11 July 2022: Francis - C

The issue about the age of a child in relation to the eligibility of compensation for parents had clearly vexed some people enough to press Counsel to seek further clarification. Unfortunately, the answer required the witness to go down the “a line needs to be drawn” route, and other parts of his explanation did not seem to be satisfactory, even if it is legally sound. That was just one associated topic people had raised concerns about. There were conditions such as child age differences, ill-defined estates arrangements, the potential for inheritance tax, and other variables. It is obvious this type of consideration is going to be an extremely challenging, hotly debated, occasionally divisive, and painfully retraumatising issue for the rest of the Inquiry. Sir Brian even got involved, and all that did was highlight the complexity of damages law and why it should be avoided yet is possibly going to be unavoidably encountered. It now appears to be even more of a big, missed opportunity, when there were calls from people who know about financial modelling for case studies to be created to test out how compensation might work in different scenarios, that these calls were ignored, again and again.

On Recommendation 6, there were questions about how panel members might be appointed. One key issue for the medical panel was a matter which had come up before, that of finding people who have not been involved in treating people who are the recipients of the scheme of compensation. Sir Robert commented that you can only get people from among who is available. So, people will face the same old same old. On the work of the panels to create the criteria (medical) and assign amounts (lawyers) to each criterion, the witness went on to describe what sounded like an increasingly assessment-orientated system. He even stated that it would require lawyers to guide people through the process. What was described is not what this writer had in mind for minimal assessment. The Chair intervened again to clarify how the early activity would involve the medical panel putting in a lot of time to set the tariff and levelling criteria, and then the legal panel in setting amounts related to each of these. Then, it becomes a matter of applicants being “assessed” (individually, but not involving a medical) to fit them into the framework. There will be a rush at the start from those already registered with schemes, but there was no satisfactory answer on how to deal with the rush period, in the view of this writer. After the rush, the unregistered people would have to undergo the actual assessment process to be accepted as eligible. Then it got worse.

Sir Robert mentioned how the 9/11 scheme managed to process about 3,000 people in about two years (that takes us to 2026, assuming it only takes a year for the setting-up work to be completed), but that case was not nearly as complex as the contaminated blood cases. This realisation was one reason why the witness thought the interim payments would allow people a reasonable amount of money to go to people until the full system was eventually worked through. He mentioned again that hopefully, if the “interim” amount was seen as sufficient, it might allow a fair number of people to consider they had had their compensation and draw a line under their claim. (You have got to be joking, Sir Robert. This is wrong thinking.)

Reference was again made to the self-assessment feature of the Scottish scheme. He saw self-assessment as an essential element of his framework, but he let slip his thinking that no scheme could include self-assessment without some actual assessment. There followed another legal wordplay which excluded many of the audience, especially around “exemplary damages” and “aggravated damages”. If ever there was an illustration of one big reason why the community of infected and affected people have not received justice, it is this part of the evidence of Robert Francis, a big-time legal person, having a discussion with two other big-time legal persons. So, get your medical records together, your legal papers too, and prepare to be humiliated, again. (Oh, we so hope not.)

On Recommendation 8, there was a review of the five “heads of award”. On this, some of the categories are not to be medically derived. The witness did give an example for stigma, suggesting that everyone infected and affected in one way of another will have experienced stigma, and so it could be a more standard award not requiring reference to lots of levels. This included the witness not splitting up the stigma component for HIV and HCV. This writer is getting more confused by this part of the evidence. After seeming to envisage an ever-increasing demarcation of tariff sub-categories, he then goes and lumps everyone together to achieve a one-size-fits-all heading. Surely, if one of the underpinning aims is to minimise assessment, the framework needs to lean towards pulling together as many possible sub-categories as possible, and then to ensure people can accept the lack of differentiation, it would require leaning towards a more generous allocation for each of these to maximise the number of people who would be happy to accept the amount for them and not require extended appeals, adversarial arguments, and pitting one person’s harms against others’. Was that not the main lesson from the 9/11 deal? Without the sufficiently high payment levels, it could all fall flat on its face. The egalitarian attitude can only be stretched so far. Just when many people thought they could see what the Francis Report meant so that they just had to cherry-pick the good bits for final submissions (the majority, maybe) and argue away the bad bits – or to put it another way, tinkering around the edges of a reasonably oven-ready, almost done deal – not so. Now it seems like a much bigger task is involved to deconstruct his Framework back to the underpinning ethos and assumptions, fix those weaknesses in the foundation, then fix or entirely replace some of the wings of the structure, complete the under-done stuff, then catch snagging tweaks before submitting to the Inquiry. But also, there might need to be a bit of rear-guard action to try to get as many people as possible to agree on key aspects. This work will sometimes be because of what Sir Robert said, and sometimes it will be despite what he said.