Medical Trials And the Law

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In 2001, the Commission to Inquire into Child Abuse was given the task of enquiring into the issue of vaccine trials on children in institutions.

This inquiry stopped, because of what the website of the Commission describes as a ‘judicial review’ case before the High Court.

We asked Legal Coffee Drinker what it’s all about.

Broadsheet: “Legal Coffee Drinker: What’s it all about?”

LCD: “The Commission to Inquire into Child Abuse Act 2000 set up a Commission (“the Child Abuse Commission”) to inquire into the abuse of children in institutions. In 2001 an Order [the Child Abuse Act, 2000 (Additional Functions) Order, 2001 (S.I. No. 280 of 2001)] was passed extending the functions of the Commission to include certain vaccine trials carried out on children in institutions by, among others, two doctors, Irene Hillary and Patrick Meenan. Both doctors brought cases against the Commission. In 2003, the Supreme Court heard an application by Patrick Meenan in which he sought and was granted an order quashing a direction of the Commission that he attend at a public hearing. The Supreme Court in passing raised issues as to the entitlement of the Commission to consider the vaccine trials and following on this Irene Hillary brought a High Court case successfully challenging the validity of the 2001 Order. As a consequence the Commission no longer had jurisdiction to examine the issue of vaccine trials and their inquiry on this point had to stop.”

Broadsheet: “Why exactly was the 2001 Order held invalid?”

LCD: “Because under the 2000 Act, the government only had power to direct the Commission to inquire into instances of ‘abuse’ within the meaning of Section 1 of the Act. The definition of ‘abuse’ in Section 1 was as follows:- (a) the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child, (b) the use of the child by a person for sexual arousal or sexual gratification of that person or another person,(c) failure to care for the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, or (d) any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare. The courts took the view that vaccine trials did not come within this definition, at least if no concrete proof of adverse effects was available.”

Broadsheet: “And was this an irreparable mistake? Could something not have been done to correct it, after the above decisions?”

LCD: “Yes of course. It would have been open to the Oireachtas, following the High Court decision holding the 2001 Order invalid, to pass an Act widening the definition of abuse in Section 1 of the 2000 Act to to definitively include vaccine trials. It would of course also have been open to the Oireachtas to set up a separate Commission to deal with the vaccine trials. There is nothing in either of the decisions above to prevent this; the court’s findings in both cases was simply that there was no jurisdiction to consider vaccine trials under the Child Abuse Act as it stood.”

Broadsheet:  “Can you explain why In 2010 then Minister for Health [Mary Harney] in the the Oireachtas  when asked why no attempt had been made to investigate the matter further stated:-‘Having carefully considered both the Court judgments and the High Court decision I decided that no further investigation would be carried out. It is considered that it was very likely that any further investigation would experience similar difficulties to those encountered by the Commission.'”

LCD:” I’m not sure why she thought that, given that the difficulties encountered were entirely due to the drafting of the 2000 Act, which could have been amended by the Oireachtas by an amending Act at any time – in fact an Act amending other aspects of the 2000 Act was passed in 2005! Perplexing…”

Broadsheet: “What do you think about the decision to include the vaccine trials within the remit of the Commission to begin with?”

LCD: [drains coffee] “I think it was unfortunate that the government who made this decision did not read the definition of ‘abuse’ in the Act and seek to widen it before doing so. It should have been obvious, given the wording of Section 1, that this was going to present problems which might – as ultimately happened – result in an issue of significant importance – and much debate at the time – failing to get any resolution.”

Broadsheet: “Plus ça change…”

LCD: “Right. Are we done?

Broadsheet: “Yes. Thanks Legal Coffee Drinker. Just a bit of French there. Sorry.”

Earlier: Guinea Pigs