28 July 2022: Chisholm - B

The Interim Report of the Ross Expert Group was displayed. It contained various recommendations, including a variety of financial and non-financial matters. Basically, they were proposing financial support at three levels. The witness said they had failed to come up with criteria, as had the Committee, so it would then have to be an “ad hoc” arrangement. There was a weird incident of the Chair having to interrupt the witness in his flowing answer to get him to slow down, not least for the sake of the stenographer. During his occasionally longer answers, Mr Chisholm sat in his remote room staring ahead to some point in spaces without looking down at notes. Given his flow of words, it was a fairly impressive exhibition of memory capacity. Maybe that was helped because he did not seem to be trying to spin a line, but just tell the story as far as he remembered it.

He was asked why, after having appointed such a competent group of experts, the Scottish Executive did not simply accept the recommendations in full. He lauded the role of Expert Groups, but suggested their flaw was that they had no recognition of the other financial pressures on Government. (Surely this is part of the point and the problem. If there is a need as independently assessed, the money has to be found, or the response is intrinsically unfair or unjust.) The main issue was the difficulty in defining exacting criteria for distinguishing between levels of seriousness of impact. This was the crucial point due to the scope of the implications which produced a very wide range of possible costs (from £11milliom to £265million).

Another issue was the projected numbers of patients involved. There were many assumptions and variables at play. Basically, they took number from England and did a general ratio calculation to come up with numbers for Scotland. These numbers were highly suspect, without criticising the person producing them. There had not been any attempt in Scotland to measure the damage caused by infected blood. That fact is worthy or criticism.

Counsel shifted to the conversation between the witness and Alan Milburn after it was becoming clear that Scotland were thinking of going against what the UK position was. Mr Milburn was unhappy about it, and he did try to get the witness to change his mind. A note of the telephone call by a DH civil servant was agreed by the witness as accurate, including the need for the witness to “tough it out”, and the possibility of it not being a devolved matter. Mr Chisholm had already received advice that his proposals were within his devolved competency. There was a question of social security claw-back if payments were made, but the vaccine damage process was already there and that was separate from a benefits consideration. The note itself was written by Charles Lister (yes, him) and marked “Urgent and Confidential”, yet it took several months to even approach law officers for advice about if it was a “reserved” matter (ie. not in the devolved competency of Scotland to act). He was asked if the devolution competence issue was possibly being used by the UK Government as a delaying tactic. The witness did not deny this but did say it was a real question to be answered (even though it was already known that Macfarlane payments had a disregard attached to them in relation to benefits).

From his appearance at the Health Committee, he stated the aim was to focus support on those who were “suffering”, or specifically, those experiencing “physical suffering” were to be prioritised. He soon became uncomfortable with sticking to the concentration only on those with “serious physical symptoms”. In a decision going against the Ross recommendations, there was no space (money) for estates and dependents. This was mainly due to the “fundamental driver” that the money had to come from the Health budget and there were too many other pressures on that money. In a similar way to the regrets expressed by Lord Reid, Mr Chisholm regretted not being able to implement all the Ross recommendations. On a paper with the witnesses’ hand-written note, he had expressed his disagreement with a cabinet paper on these matters of the proposals to make payments being “unsustainable”. The options paper (described by the witness as “one of the strangest papers he had seen”) set out options in such a way as to steer the decision to the option to pay only those with cirrhosis. The Chair had noted another strange part, suggesting the law officers had established that the matter was reserved. He wanted to know if this was recorded anywhere, and Sir Brian speculated about why the writer would have included it if the lawyers actually had not decided that. (All this steering towards only helping those who were alive but nearly dead meant that the costs were taken back to the absolute minimum, plus there would be obvious advantages to the Government delaying things, since the combination of death and no allowance for estates or dependents removed any requirement to pay anything. Does this count as pure evil?)

It soon became worse when even the money for the most harmed was not available. (The squeezes on the amounts to be paid and the people to receive these reduced amounts were swiftly turning the whole thing into a sham.) Mr Chisholm appeared to be fighting hard against those who were fighting hard against him. He seemed determined to see a payment to everyone who had contracted the virus, but that was not acceptable to others. He said it as a point of critical divergence between himself, the Cabinet, and the civil servants (ie. Aileen Keel?). In relation to the “Stages”, he did not want to carry out liver biopsies on hundreds of people. He also tried to push the line forward to everyone he could for the sake of fairness overall, but he acknowledged how he may not have helped by not himself being sufficiently clear at the time. The general response from the committee was quite positive, including from Nicola Sturgeon. It led to £20,000 for everyone living with the virus, and an additional £25,000 for those who went on to develop cirrhosis. The figures were not set in stone forever but were based on the available money. The witness felt it was important to get it off the ground with the possibility that the amounts could go up in subsequent years.