12 July 2022: Francis - C

The expectation of there being lots of questions for Robert Francis from core participants was not wrong:

On eligibility and cut-off dates, maintaining the criteria, and the need to make sure nobody was worse off; he said that if there was a changed date, that would have to be reflected in the scheme, but this would come from the Inquiry.

On Hepatitis B potential disparity; he said it is based on a value judgement and a more detailed analysis could be required.

On losses and pensions; he said he would see no reason why pensions are not included as a loss element.

On interim payments eligibility for those not currently being on a scheme; he said their exclusion would be the case, but if the schemes are dealing with new applications, that might apply to those newly registered people.

On the scenario of the death of an applicant during them making their claim; he said there would be a change but would hope it would be made in the least difficult way, and since it was not a legal case, it could be more flexible and humane.

On the current schemes including tissue transplants; he said he did focus on blood and blood products because that what people spoke about, but he could see no reason why these others could not be included.

On the affected who have been campaigning for decades; he said their specific impacts could be included as part of the Autonomy Award.

On a higher rate of interest for the campaigning-relevant people; he said “no”, interest is not the way to do this, it is more of a punitive issue and the Inquiry will help to determine that.

On the Arms-Length Body and any examples; he said there was not an ALB that has not faced criticism of some form but he could not name one too like what he has envisaged.

On the consultation related to Hep B; he said he did not remember it being spoken about, but one letter came in after the report was completed.

On not taking into account the previous ex gratia payments in the compensation framework, but not extending that to other settlements; he said if money was a compensation payment it should be accounted for, but in the case of a settlement it would need to be dealt with on a case-by-case basis depending on the relevant aspects in each settlement. It was recognised as a particular challenge. Small payments are described as “nuisance payments” (rather disparagingly) since these would likely be a way of avoiding a full court action. As a matter of proportionality, any need to seek to work out an amount for a past sum could interfere with the desire to keep things simple and “broad brush”. Smaller sums might not be an issue, but significant (ie. six-figure sums) would need to be checked to avoid double payment.

On cases of multiple infections as a multiplying factor; he said yes it would be taken into account while maybe not resulting in a straightforward doubling each time, but some kind of proportionate increase above a single infection would apply.

On the case of elderly affected widows/widowers seeking to sort out their personal affairs before their death (after the previous death of infected partner who could not complete that for themselves); he said he had every sympathy for people in that type situation, but the mechanism for quickly and practically including them in interim payments will not meet the aim of doing it as easily and quickly as possible. Counsel pointed out the fact of such people already being registered, but the witness still did not see it working without adding to the processing needs. He recognised that if Government did accept the need for interim payments and could fit in bereaved partners, he would be the first to welcome that.

On mitigation of loss from caring; he said he was not seeking to mitigate loss, rather his thinking was to gain a degree of parity for the care efforts of people.

On the affected partner being the primary earner then (unpaid) carer, could the losses of the infected person be based on the lost income of the higher earner who had to give up working; he said he saw this way of presenting things as probably not attracting support in a court-based setting. With the intervention of the Chair, this was seen as more of a case of the reasonableness of the care costs and making that the basis for recognising the lost income of the person doing the caring. The witness was not without sympathy on this matter, but he recognised how the cost of care via a common law setting was usually tied to the normal costs of providing care using commercial rates.

On the claiming of future financial losses, how would the question of life expectancy be covered; he said he thought it would be based on the average life expectancy figure.

On the “lost years” issue; he said it was probably an unhelpful element due to the considerable calculations involved which did not always result in much of an amount of money, so it would probably be better not to try to include it specifically, but to factor it in under the broad brush tariff approach.

On the use of the median wage as a benchmark or standard with a 5% increase, would it be the median wage plus 5%, or a 55% figure; he said he had meant the 5% addition.

On the payment for future earnings looking like a lump-sum only arrangement; he said it was open to being paid on a periodic basis and so a matter of choice.

On the case of those whose predicted circumstances changed at some point, and how that would be managed; he said the time of doing the predictions would be the key point in calculating amounts.

On some updated information to references sources; he said he couldn’t keep up with all the changes.

On the cases of stigma, the time period involved, the severity of actual attacks; he said he recognised the difficulties of splitting up peoples’ experiences of stigma, he felt there was a strong case of having a standardised figure because people vary in how well or not people deal with stigma-derived attacks, and the more stoic folks should not be penalised for that.

On the cases of people not having children, or not having more children as a loss potentially extended to estates claims; he said yes that would be included in the calculations.

On those who “cleared” the virus; he said there was a moderate  award for them, and interestingly, he added that all infected people who has cleared (including by anti-viral treatments) might well benefit from the Inquiry recommending regular ultrasound and other checks even though they had a sustained viral response.

On the example of a sibling having to watch a brother suffer and die, and then ask frightening questions about their own lives; he said there would be an option for an award from the harm of having to witness the suffering of an infected person as an affected person.

On two parents having a claim on a bereavement award; he said there would be a single award for the cost of a single burial, but each person would be able to make a separate claim for the loss of the dead infected child.

On the possible disputes within families over estates; he said it may be a matter for referring to what was in a will, or dealt with under normal intestate situations, but it would not be for the scheme to arbitrate.

On those not warned of a blood transfusion risk; he said including them would involve too many people to be manageable.

