Infected Blood Inquiry Update

At the opening of the Infected Blood Inquiry in September 2018, the chair, retired High Court judge Sir Brian Langstaff, made clear his dual intentions for what is the biggest statutory public inquiry ever – that he would report as swiftly as possible (after all, as Sir Brian remarked, a sad feature of this Inquiry is that many of the core participants are gravely ill) but that he would “leave no stone unturned”.

The Inquiry has continued since 2018 to strike that balance, with the Covid-19 pandemic somewhat getting in the way.

Early in 2022, the Inquiry published a timetable up to the end of the calendar year (https://www.infectedbloodinquiry.org.uk/public-hearings-timetable). The timetable includes deadlines for submissions from the “registered legal representatives” of core participants on recommendations and conclusions they think the Chair should reach, signalling that the Inquiry is likely to draw to a close and report in 2023.

Evidence in recent months has included oral evidence from a large number of “Regional Transfusion Directors” – directors of regional blood transfusion centres. This evidence has focused on the measures put in place by the National Blood Transfusion Service (the predecessor of NHS Blood and Transplant) to reduce the risks of infection from whole blood and blood components.

Significant themes include reticence to introduce innovative testing measures, failures to devise effective donor exclusion policies, poor record keeping (making the task of tracing infected donations and recipients of those donations incredibly hard), a focus on the HIV/AIDS crisis over the more poorly understood risks of “Non A non B hepatitis” (now known as Hepatitis C), and a failure to educate clinicians in hospitals on the safe use of blood.

The focus of the Inquiry is now shifting to those clinicians, and what their policies and practices were around blood transfusion.

One prong of the Inquiry’s broad work involves considering the issue of compensation for victims. In May-June 2022, Sir Robert Francis is expected to give evidence to the Inquiry on his Compensation Framework Study.  This study was commissioned by the Government in 2021 to look at options for compensating victims of infected blood, so that the Government can prepare its response to the conclusions of the Inquiry and is thus separate from the Inquiry process.

Evidence on compensation will likely include a consideration of whether the eligibility criteria for the existing ex gratia financial assistance schemes (and by extension any future scheme) are fair and appropriate.

Two separate judicial reviews have challenged these criteria in respect of the English Infected Blood Support Scheme (EIBSS). The Court of Appeal recently dismissed an appeal against the High Court’s refusal to give permission to apply for judicial review in CN v SSHSC [2022] EWCA Civ 86 – a case challenging the exclusion of those infected with Hepatitis B from blood and blood products. In more positive news, the judicial review challenge in Challis (CO/3319/2020), challenging the exclusion from the scheme of persons infected with HCV after September 1991 (the date when routine HCV screening was introduced), is proceeding to a substantive hearing.

Fiona Scolding QC and Hannah Gibbs act for the Leigh Day Core Participants – a large group of infected and affected victims of the infected blood scandal.