Keane C.J.
Denham J.
Murray J.
McGuinness J.
Hardiman J.BETWEENJUDGMENT delivered the 31st day of July 2003, by Keane C.J.

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.”

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).

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 …”

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.”

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.”

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.

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.”

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.”

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 Journal editors 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.”

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 consider this outbreak was caused by the immunisation procedure as a number of other infants who were not vaccinated were ill with similar symptoms.”

The report on this trial concludes with the following passage:

“In the 1970’s, there were reports suggesting that some children may have been brain damaged as a result of DPT (3 in 1) vaccination. An expert group was established by the then Minister for Health to investigate these reports. As a result of these investigations, the expert group found that, on the balance of probability, a small number of children may have suffered brain damage as a result of the vaccination. Inquiries have been made to establish if any of the children on whose behalf claims of vaccine related damage were made had been vaccinated in this trial or in any of the trials referred to. An examination of the department’s records in this regard reveals that none of the children on whose behalf claims were made received their vaccinations in any of these trials.”

A report was also furnished to the Commission by Dr. Karina Butler, Consultant in Paediatric Infectious Diseases at Our Lady’s Hospital for Sick Children, which was dated the 16th May, 2003. After a detailed review of the medical and scientific context in which the trial was carried out, she said:

“Justification for the Irish study rested on the following:-
• The study aim was important (reduced injections and early induction of immunity)
• the Swindon Trial design was flawed, its results were not definitive and the concept warranted further study
• enrolled children whether recipients of Quadravax or of DPT-IPV would be advantaged compared with the existing standard of care in Ireland at the time
• There was no additional potential for harm to Quadravax vs. DPT-IPV recipients
• The conduct of the study was reasonable with reference to contemporary standards
• The ethics of the study conformed to similar studies at the time, and surpassed some reputable studies that had preceded it
• The ethical propriety of the study as it related to informed consent is a matter of judgment as there were no clear standards in this regard in place in Ireland at the time.”

The long title of the Act is as follows

“An Act to establish a commission, to be known as An Coimisiún Chun Drochúsáid Leanai a Fhiosrú, or, in the English language, the Commission to Inquire into Child Abuse, to investigate child abuse in institutions in the State, to enable persons who have suffered such abuse to give evidence to Committees of the Commission, to provide for the preparation and publication of a report by the Commission containing the results of its investigation and any recommendations it considers appropriate for the prevention of child abuse, the protection of children from it and the actions to be taken to address any continuing effects of child abuse on those who have suffered it and to provide for related matters.”

Section 1(1) provides that

“In this Act, unless the context otherwise requires ‘abuse’, in relation to a child, means –

(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.”

Section 4 of the Act provides that the principal functions of the Commission are to provide for persons an opportunity to recount abuse which they have suffered in childhood in institutions during a defined period, to inquire through a committee into the abuse of children in institutions during that period and to prepare and publish reports. Section 4(4)(a) provides that

“The Government may, if they think so fit, after consultation with the Commission, by order confer on the Commission and the Committees such additional functions or powers connected with their functions and powers for the time being as they consider appropriate.”

There is no indication in the report of the Chief Medical Officer of Health, which is recited as having led to the invocation by the government of its powers under this provision, of any abuse of children within the meaning of the Act having occurred in the institutions in the context of the trial which is now the subject matter of an inquiry by the Commission. It is not clear how a conclusion could have been reached that the power conferred on the Commission to conduct such an inquiry could be regarded as an additional power or function “connected with their functions and powers”.

The proceedings which were the subject of the appeal to this court took the form of judicial review proceedings in which the appellant sought inter alia an order of certiorari quashing the decision of the respondent to issue the direction already referred to and an application by way of special summons brought by the Commission under s. 14(3) to the High Court for an order directing the appellant to comply with the direction. The vires of the statutory instrument was, however, not challenged in either of these proceedings in the High Court or this court on behalf of the appellant.

The appellant was born on the 30th June, 1917 and is, accordingly, now 86 years of age. At the time of the trials, the subject of the Commission’s inquiry, he held the chair of microbiology as applied to medicine in University College Dublin and was also responsible for the virus reference laboratory in that institution. In 1973, he was appointed the Dean of the Medical Faculty in UCD and in 1984 he was appointed the chairman of the Medical Council. He was also since 1955 the Director of the Department of Pathology at St. Vincent’s Hospital. He resigned from UCD in 1987 and from St. Vincent’s Hospital in 1989 and did not work professionally during the fourteen years since his retirement. He was one of the authors of the study published in the British Medical Journal which prompted the inquiry. He was also responsible for importing the vaccines required for the trials under a research licence granted to him in 1958.

