C was a significant contributory factor to the cause of death, namely:
(a) a person diagnosed positive for Hepatitis C (HCV) resulting from the use of Human Immunoglobulin Anti-D within the State,
(b) a person diagnosed positive for HCV through the transfusion of blood or blood products within the State,
(c) the children or any spouse, of the persons at (a) or (b) above who themselves have been diagnosed positive for HCV.
The Appellant brings these proceedings on her own behalf and on behalf of the other statutory dependants of her mother, who died on the 16th February 2008, aged 67. While a number of questions are raised on the appeal, the central issue which falls for determination is whether or not chronic HCV was (i) a cause of death or (ii) a significant contributory factor to the cause of death. For the reasons which follow later, while satisfied the deceased did not die as a result of having contracted HCV, the Court is satisfied that the infection was a significant contributory factor to the cause of death.
The deceased contracted HCV on the 11th June 1977 as a result of receiving Anti-D which emanated from a batch of the product contaminated with the virus (subsequently identified as batch number 238). A stark difference of medical opinion emerged in the course of the proceedings concerning the part played, if any, by HCV in the cause of the deceased's death. In the event the Tribunal was not satisfied that HCV had played an active role in the death (to a degree that could be said to be non-minimal), and consequently dismissed the application.
One of the ancillary questions which arises concerns the probative value of the ‘Death Certificate’ issued pursuant to the provisions of the Civil Registration Act 2004 (the 2004 Act). The certificate was admitted in evidence together with the deceased's medical notes, records, and correspondence relevant to the application. The Intensive Care Unit (ICU) ‘Death Summary’ indicates that the Coroner was informed of the death and had requested a post mortem. However, none appears to have been carried out or, if it was, no record of the result is contained in the papers made available to the Tribunal or the Court. The relevance of the certificate to the resolution of the main issue arises from the causes of death stated therein, the last of which is given as ‘Hepatitis C certified’.
The Appellant contended that the certificate was prima facie and conclusive evidence of the cause of death. The Respondent argued that while the certificate was prima facie evidence it was not conclusive of the facts stated therein, furthermore, it was of little probative value when regard was had to the expert medical evidence. I shall return to these submissions in more detail later. The evidential status of a death certificate was considered by O'Neill J., in R.B v. The Hepatitis C and HIV Compensation Tribunal, [2005] IEHC 57, wherein he relied upon the content of the death certificate together with expert medical evidence to found the conclusion that HCV had been a significant contributory factor to the cause of death. Although the Tribunal adopted the construction placed on s.4(1) (e) by the learned judge, the evidential significance or otherwise of the death certificate was not addressed in its reasoning for the decision to dismiss the application.
The parties made comprehensive written and oral submissions on the issues which arose before the Tribunal, as they did on the appeal. In the interests of facilitating a comprehensive understanding and in order to place the issues in context it is considered necessary to set out in some detail the factual background to the application.
The deceased was born in July 1940. She was young when she married in 1960 and was blessed with a large family. In 1994 she was diagnosed positive for HCV antibodies on ELIZA and on all four bands of the RIBA test. She was also found to be virus positive (genotype 1B) on PCR testing. Save for a short period of time in the mid 1990's the deceased was viraemic for 30 years before her death. Following diagnosis, she applied for compensation under the statutory scheme and was made an award by the tribunal on the 21st May 1998; the Court has had the benefit of reading the transcript of those proceedings.
It is not in issue that Hepatitis C viraemia causes progressive liver disease. During the years between diagnosis and the hearing in 1998 the deceased underwent three liver biopsies the first of which, in June 1994, showed early bridging fibrosis and widespread piecemeal necrosis, involving greater than 70% of the portal tracks, with moderate activity; liver function blood tests were also marginally abnormal. Consequently, double antiviral therapy of Interferon and Ribavirin was advised and undertaken with a positive response; PCR testing reverted to negative and liver function blood tests returned to normal. A second liver biopsy followed on the 20th March 1995; the result disclosed a marked reduction in liver inflammation.
Unfortunately, response to treatment was short lived. By July 1995 liver function blood tests were found to be PCR positive. A third liver biopsy was carried out three years later on the 24th April 1998. Although the inflammation seen in the sample was somewhat less than in the 1994 sample, it was greater than that seen in the biopsy of 1995. The result was indicative of continuing activity with slow progression of the disease. The deceased's treating physician at the time was Dr. John Crowe, Consultant Gastroenterologist. He gave evidence to the Tribunal at the hearing in 1998 and on the subject application.
In 1998 Dr Crowe prognosticated there was a greater likelihood the deceased would develop cirrhosis of the liver due to having reverted to positivity for the virus. He thought the disease would progress slowly but that by her mid to late 70s the liver was likely to be cirrhotic; either way she would almost certainly be compromised in terms of her overall health. While she was undoubtedly at greater risk of ill-health than a patient without the disease it was unlikely there would be any foreshortening of life expectancy.
This opinion is potentially significant in the context of the fundamental question under consideration and is one which Professor Crowe was prepared to stand over in his evidence on the hearing of the appeal, albeit without prejudice to his contention that Hepatitis C was not the cause of death. His treatment plan in 1998 had been to carry out further biopsies at three yearly intervals and if these showed progression of the disease to intervene with antiviral treatment, although at the time it was not anticipated such treatment would result in a clearance of the virus, particularly as the deceased was genotype 1B.
The Tribunal accepted Dr Crowe's opinion and prognosis and found that the already established liver disease would likely progress to cirrhosis in later life and that there was a possibility but no more than a possibility of further progression to decompensated...
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