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

following a series of correspondence between the parties concerning the applicant’s ability to tender evidence to the Commission to Inquire into Child Abuse due to his health, the applicant had been issued with a direction to attend at the Commission in March, 2003. The letter issuing the direction stated that it was for the purpose of investigating the applicant’s capacity to give evidence at a public hearing of the Commission and that that investigation into the applicant’s health would itself be held in public. The prior correspondence between the parties concerning the manner of dealing with the question of his capacity to give evidence had indicated to the appellant a different procedure than the one ultimately adopted by the Commission in its direction issued in March, 2003. The High Court dismissed the applicant’s claim for an order of certiorari of that direction and acceded to the respondent’s application for an order pursuant to section 14(3) of the Act of 2000 requiring the applicant to comply with the direction. The applicant appealed that decision to the Supreme Court.

Held by the Supreme Court in allowing the appeal, quashing the direction and dismissing the application of the respondent pursuant to section 14(3) of the Act of 2000 that section 14(1) of that Act only gave power to the Commission to issue a direction to attend at its public hearings for the purposes of giving evidence to it. Accordingly, the direction to the appellant to attend at a public hearing for the purposes of investigating his ability to give evidence had been issued for an unlawful purpose. As the applicant had not been treated fairly by the respondent, having regard to the course of dealings between the parties and the fact that the respondent was not entitled, without stating reasons, to discount the possibility that public examination of the applicant might be avoided, the exercise of the court’s discretion was in favour of granting the relief sought.

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...

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