3 February 2023: Closing Statements, Sam Stein KC (Milners clients) - A

To an almost full Inquiry Hearing Room, Mr Sam Stein KC began with three direct statements. “Treatment without consent was never acceptable. Treatment without consent is no excuse for substandard care. Those who treat without consent and cause harm should be hauled up before the criminal courts.”

 

Mr Stein appears on behalf of 23 clients. He thanked the legal team for the clear thinking and respect with which all parties were treated. He noted how the Penrose Inquiry was devastating to the people who had hopes for it. As the last day of evidence, he hoped not to disappoint the high expectations. It was noted that it was the one-year anniversary of the death of “Mossy”, one of Mr Stein’s clients who had fought to boldly for truth and justice. Ms Wintle was mentioned for highlighting the situation for women. There were other campaigners among his clients and their efforts were in their own ways instrumental to the achievement of the Inquiry. If it had not happened, the Government would likely still enjoy getting away with the scandal.

 

The statement by Ms Grey on behalf of the State, recognised that, “things went wrong”. It was then a case of the Government not making a submission. “Really,” said Mr Stein. He continued by reviewing the meaning of the word “candour”. It was not even possible to gain an understanding of what the State was apologised for. So, the lack of candour extends to the current incumbents of Government. This behaviour extends the harms of blocking out the patients and campaigners. Mr Stein made an offer to the Government to meet with the infected and affected to put detail to the apology.

 

The statement of Mr Dawson was supported in respect of dismissing the State representatives’ claims to having suffered from a dimming of time as an excuse for their less candid evidence. In fact, rather than the State not responding, it was actually involved in an attempt to defend its position. Clearly, it was still the Government position to “fob off” those harmed.

 

In relation to consent, it was asserted that the overwhelming evidence proved the complete lack of attention to patient consent throughout so much of the Contaminated Blood Scandal. The labels delineating the level of severity of haemophilia in patients were reviewed. But even that delineation was insufficient to determine the treatment of an individual patient. Each patient should have been treated specific to their particular needs. And in all cases, they should have been kept informed of treatments and tests, including by obtaining understandable and unbiased consent. The training of haematologists in labs had since shifted to a requirement for them to have some clinical experience. They were scientists, pathologists, far more than they were treating doctors with the direct care of patients. Prof Lee had noted the tensions possibly arising from the lab/clinic emphases. The ability to break bad news with care, to apologise meaningfully, to decide the best treatment for the patient and not the science would possibly have been a key factor in the inconsistent ways clinicians operated. A letter from Dr Peter Jones illustrated the “sales job” clinicians were doing to get people to agree to use the new blood products.

 

“A risk is a risk is a risk,” said Mr Stein, while the idea of a “possible risk” was meaningless, not least because the fact of blood already and always being a risky treatment was well known. “Possible” was simply wrong. The Richard Titmuss text was again cited, including the recognition that blood could be more risky than many drugs with major known side-effects. Prof Zuckerman’s letter and other senior medics were recalled. Some of these went back to at least the 1940s. Yet it seemed that some making submissions wanted to establish a starting point within the 1970s. Why would State representatives want to control the narrative and seek to establish a considerably later date of there being a risk of death, “a killing risk”?

 

“It was almost an enormous experiment in the treatment of haemophiliacs” said Mr Stein. The statement by Mr Cory-Wright of the relatively slower communication systems back then may be a small factor, but the papers were in the mainstream journals (not obscure ones) and those who should have known were not generalists but specialists. It was their job to keep up with the knowledge pool. Reference was made to comments in the World in Action documentary coming from Prof Zuckerman who, upon seeing for himself the US collection systems, described them as “an affront to human dignity”. Mr Stein continued with examples of reports and articles sitting alongside incidences of people being infected despite that knowledge swirling around. The State wants a finding that doctors just didn’t know there were problems, but it was asserted that this is simply not a reasonable conclusion to draw based on the evidence.

 

Prof Lowe’s evidence, where he quoted his own evidence to the Penrose Inquiry, could be mapped contemporaneously to other publications, including a work of fiction with a storyline about the two types of Hepatitis, highlight the way clinicians could not have any reason to deny knowledge. There was even an episode of MASH from 1972 where Hepatitis was a comedic device which served to further demonstrate the established knowledge being so well known that it was leaking out into literature and tv comedy aimed at the general populations of at least the UK and the US. There was no excuse for not drawing patients’ attention to the known risks, or for minimising these so that patients would agree to the clinicians’ preferred treatment regime.

 

Prof Jones’ seminal publication, “Living with Haemophilia” was the next reference point, noting that it extended to more than one printed edition. The section on blood collection and transportation was picked out to show how risks were known, especially for commercial factor concentrates, with a clear suggestion from the carefully chosen wording that UK used blood products came from UK donors. This was from a leading haematologist writing to haemophilia families in 1974.

 

The onus was on the clinician to “get it right”, especially when consent was not obtained. As stated at the start, lack of consent was not an excuse for substandard care. Indeed, there was a greater responsibility when the patient was effectively excluded from the decision-making process. Examples were given of clinicians who tried to stick with cryoprecipitate, especially for children and including home treatment arrangements. Their explanations for doing so were in contrast to those senior clinicians who wanted to designate cryo as “old fashioned” and drive forward to the new wonder treatments.

 

There is no evidence of haemophilia consultants receiving monies to be hidden away in Swiss bank accounts. “So, what were they thinking?” Mr Stein proposed that these doctors were “seduced” by concentrate products. They were easy to use and apparently highly effective. He then requested that an image of a bottle of concentrate be displayed. “Here it is, teaming with infectivity”, he said. It was common that from his experience in criminal cases for the weapon to be displayed in evidence. It was noted that the very clinical appearance of the bottle was part of the seductiveness. The so-called “golden period” for haemophilia treatment did not live up to its branding. The success of the messaging meant that the doctors ignored the “screamingly obvious”. The increasingly large pool sizes turned a risk into a “certainty of infection”.