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

Mr Stein made a small correction to his earlier evidence (a misquoted reference number). He then continued with the topic of experimentation. The later adoption of concentrates in some sites than in others, the increase in retaining blood samples for testing, and the responses to the emergence of AIDS were related specifically to the Royal Free Hospital situation involving Drs Kernov and Tuddenham. Their predecessor, Dr Dormandy, had continued to strongly advocate the use of cryo there, but she had a terminal diagnosis herself. As soon as the new doctors arrived the changes began. Due to Dr Kernov’s experience of post treatment infections, it was suggested to be an interesting career move due to the lower  number of such patients there. Could the non-infected patients be too convenient a cohort of previously untreated patients and so too good a research group to opportunistically pass on.

 

Reference was made to the Nuremberg Code and the basics of criminal law. Doctors are not immune to prosecution if their acts constitute harm. The infected people not told of their status could have, and in some cases did, pass on their infections. This may be a high point in criminality since there had been people prosecuted for infecting others, so why not these doctors? It was accepted that prosecuting authorities may see these as too complex cases to pursue. The length of time might therefore play into the hands of the State in avoiding accountability.

 

The next topic was licencing. The Inquiry is left to judge how the licencing authorities allowed the large pool concentrates with such high risks to be used. Mr Stein suggested that it constituted a failure in their responsibilities to protect patients and was just another example of the collective failure of the many State actors. Pool sizes were considered “large” in the 1940s if above 10 donors. Large pools were clearly a risk, and the larger the pool the greater the risk. The failure to advance the need to achieve self-sufficiency increased the culpability. The significant research and campaigning work of Carol Grayson on these issues was referenced, not for the first time. There was an unexplained leap from 10 to 1,000 as a description of large pool sizes. This represented a reckless act in contradiction of the Nuremberg Code. These were not matters of complicated technical laboratory activity. It was simple arithmetic. Two donors are double the risk of one donor. Even children can work that out. The expansion then, and still now when looking back, cannot be justified. Patient safety was not given primacy. The duty was abdicated to one of allowing doctors to make the risk judgements. The extreme case of the risk of death due to haemorrhage was grossly over-stated as a justification for reducing the risk ratio of any viral infection.

 

The “yellow card” system related to infected blood should have flagged up a need to pause the use of concentrates if the comparison was carried through to the responses to other treatments which would have been and were pulled off the shelves until the risks were effectively eliminated. Why did the licencing authorities not apply the same rigour and precaution to concentrates that they did to other drugs and treatments? All the while the pool sizes were continuing to increase. Instead, the licencing authorities encouraged pharmaceutical companies to make early applications, and then to rely on updates to keep products in use. The regulators should have pulled these products. They did not have to wait for the five-year licencing cycles. At any time they could have acted, but they did not, so at the very least they failed patients in preference to other motivations and criteria. The “doctor knows best” mantra cut the licencing authorities off at the knee. The systems had appeared to be robust, but recent evidence disclosures highlighted at least one “loophole” in the regulatory regime.

 

On the topic of “what should have happened”, Mr Stein went all the way back to the work of Louis Pasteur. There were decades of knowledge related to inactivating viral risks. But for too long these mitigating actions were forgotten, apparently for the purpose of maximising profits. Yet when it became unavoidable, it was less than two years for these improvements to be realised. Then, it became commercially expedient to do the safety work to maintain the gravy train, whereas previously there was no motivation as there should have been if the regulators had done their job properly.  But they neglected by not intervening. In the interim, those who were trying to move in this protective direction were “quietly let go” by their private company employers. The pharmaceutical companies were allowed to peddle their contaminated products and gain commercial rewards because they were allowed to get away with it by the US and UK regulators. The risk-reward balance was skewed towards profit not safety.

 

On the matter of AIDS, it was inevitable that haemophiliacs were going to be infected with any blood borne virus that emerged due to the already in place collective inability to protect people from risks. The reaction should have been to “get these products off the shelf”, but it was not.

 

Attention shifted to campaigners. A small number of photographs were displayed featuring campaigners including Ms Grayson and Ms Wintle with placards and other items in and around Westminster. This was used to illustrate the life-changing and all-engrossing efforts of many campaigners. They committed their whole lives to the calls for truth and justice. It required the sacrifice of work, social life, education, leisure and much more. And it was carried out in the face of diminishing health and capacity. Mr Stein asserted the significance of Ms Grayson’s and Ms Wintle’s lifelong work, including detailed and highly influential research as well as helping bodies such as the Haemophilia Society to re-focus its efforts, for example, in relation to women. A recent communication was quoted which expanded the reflection of the impacts on campaigners in the face of being ignored, undermined, and even attacked, all while suffering the indignity of relying on a not-fit-for-purpose benefits system and the completely inappropriate and dehumanising working practices of the so-called support schemes. Mr Stein continued to illustrate the particular impacts on campaigners through his own client base, with the impacts being devastating.

 

The consideration of recommendations was to be selective and people were directed to the final submissions for the full detail. Firstly, the Terence Higgins Trust was suggested to be an inappropriate location for former scheme resources. It was a specific charge which did not seek to criticise or be prejudicial to the great work of the THT generally. Government was criticised again for the mistreatment of genuine campaigners when compared to the paid lobbyists and advocates for resourced causes, many of whom were former politicians themselves. The imbalance in resources was made worse by the grossly unfair discrimination against the generally poorly resourced campaigners.

 

Finally, to the Inquiry report, Mr Stein sought with trepidation to advance a series of suggested findings to the Chair as recorded in the final submissions document. He called for a final sense of “peace” with the Infected Blood Inquiry being the comprehensive and final word after the limitations of Penrose and Archer. It was suggested that the final report be split into what could be concluded by lines being drawn under matters, with a more open-ended second option for further investigation to continue to apply an Inquiry-level scrutiny to those matters to be actioned as well as those requiring further investigation – particularly after the minimal and inconclusive closing statements by State representatives, and the recent examples of other Inquirys’ calls being ignored or reneged on.

 

In conclusion, Mr Stein recognised the difficulty with achieving the peace he had called for, but people want to finally put this behind them and just get on with the remainder of their lives.