28 July 2022: Chisholm - A

Malcolm Chisholm came as a former Health Cabinet Secretary in Scotland to the Infected Blood Inquiry on World Hepatitis Day. He appeared in an open-necked shirt, which was unexpected. He started his working life as a teacher, but his class size quickly rose when he became an MP for a nice bit of Edinburgh and had to head off to Westminster. He spent a short time as one of six Scottish Office Ministers. He double-jobbed for two years as a MP and MSP in the new Scottish Parliament. He held various roles in the Scottish Executive. (Note: the Scottish National Party later forced a name change to “The Scottish Government” which for years meant that some people in Westminster said Government while others doggedly stucj to saying Executive.), He eventually became Minister (or rather, Cabinet Secretary as it is called in Scotland) for Health and Community Care under the third First Minister, Jack McConnell. Mr Chisholm was not asked to give evidence to the Penrose Inquiry. (Why?)

As a member of the Scottish Cabinet, he covered Health and Community Care. There were either two or three Ministers at any one time. During Susan Deacon’s time as Minister, she had the main responsibility on blood issues. When he was Minister, blood was his responsibility. Both Ministers and Junior Ministers had private offices with two or three staff. Most staff were drawn from the pre-Devolution Scottish Home and Health Department (SHHD). He had experience of working with officials both before and after Devolution. He did not see much of a difference after the change, but there was somewhat more scrutiny and activity given the added powers under Devolution. Some of the officials from the Deacon period were still in post during his own time. While still being an official, the Chief Medical Officer (CMO) was different from other civil servants. Those medical persons had more independence and power to make decisions, particularly medical decisions. “They had more freedom to act on their own,” he said. He did not meet with the CMO too regularly. Aileen Keel was the lead officer for blood throughout this period. It was easier to meet with officials since they tended to be in the same building, unlike at Westminster.

There were not many reasons to link to the Scotland Secretary in Westminster during his time in Holyrood. Similarly, only occasional meetings with UK Health Ministers. There were roughly annual meetings of all the four Health Ministers. There was information sharing between the nations, but not too much pressing for alignment that he could remember. He had no direct links to the Treasury. The money for Health in Scotland was received out of the block grant from the Scottish Executive given to it by Westminster under the Barnett Formula. His links were with the Finance Cabinet Secretary, who at the time was Andy Kerr, who would later take over as Health Minister. Civil servants even in Scotland are still part of the UK set-up, but it did not create tensions in his opinion.

Counsel asked if Mr Chisholm had any expectations for Devolution. He was very hopeful of a more central role of the Committees and the ability to be more effective with powers not previously available to the old Scottish Office. Health was wholly devolved, and this sometimes attracted criticism from Tony Blair due to the different line taken by Scotland. The Devolution aim was for greater partnership and consensus, which may have happened, but it might not be so obvious nowadays. Committees had more power and had routes to challenge Ministers if they disagreed with their decisions. There were no separate “Subject” and “Bill” Committees, as these functions were combined in Scotland.

Calls for support for infected people and a public inquiry mainly came about by petitions from the public. There was a specific Petitions Committee in the Scottish Parliament. These petitions were referred to the relevant Committee. The Committees were cross-party and had various very able people including two medical professionals and someone who would go on the become First Minister (Nicola Sturgeon). The considerations of responses to the infected blood petitions were left until after the Susan Deacon independent investigation. He did not see them as closed issues due to the ongoing interest by the relevant Committee.

After the Deacon investigation had concluded, the report published by the Health and Community Care Committee (HCCC) came out in 2001. It referred to the two petitions. In relation to the negligence question, it used the Deacon investigation to justify that there was no case, but the Haemophilia Society were noted as having criticised that report, yet the Committee believed the SNBTS arguments against negligence noting that there was limited evidence. On the calls for an Inquiry, the Committee did not support that. And on the calls for financial assistance regardless of negligence, the Committee highlighted the “moral case” balanced against the policy not to make payments where no negligence was proved. The Burton Ruling was given as an example of an exception, as was the Macfarlane Trust’s establishment. The anomalies about access to Legal Aid were mentioned as an inconsistency and the need for a principled approach. The Committee came to “a narrow view” due to the unique issues. They decided that there should be financial support.

The witnesses’ response homed in on the narrowness issue, on the (apparent) lack of negligence, and on the aim to avoid a precedent. The main “flagship” recommendation was the call for payments, but rather than just go with that, the Scottish Executive set up the Lord Ross Expert Group. He did not see this as “slamming the door” to financial help. He knew some people thought the Expert Group was a delaying tactic, but for him it was to provide the justification and the amounts that might be involved, since the Committee had not specific these aspects. The original thinking seemed to be towards regular payments but ended up as lump-sum payments.

Mr Chisholm made recommendations to the Scottish Cabinet. The precedent issue was pushed into the “narrow” bracket to minimise financial exposure. (Here, “narrow” seemed to be an alternative for “ring-fence”.) He had only been in post for three days, so cited his use of the same wording used in the previous report from Susan Deacon. (So, clearly this paper to Cabinet was civil servant-led. He was accepting the line to take.) He acknowledged how there were different views about the seriousness of HCV. The Burton Judgement saying testing should have been introduced sooner was controversial then, and he said it may still be. The Chair intervened to clarify what precedent meant. Sir Brian said a precedent was comparting “like with like”, but surely this was comparing unknown risk with known risk, so precedent did not apply. “It was just the question of logic”, said the Chair. This point could easily be missed as to its significance. The challenge by the Chair to the precedent argument has far greater ramifications than just the situation in Scotland. Watch that space.

Basically, the Committee recommendations were rejected in terms of payments, but this was given over to the Expert Group. Interestingly, this matter was referred to the three other administrations for comment. England and Wales were supportive of Mr Chisholm’s response while Northern Ireland did not respond, so it was taken as a yes. “This is just what the officials did”, he said without wishing to seek to justify why they involved the others. In his view, the Scottish Executive view “just happened to be the same” as the other nations, but later it would be seen as different when it came to the witness deciding to go against what the UK Government wanted to happen about making payments.

Writing back to the Committee, the displayed document said they wanted to avoid creating an expectation for people who may suffer from a new virus or illness that money might be available. He did see (at the time) that the HIV case was different from the HCV case, mainly because the expectation of death due to HIV, which was not the case with HCV (then). They were “keen to help” but needed criteria which was transparent and equitable rather than ad hoc. He said they were not rejecting the case for financial support, but they wanted clearer equitable criteria if they were to do it. The witnesses’ view was that the Committee, while not being overjoyed at the decision, did welcome the response to set up the Expert Group.