CHAPTER 7 - PROTECTION OF PUBLIC SAFETY

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CHAPTER 7 - PROTECTION OF PUBLIC SAFETY

The AHPHP operation and accountability

7.1 Under the second term of reference, the Committee is required to report on whether CSL or CSL Ltd, the National Health and Medical Research Council (NHMRC), the Department of Health and Family Services (DHFS) or any other Commonwealth department, agency or employee failed to adequately protect public safety in relation to the Australian Human Pituitary Hormone Program (AHPHP).

7.2 In their submissions to the Committee, many recipients expressed disquiet at the way the AHPHP was conducted and raised issues of accountability. For example, one recipient submitted:

And:

Further, some recipients concluded that there were breaches of the law by persons involved in the program:

7.3 Other recipients expressed concern that CSL's manufacturing practices were `unsafe' and `negligent' and that they may have been treated with hormone that was not only potentially contaminated with CJD but hepatitis as well.[4]

7.4 For many recipients lack of knowledge about the future implications for their children is a further source of anxiety:

7.5 An additional matter raised in submissions was the time taken to notify recipients of the risk of CJD. It was also noted that many recipients had donated blood between the time the program was suspended in 1985 and when the majority of recipients were notified in 1992-93. This had caused concern within the recipient community.

7.6 The Allars Inquiry report provided extensive detail on the government bodies and agencies involved in the AHPHP. Many recipients believe however, that the Allars Inquiry did not adequately address the issue of accountability because the terms of reference did not go to the question of liability. Professor Allars in her submission to the Committee noted:

7.7 In considering whether there was a failure to adequately protect public safety in relation to the AHPHP, the Committee has relied extensively on the findings of the Allars Inquiry. Comments are provided in relation to the particular areas of :

7.8 The Allars Inquiry reported that from the commencement of the AHPHP, CSL and HPAC believed that there were two avenues for ensuring the safety of hormone product from viral contamination. Firstly, through the criteria established to exclude the collection of glands from certain cadavers and secondly, through the method of processing the glands.

Collection of pituitary glands

Exclusion criteria

7.9 A brief summary of the very detailed account in the Allars Report of the development of the exclusion criteria is given in Chapter 2 of this report. The Committee also notes that a letter from the Director General of Health to CSL in June 1963 stated:

The first instructions on the selection of glands was issued by CSL in 1966. Over the period of operation of the AHPHP the exclusion criteria were amended, but as Allars notes `in a reactive fashion as problems of possible sources of infection came to light'.[8] Further, with one exception in 1971, HPAC took no action to keep abreast with current scientific knowledge of disease potentially affecting human pituitaries. This caused delays in formulating new criteria, as demonstrated by the delay in responding to HIV/AIDS and the delay in incorporating into the criteria `presenile dementia (Creutzfeldt-Jakob Disease)' in 1982. The Allars Inquiry described the latter as `an unacceptably belated response to the series of papers commencing with Traub in 1974 and culminating in a 1977 paper of Gajdusek'.[9] 7.10 Dr Whitten in his submission also noted that `in a surprising move NPA [the USA National Pituitary Agency] in early 1978 took the lead from Australia and excluded glands from patients with "viral dementia", one of the names used for CJD and kuru'.[10]

7.11 Although exclusion criteria were established, the Allars Inquiry found that there was a failure to communicate the criteria to the pathologists and mortuary attendants who removed the glands. No one institution or individual was made responsible for the distribution of, or compliance with, the exclusion criteria. The Allars Inquiry found that most of the pathologists and mortuary attendants contacted by the Inquiry were unaware that any written exclusion criteria issued by HPAC existed. Most relied on verbal and self-imposed criteria to exclude unsuitable material.

7.12 The Allars Inquiry concluded that as screening of glands for compliance with the exclusion criteria could only be done by the pathologist at the time of removal, CSL and HPAC had no means of ensuring that glands within the exclusion categories would not be collected. This was particularly so when glands were removed by mortuary attendants without supervision, `as was usually the case'.[11] Thus, as infected glands may have been forwarded for processing, the ability of the manufacturing process `to eliminate viruses and bacteria was essential to the production of hormones with the least amount of contamination possible'.[12]

Other matters

7.13 The Allars Inquiry noted that the glands were not removed by sterile technique, nor was the post-mortem room a sterile environment. The Inquiry also found that in most institutions no specific procedures were in place in relation to the sterilisation of the equipment or the handling of tissue. It was not until 1977 that CSL provided instructions for the removal of the gland. This arose from concerns about the presence of extraneous material with the gland and the impact of such material on CSL's estimations of hormone yield.

7.14 In relation to the lawfulness of collection of the glands, the Allars Inquiry found that prior to the introduction of uniform human tissue legislation, the lack of hospital records meant that the Inquiry was unable to come to a firm conclusion as to whether glands had been collected lawfully or unlawfully. Following the introduction of uniform legislation, glands were generally not removed for the purposes of post-mortem examination but for the purpose of supply to CSL. Thus, the use of glands during the period of the human tissue legislation was unlawful.[13]

Committee comments

7.15 In submissions and evidence before the Committee, many recipients expressed concern about the way in which the glands were collected and the lack of information provided to recipients about the source of the material:

7.16 The CJD Support Group Network stated:

7.17 In its submission, the Department stated:

7.18 The Committee considers that the Department's statements above raise serious concerns about its understanding of the ethical matters and accountability issues raised by gland collection and the monitoring of exclusion criteria as detailed in the Allars Report. As the Allars Inquiry reported:

7.19 The Committee also notes that following the introduction of uniform tissue legislation, the Health Department failed to act to ensure that glands for the AHPHP were collected in a lawful manner. Not only did the Department have a role in oversighting the AHPHP, but it also had representatives on HPAC and should have ensured that legislation was complied with.

Processing of pituitaries

7.20 CSL processed glands using mainly the Ferguson method and, from late 1984, the Chapman method, although for some time CSL also produced hormone using the Brown/Catt method. Details of these methods are given in Chapter 2.

Concerns raised about the processing of glands

Screening of glands

7.21 From the Allars Report, it appears that until 1977 frozen pituitaries were received at CSL and ground with dry ice without any visual inspection. However, following concerns about yield estimates, a sample of glands were examined and it was found that 12 to 15 per cent of the tissue collected was extraneous matter. This led CSL to issue in 1977 instructions on the removal of glands. From July 1982, CSL began separating glands into four classes based on their appearance and those in the `poor' and `rejected' gland classes were not processed.[18]

7.22 Allars reported that laboratory screening of pituitaries was not carried out by CSL because it would make the glands unavailable for processing.[19] The Committee notes that the practice adopted in the UK was that small batches of pituitaries, eventually 100, were extracted and, if the extract proved positive for hepatitis, the batch was rejected.

Quality assurance and contamination

7.23 A summary of measures taken by CSL in relation to quality assurance and contamination is given in Chapter 2 of this Report. The Allars report also contains the list of batches processed by CSL and indicates those it believed were not distributed or withdrawn because they failed quality control.

7.24 In relation to contamination, the Allars Inquiry stated:

7.25 In its submission to the Committee, CSL stated that:

7.26 The Allars Inquiry noted that in 1966, Dr Wes Whitten, then of NBSL, warned that because large particles, including viruses, would precede the hormone through the column, the line would become contaminated.[22] In their submission to the Committee, Drs Whitten and McCullagh noted concerns about the sterility procedures in place at CSL to ensure that the products were `free from contamination by infectious agents and their products'. They commented:

7.27 Dr David Howes, former NBSL officer, submitted that CSL and HPAC had an over simplistic and over optimistic view of the fractionation process and put forward the following points:

Dr Howes concluded that `virus contamination was unavoidable'.[25] Further, he stated:

7.28 The matter of hepatitis B contamination was also raised in submissions and evidence. Issues canvassed include that:

7.29 In evidence before the Committee there was extensive discussion concerning batch 128. In the Allars Report it is stated that hPG batch 128 was not distributed. However, this batch was distributed and received by APQ and it is now acknowledged in submissions to have been distributed.[34] CSL suggested this discrepancy in the Allars report was a `transcription error'.[35]

7.30 Dr Peters in evidence asserted that CSL records show that batch 128 tested positive for hepatitis B. An internal CSL memo indicated that tests of batch 128 resulted in a positive test in the column charge and negative in the void volume.[36] Reference was also made to batches 003, 004 and 024 as being non-sterile but distributed.[37] Dr Peters stated:

7.31 In its submission to the Committee, CSL stated that `at no stage did the Commission distribute any product known to be contaminated with a pathogen'.[39] Further, all material issued by the Commission `was considered acceptable by the HPAC adopted and introduced'. CSL went on to state that:

7.32 In evidence, Mr Kaufman of CSL, commented further:

7.33 Mr Kaufman also gave a detailed explanation of the processing of batch 128. He concluded by stating that:

7.34 In relation to hepatitis in recipients, CSL stated:

7.35 This statement was questioned by Dr Howes who stated:

7.36 In answering a question on tracing recipients to test for hepatitis B, the Committee was told that there had not been any attempt to ascertain the hepatitis status of recipients. Further, Mr Kaufman of CSL stated `I think, Senator, there are no potential contaminated batches as far as hepatitis B goes' based on CSL's testing.[45] Tracing of recipients is discussed later in this Chapter.

