11 July 2022: Francis - B

The oral evidence went back to the Report submitted by Sir Robert and reviewed the “Principles” listed for a scheme of compensation. Counsel sought to understand why these had been received and included. The witness had recognised the strength of the messages from people and their representatives about the way they had been treated, including the lack of respect, lack of choice, lack of being included, and more lacks (if that is grammatically or semantically possible). An additional principle had been suggested to Counsel that the scheme be “properly funded”. The witness recognised how important that would be, given past problems with schemes. It would not be possible to calculate an exact final amount, because there would be some open-ended matters, but overall, the budget set aside should be sufficient.

He agreed how he had leaned more on the comparable legal framework aspects of England and hoped that the way he had done that worked across the four nations. The Scottish differences will be a topic for later in the evidence. Counsel asked about other schemes to inform the witnesses’ thinking, and he gave the example, after mentioning others, of New Zealand. Many schemes may have elements which could have informed the Study, and several did.

On Recommendation 2, the line of questioning initially focussed on the general exclusion of Hepatitis B apart from a small number of chronic and more seriously impacting cases. He did not access independent medical expert advice, so he has noted the need to review this exclusion at the end of the Inquiry in case there were reasons to change the recommendation. The witness mentioned incidentally, how in his meetings with infected and affected people, nobody brought up Hep B issues. Counsel reviewed some of the detail related to HBC impacts, and clearly there have been submissions to Counsel prior to Sir Robert’s appearing before the Inquiry. These sought to establish how HBV was not sufficiently different from HCV to justify its general exclusion. The next issue raised with the witness was in relation to vCJD. The Report does not allow for anyone notified of the possible exposure to vCJD to have an automatic access to a tariff for that viral risk, but it might fit with a different suggested award due to the stress, etc. associated with receiving a warning letter of possible exposure, especially in the context of all the other factors people may have suffered in relation to infected blood. Sir Robert said he may well be wrong, but he mentioned how there had to be a distinction, for example, between actual exposure followed by infection, and possible exposure but with no way of knowing of an actual infection.

On Recommendation 3, the questioning began on the matter of the automatic qualification of people for the new schemes due to their prior acceptance on to a prior scheme. (This writer may have been reading too much into the engagement between witness and Counsel, but it felt like a slight degree of needle was coming into the exchanges. There had already been reference made to “typos” in the report, but when it came to seeking clarification on the details of meaning to be drawn from the wording used, it felt a little spikey.) The matter of “avoidability” was explored, and it was clarified that this was not to be applied individually but collectively. This concept seems closer to a potential charge of actual negligence than for other aspects of the evidence. Sir Robert apologised for including a cut-off date which was not backed up by the relevant bodies to whom these dates are significant.

On Recommendation 4, the witness felt to mention how well the Scottish scheme was working based on self-declaration on the severity of the impacts of infection. There was reported to be no evidence of fraud through this approach. The starting point should be to believe people, while not totally assuming every new person coming forward was automatically eligible. In these cases, some checking had to go on to avoid abuses to the scheme, but this should not result in people having to prove everything unless there is a good reason to require some confirmation of what people had said. Another example of difficult circumstances related to people who were convinced they had been infected by whole blood after the date when implicated blood was supposed to have been removed from the stocks. This is an example of when a person should enjoy “the benefit of the doubt”, while checks can still be carried out as far as it is possible. Those who naturally cleared a virus still have a place in the scheme, but the level of impact on them will be less than for someone who experienced a lifetime of detriments. This was a justification for not keeping the tariff to a simple case of “if you were infected then you qualify for full compensation”. (This writer can see the logic, but that ought not to be used to justify an ever more complex grading system which slides towards increasing amounts of assessment. Question: When is a tariff not a tariff? Answer: When there are so many sub-categories to require doctors and lawyers to do the calculations for everyone.) Beyond direct viral impacts, the same expectation of believing people should exist in relation to the side-effects of the anti-viral treatments.

On Recommendation 5, it was clarified that this included former partners or spouses. The starting point for eligibility could only be if the relationship was happening at the time of the infection. There was a difficult silence in response to the assertion that the harm to a child under 18 was automatically more serious than to a child of the infected person when that child is over 18 but still that person’s child by reason of relationship. Similarly, there was awkwardness related to eligibility afforded to parents which would be different when the age of the infected child is under 18, to a child over 18. Then it went to grandparents and their not having an automatic right to compensation through the scheme, and that seemed to not be too well received by the room. The witness said those words “you have to draw the line somewhere”, which unfortunately is very similar to some recent Government witnesses who were justifying the ring-fence, for example. With respect to caring, the level of that was discussed, with it being seen as automatic for parents to be carers, but where others were caring for an adult infected person, there needs to be recognition of the degree of personal care and the time involved in giving that care. However, there was no mention of the losses of the carer who may have given up a much higher-paying job to become the carer.

This session became increasingly a matter of drilling down on the detail of the Report. Some parts had obviously raised major concerns for people and the least these people wanted was answers, clarification, or justification. There were also parts of the Report they disagreed with to the extent that they clearly wanted to see it changed, or see Sir Brian change it through his final report.