8 November 2022: O'Mahony - A

Brian O’Mahony comes to the Infected Blood Inquiry with a unique and vital perspective on the whole situation related to contaminated blood, blood products, and the impacts on people with bleeding disorders. He appears to have been Chief Executive of the Irish Haemophilia Society since before living memory. He lived through the entire “Irish Model” response, including its gems and its warts and all elements. He has been involved with the Irish Society since 1982. He has been President of the World Federation and the European Consortium. He has severe Haemophilia B and is trained as a medical laboratory scientist. He gave evidence to Inquiries in the US and Canada. Mr O’Mahony was involved with the Finlay and Lindsay Tribunals in Ireland, and the Independent Archer Inquiry.

The witness became aware of the contaminated blood issue through an article in a journal related to his professional working role. He arranged meetings with key clinicians due to his recognition of the risk of infections arising from contamination of blood. The first diagnosis of HIV in Ireland was in December 1984. The Irish “treating clinicians” were known to have contact with their UK peers. By 1988, calls were being made for financial support. Of the 296 registered haemophiliacs, 265 were tested for exposure to HIV and 106 infected. Of the severe haemophiliacs, 70% were infected.

Counsel explained the focus for the witness being called to give evidence, being the various responses to the contaminated blood situation in Ireland. The first letter to the Government received an acknowledgement of having been received, but then there was silence for months. Campaigning became a focus of activity and was very effective, even having an impact on election results. The initial resistance to making payments was based on financial constraints. From 1991 a programme of ex gratia payments was initiated for some infected people but not all. It was a simple discretionary grant payment process to meet specific needs such as aids and adaptations. There were examples of the Irish Society making payments to individuals and then being reimbursed by the Government.

A Tribunal was set up related to HCV and this was extended to include HIV. The initial trust fund (Haemophilia HIV Trust, HHT) was running out of money, so infected and affected people were involved in a consultation to agree the way forward. The Trustees of the Trust were very available to infected and affected people and this was seen as crucial. During the period there were litigation cases, but these appeared to be progressing very slowly. The development of trusts and schemes continued to map alongside political campaigns and elections. The Chair sought to clarify the equivalences for a UK settlement. It was calculated that £120million would need to be paid on the basis of a “moral obligation” to match the Irish levels. There were many discussions, and as time went on the openness from Health Department officials was significantly noticeable. This was put down to the prospect of the anti-D factor. The Hep C Compensation Tribunal (HCCT) was set up under statute and became known as the Stewart Tribunal. The use of the word “compensation” was significant, but there was no formal admission of legal liability. This all happened before the Lindsay Tribunal was set up. Access to the funds simply required showing that a person had received plasma-derived factor concentrate. The awards were topped up if required as “aggravated” or “supplementary” payments. This was all contained in the 1997 Act.

Counsel asked about the case for transfusion patients, given that people in the UK had suffered by not being given access to awards due to missing records. In Ireland, so long as it should be established that a person had received a transfusion, that was sufficient cause, as with anti-D. Provisional awards were also made to younger people who had not had the chance to establish a career, and this could be topped up at a later date. The process was one of acting as if someone had established their case in a court-based compensation claim, then being paid out by the Tribunal. Financial support was also available for legal representation. Some early awards attracted appeals which were upheld and resulted in higher award amounts being paid, and this influenced the subsequent award amounts by the Tribunal.

The evidence recognised the inadequacies of the previous HIV settlements, and so these were re-visited. Other changes were contained in the updated 2002 Act. This included doing away with the exclusion of those who died before the 1991 Act. It also extended the types of impacts to be compensation (such as PTSD, etc.), and the categories of people who could claim (such as children and others who suffered a “loss of society”, etc.)

