Cabinet office to oversee contaminated blood inquiry

03 November 2017. Published by Emma Kislingbury, Senior Associate

A statutory public inquiry is announced into how contaminated blood transfusions infected thousands of people with HIV and hepatitis C in the 1970s and 80s.

After years of campaigning by victims and their families, the government announced in July that a full inquiry would take place into how thousands of people were infected by contaminated blood transfusions in the 1970s and 80s.

It has now been confirmed that the Cabinet Office will oversee the inquiry, after campaigners raised concerns regarding the independence of the Department of Health.

Many of those infected in the 1970s and 80s were men suffering from haemophilia, who were given "factor concentrates" taken from blood plasma. Much of the contaminated stock was imported from the US, where drug companies allegedly paid prisoners and drug-addicts to donate their blood.

Following a public outcry, in 1988, the UK government set up a compensation scheme for those affected. All those who received compensation signed to waive their right to pursue any future legal action against the government. Many expected to survive only a few years and therefore pursuing legal action was not high on their list of priorities. Litigation was pursued by a number of claimants against the National Blood Authority, in what proved to be a leading case on the meaning of defect under the Consumer Protection Act 1987.

At the end of 2015, the Department of Health was presented with a detailed report requesting an increase in the annual support available to the remaining victims. In September this year, the High Court granted a group litigation order allowing surviving victims and relatives of those who have died to bring proceedings against the NHS.

It is believed that around 2,400 people died as a result of receiving contaminated blood and many feel that a full investigation is long overdue. When announcing the inquiry in July, Theresa May acknowledged that those affected "deserve answers as to how this could possibly have happened". Investigations will, of course, take time, and we expect that it will be a number of years before a full report is published (a £1.24m investigation in Canada took five years to complete).

The investigation is likely to scrutinise the role played by the NHS – what was known, when, and by whom. Labour MP Diana Johnson has stressed that the statutory inquiry must "use its full powers" and not be "inhibited in its functions by the possibility of criminal liability being inferred”. In April, Andy Burnham, Mayor of Greater Manchester, referred to there being evidence of "a criminal cover-up on an industrial scale".

Companies involved in the making and/or distribution of blood products at the time will likely also face questions; in February 2015, following Canada's investigation, a trial began in Toronto against a pharmaceutical company and the Canadian Red Cross, alleging criminal negligence causing bodily harm and endangering the public. If litigation does proceed in the UK civil Courts, Defendants may seek to rely on the development risks defence in terms of what was known / knowable at the time. It will be interesting to see whether any decision follows the National Blood Authority case.

Anouncement on the terms of reference for the inquiry is expected before the end of the year and we will publish an update in due course.

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