Infected Blood Inquiry Final Report Published

The Infected Blood Inquiry has recently concluded, with Sir Brian Langstaff (the Chair of the Inquiry) publishing his Final Report on Monday 20th May 2024.

The Infected Blood Inquiry is a UK-wide public inquiry, established in 2018, which sought to investigate the circumstances surrounding NHS patients being treated with infected blood and blood products from 1970s onwards.

This article considers:

1. The brief history to the Infected Blood Inquiry;
2. The summary recommendations in the Final Report; and
3. Recent announcements on the new Infected Blood Compensation Scheme.

The Drummond Miller Medical Negligence team in Glasgow can assist with any enquiries regarding applications to the new Infected Blood Compensation Scheme.

History

Blood products are used as treatment for a range of NHS patients, including those requiring blood transfusions and those with haemophilia or other blood clotting disorders. In the 1970s, the NHS could not meet demand for blood relying on its own supply from within the UK. It therefore sourced around 50% of its blood and blood products from abroad, including from the United States of America (the USA). Where we now have a system of donors voluntarily donating their blood, the USA previously paid donors to give blood, which attracted groups of individuals at greater risk of carrying infections such as hepatitis B, hepatitis C or HIV. Blood was also donated from prisons across the UK, where donors were also at greater risk of having these same types of infections.

Blood was initially not screened for the viruses. Blood services only began routinely screening for hepatitis B in 1972, for HIV in 1985, and for hepatitis C in 1991.

This practice of collecting and distributing blood and blood products led to around 1,250 people (including children) being infected with HIV. Around 27,000 people were infected with hepatitis C. A small group were also infected with variant Creutzfeldt–Jakob disease (vCJD). Unfortunately, the numbers of people infected with hepatitis B through blood/blood products are unknown. Over 3,000 people have died as a result, and thousands live with ongoing and often debilitating health conditions.

There have been many groups campaigning for decades for a thorough investigation into the circumstance surrounding these events, with previous investigations including:

• HIV and hepatitis C related court proceedings in 1980s-90s – which were criticised in Sir Brian Langstaff’s Final Report, where he found that the Government and other defendants created undue pressure on plantiffs to accept settlement terms that did not adequately compensate them and also compelled them to sign waivers to bar them from future litigation.
• Destroyed-evidence investigation 2000 – an internal government audit which examined the loss of records relating to hepatitis C litigation.
• The Archer Report 2009 - a privately funded independent investigation into the infected blood disaster. The report held no official status, and was widely limited on resources.
• The Scottish Penrose Inquiry 2008-15 – a Scottish-wide public inquiry into the circumstances surrounding these events. The inquiry only published one recommendation at its conclusion:

“That the Scottish Government takes all reasonable steps to offer an HCV test to everyone in Scotland who had a blood transfusion before September 1991 and who has not been tested for HCV.”

In 2017, the Prime Minister at the time announced a UK-wide public inquiry into the circumstances surrounding events in which NHS patients across the 4 nations were treated with infected blood and blood products – the Infected Blood Inquiry.

The Inquiry officially opened in 2018 and hearings lasted from April 2019 to January 2023, under Sir Brian Langstaff. The Inquiry published detailed Terms of Reference and a List of Issues it undertook to investigate. During the oral hearings, evidence was heard relating to many topics, including:

• The infected patients’ (the infected) experiences, as well as their family and carers’ (the affected) experiences;
• The knowledge of risk and response of Government and senior clinicians and public organisations at the relevant time;
• The adequacy of the knowledge being communicated to the infected and affected groups;
• The adequacy of treatment, care and support provided to the infected and affected groups, including psychological and financial support; and
• The actions of successive governments in investigating events.

Significant to the case for financial compensation, the UK Government announced in May 2021 the commission of an independent study, which was to be conducted by Sir Robert Francis KC on a possible compensatory framework for the infected and affected groups. This independent study ran alongside the investigation work of the Infected Blood Inquiry. On 7th June 2022, Sir Robert Francis’ published his report which recommended a possible compensation model that provided interim payments to those infected and affected groups.

Sir Brian Langstaff’s Interim Report summaries

Before the Inquiry concluded, Sir Brian Langstaff published 2 Interim Reports in respect of compensation for the infected and affected groups. On 29th July 2022, Sir Brian Langstaff recommended that the Government follow Sir Robert Francis’ recommendations in his independent report – to make interim payments to those infected and affected “without delay”. He said payments should be made to people who were infected and bereaved partners currently registered with NHS support schemes and “those who register between now and the inception of any future scheme”. The Government accepted the recommendation and interim payments were initially made in October 2022. On 5th April 2023, a second Interim Report was published, where Sir Brian Langstaff acknowledged the ever increasing mortality rate for those infected and recommended that interim compensation payments should be extended to bereaved parents, children or siblings of infected people, with a full compensation scheme to be set up and begin work in 2023.

Final Report summary

Sir Brian Langstaff’s Final Report was published on 20th May 2024. It reported “a catalogue of failures” which caused patients to be infected and confirmed that the suffering could “largely, though not entirely, have been avoided”. This “catalogue” is summarised on pages 3-7 within Volume 1 of the Final Report.

