28 July 2022: Chisholm - C

Mr Chisholm was asked about speaking with John Reid about infected blood and payments. He said he spoke to John Reid frequently but could not say if it was about these matters, especially when they were in their respective Health roles. John Reid was the Minister who formally advised that there was not a problem with Scotland acting within devolved powers. Mr Chisholm did not feel there was any attempt by the UK Government to seek to change the proposed amounts of money. There was a coordinated announcement of the schemes, and even though it was a Scottish decision, it ended up being a UK scheme via the Skipton Fund. There were advantages to this in the eyes of the witness. The dates applied were probably based on recommendations from officials, and he did not remember a lot of discussion about it.

Counsel asked why it was a lump-sum scheme and not a regular payments provision. He suggested it was based on the Ross recommendations. On the non-inclusion of regular payments as was the case for the Macfarlane Trust, he felt it was primarily a matter of affordability. He did not remember a lot of discussion about it at the time. He knew things had changed since then. From the Ross report, the A and B recommendations were effectively combined with a lower amount. The C recommendation for those most ill went from being a regular payments process to a further lump sum. Once the broad parameters were set, it became a matter for officials to take forward.

From the announcement in Scotland there was mention of the matter of registration in the case of unobtainable records. He recalled it was a “balance of probability” matter, but for haemophiliacs it was automatic, if they had Hep C they were registered. It was harder for those whose infection route was via transfusion of whole blood.

The costs of the Skipton Fund from the Scottish position might properly have been like the Macfarlane Trust and covered centrally since the problems had similarly occurred under the pre-devolution time. He did not remember anyone ever asking about that, including the SNP who might have more naturally highlighted the issue. The Skipton money came out of the Scottish Health budget and continued thereafter even under the SNP forming the Scottish Executive/Government. Mr Chisholm was not in a position to seek either UK Treasury money or access to capital budget stream sources.

On the comparison with the Irish settlement, the witness had answered a question posed at the time saying the two cases were not comparable, since the Irish case had required an admission of liability by the blood transfusion body. In another appearance before the Health Committee, it was made clear that the new scheme payments were not compensation but were ex-gratia. There was a difference between being “found at fault” rather than being “legally liable”. There were questions about not including, for example, the bereaved and dependents, and witness was seen to be sticking to the line about concentrating on those in need who were living, despite what he may have thought personally.

The complexities of the Irish situation on the matter of fault might have been seen as misleading, but there were connections between the basis for the Irish scheme and questions of “admitted fault”. The official was, “Saying the right thing but for the wrong reason”. He did not feel “too uncomfortable” about what he said and did not see it as misleading.

Mr Chisholm had said they gave thought to holding a Public Inquiry but for him there was not sufficient evidence of things having “gone wrong” based on the state of knowledge at the time, certainly far short of being in a major way, as opposed to the idea that things could have been “done differently”. The Health Committee were not pressing him as Minister on the matter of holding an Inquiry, and neither was there pressure from the Parliament. (At this point in the proceedings, this writer was feeling the questioning and answering was becoming tiresome and meaningless.) the witness was asked if, in hindsight, an Inquiry should have been called. He carefully mentioned the Penrose Inquiry and noted how that “did not draw a line” under the matter. He thought it would probably have been useful for him in his role if it had happened. On the possibility of a different approach being taken involving an independent body deciding on Inquiries, he said he had not considered that before but thought it might be interesting to explore.

The Burton Ruling was seen as requiring to be taken into consideration. He cited the Ross Report saying the Burton Ruling was not particularly helpful as a way to consider these matters either. Both Mr Chisholm and his predecessor, Susan Deacon, had been given detailed briefings on the limitations of the judgement coming from England since people were squeezed between the date of the introduction of the relevant act and time-bar considerations. Again, they did not want to set a precedent, even though their way forward with respect to those who had initiated legal action would naturally lead to another anomaly resulting. He agreed that the matter was valid, but he mentioned again how nobody was raising the issue.

He was asked if he or his officials had any involvement with the Trustees of the Macfarlane Trust, and he did not remember any. It never came to his attention about if there had been any client dissatisfaction with the Mac Trust, nor did he even know if Scotland even made contributions to it. Counsel referred to the Factor 9 play. Mr Chisholm did not normally like to hear politicians criticising civil servants but realised in the course of an Inquiry these questions might be asked. He recognised how the powerful play did raise serious matters, but his view was that people were following what was widely agreed as the correct position. He said he always got on well with civil servants and did not think they should be challenged just for the sake of it. He had a group of independent advisers, quite unusually, not to undermine the officials, but to bring a different perspective in case that was needed.

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