7.37 Mr Kaufman also replied to concerns about pool size. He stated:

7.38 Following the Committee's hearing on 13 August 1997, CSL provided further detailed information concerning the above matters raised by Drs Peters, Whitten, Howes and McCullagh. This information included:

7.39 The CSL's response to evidence was further responded to by Dr Howes. He provided evidence in relation to the pool of fractions used to produce batches 121 and 128, the testing for contamination with hepatitis B antigen, invalid tests for hepatitis B antigen in hormone samples and reduction in risk of contamination of batches of pituitary hormones with infectious hepatitis virus.[48] Macedones also provided the Committee with further comments regarding the processing of batch 003-2.[49]

Developing knowledge of CJD

7.40 In relation to CJD contamination, the Allars Inquiry report includes a detailed assessment of the development in the awareness of transmissibility of CJD. CJD was first described as a disease in 1920 and knowledge of CJD grew from the late 1960s as research was conducted into other spongiform encephalopathies including kuru. In 1968 transmissibility of CJD by inoculation of chimpanzee brains was reported. The first iatrogenic person-to-person transmission by corneal transplant was reported in 1974. In the same year warnings, including those by Traub, appeared in the literature regarding the need for special precautions beyond routine sterilisation procedures. In 1977 Gajdusek's Noble prize winning paper was published. This paper, which dealt primarily with kuru, continued warnings of the possible general implications of current knowledge of kuru and CJD. Gajdusek also published another paper in 1977 which further highlighted concerns in relation to CJD and the precautions which should be observed in dealing with patients with CJD or handling their tissue.[50]

7.41 Having reviewed the early developments of knowledge of CJD, the Allars Inquiry found that by 1967 when HPAC was officially established, scientific knowledge of unconventional slow viruses was developing, but was limited to a small group of scientists and neuropathologists. Neuropathologists, including Gajdusek, did not make the link between the transmissibility of CJD and the use of human pituitaries in hormone programs. While there was a great deal of interest in Gajdusek's work on kuru, there was little understanding of the mode of transmission of the disease. The Inquiry found that during `the 1970s and early 1980s paediatric endocrinologists and obstetrician gynaecologists who treated patients under the AHPHP knew little or nothing about CJD'.[51] CSL and HPAC did however recognise the importance of eliminating viruses and bacteria for the final hormone product. It relied on firstly, the exclusion criteria for the collection of glands and secondly the extraction method to achieve this.[52]

7.42 In 1976, UK scientist Dr A Dickinson expressed concerns about the possibility of CJD contamination of growth hormone produced in the UK. In 1979, a grant was made to Dr Dickinson to undertake a study of the extraction method used in the UK. Although the results of this study were not published until 1985, it was known that the study was being conducted and the results became known informally in 1982. The Allars Inquiry noted that HPAC had taken comfort from the findings of the study conducted by Dickinson. However, the Allars Inquiry pointed out that this study was conducted on the Lowry method of processing - a more sophisticated method than that used by CSL with two additional purification steps.[53]

7.43 In 1979 Gross published important information about slow viruses including CJD and in 1980 Prusiner published research which demonstrated the small size of the infective agent of unconventional slow viruses. [54]

7.44 The Allars Inquiry found that from 1971 (Dr McGovern's warning) to 1980 there was no record of discussion of unconventional slow viruses in the minutes of HPAC or its Subcommittees.[55] The Committee's perusal of the minutes of HPAC and its Subcommittees similarly found no record of discussions of slow viruses until 1980. In 1980, the Chairman of HPAC, Professor Lazarus, and the Director of the Medical Research Council in the UK, discussed recent developments in the UK in regard to the possibility of slow virus infection in pituitaries. Professor Lazarus wrote to Dr Ferguson, Chairman of the Fractionation Subcommittee, about the problem.[56] The Allars Inquiry noted that the Fractionation Subcommittee discussed the possibility of slow viruses at its meeting of 19 May 1980. The Subcommittee concluded that `as, at present, a slow virus is not positively linked with a disease present in the community and, moreover, as the technology did not now exist to detect a slow virus, acknowledgment of the potential dangers is all that is possible'.[57] HPAC concurred with this conclusion.

7.45 The Allars Inquiry found that the Subcommittee's conclusion was incorrect in the light of scientific knowledge in 1980 as cases of CJD had been reported in Melbourne as early as 1963 and in Adelaide in 1965.[58] Further, neither the Subcommittee nor HPAC sought expert advice or re-assessed the program. Although there was no technology to detect the virus, other options were available to the Subcommittee for re-assessing the safety of the product.[59]

7.46 The Allars Inquiry also concluded that conferral on HPAC and the Fractionation Subcommittees the responsibility for monitoring all aspects of the production of the hormone was fundamentally flawed. Further, members:

7.47 The Inquiry also noted that `like the Fractionation Subcommittee and HPAC, CSL failed in 1980 to consider or adopt options which were appropriate with regard to the risks of treatment with the hormones in the light of scientific knowledge at the time'.[61]

7.48 The Committee notes that in a judgement handed down in regard to the UK growth hormone program, Mr Justice Morland, found that the UK Department of Health should have acted on warnings of CJD contamination and suspended the program from July 1977. In her submission to the Committee, Professor Allars, while noting the date of July 1977, stated:

7.49 The Committee received evidence on the awareness of CJD transmissibility and when HPAC should have become aware of the risk. Dr Peters submitted `Professor Allars implies that there was only limited knowledge of CJD in Australia until the late 1970s. This is incorrect'.[63] He went on to note early work on the transmission of scrapie and that `the connection between scrapie and human diseases was postulated in 1956'. Dr Peters also noted that papers were published on kuru in the 1950s and 1960s and that CSL scientists published at least five papers on kuru between 1961 and 1972. Dr Peters also submitted `from 1973 onwards, Health Department files expressed concerns about the possibility of transferring CJD by medical goods and instruments. Some of these concerns were relayed to HPAC, which the files show ignored the warnings'. He concluded `there was sufficient knowledge about CJD within CSL, the Health Department and the medical profession to have required extreme caution about the hormone program even at the beginning'.[64]

7.50 Drs Whitten and McCullagh submitted that there were recurrent reports of transmission of CJD between 1968 and 1973 in widely read medical and scientific journals, including Science and Nature. Further, they noted at one stage HPAC had included in the exclusion criteria neurological disease, and submitted that `its framing can only be construed as evidence that HPAC was aware, at an early stage, of transmissibility risks'. They went on to state:

7.51 Recipients also raised the matter of knowledge of CJD by members of HPAC. Whilst not having scientific training, many recipients have made the effort to become as informed as possible as a way of diverting the impact of CJD risk awareness. In doing so, many recipients have reached an opinion on the HPAC's knowledge of the awareness of CJD:

7.52 Professor Colin Masters of the CJD Case Registry also commented on the knowledge of CJD and stated:

7.53 In evidence, Dr John Loy, First Assistant Secretary, DHFS, in commenting on the developments in awareness of CJD, stated:

7.54 Dr Whitten submitted that `the medical historian Pfeffer reported rumours of cases of CJD in patients treated in fertility clinics in the British Midlands in the early 1970s which have since been confirmed'.[69]

Potency testing

7.55 Once the hGH and hPG had been produced it was tested for potency. CSL used bioassay and radioimmunoassay. Bioassay involved a sample of each batch of hormone being injected into a test animal and the response measured against a standard. The amount of response obtained indicated the amount of hGH or hPG in the sample. A potency value in international units (IU) was then assigned to each batch. Radioimmunoassay is the measurement of a radioactively labelled substance using as the measure the amount of antigen bound to an antibody.[70]

7.56 The measure of potency was particularly important for hPG recipients where there was a risk of multiple pregnancies or hyperstimulation of the ovaries, a potentially fatal condition, if dosage was incorrect. CSL stated in its submission to the Committee that every single batch of pituitary product was assayed for potency. It also developed additional assays requested by HPAC, for example the luteinising hormone assay, introduced in 1972.[71]

7.57 The Allars Inquiry reported that throughout the period of operation of the AHPHP treating practitioners found that batches of hPG varied in their potency. Treating practitioners also reported that some batches appeared inert and some were more potent than others. The FSH Subcommittee frequently made requests of CSL to improve the means of determining the potency of batches. 72

7.58 Dr Whitten submitted that `CSL was set an impossible task to bioassay hPG because it was a very impure and variable mixture of FSH and LH, and these two hormones may synergise or antagonise each other depending on the ratio in the mixture. Thus the potency is indeterminate'. Dr Whitten raised other matters concerning problems with potency: that assay for LH content, should have been carried out by the Parlow method; that degraded FSH (antiFSH) can assay as FSH using radioimmunoassay; batches were too small for economical standardization; vials were labelled as the equivalents to a fraction of a pituitary, thus origin, the quality of the storage and the efficiency of extraction would impact on potency; and hPG was not adequately standardised for LH. 73