Sir Brian Langstaff reports that the virus responsible for hepatitis C was not identified until 1988 but that it was apparent since the mid-1970s that non-A non-B hepatitis (later known as hepatitis C) was responsible for the majority of post-transfusion hepatitis cases and that both hepatitis B and C may have serious long-term consequences for patients. He reports that it was apparent by mid-1982 that whatever was causing AIDS may be transmissible through blood or blood products. This is in direct contradiction to statements made by Government officials at the time, who continued to assure the public that there was “no conclusive proof” that AIDS was being transmitted through blood or blood products.

Some of the Final Report’s findings included:

• The successive Westminster governments failed to invest in making the UK self-sufficient in producing its own blood and blood products, which resulted in the UK having to rely on blood donations from abroad, which increase the risk of infections being present in the blood supply;
• There were failings to ensure a rigorous donor selection and screening process;
• There were failures by senior clinicians to consider alternative treatment options, which were viewed as having reduced risks of infections being transmitted;
• Risks were known about HIV as early as 1982, however, it took until 1985 to introduce safer blood products;
• Patients were not informed about the known risks of their treatment, nor were they offered suitable available alternatives;
• Patients were tested for hepatitis and HIV infections and also researched upon without their consent;
• There were unreasonable delays in communicating diagnoses to patients or the manner in which they were told of their infections were often inappropriate;
• The exercises for tracking down those with hepatitis C or HIV infections occurred too late or were inadequate;
• Previous investigations were inadequate or, at worst, obstructive, where it was found that some relevant documents were deliberately destroyed by individuals;
• There have been failures by successive governments, the NHS and other public organisations to acknowledge their wrongdoing by failing to provide any meaningful apologies, redress or compensation;
• There is currently a lack of support in all avenues, including counselling, financial, palliative care, etc.; and
• The previous financial support schemes established across the 4 nations were not fit for purpose and did not adequately compensate the infected and affected groups.

Some of the Final Report recommendations included:

• The immediate setting up of a robust compensation scheme;
• Public recognition, including a formal and “meaningful” apology;
• Permanent memorials across the 4 nations;
• Funding for support events for the Infected and Affected groups;
• The incorporation of the Final Report’s findings in UK medical training.
• ‘Duties of candour’ placed on UK public organisations should be reviewed or strengthened;
• The “defensive culture” in the NHS, the Civil Service and the Government should be ended;
• Patients with hepatitis C should receive certain care related to liver damage, including regular scans and annual clinical reviews;
• Transfusion labs should be adequately staffed and resourced;
• Health services should do more to find undiagnosed patients;
• If there is “sufficient support” for a public inquiry in Parliament then it should be referred to the relevant committee to make a recommendation to the minister to announce one.

It is fair to say that the Infected Blood Inquiry’s Final Report went extensively further in its recommendations and criticisms of previous governments and public organisations, in comparison to the previous investigations.

The current Prime Minister made a statement to the House of Commons on 20th May 2024, shortly after the Final Report was published, noting it to be “a day of shame for the British state” and issuing a “wholehearted and unequivocal apology for this terrible injustice”.

The Infected Blood Compensation Scheme

On 21st May 2024, the arrangements and directions for the new compensation scheme were announced. In summary, the proposed scheme will work as follows:

• It will be open to those infected and affected who are eligible – to include the infected deceased’s estates; partners; siblings; children; and friends and family who has acted as carers for the infected group.
• It will be UK-wide, operated by an independent arm’s length body called the Infected Blood Compensation Authority (IBCA).
• It will be a tariff calculated compensation system, however, there will be opportunities for bespoke assessments to ensure appropriate compensation awarded.
• Compensation will not affect a person’s eligibility for means tested benefits.
• Compensation paid through the scheme will be exempt from tax.
• Compensation tariffs will be informed by awards in Courts and Tribunals but not limited by them.
• Compensation will not remove any right a person has to pursue a claim in court. However, there is an expectation that compensation awards made through the scheme would be deducted from any award of damages, to avoid any question of double compensation.

Time limits

• For people diagnosed with an eligible infection before 1st April 2025, the scheme will remain open to applications for 6 years, until 31st March 2031.
• For people diagnosed after 1st April 2025, the Scheme will remain open to applications for 6 years from the person’s date of diagnosis.

The new compensation scheme should have no immediate effect on final payments already paid out through the 4 nations Support Schemes (IBSS, SIBSS, etc.). Payments will continue through these schemes until 31st March 2025 and any further compensation awarded through the new scheme will not be deducted if payment is received before this date. However, it has been recently stated that any past or future interim compensation payments will be automatically deducted from awards made through the new compensation scheme.

The Government has also announced that interim payments would be delivered within 90 days and that the expectation is that final payments will start before the end of the year.

The Victims and Prisoners Bill has created the new IBCA. The regulations in relation to this new legislation are expected to be made by 24th August 2024.

If you or a family member have an enquiry about the Infected Blood Compensation Scheme then please contact MedNegDM@drummondmiller.co.uk or call 0141 332 0086 to discuss whether you may have a claim for compensation with our specialist team.