Steven Snowden KC of 12 King’s Bench Walk (instructed by Collins Solicitors) led Dr Achas Burin of 12KBW and Brian Cummins of Old Square Chambers, representing the largest group of infected and affected individuals at the Inquiry (1,500+ core and non-core participants).
The final report of Sir Brian Langstaff, Chairman of the Infected Blood Inquiry, has been handed down today. Sir Brian is forthright in his criticism of the events that led initially to transmission of infection and the subsequent response of the NHS and government.
The Inquiry investigated infections transmitted by NHS treatment involving blood (e.g. transfusion) or clinical products derived from human blood (such as those used to treat clotting diseases). The blood and blood products were contaminated by HIV, hepatitis, or both. The treatment led to over 3,000 people dying, and many thousands more living with infection or its aftermath.
There were “systemic, collective and individual failures to deal ethically, appropriately and quickly with the risk of infections” as well as the infections themselves. This “calamity” could have been “largely, but not entirely, avoided” and – what is more – “it should have been.” Instead, infected patients as well as their “partners, family, children, friends” have “suffer[ed] in almost every aspect of their lives.”
Key findings of the report are as follows:
- In respect of those patients who were treated with blood products, infections were caused by failures in the licensing regime for Factor concentrates used to treat bleeding disorders, failures to supply sufficient plasma collected from voluntary donors in the UK and the processing thereof, failures to research and achieve viral inactivation of donations, poor treatment decisions despite known risks, looking for conclusive proof that AIDS was transmitted by blood rather than looking at the real risk, falsely reassuring the public, continuing to import risky product from abroad, conducting research on people without informed consent from themselves or their parents (in the case of children), and in some cases failing to inform people of their diagnosis of infection.
- In respect of patients who were transfused, infection was caused by poor donor selection and screening (including taking blood from prisoners), failing to take advantage of surrogate testing for relevant infections, delaying universal screening for HIV and Hepatitis, failing to warn patients of risks and overriding their decisions, unnecessary transfusions, failing to advise hospitals and clinicians on better use of blood, poor record-keeping, failing to carry out an exercise to trace potentially infected patients and delaying to inform people of their diagnosis of infection.
- Furthermore, clinicians were complacent about the risk of Hepatitis C and slow to respond to the risk of AIDS. They used insensitive and inappropriate means to communicate a diagnosis. They tested samples without patient knowledge and consent, as well as instances of compromising patient confidentiality. Medical records were destroyed or lost, in addition.
- These harms were compounded by failures to acknowledge the harm, the absence of any meaningful apology or redress, and a lack of candour such that the truth has remained hidden until campaigners strove to bring it to light. Furthermore, there was repeated use of inaccurate and misleading defensive statements on behalf of government and NHS that were cruelly used to deny the truth.
- The consequences for infected patients have not been mitigated by good psychological support, appropriate treatment for Hepatitis C, or adequate palliative care in many cases. Until the Inquiry’s first interim report, there was no compensation and even prior calls for a Public Inquiry were rebuffed. Such ex gratia schemes as existed were inadequate and established after delays. As discussed below, whilst some interim payments have now been made, recommendations for a full compensation scheme have not yet been implemented or fully responded to on the part of government.
Sir Brian Langstaff said: “The way in which institutions, and in particular the government, responded to what had happened after 1985 was in many respects shameful. This should never happen again.”
In addition to its appalling and tragic facts, there are three reasons why this Inquiry is significant from the perspective of legal professionals:
1. First, it is one of the largest – if not the largest – “personal injury” public inquiries to date. It constitutes a salutary lesson in the capability of public inquiries to deliver compensation, as well as a reminder of the difficulties posed by the lack of legal mechanisms to compel payment.
The Inquiry issued two interim reports – the first (in July 2022) recommending interim payments of compensation to infected patients, and the second (in April 2023) recommending further interim payments to a wider group of the bereaved as well as asking the government to establish a full compensation scheme before the end of 2023 (the details of that compensation scheme having already been the subject of a framework report from an independent expert, Sir Robert Francis KC).
Subsequently, in 2024, partial provision for the establishment of the compensation scheme was made in the draft Victims and Prisoners Bill. Clauses relating to compensation were initially tabled in the House of Commons by Dame Diana Johnson MP, and received widespread support after the announcement of a Budget that was silent on compensation. With the passage of the Bill through the House of Lords, the government moved for amendments to some of the relevant clauses.
However, over the weekend, The Sunday Times reported that the Prime Minister is expected to make an apology on the day of the final report, and to announce a compensation scheme totalling around £10bn.
In the final report of the Inquiry, Sir Brian is critical of the response of government to his interim reports. He states that he had hoped to be able to report on the progress made toward his compensation recommendations, but was unable to as the government has delayed its response, and has not meaningfully updated Parliament as to its progress. This was felt by the infected and affected participants as characteristic of what they have faced for half a century. He said that it was unacceptable that “people whose lives were torn apart… still have no idea as to the shape, form or extent of any compensation scheme.” He thus cannot report that government has put things right. Instead, he has to recommend that there be a mechanism to hold government to account regarding a response and any subsequent implementation of the Inquiry’s recommendations. The Public Administration and Constitutional Affairs Committee is given that task by the final report, both for the present inquiry and future ones.
2. This leads on to a second point about the contribution of the Infected Blood Inquiry to the practice of statutory inquiries generally. Sir Brian notes that an Inquiry does not end when the final report is delivered but, according to section 14(1) of the Inquiries Act 2005, when the chairman notifies the minister that its Terms of Reference have been fulfilled. His recommendations that government respond to his report within a certain timescale must be read in this light. He states that he shall notify the minister only in the event that there is nothing further he can do to prevent any delay, and sets out a timetable of twelve months for a response and a report to Parliament (Final Report, page 282).
Notably, the Infected Blood Inquiry is the only Public Inquiry so far to call serving ministers to give evidence before it about their response to its own interim recommendations. In July 2023, the Prime Minister, Rishi Sunak, and members of his government answered questions put by Counsel to the Inquiry about their actions and inaction relating to the Inquiry’s interim recommendations. Over a week of evidence sessions, and within the scope permitted by the doctrines of collective responsibility, public interest immunity and the embargo on policy under present development, government witnesses gave evidence as to any commitment and/or steps toward accepting the Inquiry’s interim recommendations. Today sees the publication of the Inquiry’s recommendations in all their fullness, together with a suggested mechanism for monitoring the implementation of Inquiry recommendations more broadly.
(Sir Brian notes that a House of Lords Select Committee is looking into this issue, amongst others, as covered on this blog previously.)
3. Third, it is one of the only Inquiries to raise explicitly the question of whether it is bound by the doctrine of Parliamentary Privilege. To date, this question remains legally indeterminate because the Chairman did not ultimately rule on the issue of whether statutory Public Inquiries are bound by Parliamentary Privilege – nor has any court determinatively ruled on the issue since the passage of the Inquiries Act 2005.
In conclusion, the course of the Infected Blood Inquiry and, indeed, its final report rewards close study by interested practitioners.
For further analysis of the government’s response to the interim reports, see a previous blog post written by Achas in July 2023.
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