7.59 In their submission to the Committee, Drs Whitten and McCullagh described the bioassay procedures applied by CSL to hPG as `incompetent (by the standards of the day)'.[74] In a detailed review of CSL's bioassay procedures by Dr Whitten attached to the submission, he stated that evidence that CSL never overcame problems of bioassay of hGH is found in the minutes of the Fractionation Subcommittee meeting held in June 1981, which states `It is evident to the Subcommittee that the real issue of throughput for hGH was directly linked to bioassay'.[75]

7.60 Drs Whitten and McCullagh also submitted that CSL concealed from practitioners these poor bioassay procedures. Product information distributed with the hormone `failed to convey a reasonable indication of the questionable value of data concerning potency'.[76]

7.61 In evidence before the Committee, Dr Whitten went further:

7.62 Dr McCullagh stated:

7.63 CSL responded to this evidence and disputed Dr Whitten's assumptions concerning the assays used by CSL and stated:

Code of Good Manufacturing Practice (GMP)

7.64 In its submission to the Committee, CSL stated that it has always placed a high emphasis on quality manufacturing and had established an independent quality control section at the Laboratories as early as 1961. CSL submitted that this was before the Australian code was first published in 1970 but was consistent with WHO recommendations at the time `which demonstrates that the Commission was up to date in its thinking and prepared to accept advancements in manufacturing practice and regulatory aspects of the pharmaceutical industry'.[80]

7.65 CSL went on to note that it had been actively involved in the development of the Australian Code and had a representative on the Therapeutic Goods Sub-Committee that had revised the Code in the mid 1970s. It also stated that NBSL inspected the Laboratories in 1971 and that by the time the Commission ceased in 1991 to become CSL Ltd, approximately twenty inspections had been conducted.

7.66 The Allars Inquiry reported that while it had been told by officers of CSL that it did submit itself to inspections pursuant to GMP, officers of the Department during the 1970s and 1980s told the Inquiry that `CSL strongly resisted having the Code applied to it, and this included a resistance to participating in inspections of its manufacturing premises pursuant to GMP'.[81]

7.67 In evidence, Dr Peters stated:

7.68 CSL responded by providing the Committee with a list of inspections between 1971 and May 1994. In all 27 inspections were conducted. 14 were made to June 1985, with one relating specifically to hormone products, that made in June 1974 concerning labelling of FSH. CSL also provided the Committee with documents relating to the preparation and approval of master formulae and manufacturing instructions.[83]

7.69 Concerns were also expressed about the mixing of batches. CSL responded that there is nothing in the GMP to preclude batch mixing if the manufacturing protocol allows for it, and provided documentation to enable tracing is maintained.[84]

Committee comment

7.70 The possible hepatitis contamination of hGH and hPG produced by CSL and the general questions raised about CSL's production method and standards of production are of great importance to many in the recipient community. For the information of recipients, the Committee has provided an outline of both the evidence received from Drs Peters, Whitten, Howes and McCullagh and CSL's response to that evidence.

7.71 The Committee does not have the expertise to make an authoritative evaluation of the detailed technical information provided in evidence. It considers that to make such an evaluation would require a panel of independent scientific experts. The Committee considers that an epidemiological study of recipients would be of use in establishing the impact of possible contamination, other than CJD contamination, on recipient health. This was discussed in Chapter 3.

7.72 In relation to awareness of the risk of CJD by HPAC and its Subcommittees or CSL, the Committee acknowledges that information on CJD generally, and its transmissibility, was available in leading scientific and medical journals. However, coming to a decision on whether or not the link between treatment with human pituitary hormone and CJD should have been made earlier is difficult. Such a decision involves making a personal judgment about the level of knowledge and individual understanding held at various times between 1965 and 1985, as well as the degree to which that knowledge was disseminated within the key groups of decision-makers.

7.73 The Committee does however make the following comments. First, the Committee's perusal of the minutes of HPAC and its Subcommittees also indicates that there was concern about the need for accurate information about the potency of the hormones produced by CSL during much of the period of operation of the AHPHP.

7.74 Secondly, the Committee is concerned about the quality of the information provided to the Allars Inquiry about batches. It has now been confirmed that batch 128 was distributed and according to CSL was not contaminated by hepatitis. The Allars Inquiry reported that this batch was contaminated and not distributed. The Committee finds it difficult to accept that this was simply a `transcription' error. Likewise, CSL has now indicated to the Committee that batch 003 was reprocessed as batch 003-2. CSL indicated that 003-2 was sterile and that batch 004 had no problems with sterility and was issued.[85] The Allars Inquiry lists batches 003 and 004 as being not distributed or withdrawn.

7.75 The publishing of incorrect information in relation to batches 003, 004 and 128 can only have added to the anxiety of recipients already reeling from the knowledge that they were at risk of CJD and who realised that they had in fact received these batches of hormone. It would also have raised doubts in the minds of recipients as to the reliability of other information contained in the Allars report concerning batches. The Committee considers that the supply of incorrect information to the Allars Inquiry may require further review in the light of the information now available. See paragraph 7.181.

Supervision of the product and the program

7.76 The Allars Inquiry Report provides an in depth examination of the role of relevant government agencies in relation to the production and use of hPG and hGH. The following highlights the findings of the Allars Inquiry in relation to government agencies.

National Biological Standards Laboratory (NBSL)

7.77 In June 1964, the Pharmaceutical Benefits Advisory Committee (PBAC) recommended to the Minister that the addition of new preparations to the list of benefit be subject to satisfactory analytical reports being received from NBSL.[86] From 1966, compliance with a specific or general standard was legally required for goods for therapeutic use which were supplied as pharmaceutical benefits.

7.78 The Allars Inquiry found that NBSL had first become involved with human pituitary derived hormones in 1966. At that time the Health Department requested NBSL involvement in certain matters concerning the hormone. Consequently, Dr Whitten, then an NBSL officer, warned of the problem of viral contamination in the preparation of the hormones. While there was action arising from this warning, the Allars Inquiry reported that the product was not tested by NBSL. NBSL's next involvement with the hormones was not until 1979 when NBSL contacted CSL about labelling of the product. In 1984 NBSL again became involved over the proposed supply of hGH processed in New Zealand and the need to improve manufacturing and quality control standards for hPG and hGH.

7.79 The Allars Inquiry found that the reason for failure by NBSL to test hormones for standard compliance was: an absence of an official standard; difficulty in developing a standard until the radioimmunoassay technique had been further developed; and poor communication and coordination within NBSL.[87]

7.80 The Allars Inquiry found that there was a lack of initiative on the part of NBSL to develop an official standard, although the HPAC saw the need for this and undertook a project in the 1970s and 1980s to isolate highly purified hormones for the purpose of developing a radioimmunoassay.[88] Further:

7.81 The Allars Inquiry also reported that NBSL was involved in evaluation of commercial hGH in 1978 and 1981. Advice on the product from NBSL drew attention to hepatitis and slow viruses and raised the issue of a warning upon the labelling. The product was not approved for marketing in Australia. 90

7.82 In evidence, Dr Howes stated, in relation to NBSL's role:

The relationship with the then National Biological Standards Laboratory was such that the government elected not to regulate CSL through the National Biological Standards Laboratory. Regulation of CSL and blood products did not take place until the enforcement of the Therapeutic Goods Act of 1989, which came into activity in February 1991.

7.83 In his submission, Dr Howes also noted that:

7.84 Dr Whitten also submitted, in relation to the Allars Inquiry comments on NBSL's failure to develop a standard, there were great difficulties with developing a standard and pointed out that the US Food and Drug Administration `did not produce standards but relied on collaboration with industrial firms such as Ely Lille to produce the US and the WHO Standards'.[93]

Pharmaceutical Benefit Advisory Committee and listing of hPG and hGH

7.85 The Pharmaceutical Benefits Scheme (PBS) was established to ensure that all Australians had access to drugs and to secure government control over the use and pricing of drugs. The Pharmaceutical Benefits Advisory Committee (PBAC) was established to make recommendations to the Minister about drugs which it considered should be available as pharmaceutical benefits and to advise the Minister. The Director-General of Health had the statutory discretionary power to make such arrangements as he considered necessary for the testing or analysis of pharmaceutical benefits or of drugs which may be used as pharmaceutical benefits.[94] The policy, from 1962, in relation to this discretion was that when an application was made for listing of a pharmaceutical benefit, a sample of the product was provided to NBSL for testing.[95]

7.86 Under the National Health Act, the Minister may declare certain drugs or medicinal preparations or classes of drugs or medicinal preparations to be pharmaceutical benefits. The Minister may also make `special arrangements' under s.100 of the Act to make pharmaceutical benefits available to certain persons.

7.87 In March 1964, PBAC recommended that hPG and hGH be made available as pharmaceutical benefits under s.100 of the Act on certain conditions. In May that year, the Minister formally approved the recommendation for hGH but that hPG be left as a matter between CSL and the expert group. (This, according to the Allars Inquiry, may have been due to concern about multiple births.)[96] The Allars Report notes that this approval was not immediately implemented. In March 1967, the Minister approved the listing of both hGH and hPG when cooperation of States health authorities in the national collection of pituitaries had been gained.

