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MILNERS has developed a growing specialism in representing core participants at major inquiries – including the biggest ever independent investigation into child sexual abuse. Here, Ben Harrison, a solicitor in our Litigation and Public Law team, draws upon this expertise to demystify what we can expect from the next major statutory inquiry: the contaminated blood scandal.

After decades of fighting and campaigning, the Government finally agreed to consult on an inquiry into the contaminated blood scandal in July 2017; this was followed in November 2017, with an announcement that an inquiry would go ahead and would be on a statutory footing (i.e. pursuant to the Inquiries Act 2005 and the Inquiry Rules 2006.)

The scandal, which ran from (at least) 1974 saw thousands of haemophiliacs administered with blood products, purchased commercially by the UK from overseas. The blood products in question were Factor VIII and Factor IX, both clotting agents which are absent in those suffering from haemophilia types A and B respectively.

Whilst there is some evidence that the government of the day (and successive administrations) took steps to increase the volume of domestically produced blood products, significant amounts (in most years, more than 50% of the UK’s total requirement) were purchased, predominantly from private companies in the USA.

The ultimate source of these American blood products was unclear, as were the donor vetting procedures employed. Given that a typical single dose of Factor VIII could originate from tens of thousands of separate donors, disaster was inevitable.

Almost immediately after the first use of Factors VIII and IX began in the UK, and within 12 months, rates of hepatitis infections in the UK had doubled. Nevertheless, foreign blood products continued to be purchased by the UK and administered to patients for a further 15 years (at least).

The consequence of receiving contaminated blood products was catastrophic with most contracting Hepatitis C Virus (HCV) and many also contracting HIV. In most cases a single tainted dose of Factor VIII or IX was sufficient to cause infection.

 

The Inquiry

The announcement of a Chair and Panel is, we are told, imminent though one only has to look at the example set by the Independent Inquiry in to Child Sexual Abuse (IICSA) to see how difficult it can be to get the right person at the helm.

It is hard to predict the precise format which will be set because the format is largely dictated by the (as yet to be appointed) Chair. That said, we know that there will first be a consultation on the terms of reference.

Setting the terms of reference for an inquiry is a pivotal step; it sets the parameters of the investigation and, from a survivor’s perspective, it will need to be ensured that the inquiry covers the whole of the UK (not just England and Wales). Again, IICSA sets a useful example here where cross-jurisdictional issues risk slipping through the cracks of separate investigations which result from the home-nations each establishing their own inquiries.

In terms of the content of the inquiry, survivors will of course want to see recommendations as to how suitable reparation can be made but fundamentally, it will be imperative that each mistake which led to and exacerbated the contaminated blood scandal is identified and, where necessary, remedial steps are recommended to try to ensure that nothing like this can happen again.

Once terms of reference have been set then the inquiry will likely invite applications for core participant status (CP Status). Obtaining CP Status will be critical for each survivor (whether it be individually or as part of a survivors group) as the granting of CP Status entitles the core participant to receive disclosure from the inquiry, to make submissions at any oral hearing and to apply to put questions to any witnesses called. Given the unique nature of this scandal, the families of deceased victims should be included within the term “survivor.”

Obtaining CP Status will also unlock the possibility to apply for funding from the inquiry to cover individual core participants’ legal fees; it should be a pillar of this inquiry that the survivors be encouraged to actively participate without fear of any financial burden.

The Chair, once appointed, should look to the inclusive manner in which IICSA granted CP Status to all survivors whose circumstances fell within its terms of reference.

After core participants have been appointed, a lengthy disclosure exercise will need to be undertaken; whilst survivors (and certainly survivor groups and support organisations) will have comparatively limited amounts of documents to disclose, it should be expected that a vast amount of information will need to be disclosed by, amongst others, the Department for Health, the NHS, regional health authorities and Bio-Products Laboratory Limited.

Before any hearing takes place, it should be expected that witness statements will be sought from governmental and organisational core participants. The inquiry should again be encouraged to follow the example set by IICSA (and likely to be followed by the Grenfell Inquiry) in obtaining witness evidence from survivors. It is imperative that direct testimony is heard from survivors in order that the true consequences of this scandal can begin to be understood.

Following a hearing, the Chair and Panel can be expected to produce a report which should identify the key failings and, where the causes of those failings have not already been rectified, make recommendations. The Chair and Panel should also be looked to for recommendations as to how the state might begin to suitably compensate those who still live with the consequences of the scandal and those who have lost loved ones through it.

 

Ben Harrison

Ben Harrison is a Solicitor working with Milners Solicitors’ Litigation and Public Law Department; he would welcome any questions or enquiries and can be contacted via email at Ben.Harrison@Milnerslaw.com or by telephone on 0113 245 0852.