A blog is just a blog and is rarely definitive. I missed two elements of the post relating to the contamination of Irish pork products.

A. Irish farmers sell their pigs to factory processors; it is from the processor that the supermarket/retailer gets supplies. (So too, will a secondary processor such as a sausage maker). So, the retailers will have a claim against the processors; the processors will have claims against the farmers.

B. My post assumed delivery of the oil at its source. If delivery is at and to the Irish pig feed manufacturer in Ireland, Council Regulation 44/2001 will apply. Jurisdiction in those circumstances will be Ireland, not the place of the location of the supplier of the oil.

Details of the indemnity to the factory processors, by the Irish Government, are not to hand. Accounts suggest it is not a full indemnity. If so, the processors will be able to properly claim the balance from the farmers, who will in turn be able to make a claim against the pig feed supplier.

A sensible arrangement for the Government indemnity would have made provision for Ireland to be entitled to receive a proper portion of compensation recovered from farmers and/or the pig feed supplier.

A matter of great interest is the level of insurance cover of the farmers and the pig feed supplier. As always, the practicality of litigation is important.

Yet again we see the urgent necessity of legislation in Ireland to provide for Third Party rights under insurance and other contracts.

In the UK they have had that for 70 years and do not appear to have had any problems. What’s keeping us, (besides ineptness)?

Ireland’s pork and ham industry has been struck a stunning blow. Consumers have been told, by the Government, to avoid eating its products.

The same Government has informed the media that dioxins in food are not dangerous in small doses. The FSAI website says of dioxins:

Dioxins and PCBs are toxic chemicals that can provoke serious health effects such as cancer, hormone disruption, reduced ability to reproduce, skin toxicity and immune system disorders. Because of their serious health effects and their persistence in the environment, it is essential to minimize their release into the environment, including the establishment of emission limits for dioxins
to air, prohibition of the use of PCBs, and safe collection, storage and environmentally compatible disposal or destruction of dioxin and PCB-contaminated devices and products.”

The Government has also declined to say where, in Ireland, the problem had its source, but the media have identified one pig feed factory in Carlow as the source.

Previously, when contamination of bottled water was detected in Irish consumer supplies, the Food Safety Authority of Ireland refused to disclose the identity of the “manufacturers” that had been selling the contaminated water.

Liability arises for this mess under, possibly, six heads.

A. Each purchaser in a supply chain has a claim for breach of contract against the supplier. Thus, the shops and retailers generally in Ireland are obliged to make good the loss to the consumer by the breach of contract. That loss, currently is measured by the cost of the defective product. (The burden of proving the product is defective lies on the purchaser, but that is an issue unlikely to represent a problem). The pig farmer or farmers, in their turn, are liable to reimburse the retailers for the losses sustained by the retailers. Those losses will exceed the cost of the product sourced from the farmer. They will arise from the costs of removing the product from shelves and perhaps disposing of it. Undoubtedly the retailers will have to ensure they are in a position to establish that the product is defective; the farmer is unlikely to concede anything on that front. The jurisdiction for the proceedings will be Ireland.

B. It appears, from current reports that the source of the contamination was one pig feed factory or supplier of pig feed. The purchasing farmers will be entitled to an indemnity for their losses from that source. Those losses could be very substantial; they would include the claims of the retailers, but would extend to the continuing loss of business arising from cancelled supply contracts. The jurisdiction for the proceedings will be Ireland.

C. Each consumer who suffers ill health, physical or mental, will have a claim against the retailer under the law of product liability. These claims do not rest on an allegation of negligence; they are claims addressing a strict liability. However, here again, the consumer will have to prove the defect; it will not be assumed. The jurisdiction for the proceedings will be Ireland.

D. The pig feed supplier possibly purchased a contaminated oil to mix the feed. The supplier of that oil is liable to the pig feed supplier, assuming its intended use was disclosed. The pig feed supplier will be entitled to recover, and will recover, all its losses, assuming the solvency of the oil supplier. The jurisdiction for the proceedings will be the place where the oil supplier is located.