When the Commission first invited the assistance of the appellant in regard to the matters into which they were inquiring on foot of the statutory instrument, his solicitors furnished an affidavit of discovery in relation to documents touching on the matters in the inquiry in his possession or procurement. They pointed out to the Commission that, while their client was willing to cooperate in every way he could with the Commission, his capacity to do so would be limited by his age and state of health. In response, on the 27th November, 2002, the Commission asked to be furnished with a medical report concerning his condition and indicated that they might require an independent examination. In further correspondence, it was pointed out on the appellant’s behalf that, while they had invited their client to provide a written statement to the Commission in response to a number of queries that the Commission had raised as to his involvement in these trials, they would wish to know whether he would be required to give evidence in public in respect of the matters in the statement and subjected to cross-examination. Following further inconclusive correspondence, the appellant’s solicitors were informed that, if it was contended that the appellant was incapable of responding to the inquiry or giving evidence, an application should be made by him or on his behalf for the purposes of establishing his incapacity. That application, it stated, would involve an independent assessment of his capacity and, it was added,

“the decision thereon would be announced at a public hearing.”

In response, they were informed that the appellant’s treating consultant, Professor Dermot O’ Donohue of St. Vincent’s Consultants’ Private Clinic, was of the view that the appellant was not fit to undergo the stress of major examination even if it was not adversarial in nature.

On the 17th February, 2003, the statement, seven pages in length, was furnished by the appellant’s solicitors setting out his involvement in the trials in question and responding to specific queries that had been raised by the Commission. In response, the Commission said that the Commission envisaged that his attendance would be required at future hearings and that, if it was intended to rely on medical grounds, they would require an indication as to what the condition was together with all supporting medical documentation. In response, the solicitors for the appellant referred again to the opinion of Prof. O’ Donohue that the appellant was not in sufficiently good health to give attendance at a public hearing and said that, in the light of the recent correspondence, they were now obtaining reports from Prof. O’ Donohue, his general practitioner and, if appropriate, from separate treating consultants. They said that those reports would be submitted to the Commission on “a strictly confidential basis”.

In response, the Commission again said that, if the applicant was incapable of giving evidence, an application should be made for the purposes of establishing such incapacity. The response, in a correspondence which was becoming increasingly acrimonious on both sides, took exception to the manner in which the matter was being dealt with on behalf of the Commission and reiterated that reports of his medical advisers were being awaited. It should be noted that the solicitors for the appellant disputed the position taken by the Commission that the appellant occupied “a central position” as a witness to the inquiry.

It should also be noted, at this point, that the nature of the application which the Commission envisaged should be made on behalf of the appellant in relation to his medical incapacity was not specified. His solicitors adopted the position that an application would not be made, but that medical reports would be furnished as soon as they came to hand. The correspondence had reached that point when, as already noted, on 31st March the direction was issued. The solicitors having expressed their anxiety that such a direction should have been issued before the medical reports had been considered by the Commission, the Commission responded as follows:

“As has been indicated to you on a number of occasions the division cannot possibly make a decision, otherwise than in a public forum, as to the question of Prof. Meenan’s capacity to give evidence. No such decision can be made in private, as, one would have thought, would be obvious to a solicitor of your experience. Additionally, it is quite likely that such issue would have to be dealt with on oral evidence.

“The purpose of sending your client the direction to attend was to induce any application you as a legal adviser saw fit to bring, based on whatever medical evidence you intend to rely. As you are aware there is a public hearing scheduled for Tuesday 8/8/2003 here at the Arbitration Centre, Distillery Building. It would appear that that would be an appropriate time for you to move whatever application in this regard you deem appropriate.”

