11 July 2022: Francis - A

Sir Robert Francis QC may not be the most well-known witness to appear before the Infected Blood Inquiry, but for the victim-survivor core participants, there will be few, if any, who’s appearance will be more anticipated.

He is the Chair of Healthwatch UK and Chaired the Mid-Staffs Inquiry after a long and established background in law (“taking silk” in 1992). Council reviewed the circumstances of Robert Francis being appointed as the “independent reviewer” to produce a Compensation Framework for those infected and affected by the Contaminated Blood Scandal. The then Paymaster General, Penny Mordaunt, had worked out a basic form for the Terms of Reference of the Study, after which the witness put it out to consultation. The resulting version was accepted in full by the Cabinet Office. Subsequently, the Paymaster General role was changed to Michael Ellis. It was confirmed that Sir Robert undertook his work entirely independent of Government (but this writer still holds some concerns over the Secretariat being provided by the Cabinet Office, which included all the note taking – a bit to close to be properly “independent”, and certainly able to keep an eye on the direction of travel). He was not given a compensation budget total to work towards, but “a blank piece of paper”. Given the fact that his report and recommendations were to be produced parallel to the Inquiry and before it has finished its work, it was an unusual task because some of the parameters were as yet unset. However, the aim was to have a structure in place so that once the Inquiry has concluded, any matter of compensation would not start from scratch.

The main consultees were the infected and affected, but the statutory bodies did seem to wish to go beyond their role of simply providing factual information on, for example, the existing schemes. The witness did not take on board any information beyond what he needed from them, however much they might have wished to have influenced his work.

Counsel then reviewed the circumstances at the point of the Sir Robert submitting his report to the Cabinet Office. The report was not immediately made public because the stated desire was to publish the report alongside the Government response. Sir Robert expressed his understanding as to the reason for the large gap, and the missing response from Government, but it was not a matter discussed with him. He said Counsel would need to ask the Government about the actual reasons. Counsel commented, “We will”. The witness had not been kept in the loop about developments related to the publication of the report since the point of him passing it over on 23 March. It was eventually published on 7 July, which was (coincidentally) as short a time as possible before the needs of the Inquiry and core participants in hearing from Sir Robert. (Surely there was no intention to minimised the time people had to read the report before the oral evidence sessions. It’s not like Government witnesses generally have been slow to make their evidence available … oh wait, it has happened quite a lot, actually.)

The matter of interim payments was raised in terms of the pressures of time for infected people due to the prevailing death rates. He called it a “compelling case” to make interim payments, with a minimum expectation of £100,000 per person as a reasonable amount. The motivation for including this recommendation was from his reading of the experiences of people, and the need to allow people to settle their affairs before they died. The witness had been influenced by the 9/11 case, which was set up very quickly. He also used the criteria he did because through the existing support schemes, things could happen very quickly. He said that if the amount of an interim payment for some people was sufficient for them, then they may not feel the need to seek anything more. For everyone else, it will provide a stop-gap amount to bring some level of security until the anticipated complexities of the infected blood eventual compensation settlement are worked out.

The evidence returned to the issue of what viruses were to be included. Basically, it is a focus on HIV and HCV, but not really for anything else. HBV may apply, but there was no sense of the issue of CJD notification being eligible in and of itself. The estates should be able to claim, and he increased the range of those who could make a claim beyond what is covered by the schemes. He included parents, children, carers (beyond them separately being parents and children), among others, plus a few special cases. He acknowledged how the variety of circumstances and family arrangements would bring some harder cases forward.

The types or categories of awards he listed go beyond what might be covered in court-based damages, and he felt this was justified. He recognised how these categories might overlap, for example, the Social Impact Award. He saw the Bereavement Award aligned to the Fatal Accident levels but knew these might be considered too low. Any compensation settlement should have the flexibility (i.e., opportunity for choice) to be either a lump-sum payment, or a periodic payment system. The Chair intervened to clarify how it is not simply an either/or, but it takes account of the need for periodic payments to be linked to changing circumstances. The witness gave his experience of the worries of people from other situations about the possibility of receiving a large lump-sum but making a bad investment arrangement to cover the rest of their lives. It might be better to allow the holder of the funds to take the investment risk, which protects the recipient as their periodic payments are not exposed to market fluctuations.

On the matter of how individualised each assessment should be, the witness reported the very clear view of the vast majority of people wanting to avoid more assessments, and so he recommended a tariff-based model with categories for the tariffs which people would fit within without needing to be assessed to receive it. The collection of their applicable tariff amounts would make up to the sum of their compensation. That is the amount which would then be either lump-sum or periodic. Sir Robert had suggested a levelling of impacts per tariff towards “serious, moderate, and minimal”. All this was at odds to the oft-cited Ireland model, which did focus on a much more individualised assessment approach. Some tariffs would not require to be split into levels since the experiences were not sufficiently different or able to be quantified since they did not equate to a money amount, but say, a suffering amount. Many of the items covered in the first session overview were to be re-visited over the course of the two days of giving oral evidence.

There is a suggestion to have two panels, medical and legal, to help with categorising people into levels within tariffs. Sir Robert explained how lawyers had become increasingly able to use precedent and published guidance to come up with equivalences. After any reference to the panels, should someone feel they are still not satisfied, there would be some kind of review systems. He thought it would be in everyone’s interest to stay as far away as possible from the courts. His recommendation was to set up an “arms-length body” (ALB) to administer the compensation scheme, which would be separate from Government.

The actual Recommendations (19 of them) were quickly reviewed by Counsel to check there was a general/common understanding about what they meant. Sir Robert had sought to draw a relationship between his bespoke scheme and common law settlement amounts.

Before dealing with each Recommendation, Counsel returned to the “moral case” for compensation as the witness stated there is. One of the special features of this case, whether or not they include fault, was that all those infected have had their injuries inflicted by the State. Further, the way the State had sought to avoid dealing with the matter, had made things far worse, especially since it had probably been avoidable in the first place. Many of the delays by Government were based on the need to avoid liability, rather than concentrating on the moral case. The John Major comment that “It should never have happened”, was seen as an admission of having a responsibility to respond morally, regardless of whether or not negligence was involved. Before breaking, Sir Brian sought a clarifying comment on the recommendation of setting up an ALB, given the issues with, for example, the Macfarlane Trust. The Chair asked if the Courts and Tribunal Service has been considered a suitable option to fill the role of the ALB. The witness was not convinced the Tribunal Service could provide the kind of care and support required by this groups of people. It may have a role in any appeals process.