E. Consumers could, conceivably, make a claim against the Food Safety Authority of Ireland. The claim would be difficult to assert. See Glencar Explorations Ltd. v Mayo Council [2001] IESC. Fennelly J.stated in that case:

Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person and group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it.”

F. The Authority, it would appear, was slow in ensuring the withdrawal of contaminated product from the retail supply chain. It acted before 6th December 2008, the date it received a report confirming contamination, suggesting it already knew what the problem was and/or its seriousness (probably from an Italian source). This is all of a piece with its refusal to name the suppliers of contaminated water and, now, to name the source of the contaminated pig feed. Its mission, it appears, is not the protection of people, but industry. In fact the State has a primary duty to the citizens of Ireland on such issues under the Constitution of Ireland, and not to Ireland plc, as the Government puts it. Article 40 (3) of the Constitution states:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

I endorse and support, I believe, the principle of evidence-based medicine (“EBM�?).
I do so having no medical qualifications whatsoever because the validity of the principle, I believe, transcends the practice of medicine.

Apparently it is claimed that EBM is relatively new. Initially, that’s a surprise. It dates from, it appears, about 1996. While still supporting its practitioners I doubt this claim. It claims too much. It seeks to appropriate the word evidence to apply only to some evidence and not to other evidence. Did the medical profession not act on evidence before 1996?

I think it did.

The practice of bloodletting lasted for at least 2,000 years with no proven benefit to the modern mind. This did not mean it could not be justified. The justification lay in the acceptance of the theory of the four humours.

According to the theory, a human person was, in effect, constituted of a mixture of the four humours. Bloodletting was calculated to affect the balance of these humours. The effect of these humours, black bile, yellow bile, phlegm and blood extended to the explanation of character.

Those with too much blood were sanguine. Those with too much phlegm were phlegmatic. Those with too much yellow bile were choleric, and those with too much black bile were melancholic. To be sanguine is to be courageous, hopeful and amorous. To be phlegmatic is to be calm and unemotional. To be melancholic is to be depressed, sleepless and irritable. To be choleric is to be easily angered and bad tempered.

It is relatively easy to find living examples of these types and, having done so, to think that that discovery is supportive evidence of the theory of the four humours.

The alternative theory, that of EBM, is to follow the scientific method.

Based on observations of a phenomenon, a scientist may generate a model. This is an attempt to describe or depict the phenomenon in terms of a logical physical or mathematical representation. As empirical evidence is gathered, a scientist can suggest a hypothesis to explain the phenomenon. This description can be used to make predictions that are testable by experiment or observation using the scientific method. When a hypothesis proves unsatisfactory, it is either modified or discarded.�?

The significant word is “hypothesis�?. The quote suggests that the hypothesis follows the gathering of evidence. This is not likely. The hypothesis, or its predecessor (another hypothesis) must precede the gathering of evidence. This is true even when the evidence presents itself to us almost complete, say, when a body is discovered with a knife sticking out of its back. We have already formed the view that such circumstances are more consistent with murder or manslaughter than with suicide or accident.

The “scientific method�? is not new. Eratosthenes applied it to the measurement of the circumference of the Earth in 240 BC. He learned of a well at Syene in southern Egypt, where the sun, on the summer solstice, shone directly down into the well. At Alexandria in northern Egypt, on the solstice, the sun was not overhead; it was at an angle of seven degrees 12 minutes. He estimated the distance from Alexandria to Syene and concluded that that distance represented one fiftieth of the circumference of the Earth, because the angle of the sun in Alexandria on the solstice was one fiftieth of a circle. Of course, he also concluded that the Earth was circular in shape.

The quality of the hypothesis is critical. So, too, is the ability to collect evidence.

Generally the Minister for Health and Children expounds a hypothesis to explain health care infections. These are infections contracted almost exclusively in places such as hospitals and nursing homes. The Minister’s theory focuses on the supposed natural history of the pathogens involved. It resolutely assumes that the first and principal defence of humanity from pathogens is antibiotic use and that that defence has been breached. We know this because, in the context of addressing health care infections, she castigates the medical profession for over-prescribing antibiotics in the past. Sometimes this idea is elided into the idea that it is consumption of antibiotics that is the problem and by implication that the patients are responsible.