7.88 The Allars Inquiry found that although the PBAC approval was conditional, the hormones were listed without PBAC reconsidering whether the conditions had been fulfilled. The approval of 1967 was an approval of a recommendation of the Director General of Health, following correspondence between HPAC and the Director General, rather than a recommendation of PBAC and appeared to have been given `in haste'.[97]

7.89 The Allars Inquiry concluded:

(a) on the listing

(b) on testing by NBSL:

(c) on the Guidelines

(d) on the use of s.100

Further

(e) on the role of government decision-makers

7.90 In relation to the Allars recommendation that s.100 be repealed and replaced with a different provision, the Committee has noted in Chapter 3 that the recommendation is still under consideration as part of a review being undertaken by the Attorney-General's Department.

Australian Drug Evaluation Committee (ADEC)

7.91 ADEC was established in 1963 with an advisory role in relation to the safety of drugs. From 1970 imported drugs had to be considered by ADEC. However, the Allars Inquiry found that ADEC could have played a role as the hormones were pharmaceutical benefits and PBAC could have requested that ADEC play a role.[104] The Inquiry also found that the potential for effective regulation was undermined because of the leading role played by members of HPAC and its Subcommittees. For example, when ADEC needed advice as to the safety of imported hGH it sought advice from the Chairman of HPAC, Professor Lazarus, and when it considered biosynthetic growth hormone, it sought advice from the Endocrinology Subcommittee of ADEC, which was made up of members of HPAC.[105]

Adverse Drug Reactions Advisory Committee (ADRAC)

7.92 From 1970 ADRAC undertook post-marketing surveillance of the safety of medicinal drugs. Unless it received an adverse drug report, ADRAC has no power to investigate. The Allars Inquiry reports that no report was ever made to ADRAC by HPAC or any health professional about adverse reactions to hPG or hGH.[106]

7.93 In relation to the referral of an adverse reaction report to ADRAC, the Inquiry noted that ADRAC would have sought expert advice from HPAC. This matter would have been referred to the FSH Subcommittee. The Inquiry noted `this Subcommittee included amongst its members the medical practitioners who were potentially the subject of such reports or who were colleagues of the other practitioners who belonged to the small group of gynaecologists approved to provide hPG treatment'. Thus ADRAC's potential for effective regulation was undermined. In fact, the case of nontuplets was not reported to ADRAC. Instead a report was made by HPAC to the Minister.[107]

National Health and Medical Research Council (NHMRC)

7.94 Allars reported that there is no general legislation in Australia regulating research conducted on human subjects. There is however general regulation through the funding of projects meeting requirements of the NHMRC as assessed by institutional ethics committees and the scheme for general marketing approval for new drugs.[108]

7.95 The NHMRC funds research projects and requires grantees to comply with its Statement on Human Experimentation and Supplementary Notes as a condition of grants. The monitoring of compliance of research projects with the Statement and Supplements is undertaken by institutional ethics committees which have been established in hospitals and other research institutions.

7.96 The NHMRC released its first statement on Human Experimentation in 1966. The Statement was developed as a result of concerns that experimentation such as that revealed in the Nuremberg trial should not re-occur and concerns about the increasing incidence of medical negligence litigation in the USA. Allars found that the Statement did not make a distinction between therapeutic research in a clinical setting and non-therapeutic research conducted upon `normal' subjects. The Statement was presented for guidance only. Allars noted that the Statement was not referred to in any minutes of HPAC meetings.[109]

7.97 The 1966 Statement was amended in 1973 in relation to consent; in 1976 to require all applicants for NHMRC grants involving human experimentation to have their applications submitted to institutional ethics committees for approval; and, in 1982 substantial amendments were made including in relation to the maintenance of records and consent involving children, the mentally ill and those in dependant relationships.[110]

7.98 The Allars Inquiry found that there was need for a definition of what constitutes experimental medical treatment and it noted:

7.99 As a result, Allars recommended that the NHMRC review the Statement on Human Experimentation and issue a Supplementary Note on Reproductive Technology Procedures. Allars also recommended that the NHMRC review the General guidelines for medical practitioners on providing information to patients and revise the Code of Practice for Transplantation of Cadaveric Organs and Tissues. The implementation of these recommendations is discussed in Chapter 3.

HPAC and its Subcommittees

7.100 The Allars Inquiry investigation of the HPAC and its Subcommittees exposed a number of matters of concern. These concerns and others raised in submissions are highlighted below.

7.101 `Research allocations': Supply was approved for a number of research projects some of which involved the clinical use of hGH and hPG in breach of Guidelines for approved patients, for example the `Egg Project' and women suffering from infertility due to reasons other than anovulation. HPAC also did not insist upon submission of a research protocol in relation to some projects. Further, HPAC generally did not seek to reassure itself that the consent of the subjects of the research had been obtained in accordance with the NHMRC Statement on Human Experimentation which was in place from 1966.

7.102 Ethical considerations: The FSH Subcommittee failed to have sufficient regard to ethical considerations in regard to a number of matters including: the approval of the use of out of date hPG for ovarian stimulation tests in spite of CSL's disclaimer of responsibility; failure to sanction adequately practitioners who failed to forward treatment sheets, failed to return hormone when their participation in the program was suspended or treated patients without approval; and its consideration of the problem of hyperstimulation.

7.103 Conflict of interest: The Committee notes that some members of the FSH Subcommittee were also treating practitioners and in 1973, the FSH Subcommittee resolved that out of date hPG be issued to members of the Subcommittee for patient use.[112] Further, the CJD Support Group Network noted `the conflict of interest in having a Subcommittee consisting largely of treating doctors was never acknowledged or addressed'.[113]

7.104 Knowledge of CJD: As described above, HPAC failed to respond appropriately to the knowledge of the risk of CJD. Members of HPAC and its Subcommittees failed to recognise the limits of their expertise in relation to unconventional slow viruses. However, the Allars Inquiry concluded that some of the blame for this must also be shared by government decision-makers who established the regulation of the scheme by expert committee.[114]

7.105 Exclusion criteria: As already noted, the Allars Inquiry found that HPAC's response was reactive and it failed to keep abreast of developments of scientific knowledge. The Committee also notes that it appears that even some members of the Subcommittees did not know that there were restrictions on the collection of glands. (See paragraph 2.23)

7.106 Regulatory role: Allars stated that although the expertise of the medical practitioners who comprised HPAC and its Subcommittees made them eminently qualified to provide advice on clinical and research issues, their expertise disqualified them from serving in the role of regulator. Allars found, for example, that HPAC failed in its regulatory role as it did not act to stop the unregulated production of hormone by Dr Brown in Melbourne. Further, the Inquiry found that in establishing HPAC and its Subcommittees, the Minister, on the advice of the Director-General of Health, `placed in the hands of those who ought to have been the subject of regulation the very power of regulation itself'.[115] Power to regulate quality control was conferred on the Fractionation Subcommittee, in effect assuming the role which normally ought to have been performed by NBSL. The Chairman was Dr Ferguson, whose process was used to extract hormones, and members included Dr Brown and representatives of CSL. Thus `CSL's representative participated equally in the decision-making of the Subcommittee which was CSL's regulator'.[116]

Committee comment

7.107 The Committee considers that the Allars Inquiry raises serious concerns about the role of government agencies in the establishment, control and accountability of the AHPHP. Recipients have also pointed to the lack of proper control over aspects of the AHPHP:

7.108 The Committee considers that there is evidence to suggest that treatment under the AHPHP was of a more experimental nature than has previously been suggested. In this regard, the Committee notes that: HPAC made a number of research allocations of hormones to projects outside the Guidelines;[118] HPAC also allocated to its members out of date hormone for therapeutic use on patients and for stimulation tests;[119] hormone was used in patients who were not approved under the program;[120] did not insist on the return of unused hormone;[121] HPAC failed to insist upon submission of a research protocol in relation to some projects; HPAC generally did not seek to reassure itself that the consent of the subjects of the research had been gained;[122] and anecdotal evidence of witnesses concerning the information provided to them, the method by which the treatment was undertaken, especially in the case of hGH where recipients described the methods of assessment used during their treatment.[123]

7.109 Comments by Allars regarding the role and operation of HPAC and its Subcommittees have been noted in paragraphs 2.82-83. In addition to those comments, the Committee notes the following matters arising from the Committee's examination of the minutes of HPAC and its Subcommittee. The HGH Subcommittee minutes contain detailed discussion of difficult cases and cases under review and the recommendations arising from those discussions. The FSH Subcommittee minutes do not record discussions of problems to the same extent. Further, the HGH Subcommittee invited observers to its meetings in order to foster understanding of the Subcommittee and its methods of working.[124] The FSH Subcommittee did not undertake this practice. The Committee also notes that the HGH Subcommittee met quarterly, while the FSH Subcommittee met twice a year to 1979 and only annually from 1980 with its last meeting before the cessation of the program being in December 1983. There also appears to have been a lack of a consistent approach to issues between the Subcommittees, for example, the FSH Subcommittee approved the use of out of date hormone by its members while the HGH Subcommittee did not.[125]

7.110 Further, the Committee considers that the Department's comments about the decision-making process in relation to the AHPHP and the matters addressed by the Allars Inquiry concerning the role of government agencies and accountability issues raise doubts as to whether the Department understands its responsibilities in this area. The Committee notes that in her opening statement on 13 August 1997, Professor Whitworth, Chief Medical Officer, stated:

7.111 While the Committee acknowledges that the decisions regarding the establishment of the AHPHP were taken up to 30 years ago, the program ran for 20 years and during that time it was open for the Department to recommend and institute changes in administrative arrangements as standards changed. In particular, the Committee notes that the power to regulate was entrusted to those who ought to have been regulated and it appears that this arrangement was never challenged. Further, matters such as the unlawfulness of pituitary gland collection after the introduction of uniform tissue legislation appear to have never been pursued by the Department or raised by the Departmental representative on HPAC.