In a further letter, the Commission said that while “the fact of the application and its outcome” would have to be in public, this did not mean that the Commission would disclose personal details of the appellant’s medical condition “to the public at large”. On the 9th April, the solicitors for the appellant furnished the Commission with reports by Dr. Brian Maurer, a cardiologist, Dr. O’ Donohue, Dr. Dermot O’ Shea, a consultant physician in geriatric medicine, and Dr. Damien Rutledge, a general medical practitioner. They asked that the direction already issued should be withdrawn. The reports were stated to be supplied

“on a strictly confidential basis and on the understanding that the contents of them will not be disseminated to any third party, although they may be shown to any independent medical doctor who may assess Prof. Meenan on behalf of the Commission.”

By letter dated the 8th October, the medical reports in question were returned by the Commission to the appellant’s solicitors. It was stated that

“the division could not accept them on the terms stipulated in your letter.”

There was no indication that the Commission had considered the contents of the reports.

In the course of the hearing of the appeal in this court, counsel on behalf of the Commission, while making it clear that their position was that the details of the appellant’s medical condition would not be disclosed to the public, said that the Commission reserved the right to furnish those details to those who could be described as “interested third parties”.

The validity of the direction issued by the Commission to the appellant was challenged in the High Court on the ground that the decision to issue the direction was in breach of his rights to natural and constitutional justice, his constitutional right to privacy and his constitutional right to bodily integrity. It was also submitted on behalf of the appellant that the decision to issue the direction offended the principle of proportionality. The appellant’s claim in the judicial review proceedings for an order of certiorari in respect of the decision was dismissed by the High Court (Smyth J.) on the 3rd June last and, in the same judgment, he acceded to the application for an order pursuant to s. 14(3) of the Act requiring the appellant to comply with the direction.

It is clear that that, where a body, such as the Commission, is required by statue to conduct a particular inquiry, as it was in the present case, and enjoys a statutory power, broadly equivalent to the power of the High Court to issue a subpoena, in the form of a direction under s. 14 of the Act, requiring the attendance of a witness, the constitutional requirements as to the observance of fair procedures by a body of this nature do not oblige the Commission to receive representations on behalf of any potential witness in respect of whom they propose to issue such a direction or to consider such representations before the direction is issued. So to interpret the obligations under the Constitution and the law of bodies of this nature would be wholly unnecessary and burdensome and would impede, without justification, the performance by the body of its statutory functions in a timely and efficient manner.

That is not the issue which arises in this case. It was accepted on behalf of the appellant that the Commission were empowered to issue such a direction and were not obliged to entertain representations from all potential witnesses before availing of their statutory power. However, while the validity of the inquiry which the Commission is required to undertake by virtue of the statutory instrument is not in issue in these proceedings, in considering whether the procedures adopted by the Commission observed the constitutional requirements of natural and constitutional justice and adequately upheld and vindicated the undisputed right of the appellant to privacy in respect of any medical condition from which he might be suffering, the precise nature of the inquiry being undertaken is plainly a relevant factor.

This is an inquiry into medical procedures in use more than forty years ago which, it would seem, from the evidence which has so far been made available to the High Court and this court, were conducted in accordance with the then prevailing standards and which, not to put it any more strongly, appear to have only the most tenuous connection, if any, with the appalling social evil of the sexual and physical abuse of children in institutions, which was the specific area into which the Commission was established to inquire. The fact that close on half a century has elapsed since these events would inevitably mean that those who could give assistance to the Commission in relation to what transpired might be elderly people in poor health, such as the appellant.

It could be said, indeed, that in the initial stages of the correspondence between the Commission and the appellant’s solicitors, it appeared that an appropriate concern was being shown for the difficulties which he would necessarily encounter in being involved in an inquiry of this nature at this stage of his life. As one would expect, the matter was dealt with by the furnishing of what appears to be a relatively detailed statement by the appellant which followed an affidavit of discovery as to any documentation he might be able to furnish. It also appeared as though the Commission were at least prepared to consider any medical reports that might be put before them with a view to assessing whether his attendance to give evidence on oath and submit to cross-examination was required. Unhappily, the Commission, for whatever reason, ultimately appeared to think a far more formal and legalistic approach was required and, as the correspondence demonstrates, they were eventually not prepared to settle for anything less than a public application made on behalf of the appellant to be excused attendance on the ground of ill health. While it was indicated that details of his medical condition would not be made known to the wider public, it was made perfectly clear that the Commission reserved the right to make those details available to third parties whom they considered had an interest in the appellant being present at the hearings of the Commission to give evidence on oath and be cross-examined. It was also clear that they envisaged the procedure as involving the giving of oral evidence in public and the participation of other (unspecified) parties to whom the medical reports would be made available.