On the holding back of children from educational and other opportunities; he said there would be provision under the various Heads of Award to cover for these types of losses.

On the unique experience for this cohort of receiving a public health risk of vCJD notification, regardless of the likelihood of it translating into active vCJD being small, while the impact of that happening being high; he said there is not a “free-standing” award in his model for a vCJD notification, but there are options under the listed Heads of Award.

On the loss of services element; he said there is capacity, for example, related to the loss of parenting which can be included under the scheme.

On the trust issues requiring collaboration to get to the settlement amounts; he said there will likely be some concerns and that is why he has built in an appeal process. He said there could be money to cover the cost of lawyers to advocate for individuals, but he hoped that would not be necessary for the vast majority of people because they would be happy to go down the tariff route.

On support services in the case of people receiving large lump-sums; he said the provision of independent financial advice was not unreasonable as a cost to be funded by the scheme, at least to some extent.

On aspects of the law in Scotland and the “highest common denominator” concept; he said he did not think it would count as a loss to a Scottish person if a UK average was used, but the legal panel should be aware of this issue.

On the financial losses suffered by parents of an infected child, such as the need to move, the loss of jobs, a marriage break-up, etc. all as a result of their children’s infection and sometimes death; he said he was aware of these types of cases, but to list each circumstance would take the whole process back to being more like the Irish model of individual assessment, and that would likely result in some of these losses being disregarded altogether. The aim of most people had been for a minimal or no assessment model, which would require compromising on detailed considerations and be a benefit in terms of the speed and less traumatic process.

The Chair asked about the scenario of the Government possibly not accepting the proposal to establish a shadow scheme allowing the panels to do early work in anticipation of the period after the end of the Inquiry. Sir Brian foresaw a point at which there would be an immediate rush from everyone automatically eligible to seek a compensation settlement. He wanted to see if the witness could estimate how long it would be to establish the scheme from a standing start with the double challenge to achieve both the panels’ initial work and dealing with the first big batch of claims. The witness had to qualify his answer by recognising, for example, the significant differences of the Irish scheme and its set-up. In short, he did not know, but he expected it could take a considerable amount of extra time. He had previously floated the idea of a two- or three-year period. Sir Brian said this would certainly support the proposal for making interim payments. Sir Robert added that this possibility would also greatly lend support to the usefulness of minimising the assessment elements by seeking to have as few sub-categories under each Head of Awards as possible, and so achieve a reasonable compromise through the tariff model. It is a “trade-off”, he said.

The witness reflected on, and expressed gratitude for, the involvement of infected and affected people in yet another consultation exercise which might raise further their expectations and cause additional re-traumatisation. He acknowledged peoples’ suffering as well as their dignity as he engaged with them.

The Chair thanked the witness for his evidence. He mentioned how Sir Robert had generated more core participant questions than any other witness. This was seen as an indication of the high level of interest in his evidence and the significance of it to the outcome of the Inquiry.

Looking back over the two days of evidence produced a mix of thoughts and responses. There was no doubting the competence or qualification of the witness, or the complexity of his task. This writer reflects back on the role of the Cabinet Office and questions their potential for managing expectations by the way the Terms of Reference were first drafted, by the surprise disclosure that Sir Robert was not asked to suggest actual amounts for the various losses and harms which people did not know about until after the process had started, and by the fact of his Secretariat support being provided through a Cabinet Office official. While the overall aim was that nobody would be worse off, that is cold comfort for those who have nothing to loose because they have received nothing – thinking of the majority of parents, children, among others. The case of widows still feels like an add-on afterthought, and carers are just not valued adequately. This writer recalls the initial discussions with Robert Francis including his recognising how he would not be able to please everyone. And he was not wrong about that. There was also the awareness of him having the opportunity to do things differently, and in particular, not being tied to legal frameworks as a limiting factor. However, it seems the legal precedents issue is still haunting the Contaminated Blood Scandal victim-survivors. Whole categories of people and whole areas of harms are still excluded or minimised by the Francis model, with the restrictions always referring back to what would or would not be permissible in a law court. This could have been a chance to “think outside the box”,  but that box was captured within a ring-fence, so the prospect of free-thinking innovation to achieve the best outcome was squeezed into a sphere of managed options. However, it is not all doom and gloom. Indeed, there are opportunities arising from the model as it is coming to light which we can work with. Then perhaps, we might adopt the long-game strategy of the lawyer mentioned by William Waldegrave of willing the war one battle at a time. First, they pushed it as far as the system could tolerate for the haemophiliacs. Then they pushed it on behalf of the transfusion patients. Since then, there have been some small and the occasional big victories. Yes, the pace has been tortuously slow at times, and we have suffered many casualties. For that the system and those who control it stand accused. So, there are some very helpful take-aways: the retention of the hard-fought-for financial support payments, the disregard of past schemes payments when calculating compensation, the possibility of interim payments, the proposed uplifts to enhance the median markers, the non-financial provisions, and the support measures to help people engage effectively with the compensation claim process, to name a few. Some will be quite happy, some will remain angry, some will be uncertain about what it all means, and some will seek respite in the safety-zone of healthy scepticism. This is not a done deal. Sir Brian Langstaff will have his own response, with all he has learned over not just a five-month consultation, but five years of detailed investigation. We live in hope.