7.112 The Committee therefore considers that it is no excuse for the Department to say that `the decisions taken regarding the establishment and administration of the AHPHP were taken up to three decades ago and were based on the standards of the day'.[127] In fact this statement is erroneous. The Allars Inquiry reported matters in relation to the listing of hPG and hGH which indicated that the hormones were `dealt with in a manner inconsistent with the normal course of listing and testing of a pharmaceutical benefit'.[128] For example, PBAC's normal function of setting restrictions for the use of pharmaceutical benefits were delegated to HPAC without any formal mechanism and the Allars Inquiry noted that no other product listed under s.100 was monitored by an expert committee. Further, the Minister's decision to list the hormones was an abuse of power under s.100.

7.113 It also must be remembered that during the 1970s and 1980s the issue of accountability of government departments and agencies was a matter of considerable debate within the public sector and examination by both government and non-government agencies. Indeed, during that time the then Senate Committee on Finance and Government Operations presented a number of reports on the accountability of government agencies, statutory authorities and non-statutory bodies.

7.114 The Committee also notes comments by the CJD Support Group:

Action taken by government agencies post 1985

Tracing of recipients

7.115 Following the death of an hGH recipient in the USA, and consideration of this by HPAC, on 24 April 1985 HPAC wrote to treating medical practitioners advising them that no new patients were to be treated and that patients currently under treatment with either hPG or hGH could continue treatment but only if they had been informed of the possible risks and had consented to continue therapy. This letter only advised practitioners to inform their current patients of the risk. They were not requested to trace and contact former patients. On 29 May 1985 a further letter from Professor Lazarus to treating practitioners indicated that a hormone recipient had died in the UK and that the program had ceased there. It advised that practitioners cease immediately the use of hGH and hPG, except in the case of childhood hypoglycaemia, and that hormone stocks be returned to hospital pharmacies and CSL. No request was made to trace and contact former patients.[130]

7.116 In a letter of 20 August 1985, approved hPG treating practitioners were requested to verify information on patients believed to have been treated over the period of AHPHP. The Department did not hold the address of hPG recipients. This information was to be used by the Department to conduct an epidemiological study. Due to lack of resources, this study was gradually abandoned.

7.117 The next contact with treating practitioners was made in November and December 1990 when the Chief Medical Adviser wrote a standard letter advising treating practitioners that there had been one confirmed and a possible second unconfirmed CJD death. He told practitioners to advise recipients never to donate their blood, corneas or other tissue and to arrange for recipients to receive appropriate counselling.

7.118 In early 1991, further letters were sent to practitioners. The letter depended on the response the letters of November and December 1990 had elicited from the practitioner and expressed the view that:

In this letter, practitioners were provided with a paper providing information to assist in counselling and were asked to contact an officer in the Therapeutic Goods Administration, who had a list of names of patients approved for treatment under the AHPHP. 7.119 In January and February 1992, the Chief Medical Adviser again wrote to treating practitioners confirming the second death from CJD. Practitioners were reminded of the recommendation that recipients be counselled about the possible health risks and were requested to determine how many patients had been traced and counselled. Following the fourth death from CJD, the Department wrote to treating practitioners advising them of the death.[132]

7.120 In January 1992, the Department established a the CJD Unit. The main function of the Unit was to answer telephone queries and to determine whether callers had been treated with human pituitary derived hormones under the AHPHP. From December 1992 the CJD 008 hotline was available to callers inquiring about fertility and growth hormone treatment and CJD.

7.121 In December 1992 and January 1993, advertisements were placed in the Australian Women's Weekly and the New Idea magazines asking people who thought they had been treated under the AHPHP to contact the Department. A further advertising campaign was run in August/September 1994.

7.122 In March 1993, the CJD Unit sent standard letters to all treating practitioners advising them that the Department had obtained assistance from the Health Insurance Commission in tracing patients. The practitioners were provided with a list of patients who appeared not to have been contacted or counselled and were requested to indicate those not contacted and where assistance from Medicare records was required.[133]

7.123 In October/November 1994, data matching was undertaken using the Commonwealth Electoral Roll.

7.124 The Allars Report details the response to requests to trace recipients by treating practitioners and hospitals in each state. The response was varied. For example a treating practitioner at the Royal Children's Hospital Adelaide commenced in 1985 to trace and contact hGH recipients, giving them some information on the problems overseas and advising that they should not donate blood or organs. Others remained reluctant to trace recipients with one practitioner indicating to the Allars Inquiry that he was concerned that `the nature of the disease and its rarity, and the lack of a diagnostic test, all outweighed the benefit of disclosing the risk'.[134]

7.125 In answers to parliamentary questions on notice, contact details with hPG recipients were progressively disclosed: to 26 June 92, 352 women contacted, to 31 December 92, 450 women contacted and to 11 August 93, 995 women contacted.[135] The then Minister for Health indicated that 78 per cent of recipients had been contacted by October 1993.[136] Evidence to the Committee indicated that, at the present time, 90.2 per cent of officially listed recipients have been contacted.[137]

7.126 The Allars Inquiry concluded that the response by medical practitioners was slow, mainly due to lack of resources to undertake the task and the need to devise methodologies for contacting patients. The Inquiry also concluded that the Department should have taken steps to ensure that recipients were made aware of the risk when the AHPHP was suspended in 1985. It did not request treating practitioners to trace and counsel former patients until 1990, the 1985 request being limited to current patients. The Inquiry concluded that the Department had a moral duty to take steps to ensure that recipients were made aware of the risk in 1985. It was stated in the Allars executive summary that:

Further, the Inquiry found the Department should have provided assistance in 1985 to practitioners through a coordinated program of tracing in connection with the epidemiological study. 7.127 In its submission to the Committee, the Department, in response to the Allars conclusion relating to tracing of recipients, stated:

Committee comments

7.128 The Committee considers that it is quite clear that initially a course least likely to draw attention to the risks of the program was adopted, that is, the letter of 1985 which only asked practitioners to advise their current patients of possible, unidentified, risks associated with the use of pituitary extracts.

7.129 From 1985 to 1990 no effort was made by the Department to contact recipients directly or to even ensure that practitioners had contacted those who had been current patients in 1985. However, the Committee notes three important developments during the period which it believes should have raised significant concerns about the issue of public safety within the Department. First, in February 1988 it was agreed by the National Blood Transfusion Committee (NBTC) that the Red Cross would permanently defer individuals who had received human pituitary-derived growth hormone from being able to donate blood. Secondly, in July 1989 the Department advised State Departments of Health that they should take action to ensure that recipients of pituitary-derived treatment were excluded from organ and blood donation.

7.130 Thirdly, and most importantly, on 27 April 1988 the Executive Secretary of HPAC was informed that a patient at the Flinders Medical Centre, Adelaide, appeared to have all the signs of CJD and that the patient had been treated under the AHPHP. Allars reports that senior members of the Department were informed of a possible case of CJD on 3 May 1988.[140] The diagnosis was confirmed at post-mortem in November 1988. Due to confusion about who was responsible for making a report to the Adverse Drugs Reaction Advisory Committee (ADRAC), no report was ever made.[141]

7.131 The Committee considers that these three events were significant and should have, at the very least, caused the Department to reconsider its policy on contacting recipients. There is no evidence that these events triggered any concerns about recipients `right to know', the impact on recipients who did find out about the risk of CJD when trying to donate blood, or public safety concerns arising from those recipients who may, inadvertently, not have relayed to Blood Banks or organ donation agencies that they had received human-derived pituitary hormone treatment and therefore been excluded from donation.

7.132 When the Department decided in 1990 that a more concerted effort should be made in relation to contacting recipients, it decided that the contact should be made through the treating practitioner. The reason for this decision was given in an answer to a question on notice in October 1993:

7.133 From the Allars Report, the Committee notes that some treating practitioners had died, some had retired, in some cases there was no continuing patient/doctor relationship and some practitioners were reluctant to contact former patients. Further, treating practitioners at one Brisbane hospital wrote to the Department pointing to the need for a coordinated approach organised by the Department.[143] Not surprisingly, the response to the 1990 letter was poor and the Department wrote again to treating practitioners in January and February 1992. However, even by November 1992 only 33 per cent of former recipients had been traced.[144]

7.134 The Committee considers that there may have been some justification in the Department's 1990 decision to rely on medical practitioners to trace patients. However, its continued reliance on this method of tracing when such poor results were obtained was not justified. The Department should have explored other avenues for tracing recipients well before the further letters to practitioners were sent out in 1992 and its failure to do so raises serious questions about the Department's decision making processes.