She does endorse other ideas but, in doing so, implies that the general public, like the medical profession, are implicated in the chain of causation through visiting patients in hospitals.

What is revealing is her own admission that you can only manage what you measure.
It was only in March 2008 that she made Clostridium difficile a notifiable disease.

This was the only method of determining the incidence of this dangerous, often fatal, disease.

This proposition was the subject of a post HERE in 2007.

EBM is of little use as an idea if it is not preceded by the appropriate hypothesis, uncontaminated by an agenda to dissipate and diffuse responsibility and also preceded by the effective search for evidence.

Words are important. They matter.

I have tried to defend the correct use of the word “refute�? before (several times).
It is too good a word to allow its destruction unopposed.

I have also criticised the Minister for Health and the Health Service Executive over the failure to address the problem that is Clostridium difficile infections and lack of hygiene in Irish hospitals, HERE and HERE and HERE.

That abuse of language, misrepresentation and Clostridium difficile deaths should all appear in one report, indeed in one single sentence, is vindication.

Here is the sentence:

…refuted the suggestion that a marginal reduction in the amount spent had any connection with the issue of C difficile�?,

from THIS REPORT.

I suppose I am not alone in finding the “centre of excellence�? phrase new. But am I alone in feeling the phrase is, somehow, a reproof?

It has overtones of the concept of a new year’s resolution. That concept has universal approbation (grouches excepted), brooking no dissent on the desirability of the idea of such resolutions. It also invokes a notion of “the norm�? that is somewhat (mistakenly, I say) exclusionary. I have in mind the near certainty that Josef Stalin, or indeed, George W. Bush, never did or do make new year resolutions or ordered the creation of a centre of excellence.

I suggest the reason for this has nothing to do with their characters; it has to do with the fact that neither of them is (or was, in the case of Uncle Joe) a businessman. (Bush tried his hand at business but he was not a businessman).

The phrase is a stroke of dubious, comparative advertising genius and essentially, only a business consultant’s faddish phrase. After all, in what field do we establish a “Centre of Mediocrity�?? Or a “Centre of the Shoddy�??

It collaterally depreciates possibly perfectly serviceable institutions. Or, given the current use in Ireland, it brilliantly distracts attention from institutions which are far from serviceable like, reputedly, Our Lady of Lourdes hospital in Drogheda, as seen HERE and HERE.

Who ever aspired to have a hospital that was not excellent?

The real drawback of the “centre of excellence�? phrase is its avoidance of consideration of what we have, in favour of what we, by implication, have not.

There is abundant evidence that hygiene in hospitals is poor. See HERE and HERE.

Here is a quote relating to Our Lady of Lourdes hospital in Drogheda.

On the ‘Rate my Hospital’ website, patients or their relatives are asked to rate hospitals on a scale of one to five under a wide range of headings, including car parking, cleanliness, quality of care, catering and many other areas.

The Lourdes Hospital in Drogheda scored an average of 2.39 (48%) under hygiene among the 369 people who completed surveys on services at the hospital while Mallow scored an average of 4.20 (84%) among the 49 people who completed surveys on it.

Note the reference to St Columcille’s Hospital in Loughlinstown, Co. Dublin. This hospital and its suspect hygiene has obliquely featured in a previous post HERE.

In relative terms, fixing hygiene problems is cheap. Very little technology or new infrastructure would be needed. The Dublin County Coroner believes the appointment of a microbiologist in St Columcille’s Hospital in Loughlinstown, Co. Dublin would avoid the situation where he, the coroner, encounters the consequences of a hygiene deficit in the hospital, but it is not obvious that such an appointment is absolutely necessary. After all, we would hardly expect the microbiologist to go about actually cleaning the hospital.

The “centre of excellence�? phrase has one merit; it draws attention to the centre. The centre is the Government. The Government is accountable for what is wrong with the Health Service. (The Irish Constitution, Article 28, 4, 1 and 2).

