Health Committee,

Meeting date: Tuesday, May 4, 2004

Official Report 294KB pdf

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Hepatitis C

For agenda item 5, which is on hepatitis C, the minister will be joined by officials. Andrew Macleod and Sandra Falconer are from the health planning and quality division of the Scottish Executive Health Department.

I refer the minister to the correspondence—my letter to him and his response of 29 April. Paragraph 3 of the response states:

"I have read this article and should like to point out that it does not in fact quote me as saying the payments made in the Irish Republic were ‘without legal liability on the part of the state'—although I have no argument with that view."

I apologise for that, minister. The quotation was from Miss Ann McGrane, who is the assistant principal officer in the Irish Government's blood policy division. You are right that the quote was erroneously attributed to you, although I note that you share the view.

I came late to the issue and have tried to follow it. The Health and Community Care Committee in the previous session of Parliament spent a considerable amount of time on the matter and considered it thoroughly. I want to clear up two issues in my mind about the inquiry. I am trying to work out whether I am comparing apples with apples or with pears when I compare the Irish and Scottish situations. Paragraph 12 of the Health and Community Care Committee's 17th report of 2001 states that the Scottish inquiry

"was conducted by officials from within the health department."

You may not be able to answer this question, but was the inquiry in Ireland also carried out by officials from the health department there? The inquiry here led to the view that you and the Health and Community Care Committee took about ex gratia payments. Did the two inquiries have similar compositions?

The officials may correct me, but I understand that the Irish inquiry was a judicial one. I do not think that I said anything incorrect during the previous Health Committee meeting in which the issue was discussed. I am happy to preface my remarks by saying that I am not an expert on the Irish situation. It is interesting to compare what happened here with what happened in Ireland, but we have to make decisions that are based on what we think is right for Scotland. However, as the matter has been raised, I point out that I believe that what I said was true. The judicial inquiry in Ireland used the words "wrongful acts", which is what I referred to in the previous committee meeting. That does not contradict what somebody else said subsequently.

So the Irish had a judicial inquiry.

Yes, as far as I know. My officials might want to give a little more detail.

We had an internal inquiry, which is obviously different from a judicial inquiry in which witnesses are heard and other issues are developed. The Irish did not have an internal, in-house inquiry.

I want to clarify another issue to see whether I am comparing apples with apples. I understand from the Health and Community Care Committee's report that the main aim

"of the inquiry was to re-examine the allegation that the SNBTS was negligent during the 1980s in allowing hepatitis C-infected blood to enter into circulation. This seems to us to have been dealt with fairly exhaustively in the report, and after surveying the main arguments for ourselves, we found ourselves provisionally in agreement that the SNBTS did not appear to have been negligent in its actions."

The report continues:

"It is regrettable, however, that a number of important matters were not addressed in the report."

It goes on to say:

"Events before and after the mid-1980s were not examined."

The committee added a rider to its comments. Was the remit of the Irish inquiry the same?

I am sorry; I do not have that information.

That is fine.

One of my officials may have it. Andrew Macleod can say something on the matter.

I simply want to make clear the basis of the comparison of one arrangement with the other. There may be a perfectly legitimate reason for the differences, but I do not know what the remits of the two inquiries were.

The circumstances in Ireland and Scotland were different. In the incidents that took place in Ireland, it was clear that the blood service had followed practices that should not have been followed and which allowed the hepatitis C virus to spread into the blood supply. Those incidents led to the establishment in Ireland of a judicial inquiry.

In Scotland, an official investigation was undertaken by Scottish Executive Health Department officials. It focused largely on whether the Scottish National Blood Transfusion Service had taken up as quickly as it should have done the developments and practices that were available to take precautions against the spread of hepatitis C. In effect, the inquiry examined whether, as knowledge and understanding of the hepatitis C virus developed, the steps that could have been taken against it were taken and whether they were taken quickly enough. An entirely different set of factors and circumstances was investigated in Scotland, because there was not the degree of initial prima facie evidence of wrongful practice in Scotland.

I see. People might wonder why I am getting tendentious about the issue, but it is because of the difference between the two inquiries. The inquiry in Ireland was based on a statement that there was legal liability, whereas the inquiry in Scotland was based on a statement that there was not. I wonder how those two statements came to be. You are telling me that there was no prima facie evidence of wrongdoing in Scotland, but am I not correct in deducing that the remit of the inquiry in Scotland did not go down that road in any detail? I may be wrong about that; I simply ask the question.