7.135 The doubts over the Department's approach to tracing recipients are brought in to sharp focus when the response of United States authorities is considered. Following the death of three hGH recipients in the USA in early 1985, an interagency committee met in May 1985 and decided that an extensive epidemiological study should be conducted. By June 1986, the National Institute of Health, the Food and Drug Administration, the Centers for Disease Control and a contracted private company began the design and execution of a systematic epidemiological study of the entire recipient population. The primary goal of the study was to identify and ascertain the health status of every individual treated with growth hormone. To identify recipients, a tracing plan was devised using telephone records, postal records, credit record system searches and driver's license record searches. The results of this study were published in JAMA in February 1991.[145]

7.136 Between November 1992 and October 1993, the percentage of recipients traced increased from 33 per cent to 78 per cent. While it may appear that the Department's tracing efforts had been successful, it was not always the case that it was the Department's initiatives that led to contact with recipients. In evidence to the Committee many recipients indicated that they had not found out about the risk of CJD from contacts initiated by their treating practitioner or the hospital where they received treatment. Rather, many found out the risk of CJD through the media, in particular the 7.30 Report and Hinch program in 1992 or magazine articles. Others discovered that they were at risk when they attended the Blood Bank to donate blood. Many contacted the Department following this or already new of their status by the time letters arrived or telephone contact was made.

7.137 In her submission to the Committee, one recipient stated:

7.138 The Committee cannot but agree with recipients that to find out about the risk of CJD through the media or at the Blood Bank was a horrifying experience. As noted by the Allars Inquiry, for those receiving news of the risk of CJD from the Blood Bank, different explanations from Blood Bank staff were given to recipients for their exclusion, very little information regarding the nature of the problem was given and no referral to counsellors was provided. The Inquiry also found that there appeared to have been no mechanism in place for dealing with requests by recipients that a note be taken of their earlier donations.[147] This would have no doubt added to the distress of recipients.

7.139 The Department's attitude displays a want of compassion and care for a group of people who were receiving news which would impact on them for the rest of their lives. The Department also displayed a lack of planning as to how to deal with and provide services for those recipients who may have found out about the risk of CJD at a Blood Bank.

7.140 In evidence, it was stated that tracing by the Department has largely ceased.[148] The Committee considers that while there remains a group of untraced recipients, there will be doubts as to whether the Department has taken adequate steps to protect public safety by informing recipients of the risk of CJD and not to donate blood or organs. Recommendation 12: The Committee recommends that the Department review all possible tracing methods in an attempt to identify the remaining 190 or so untraced approved recipients.

Information provided to recipients

7.141 In evidence provided to the Committee, recipients commented that initially there was little information available about CJD. Some treating practitioners provided an outline of the risks and description of the disease to recipients while others, according to recipients, passed it off as not being overly important. One recipient was told by their treating practitioner that there was more chance of being run over by a bus than contracting CJD. Other practitioners could provide little information about CJD. One recipient commented:

7.142 In October 1993, in debate on the CSL Sale Bill, Mr Peter Costello, MP, made the following comments:

7.143 Initially telephone contact with the Department by recipients was made through the general 008 number. From December 1992, the CJD 008 hotline was established. Information concerning recipients was held on Departmental patients' files and a database established by the FSH Subcommittee. The latter was written in an archaic computer language and was transformed into a new data base in January 1992. This database was used until March 1994. The Allars Inquiry found that there were persistent problems with the information stored on the database.[150] In 1994 a new database, the AHPHP Database, was established. The Allars Inquiry had recommended that a new database be developed `so that it provides a useful resource for recipients'. This database has been expanded to include sections which relate to batch numbers and children of hPG recipients.

7.144 The Allars Inquiry found that Departmental officers were unduly guarded in their response to recipients who sought information about their treatment. They also declined to provide information to recipients directly, requiring that they receive information about their own treatment through a nominated medical practitioner. The Inquiry found that Departmental officers feared that they would breach s.135A of the National Health Act which imposes severe penalties for disclosure of medical information to third parties. The Inquiry concluded that this restrictive approach appeared unnecessary. The Department's interpretation of s.135A has been discussed in earlier chapters.

7.145 The Allars Inquiry found that initially, the Department's policy was not to release batch numbers. Following the death of the third recipient, the policy was changed and batch numbers were released. This information was forwarded in letters to the nominated medical practitioner. The letter also included the batch numbers known to have been received by the recipients who had died of CJD. From 1995, recipients were provided with the opportunity to obtain their batch numbers direct from the Department, by signing a consent form. In both the letter to medical practitioners and to recipients who requested batch numbers is a note that information on batch numbers may be incomplete and that another source of information may be the clinical records held by the treating practitioner. However, many recipients experienced serious difficulties in gaining access to their medical records. The recommendations of the Allars Inquiry concerning this matter are discussed in Chapter 3.

7.146 From 1993 the Department produced a newsletter known as CJD News. The Allars Inquiry noted that there were concerns amongst recipients about the level of information provided in the newsletter. This newsletter is now known as the HPH newsletter.

Committee comments

7.147 The Committee considers that the Department's response to the information needs of recipients were totally inadequate prior to the Allars Inquiry investigation. Little attempt appears to have been made to prepare concise, consistent and accurate information about CJD that could be conveyed quickly to recipients. The Department, when requesting treating practitioners to contact former patients failed to ensure that consistent information, to an acceptable level, would be conveyed to recipients. It is clear from the Allars Report that some practitioners themselves had little knowledge of CJD and the level of potential risk.

7.148 From evidence the Committee received, there still appears to be some problems with recipients accessing information. One `unapproved' recipient indicated in her submission that the Department had questioned her request to have her records corrected, refused to give her `correct' records let alone the batch numbers of treatment received. This recipient believed that the records had been made available to Rennick Briggs under discovery.[151] At the Committee's hearing in Melbourne the recipient indicated that the information on the batch numbers had been provided on the Thursday before the hearing after a two year wait.[152] The matter of availability of information is also discussed in Chapter 3.

7.149 The Committee considers that it is imperative that recipients have easy and quick access to the information they require. This would not only act to remove a potential source of stress but it is also of paramount importance that recipients have access to information concerning their treatment in order to make informed decisions not only concerning their health and any future medical treatment, but also in determining whether to accept the settlement offer (as discussed in Chapter 5).

Blood and organ donation

7.150 From 1988, recipients of human derived hormone were excluded from donating blood and steps were taken to exclude recipients from donating organs and tissues. See Chapter 2 for details. Following negotiations with the Privacy Commissioner, in March 1993 the Department provided a list of patients treated under the AHPHP to the Red Cross National Headquarters for distribution to blood banks. In evidence to the Committee, Mr Hughes, DHFS, stated:

7.151 Concern has continued to be expressed by many recipients about transmission of CJD through blood and organs. In an answer to an estimates question on notice on 4 June 1997, the Department responded that `there is no epidemiological evidence that human CJD has ever been transmitted through blood or blood products'. An international consultation of experts held in Geneva from 24 to 26 May 1997 concluded that blood transfusions continue to be safe.[154]

7.152 Privacy issues have also been raised by recipients in relation to their names being released by the Department to the Red Cross and organ donation agencies. Following the release of names to the Red Cross, the Department did not inform recipients that such action had been taken. Mrs Sue Byrne stated:

7.153 The husband of a recipient also commented:

And further:

7.154 The Department advised that information identifying hormone recipients had been released to blood and organ tissue donation banks pursuant to paragraph 135A(3)(a) of the National Health Act as being necessary in the public interest. The release of hormone recipients' details was done in accordance with Information Privacy Principle 11(1)(d) of s.14 of the Privacy Act. The Privacy Commissioner confirmed in December 1995 that the disclosures complied with the Privacy Principle and were authorised by law. However, the Privacy Commissioner was concerned that the Department did not:

7.155 Information on the details of the information fields retained in the database was also provided by the Department. Comments on the response to the Allars Inquiry recommendation relating to the database is in Chapter 3.

7.156 Evidence was also given that as part of the epidemiological study undertaken in the USA following the cessation of its hormone program, de-identifiers were applied to maintain the confidentiality of individuals. Mrs Byrne also indicated that work is proceeding on a method of coding of the lists of recipients that have been provided.[158]

Committee comments

7.157 The Committee considers that as there were delays in informing recipients of the risks of CJD blood and organ donations, some recipients may have inadvertently made donations. Further, there appears to have been some confusion over who was to be excluded from donation and the NBTC did not exclude explicitly hPG recipients until November 1990.

7.158 The Committee concludes that the Department failed to act promptly to minimise the possibility of a person treated with human pituitary-derived hormone from donating blood and organs and thereby calls into question its commitment to maintaining the highest levels of public safety in Australia.

7.159 In relation to the privacy issues raised, the Committee considers that the establishment of a method of coding names held by the Blood Bank and other organisations be undertaken as a matter of priority. Recommendation 13: The Committee recommends that the coding system being developed for lists of recipients distributed to Blood Banks and organ and tissue agencies be completed as a matter of priority.

Epidemiological study

7.160 The Committee has considered the matter of an epidemiological study in Chapter 3 of this Report and has recommended that the decision not to proceed with an epidemiological study be reconsidered.

