The Infected Blood Inquiry published its second interim report on Wednesday, 5 April 2023. Steven Snowden KC and Achas Burin of 12KBW, alongside Brian Cummins of Old Square Chambers, represented the largest group of victims in the Inquiry. In this blog article, Achas summarises and comments on the second interim report.
Background
Chaired by Sir Brian Langstaff, the Inquiry was convened under the Inquiries Act 2005 to investigate the infection of NHS patients with HIV, hepatitis B and hepatitis C. The infections arose out of treatment with blood (via transfusion) or blood products (such as those used to treat clotting diseases), predominantly during the 1970s and 1980s. Many of those infected were children, and more than half of them have since died as a result of their injury. Effective treatments for the diseases were not developed until decades after the infections.
Readers of this blog may be familiar with previous litigation that arose out of the same events, The HIV Group Litigation [1996] P.I.Q.R. P220 and A v National Blood Authority.
The Inquiry was convened in 2019, and heard closing submissions early in 2023. During its course, the sponsoring Minister in the Cabinet Office commissioned a report from Sir Robert Francis KC (who had himself chaired the inquiry into the failings at Mid-Staffordshire NHS Foundation Trust). The purpose of Sir Robert’s report was to give independent advice to the Government regarding the design of a framework for compensation. Following the delivery of the report to the Inquiry, a first interim report was made by Sir Brian that recommended interim payments to be paid to those infected. Payments of £100,000 were duly made to infected victims. However, whilst accepting that wrongs were done – including avoidable infections – and that there was a moral case for compensating victims, the government did not implement Sir Robert’s report when it was received in March 2022. Instead, through a statement given by Jeremy Quin MP in Parliament, the government determined that it would await the final report of the Inquiry.
Thus Sir Brian Langstaff published his second interim report setting out a compensation framework to be established without delay. Other key recommendations included further interim payments to be made to those who were affected by the tragedy – but were not the recipients of an award under the first interim report – and a bespoke psychological support service for those infected and affected living in England. (Bespoke psychological support is already available for those in Scotland, Wales and Northern Ireland.)
Recommendations of the second interim report
The factual conclusion undergirding the recommendations was summarised by the Chairman as follows:
‘My conclusion is that wrongs were done at individual, collective and systemic levels. Not only do the infections themselves and their consequences merit compensation, but so do the wrongs done by the way in which authority responded to what had happened. Time without redress is harmful. No time must be wasted in delivering that redress.’ (p12)
(i) Compensation framework
To administer compensation, Sir Brian recommended establishing an arm’s length body, chaired by a sitting or retired judge of the level of the High Court (or Court of Session, the equivalent court in Scotland). The arm’s length body is to be in place to begin its work this year. Awards are to be based on a tariff scheme, with the levels of award to be determined by a panel of medical & legal advisers.
The recommendation of a tariff scheme was to maximise the speed of delivery, whilst also being somewhat calibrated to individual circumstances and different illness pathways. There is to be an advisory board comprising representatives of the community of infected/affected persons, and there is also to be provision for appeal. The arm’s length body is responsible to Parliament and must be transparent about its decision-making.
As to the compensable heads of loss, Sir Brian Langstaff broadly adopted Sir Robert Francis’ suggestions with a few modifications. The heads of loss include: impact of injury; social impact; loss of autonomy (to include an element for the way government initially dealt with the tragedy, though this head of loss is not the analogue of exemplary damages); care and other past/future financial losses.
Sir Robert’s suggestions were themselves loosely modelled on compensation in personal injury cases, and Sir Brian proposed that the scheme should take account of common law but should not aim to replicate it. In particular, the law of dependency under the Fatal Accidents Act 1976 is inapplicable. Thus, in addition to those infected (whether directly by NHS treatment or via inadvertent transmission from such a person), the following categories of affected person are eligible under the recommendations:
a) Children of eligible living or deceased infected persons (including adopted but not step-children);
b) Parents of eligible living or deceased infected persons;
c) Siblings of eligible living or deceased infected persons;
d) Carers providing care to eligible living or deceased infected persons, as a result of that infection;
e) Family members or friends whose relationship was so close that they could be expected to be affected, and have indeed been affected.
Payment of the award will usually be a final lump sum, although there is allowance for periodic payments and provisional awards at the election of the applicant.
(ii) Interim payments
Bereaved parents and bereaved children who have lost their parents, where the death(s) have not already been recognised by an interim payment, should receive interim payments. In the case of a deceased infected person, where there is no bereaved partner, child or parent, there should be an interim payment to full siblings.
(iii) Psychological support
During the course of the Inquiry, bespoke psychological support was offered to Scottish, Welsh and Northern Irish patients – and their families – who have endured this tragedy. Toward the end of the evidential hearings, the Inquiry heard from facilitators of that support. It was clear from their evidence that the service they provided met the needs of the community of infected/affected persons far better than the IAPT model currently in place for England.
Commentary
It is obvious that the interim recommendations target areas of most urgent need for survivors of the tragedy: psychological and financial support. Just as a judge would make orders for interim payments, Sir Brian has utilised the statutory power to make interim recommendations. However, whilst a court making an interim payment is motivated primarily by avoiding delay, it is secure in the knowledge that a court order creates a judgment debt. This interim report is different because a statutory inquiry’s powers to compel are unlike a court’s. Implementing inquiry recommendations requires voluntary government action, and an openness to being accountable on the part of government. It is for government to come good on its promise to act upon receipt of Sir Brian’s report. (Although this is not his final report, he is clear it represents his final conclusion on compensation.)
The community of infected and affected have little faith in the government, given its historic treatment of their valid complaints and its recent prevarication in implementing the unequivocal recommendations of Sir Robert Francis. It is to be hoped that the present government demonstrate respect for the rule of law, and the legitimate expectations that their public statements have created, by swiftly endorsing and fully implementing the Inquiry’s second interim report. Certainly other governments in other nations, including the Republic of Ireland, have implemented support schemes. The Irish scheme is based on common law too, but awards are determined by a tribunal on an individual basis.
More generally, this report will be of interest to practitioners because it is rare for a statutory public inquiry to recommend compensation. The Independent Inquiry into Child Sexual Abuse led to redress schemes, but is a relatively recent example. By contrast, the Post Office Compensation Scheme was spurred by the more common route of settling a group litigation (Alan Bates and Others v Post Office Ltd) and later extended to those who were not parties to the original litigation. Indeed, the settlement from the HIV Litigationthat preceded the present Inquiry was extended in the same way. The Windrush Compensation Scheme was established following a non-statutory inquiry by the Home Affairs Committee. Years of dedicated campaigning, by groups representing the community of infected and affected people, led to the present Infected Blood Inquiry being convened. This second interim report shows both how far-sighted they were, and the important potential of the Inquiries Act 2005 for securing justice that traditional litigation and/or non-statutory inquiries may be unable to secure.
Finally, the present report aims to avoid the defects in previous support schemes (such as the trust which administered the HIV Litigation settlement) and the less salubrious aspects of the common law (such as the much-criticised anomalies created by the Fatal Accidents Act 1976). It demonstrates some benefits of the flexible, non-adversarial process that a statutory inquiry represents, and the vital role of public inquiries within a modern democracy. It is hoped that the government see these benefits for what they are.
The second interim report can be found on the Inquiry’s webpage here.
You can also read the Chairman’s statement accompanying the report here. A video of the statement being delivered is here on YouTube.
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