The assessments were very individualised, including intelligence tests to seek to assess the likely career earning pathway a person might have been expected to achieve. The Tribunal was entirely filled by barristers. Legal expertise on both sides was seen as vital. Overall, Mr O’Mahony saw the process as a success for a number of reasons. It was non-adversarial for the most part, although recently there have been some more challenging cases. The process includes a written application, any evidence of infection due to the use of blood or blood products, there would be a loss of earnings assessment, a psychological report, an essay statement by the person about the impacts on them, and various other reports and submissions. All the cases were held in person, and in the vast majority of cases the applicant was asked to speak at the Tribunal. The Health Department was always there, but they were more likely to ask questions of the expert witnesses. The Chair noted the similarities with a court arrangement, but there were no “out-of-court settlement” examples. A key success has been the high level of the awards and the opportunity for people to “have their day in court”.

The major disadvantages of the Irish model have included the length of time it can take for the process to get to making the payment, thus it becoming an extended period before “closure” could be achieved. Typically, and very roughly, from the making of the claim to the payment being sent out, it could take around 18 months, but many were shorter, while many were considerably longer. The Chair asked a question which led to the witness acknowledging the helpfulness of the recent interim payments in the UK. Counsel asked if there was anything the witness would change in hindsight. He said he would see it as important to have provision for significant interim payments and as fast as possible processing of applications.

The evidence moved to the medical card situation. In Ireland there are already medical cards for specific conditions such as bleeding disorders, but other aspects of healthcare are not generally covered by the State (so it is a “two-tier system” of a national health system and a private healthcare system requiring insurance). It was not a great battle to get the Government to establish a card system for infected people. It has overcome their need to pay for those healthcare interventions (such as GP appointments) which are not universally covered by the State.

The ”HAA” cards are still available when a person had undergone successful anti-viral treatment since they still have the antibodies present. Counsel asked if there had been any issues with people “queue jumping”. It was not seen like that; it did not lead to any resentment by the rest of the population but is simply seen as people with a specific additional need caused by the State having their exceptional needs met. Card-holders have access to services such as the “two-week rule” meaning they can see, for example, a liver specialist within two week of seeking an appointment. The Covid-19 situation has impacted this type of service (due to the pressures on the general health services arising from Covid), plus the effectiveness of the Direct Acting Antiviral (DAA) treatments. The card covers; dental treatment, aids and appliances, free hearing and eye tests and aids, physiotherapy, even home nursing services (although this has not been called on very often). It also gives access to counselling, alternative therapies such as massage and more. There are about 3,500 of these cards and there is an assigned liaison officer if there is a problem getting a service linked to the card (especially since many GPs will not have come across the cards before). Mr O’Mahony noted the key role of the liaison officers in making the system work well.

A ”home nursing service” is distinct but is more in the way of domiciliary support services. These have been very well used, including the option of employing someone and getting the costs of doing this reimbursed.

The issue of insurance was the final main topic. The process went back to 1986 in relation to HIV being an issue for people having difficulties obtaining insurance. So, this carried over to the related impacts on people obtaining insurance related to HCV. There was a 2006 amendment to the 2002 Act to cover insurance. It covered issues such as life insurance, travel insurance, and mortgage protection. Some infected people are deemed to be uninsurable, or face heavily loaded premiums. The aim was to allow for people to only have to pay the same insurance as anyone else not infected. There are two companies who operate the insurance products, and it is underwritten by the Government. It has been very important, since many people were excluded from buying a house and having something to pass on to their partners and children. There was a high take-up of mortgage protection insurance in the first year, especially since the Society encouraged people to sign up, but then the draw on this dropped off. Travel insurance has also been very helpful, allowing people to go on holiday with their family and it not costing impossible amounts of money. The whole insurance element of support took over four years to set up, with at least 35 meeting to put it in place. It was an important aspect of the support offered by the State but was a great deal of work to establish.

All of these supports are a response by the State for what happened to people. Infected and affected people saw their harms being recognised and redress given, and this was definitely a positive outcome. There was very responsible media coverage, and a generally positive response by the public who had had the issues explained through news and other channels.

The session was extended to allow all the Counsel questions to be asked. All that remained was the questions from core participants.

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