Unapproved recipients

7.161 The Allars Inquiry found that there were a group of recipients of hormones including those who received hormones who were not approved to do so by HPAC or its Subcommittees. These include individuals who received hormones before the official commencement of the AHPHP, those who received hormone produced by other groups (VPG and Dr Brown), those who only received a simulation test, those who were treated for cervical mucus problems, those treated with research allocation of hormones for example, the Egg Project and IVF Program and those who were treated with `left over' hormones by a treating practitioner.

7.162 The Allars Inquiry reported that the Department had experienced great difficulty in tracing unapproved recipients. Details are often held on records held by treating practitioners and would require a time consuming search to locate all persons treated. Some treatments were not recorded. However, some treating practitioners who treated persons not approved have provided the Department with names of recipients and the Department pursued a number of practitioners who had undertaken research programs.[159]

7.163 The Department's AHPH Database records 188 people as unapproved recipients. In evidence it was stated:

Those unapproved recipients who have been traced are included on the Database, receive the HPH Newsletter and took part in the Department's survey. 7.164 In evidence, concerns were voiced about the status of unapproved recipients:

Committee comment

7.165 The Committee considers that the Department's efforts in identifying and tracing unapproved recipients have been inadequate. Further, this lack of effort raises serious questions about the Department's commitment to `adequately protect public health and safety'. This is highlighted by the measures in place in respect of official recipients with lists of names being provided to blood banks and recipients being provided with letters concerning precautions to be taken by health care personnel when treating the recipient.

7.166 Evidence received from the Department added to the Committee's concerns about unapproved applicants. It was stated by Mr Hughes of DHFS that there were 500 to 600 unapproved recipients.[162] When the Committee requested clarification of this information, DHFS only provided the number of unapproved recipients on its database. It did not clarify the figure of 500 to 600 as requested nor did it provide any information as to how it came to this figure or the groups it covered. The Committee considers that the answer provided was unacceptable and a further example of the Department's lack of effort in relation to unapproved recipients.

7.167 The Committee considers that although it is obviously very difficult for the Department to trace unapproved recipients, resources should continue to be devoted to this task. Until tracing of both approved and unapproved recipients is complete, there will still be concerns about whether public safety has been adequately protected. Recommendation 14: The Committee recommends that the Department continue to devote resources to tracing unapproved recipients of human-derived pituitary hormones.

Recommendation 15: The Committee also recommends that once it is established that a person did receive hPG or hGH from the AHPHP, the recipient's status should be of no difference to that of approved recipients. In the event of a dispute between the Department and a person who claims to have received human pituitary derived hormone, the matter should be referred to an independent arbitrator for resolution.

New cases of CJD

7.168 Very late in the Committee's inquiry, evidence was received that there was a probable sixth case of CJD. This information has been circulated on the Internet and throughout the recipient community since July 1997. The Committee acknowledges the ramifications this evidence has for the recipient community.

7.169 At the hearing of 25 August 1997, the following evidence from Dr Cathy Mead, Director, National Centre of Disease Control, was taken:

7.170 On 19 September, a report in the Sydney Morning Herald stated that a sixth recipient believed to have contracted CJD has been offered compensation by the Commonwealth. The report also stated that Rennick Briggs is negotiating on behalf of the recipient who is seeking compensation for common law damages, loss of life expectancy, loss of income and pain and suffering. The Committee notes that this claim is in accord with the settlement offer that has been made to all recipients.

7.171 The report also stated that `the Government was about to alert APHPH recipients through a newsletter that the patient's treatment appeared to include injections from CSL batch 003-2'.

7.172 On the same day as the report appeared in the SMH, an edition of the HPH Newsletter was distributed. The Newsletter advised that a former recipient had `developed a neurological condition for which no definitive cause has been found. On the basis that the woman concerned was treated under the AHPHP, CJD must be considered high on the list of probable causes.' It was also reported that the case had been considered by the independent panel of experts which had stated that `further evidence would be required before a definitive diagnosis could be made'. The Department did however indicate that, based on advice from the independent panel, it had decided that `assistance should be provided to the former recipient and her family through the Human Pituitary Trust Account. Assistance to the family has already commenced'. The Department also confirmed that the recipient had received batch 003-2 and that treatment was received sometime between 1968 and 1971. 164

Committee comment

7.173 It is with regret that the Committee learnt of the confirmation of the probable sixth case of CJD. The Committee expresses its sympathy for the recipient and her family. Such news is also causing renewed anxiety within the recipient community, particularly as the recipient was treated very early in the program.

7.174 In relation to the Health Department's response to the probable sixth case, the Committee is concerned that it appears that the Department has again failed to respond adequately to a situation which has far reaching implications not only for one particular recipient and her family but also the whole recipient community.

7.175 First, the Department stated to the Committee that it was waiting on an `application' from the recipient or her family before making any decisions about assistance to be provided. This appears to the Committee to be a passive and overly officious response to a very grave situation. Given the Commonwealth's commitment to ensuring that any recipient contracting CJD is adequately cared for, and the possible rapid onset of the final stages of the disease, the Department should have been more proactive in regard to the news that a recipient may have contracted CJD. The Committee considers that Departmental officers should have made personal contact with the recipient when it first became known that the recipient may have contracted CJD. This not only would have provided support to the recipient and her family at a very distressing time, but may have forestalled the difficulties that now appear to have arisen between the family and the Department (see paragraph 7.177). Further, the Committee notes recent Ministerial statements emphasising that sympathetic, personal and `customer friendly' approach was required in service oriented departments.[165] The Committee believes that the Department should be acting upon this approach and that given the circumstances of this recent case, early intervention on a personal level was called for.

7.176 Secondly, the Department did not inform recipients that there may be a sixth victim before the matter was raised in the media. Learning such news through the media must have added to the anguish of many recipients. The Committee considers that the Department should have taken steps to inform recipients about the probable sixth case and of her treatment circumstances before the news was reported in the media and to provide as much information as possible.

7.177 The Committee also understands that there are difficulties in the Commonwealth negotiating the settlement with the recipient's family and that it is possible that the matter will need to be arbitrated. The Committee considers that this action increases anxiety at this particularly difficult time.

7.178 The Committee also notes that there are other matters relating to batch 003-2 which was received by the recipient. Further, the recipient's husband has raised with the Committee additional concerns at the actions by officers of both CSL and the Health Department.[166] The Committee considers that in the present difficult circumstances, there is a need for all Commonwealth officers to be careful to avoid any misinterpretation of their communications with families under stress. Nevertheless, the Committee notes that officers at times have to undertake duties which sometimes involves passing on or seeking information from people which may be disturbing to those people. Recommendation 16: The Committee recommends that the Department put in place protocols to ensure sympathetic early intervention so that information and assistance is provided to a recipient suspected to have contracted CJD as soon as the recipient's condition becomes known, rather than await official confirmation.

Recommendation 17: The Committee recommends that the Department inform the recipient community of the steps to be taken to make an application to the Department for assistance, including the persons to be contacted and the information required, in the event that it is suspected that a person may have contracted CJD.

Conclusions

7.179 Many recipients and their supporters consider that matters disclosed by the Allars Inquiry and other information they have provided establishes that there has been a failure to adequately protect public safety in relation to the AHPHP. In some instances, recipients have indicated that they feel this amounts to negligence and that criminal prosecutions should be launched where the evidence indicates illegality.[167]

7.180 The Committee has highlighted many of the concerns and adverse findings reported by the Allars Inquiry in relation to the establishment of the AHPHP, the preparation of the hormones, the role of government agencies and the decisions and actions of the Department following the suspension of the AHPHP.

7.181 As has already been indicated, the Committee is unable to make an authoritative judgment on the merits of the scientific and technical information provided in evidence to this Committee. However, the Committee considers that some of the further information which came to light during the inquiry does raise serious concerns and warrants a further review. It also appears that some of this information was not available to the Allars Inquiry. Recommendation 18: The Committee recommends that in view of the availability of further information (much of which is conflicting in its nature) which may not have been considered by the Allars Inquiry, Professor Margaret Allars be invited to review, with the necessary independent scientific advice, this further information on scientific and other matters concerning the AHPHP which has become available since the Allars Inquiry reported. If Professor Allars is unavailable, another suitably qualified independent person be invited to undertake the review. 7.182 In making this recommendation, the Committee does not in any way dispute the findings of the Allars Inquiry. Rather, the Committee believes that Professor Allars be given the opportunity to weigh up the new material in the light of her earlier findings.

7.183 The Committee has, however, come to a number of conclusions in relation to the role and actions of the Health Department:

Further, the Committee is concerned that incorrect or incomplete information was provided to the Allars Inquiry concerning possible contamination of batches of hormone and whether or not they were distributed for recipient treatment. The Committee considers that this has added to the distress of some recipients and should not have occurred.

Senator Mark Bishop

Chairman

October 1997

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Footnotes

[1] Submission No.12, p.4.

[2] Transcript of Evidence, 12.8.97, p.9.

[3] Transcript of Evidence, 12.8.97, p.32.

[4] See for example submission No.41, p.1.

[5] Submission No.43, p.4.

[6] Submission No.92, p.4.

[7] Submission No.5, part 3, attachment 13.

[8] Allars Report, p.370.

[9] Allars Report, p.370.

[10] Submission No.5, part 3, p.3.

[11] Allars Report, p.68.

[12] Allars Report, p.68.

[13] Allars Report, p.396.

