http://www.thestar.com/NASApp/cs/Con...d=968332188492
How nations handled tainted blood
Decision expected today on future of Canadian case
Our focus is more `Let's figure out what went wrong'
Feb. 21, 2006. 05:42 AM
RITA DALY
STAFF REPORTER
In the global pursuit of justice over the tainted blood scandal, no image seems quite as dramatic as when three Japanese executives fell to their knees before HIV-infected hemophiliacs and begged forgiveness.
That humble act a decade ago, by men whose ages ranged from 69 to 79, is viewed today as a symbol of how that country responded to and handled the blood tragedy compared to other nations, such as Canada.
The kowtowing was a gesture of humility in a country where personal accountability is expected. But the Japanese public wanted much more than an apology. So outraged were they over the men's roles in selling non-heat treated blood products in the mid- to late-1980s, the three were charged with criminal negligence causing death, convicted and jailed.
A former top official in the Japanese health ministry was also convicted of knowingly spreading the virus and received a suspended sentence.
How the blood tragedy has been pursued in countries like Japan and France, which both launched aggressive criminal cases, and Canada, where lesser criminal charges are still awaiting trial, is a reflection of both legal differences and national cultures, says Doug Elliott, a Toronto lawyer who represented Canadian blood victims in civil lawsuits.
"There was a widespread sense in Japan that because something bad happened, it didn't matter what the technicalities were, someone had to be punished," said Elliott, who has also lectured in Japan on comparative prosecutions relating to the blood scandal.
"In Canada, we're not as concerned about punishment. Our focus is more on `Let's figure out what went wrong so it doesn't happen again.'"
France, Japan, Germany and Switzerland all laid criminal charges more than a decade ago against high-ranking government officials, regulatory leaders and pharmaceutical executives. Most led to convictions, although few were jailed.
The Canadian government, on the other hand, launched the Krever commission, a judicial inquiry whose exhaustive and damning report of the entire affair wasn't released until 1997, four years after it began. Only after its completion did the RCMP launch its own investigation and eventually lay criminal charges.
It's been nearly 10 years since the Krever report and still those charges — criminal negligence causing bodily harm against former Red Cross chief Dr. Roger Perrault, 68, two former federal health officials, a former drug company executive and Armour Pharmaceutical Co. — are pending as the Crown decides whether it has enough evidence to proceed.
Court will hear from Crown counsel Michael Bernstein today on the future of the case.
Graham Dukes, a doctor, lawyer, and drug policy expert from the University of Oslo, was retained by the Crown on Dec. 5 to assess documentary evidence in the case. He was also expected to be one of approximately 120 witnesses at the trial, which was to have started this week.
He was expected to provide expert testimony about the standard of care expected of those who managed donated blood in the 1980s and early 1990s and offer an opinion on whether those charged criminally in Canada met those standards.
Although Dukes offered a preliminary draft opinion in December indicating there was evidence to support wrongdoing, he reversed his opinion in two subsequent reports, the court was told this week.
"The bottom line is, he (Dukes) is saying Dr. Perrault did nothing wrong, he committed no misconduct, he committed no acts that he should not have done. He was subject to the regulatory body in this country, the bureau of biologics, and he's innocent," said defence lawyer Edward Greenspan.
Some question whether the Crown ought to be prosecuting them anyway, so many years after the scandal. But HIV-infected hemophiliacs argue the trials must proceed for the sake of our future health care.
"If we don't as a society understand fully what happened... we're not going to learn from these mistakes," says Mike McCarthy, a Canadian hemophiliac activist who became infected in 1984.
Tens of thousands of people worldwide became infected with the lethal virus from the late 1970s through HIV-tainted blood or blood products, and many more became infected with hepatitis C. In many countries, including France, Japan, the United States and Canada, almost half of hemophiliacs were infected with the AIDS virus.
More than 20 countries have since granted compensation for victims, and government and corporate officials have been forced to make apologies. Some, including Canada, held inquiries that concluded regulators, blood agencies and private pharmaceutical firms systematically let down consumers.
France was the first, and most aggressive, in criminally prosecuting those deemed responsible.
The former prime minister, former health minister and former social affairs minister were charged with manslaughter for delaying introduction of a simple test, available by an American firm in 1985, that enabled blood banks to detect HIV infection in donors. In a nationalistic fervour, they wanted to develop and license a French product instead.
Two were acquitted in 1999. Only the health minister was convicted, but he was never sentenced.
Four other senior officials, including Dr. Michael Garretta, former head of France's National Blood Transfusion Centre, were also convicted in 1992 for failing to use heat-treated products. Garretta, at one time revered by those he treated, served two-and-a-half years of a four-year jail sentence.
Eric Feldman, who co-edited the book
Blood Feuds, a collective analysis of the blood scandal in the United States, Japan, France, Canada, Germany, Denmark, Italy, and Australia, said the French and Japanese governments needed to act quickly because the blood tragedy was widely viewed in those countries as a major political scandal.
"This whole story became one that embarrassed the government, so the political actors felt they needed to act to restore public confidence," Feldman, professor at the University of Pennsylvania law school, said in an interview.
In Japan, national interests also played a role. People were upset that a homegrown pharmaceutical company, Green Cross Corp., was mixed up in the blood scandal.
They became more enraged at suggestions defective blood products were being dumped by U.S. firms on Japan because their citizens were less likely to sue.
Ironically, no criminal proceedings have occurred in the U.S., although many in Europe initially saw AIDS as an American problem.
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