4. 1° The Government shall be responsible to Dáil Éireann.
2° The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.

This is the legal position.

I think I was too quick to venture an opinion on the Seroxat scandal as can be seen HERE

The medical profession has long known that it is cheaper to kill than to maim.

As a subset of those killed, it is cheaper to kill a young person or an old person than an adult with dependents.

This is the context in which to understand the behaviour of GlaxoSmithKline (“GSK�?), the manufacturers of Seroxat

GSK clinical trials showed its drug Seroxat induced suicidal thoughts and behaviour in young people taking it. GSK had hoped to extend the market for its drug to young people. The drug was not approved for use other than by adults, but General Practitioners were not prohibited from prescribing the drug for young people and it was widely available on the NHS and generally. It is estimated that in 1999 32,000 children were using the drug.

To the credit of the UK Medicines and Healthcare Products Authority, it launched a four year investigation of GSK, examining a million documents before “>reluctantly deciding not to commence a criminal prosecution of GSK.

What of a civil action? The standard of proof in a civil action is on the balance of probabilities, not beyond a reasonable doubt. Of course loss would have to be proved. The actual loss seems to have been death (disregarding failed suicide attempts). Personal injury claims die with the victim; only the fatal injury claim survives. As seen HERE, in that eventuality rich young married stockbrokers are the major problem, not depressed children.

And what of the proof? It would be necessary to prove that Seroxat was the cause of the suicide. That would not be assumed; it would have to be actually proved. In addition the fact that GSK knew and suppressed the data showing the adverse side effects would have to be proved. They have not admitted that.

The burden of proof is probably beyond the resources of ordinary persons.

The back news story of the Dublin Port Tunnel is not its faults; it is the role of the whistleblower/s.

It is a social good that the faults in the Tunnel (and more importantly, any attempt to ignore or conceal those faults) should become public.

Prime Time did not identify the source of the information disclosed in its TV programme. There is no need; that information could only come from within Transroute (or, possibly, but unlikely, NRA). Transroute [ironically its website is "under construction"] has, since the airing of the Prime Time programme, recognized SIPTU as the representative of Transroute’s employees working on the Tunnel. In short, the Prime Time insider/source is a Transroute employee, a member of SIPTU and a whistleblower.

The Government is formally committed to protection of whistleblowers but is stalling on its implementation in the form of a legislative compulsive-obsessive pattern of behaviour, seen HERE and HERE.

A piecemeal solution seems now the objective as can be seen HERE and HERE

Connected with this subject is the Government assault, [by the Freedom of Information (Amendment) Act 2003] on Freedom of Information principles.

For a history of FOI in Ireland (as of 2003) see HERE.

The Tunnel’s faults will be the news story when there is an accident, possibly a very serious one; whistleblowing is a mechanism to forestall such an event and is valuable for that reason.

Of one thing we can be sure; a government led by Bertie Ahern will not introduce legislative protection for whistleblowers.

(Which is not to say he is alone in his attitude).

ANTIGONE

Yes; for it was not Zeus that had published me that edict; not such are the laws set among men by the justice who dwells with the gods below; nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of to-day or yesterday, but from all time, and no man knows when they were first put forth.

(Sophocles)

“The Bitter Pill�? by Doctor X is a small effort to improve the Irish hospital health system and, as such, is required reading by all interested and concerned persons.

This post is an unashamed plug for the book, published [2007] by Hodder Headline Ireland.

The author is an anonymous junior hospital doctor, concealing his (I say her) identity as Doctor X. Currently I have read only the chapter entitled “Dirt and Bugs�?, but on the strength of that alone the Minister for Health will in future be unable to “spin�? the shocking levels of nosocomial infections in Irish hospitals.

There is a depressing conclusion also; most intelligent lay persons would have no difficulty envisaging the state of affairs revealed by Doctor X in “Dirt and Bugs�? (without the benefit of his/her revelations). When the Health Service Executive issue hospital “hygiene audit�? results, they, as professionals, must already know what Doctor X knows and therefore they know that the hygiene audits are misleading as to the true state of affairs in hospitals.