Meenan v Commission to Inquire into Child Abuse

 
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[2003] IESC 52

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

215 & 216/03
MEENAN v. COMMISSION TO INQUIRE INTO CHILD ABUSE

BETWEEN

PATRICK MEENAN
APPLICANT/APPELLANT

AND

COMMISSION TO INQUIRE INTO CHILD ABUSE
RESPONDENT
IN THE MATTER OF THE COMMISSION TO INQUIRE INTO
CHILD ABUSE ACT,2000 [SECTION 14(3)]
AND IN THE MATTER OF PROFESSOR PATRICK MEENAN

Citations:

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S14(1)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 (ADDITIONAL FUNCTIONS) ORDER 2001 SI 280/2001

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S4

CONTROL OF CLINICAL TRIALS ACT 1987

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S1(1)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S4(4)(A)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S14(3)

TRIBUNALS OF INQUIRY ACT 1921

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S14(1)(A)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S14(3)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S14(4)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S35

CONSTITUTION ART 40.3

HEANEY V IRELAND 1994 3 IR 593

HAUGHEY V MORIARTY 1999 3 IR 1

DORAN V THOMPSON LTD 1978 IR 223

KAVANAGH V GOVERNOR OF MOUNTJOY PRISON & AG 2002 3 IR 112 2002 2 ILRM 81 2002/14/3362

DALY V MIN MARINE & ORS 2001 3 IR 513 2001/5/1265

FAKIH V MIN JUSTICE 1993 2 IR 406

MIN FOR STATE FOR IMMIGRATION AND ETHNIC AFFAIRS V TEOH 1994–1995 183 CLR 273

Synopsis:

TRIBUNALS

Tribunal of inquiry

Statutory tribunals - Practice and procedure - Direction by Commission to witness to attend before it - Purpose for which direction issued - Whether proper purpose -Direction issued for purposes of discussing at public hearing witness's capacity to give evidence - Whether direction ultra vires - Fair procedures - Whether procedures adopted by Commission observed constitutional requirements of natural justice - Whether witness afforded fair procedures - Whether direction should be quashed - Application by Commission to order witness to comply with direction - Whether order compelling compliance with direction should be granted - Commission to Inquire into Child Abuse Act 2000, section 14 (215 & 216/2003 - Supreme Court - 31/7/2003)

Meenan v Commission to Inquire into Child Abuse - [2003] 3 IR 283

Keane C.J.
1

On the 31st March of this year the Commission to Inquire into Child Abuse established pursuant to the Commission to Inquire into Child Abuse Act, 2000, (hereafter "the Act"), sent to the solicitors acting for the appellant in these proceedings a direction issued pursuant to s. 14(1) of the Act directing him to attend a public hearing of what was described as the "vaccine trials division"of the Commission at 10:30 a.m. on 17th June next and thereafter from day to day as required. His attendance was required, according to the direction,

"to be examined on oath as to your involvement in the trial of a vaccine (Quadravax) carried out in five mother and baby homes and one industrial school in 1960/1961."

2

The "vaccine trials division" referred to in that direction was holding the inquiry in question in accordance with the provisions of a statutory instrument entitled the Commission to Inquire into Child Abuse Act,2000(Additional Functions) Order, 2001 ( S.I. No. 280 of 2001).

3

The statutory instrument in question is set out on an Appendix to this judgment. It recites that a report compiled by the Chief Medical Officer of the Department of Health and Children on what was described as "three clinical trials" involving babies in institutional settings in 1960/1961, 1970 and 1973 was referred to the Commission by the Minister and the Commission was requested by the Minister for Health and Children to inquire into the "clinical trials" referred to in the report. It is recited that the chairperson of the Commission requested the government "to define the parameters of the inquiry". The curial part of the instrument then goes on to provide that the Government, in exercise of the powers conferred to them by s. 4 of the Act and after consultation with the Commission, had conferred inter alia the following additional function on the Commission:

"(a) To inquire, through the investigation committee, into the circumstances, legality, conduct, ethical propriety and effects on the subjects thereof of"

(i) The three vaccine trials referred to in the report …"

4

The report of the Chief Medical Officer referred to in the statutory instrument says that the trials became the subject of "media interest" in 1991 on foot of which the then Minister for Health answered questions in the Dáil on the 7th May, 1991. It said that

"There was subsequent interest in these trials by way of correspondence between a former resident of a children's home in Dublin and the then Minister in 1993 and finally in media reports in July 1997. This was followed by a statement by the Minister for Health in the Dáil on 9th July 1997 in the course of which he promised to make inquiries into the matter following which he would consider the most appropriate action to take."

5

The report went on to give details of three trials, in only one of which the appellant was concerned. It is described as a trial

"In which fifty eight infants resident in five children's homes in Ireland took part so to compare the poliomyelitis antibody response after vaccination with a quadruple vaccine (Diphtheria, Pertussis Tetanus (DPT) and Polio combined) with the standard vaccines in use at the time which consisted of DTP and Polio administered separately and at different sites."

6

The report goes on to say that a number of issues needed to be "clarified and addressed". These included whether the statutory controls, if any, relating to the importation and use of the vaccines used in the trials were complied with, whether the statutory controls relating to the conduct of clinical trials (if any) were complied with, what were the "ethical standards" which governed such trials, particularly in relation to the principle of consent and whether they were complied with and whether the participants were exposed to any, or additional, risk by reason of the administration of these vaccines.

7

In relation to the ethical issues alleged to have been raised in relation to the conduct of the trials, the report goes on to say:

"During that period [the 1950's 60's and 70's] and up to 1978, with the establishment of the Medical Council, Irish medicine and its practitioners took their lead on ethics from the UK General Medical Council and it was not until 1987 that the Control of Clinical Trials Act gave legislative underpinning to the conduct of clinical trials and systematically addressed the issue of informed consent."

8

Having referred to the necessity that trials of this nature should have a clear objective, relevant to an identified and serious health problem and that the matters undertaken to investigate the problem and to achieve the objective should be "reasonable and proportionate", the Chief Medical Officer concluded:

"In relation to this standard, infectious diseases, including Polio, were a major cause of ill health and death in the fifties and sixties worldwide. The improvement in the effectiveness of vaccines and the development of more effective combinations of vaccines were highly desirable objectives and research such as that described in this article was being conducted worldwide. In relation to the specific vaccines used, and particularly the quadruple vaccine, other variations of quadruple vaccine had been used in major studies published in reputable journals in the USA and Canada. It is fair to say that the objectives of this study, and the nature of the public health problems being investigated, were such as to seem reasonable when judged by this standard."

9

In relation to the ethical issues which the Chief Medical Officer considered might be raised because of the possibility that there was no consent to the procedures, the report comments:-

"The fact that the study was published [in the British Medical Journal] would indicate that, irrespective of which of the …procedures was adopted, the British Medical Journaleditors considered that the authors” ethical obligations were discharged to the point that they felt it was appropriate to publish the paper. The editorial department suggests that it is likely that the journal's assessment would have taken account the fact that polio was a devastating disease at the time, that the aims of the particular study seem to be not unreasonable and that the quadruple vaccine had been used in the USA and Canada. Therefore, it did not appear as though this was an untried and highly experimental regime and the rationale for testing it made sense."

10

As to any risk to the infants concerned, the report said that, while sixteen of twenty five infants from a single home were reported as having developed vomiting, diarrhoea and pyrexia after a second immunisation, the symptoms lasted a few days and were followed by complete recovery. The report adds

"The authors did not...

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