[14] Submission No 27, pp.5-6.

[15] Submission No.24, p.19 (CJDSGN)

[16] Submission No.85, p.30 (DHFS).

[17] Allars Report, p.371.

[18] Allars Report, pp.95, 738.

[19] Allars Report, p.95.

[20] Allars Report, p.372.

[21] Submission No.85, CSL Attachment, p.5 (DHFS).

[22] Allars Report, p.411.

[23] Submission No.73, p.3.

[24] Submission, No.86, pp.4, 13-15.

[25] Transcript of Evidence, 13.8.97, p.92.

[26] Transcript of Evidence, 13.8.97, p.92.

[27] Submission No.1, 12.7.97, p.1.

[28] Allars Report, p.100.

[29] Submission No.1, 12.7.97, p.1. See also Submission No.73, p.4.

[30] Submission No.86, p.12. See also Submission 1, 12.7.97, p.2.

[31] Submission No.1, 12.7.97, p.2.

[32] Transcript of Evidence, 13.8.97, p.97.

[33] Transcript of Evidence, 13.8.97, p.91.

[34] Submission No.85, CSL Attachment, p.5 (DHFS).

[35] Transcript of Evidence, 25.8.97, p.183.

[36] Transcript of Evidence, 13.8.97, p.84. Dr Peters also tabled a CSL internal memo in relation to testing of batch 128.

[37] Submission No.1, 12.7.97, p.1.

[38] Transcript of Evidence, 13.8.97, p.87.

[39] Submission No.85, CSL Attachment, p.4 (DHFS).

40 Submission No.85, CSL Attachment, p.5 (DHFS).

[41] Transcript of Evidence, 13.8.97, p.130.

[42] Transcript of Evidence, 13.8.97, pp.129-30.

[43] Submission No.85, CSL Attachment, p.5 (DHFS).

[44] Transcript of Evidence, 13.8.97, pp.91-92.

[45] Transcript of Evidence, 13.8.97, p.146.

[46] Transcript of Evidence, 13.8.97, p.153.

[47] DHFS supplementary information, 22.8.97, Appendix 1-CSL response, pp.1-6.

[48] Dr Howes, supplementary information, 22.9.97.

[49] Macedones, supplementary information, 25.9.97.

[50] Allars Report, pp.292-94.

[51] Allars Report, Executive Summary, p.2.

[52] Allars Report, p.333.

[53] Allars Report, p.346.

[54] Allars Report, p.372.

[55] Allars Report, p.350.

[56] Allars Report, p.353.

[57] Allars Report, p.357.

[58] Allars Report, pp.310, 357.

[59] Allars Report, pp.361,372.

[60] Allars Report, p.373.

[61] Allars Report, p.373.

[62] Submission, No.92, p.4.

[63] Submission No.1, 1.8.97, p.2.

[64] Submission No.1, 1.8.97, p.3.

[65] Submission No.73, p.6.

[66] Transcript of Evidence, 13.8.97, p.79.

[67] Transcript of Evidence, 13.8.97, p.124.

[68] Transcript of Evidence, 25.8.97, pp.230-31.

[69] Submission No.5, part 3, p.4.

[70] Allars Report, p.96.

[71] Submission No.85, CSL Attachment, p.5 (DHFS).

72 Allars Report, pp.200-01.

73 Submission No.5, part 3, pp.7-8. See also submission No.1, 1.8.97, p.4.

[74] Submission No. 73, p.4.

[75] Submission No.73, Attachment 3, p.5.

[76] Submission No.73, p.4.

[77] Transcript of Evidence, 13.8.97, pp.89-90.

[78] Transcript of Evidence, 13.8.97, p.94.

[79] DHFS supplementary information, 22.8.97, Appendix 1-CSL response, p.4.

[80] Submission No.85, CSL Attachment, p.4 (DHFS).

[81] Allars Report, p.447.

[82] Transcript of Evidence, 13.8.97, p.88.

[83] DHFS supplementary information, 22.8.97, Appendix 1-CSL response, Attachment 4.

[84] DHFS, supplementary information, 22.8.97, Appendix 1-CSL response, p.5.

[85] DHFS, supplementary information, 22.8.97, Appendix 1 - CSL response, pp.1-6.

[86] Allars Report, p.436.

[87] Allars Report, p.488.

[88] Allars Report, p.490.

[89] Allars Report, pp.494-95.

90 Allars Report, p.503.

[91] Transcript of Evidence, 13.8.97, pp.92-93.

[92] Submission No.86, p.11.

[93] Submission No.5, part 3, p.9.

[94] Allars Report, p.434.

[95] Allars Report, p.496.

[96] Allars Report, p.495.

[97] Allars Report, p.496.

[98] Allars Report, p.496.

[99] Allars Report, p.496.

[100] Allars Report, pp.497-98.

[101] Allars Report, p.498.

[102] Allars Report, p.501.

[103] Allars Report, p.373.

[104] Allars Report, p.502.

[105] Allars Report, p.509.

[106] Allars Report, p.503.

[107] Allars Report, p.509.

[108] Allars Report, p.448.

[109] Allars Report, p.451.

[110] Allars Report, pp.452-53.

[111] Allars Report, p.722.

[112] FSH Subcommittee, Minutes of meeting, 20.9.73.

[113] Submission No.24, p.19 (CJDSGN.)

[114] Allars Report, p.373.

[115] Allars Report, p.507.

[116] Allars Report, p.507.

[117] Transcript of Evidence, 12.8.97, pp.11-12.

[118] See for example, HPAC Minutes of Meeting, 12.12.74, 2.6.82; FSH Subcommittee, Minutes of Meeting, 30.9.77, HGH Subcommittee, Minutes of Meeting, 1.6.72, 14.11.74.

[119] FSH Subcommittee, Minutes of Meeting, 24.9.71.

[120] See for example Submission No.4. The Committee also notes that the HGH Subcommittee did not approve treatment but the practitioner proceeded nonetheless, Minutes of Meeting, 15.11.73.

[121] FSH Subcommittee, Minutes of Meeting, 30.3.73.

[122] Allars Report, Executive Summary, p.7.

[123] See for example, Submission Nos: 12, pp.1-2; 14, pp.1-2; 35, p.2; 41, p.3; 49, pp.1-2; 63, p.1; 71, p.1; 75, p.1; 90, pp.1-2.

[124] See for example, HGH Subcommittee, Minutes of Meeting, 29.8.74.

[125] FSH Subcommittee, Minutes of Meeting, 24.9.71; HGH Subcommittee, Minutes of Meeting, 8.12.77.

[126] Transcript of Evidence, 13.8.97, p.119.

[127] Submission No.85, p.33 (DHFS).

[128] Allars Report, p.495.

[129] Submission No.24, p.20 (CJDSGN).

[130] Allars Report, p.604; DHFS, supplementary information, 29.8.97, Attachments 1 & 2.

[131] Allars Report, p.605.

[132] Allars Report, p.606. A copy of the letter dated 31.1.92 is in DHFS, supplementary information, 29.8.97, Attachment 3.

[133] Allars Report, p.598.

[134] Allars Report, p.608.

[135] House of Representatives Hansard, 18.8.92, p.88; 27.9.93, p.115; 5.10.93, p.1699.

[136] Senate Hansard, 21.10.93, p.2326.

[137] Submission No.85, p.12 (DHFS).

[138] Allars Report, Executive Summary, p.9.

[139] Submission No.85, p.33 (DHFS).

[140] Allars Report, p.588.

[141] Allars Report, p.590.

[142] House of Representatives Hansard, 5.10.93, p.1699.

[143] Allars Report, p.610.

[144] Submission No.85, p.12 (DHFS).

[145] JAMA, February 20, 1991, Vol 265, No 7, pp 880-04; Westat Inc, Protocol for Phases III and IV of the Human Growth Hormone Recipient Followup Study, 7 April 1987.

[146] Submission No. 6, p.1.

[147] Allars Report, pp.660-01.

[148] Submission No.24, p.3 (CJDSGN).

[149] House of Representatives Hansard, 27.10.93, p.2666.

[150] Allars Report, p.600.

[151] Submission No.18, p.2.

[152] Transcript of Evidence, 12.8.97, p.15.

[153] Transcript of Evidence, 13.8.97, p.144.

[154] CA Legislation Committee, Transcript of Evidence, 4.6.97, CA 258.

[155] Transcript of Evidence, 13.8.97, pp.110-11.

[156] Transcript of Evidence, 12.8.97, pp.34-35.

[157] DHFS, information tabled at hearing, 25.8.97

[158] Transcript of Evidence, 13.8.97, p.111.

[159] Transcript of Evidence, 13.8.97, p.142.

[160] Transcript of Evidence, 13.8.97, p.142.

[161] Transcript of Evidence, 12.8.97, p.26.

[162] Transcript of Evidence, 13.8.97, p.142.

[163] Transcript of Evidence, 25.8.97, p.185.

164 HPH Newsletter, September 1997.

[165] Prime Minister, Press Release, Launch of Centrelink, 24.8.97; Minister for Social Security, Press Release, New Centrelink Network Launched, 24.8.97.

[166] Mr Peter Bansemer, correspondence dated 19.9.97.

[167] For example, Submission No.63, p.4.