No satisfactory explanation was offered on behalf of the Commission as to why it would not have been possible for them to have acceded to his solicitor’s request that, before determining whether it was necessary to have him present at public hearings to be examined and cross-examined on oath, they should consider the contents of those reports in private and, if necessary, arrange for an independent medical examination of the appellant. In arriving at a conclusion as to whether examination and cross-examination of the appellant on oath and in public was necessary, fair procedures also demanded, in my view, that they at least bore in mind the contention on behalf of the appellant, with which they were perfectly entitled to take issue, that, contrary to their view, he did not have a central role in the matters under inquiry.

I have no doubt that, in the context of the present inquiry and the age and state of health of the appellant, that was the minimum which fair procedures demanded. We were invited during the course of argument to treat this inquiry as in some sense analogous to inquiries at present being conducted by tribunals of which, in one instance, Moriarty J. is the sole member, and in another Judge Alan Mahon is the chairman. Those inquiries are being conducted into serious allegations of political corruption arising out of events in comparatively recent times. They have been mandated by the Oireachtas on foot of resolutions authorising the establishment of inquiries into, in the language of the Tribunals of Inquiry Act, 1921, “definite matters of urgent public importance”. The inquiry under consideration could not be further removed in its nature and scope from such inquires.

I would allow the appeal in both cases. In the judicial review proceedings, I would substitute for the order of the High Court an order of certiorari quashing the decision of the Commission to issue a direction to the applicant to attend before the vaccines trial division of the respondent on the 17th day of June, 2003 and thereafter to be examined on oath before the said division.

In the case of the second appeal, I would substitute for the order of the High Court an order dismissing the application of the Commission pursuant to s. 14(3) of the Act.

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Whereas the report compiled by the Chief Medical Officer of the Department of Health and Children entitled "Report on three clinical trials involving babies and children in institutional settings 1960/1961, 1970 and 1973", was referred to the Commission to Inquire into Child Abuse ("the Commission") by the Minister for Health and Children on the 13 November, 2000 and the Commission was requested by the Minister for Health and Children to inquire into the clinical trials referred to in the report:

And whereas the Chairperson of the Commission has requested the Government to define the parameters of the Inquiry:

Now the Government, in exercise of the powers conferred on them by section 4 of the Commission to Inquire into Child Abuse Act, 2000 (No. 7 of 2000), and after consultation with the Commission, hereby make the following order with respect to which pursuant to the said section 4, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House:

1. (1) This Order may be cited as the Commission to Inquire into Child Abuse Act, 2000 (Additional Functions) Order, 2001.

(2) This Order shall come into operation on the 19th day of June, 2001.

2. In this Order -

"the Act" means the Commission to Inquire into Child Abuse Act, 2001 (No. 7 of 2000); "the report" means the report compiled by the Chief Medical Officer of the Department of Health and Children entitled "Report on three clinical trials involving babies and children in institutional settings 1960/1961, 1970 and 1973".

3. The following additional functions are hereby conferred on the Commission, namely:

(a) to inquire, through the Investigation Committee, into the circumstances, legality, conduct, ethical propriety and effects on the subjects thereof of -

(i) the 3 vaccine trials referred to in the report, and

(ii) any systematic trials of a vaccine or the mode of delivery thereof to test its efficacy or to ascertain its side effects on a person found by the Investigation Committee to have taken place during the period commencing on 1 January 1940 and ending on 31 December 1987, and to have been conducted in an institution, following an allegation by a person that he or she as a child in the institution was a subject thereof, and


(b) to prepare and publish to the general public in such manner and at such time as the Commission may determine a report in writing specifying the determinations made by the Investigation Committee in its report under Article 4 of this Order.

4. The following additional functions are hereby conferred on the Investigation Committee namely:

(a) to make determinations in relation to the matters specified in paragraph (a) of Article 3 of this Order,

(b) to prepare a report in writing of the results of the inquiry referred to in the said Article 3 specifying in it the determinations made by it pursuant to paragraph (a) of this Article, and

(c) to furnish the report to the Commission.

5. The powers conferred on the Commission and the Investigation Committee in relation to the inquiries made by them under the Act shall apply to the inquiry aforesaid.

Bertie Ahern

Given under the Official Seal of the Government

19 June, 2001