The remit of the inquiry in Scotland was different because the circumstances in Scotland were different.

The Scottish inquiry did not go down that route because of the circumstances.

In Ireland, there was an incident, as it were, around anti-D, blood transfusions and plasma. In that case, it was fairly clear that the Irish National Blood Transfusion Service had been following practices that it should not have followed. I think that there has not been that kind of prima facie evidence in Scotland. Clearly, there is controversy and debate around the practices that the SNBTS followed. However, a different set of issues and a different debate applied in Scotland.

I would like to make one further comment regarding legal liability. The point was raised at the beginning of our discussion this afternoon. My understanding is that the Irish Government does not accept legal liability. In its view, there is no legal liability on behalf of the state in Ireland. The judicial inquiry found that wrongful acts had been committed by the Irish National Blood Transfusion Service. Such a finding has not been replicated in Scotland.

Okay. I am not sure where I have got with that one. Does another member want to come in?

I understand what you are saying about the different focus that was taken in the two inquiries. My question is for the minister. With hindsight, do you now appreciate that, to those who are affected, the Health Department inquiry looked very much like the police policing the police? Would it not have been better for the initial inquiry to have been far more open and transparent? The other criticism of the initial inquiry was that its focus was far too narrow. Would it not have been better if the inquiry had looked at a wider range of issues? If the issues had been examined in an open and transparent manner, would that not have avoided or eliminated some of the concerns that are still around today?

The inquiry was held before my time, so I was not directly involved in how it was set up. The evidence that is presented in the report is open for all to see. People can read the report and question it, as they feel appropriate. From reading the report and from the other evidence that I have looked at, I would say that it does not appear that blame attaches to the Scottish National Blood Transfusion Service. When the Health and Community Care Committee undertook its report, it did not raise that issue specifically. I am not saying that the committee looked into the matter in detail, but it did not say that that was the route that we wanted to go down in Scotland.

As I have said throughout, we would need some new evidence, over and above the evidence that is presented in the report. I have always said that I will be open-minded if people present new evidence, but there is no point in setting up an inquiry unless it appears that there is new evidence to be considered. That is my general approach—I am open-minded about considering new evidence, but I am not persuaded that it exists.

Was the medical evidence made public during the in-house inquiry? I do not think that it was.

It was; all the references that were mentioned in the report were made available.

Why were representatives of those who contracted the disease omitted from the inquiry?

As I said, I was not involved in the inquiry, so I do not think that I am in a position to answer that question.

The remit of the initial investigation was set by an approach from the Haemophilia Society about an area that it wanted to be investigated.

Who attends the management meetings of the Skipton fund, and is there a reason for the minutes of those meetings not being in the public domain?

You are pre-empting a whole string of written questions that I have lodged.

I am sorry for beating you to it.

One of my officials will answer the question in more detail. The reality about the Skipton fund is that there has been engagement with patients groups on the issues. The fundamental reason for delay is that, at one of the meetings, patients raised points about the forms; they wanted those points to be addressed, and another meeting is coming up soon to deal with that. Officials from the Health Department are involved in the meetings; in fact, one of the officials who usually comes to the Health Committee is not here today because he is in London at a meeting with officials from the Department of Health. There is UK collaboration on the matter.

The scheme that is being established is a joint scheme of the UK Government and the devolved Administrations. The meetings that are taking place to establish the terms and framework for the Skipton fund involve the four Administrations and, at least at some meetings, patients' representatives and the Skipton fund itself. In effect, the policy parameters and frameworks for the operation of the fund are being set, along with the specific application processes.

You asked about the publication of minutes. We consider the meetings to be working group meetings at official level. If questions were asked about whether the minutes would be made available to the public, we would look into that with our colleagues in the other Administrations, but it is not a matter that the Executive alone can control.

You said that you are setting the parameters for how the fund will work. When will that work be brought back and shown to the committee? The previous committee did a lot of work on the issue, and Parliament has debated the issue. Parliament has a right to compare the terms that seem to be evolving from the working group with what it agreed to.

At the meetings, aspects such as the forms are being considered at a high level of detail. I repeat that the people who are involved have taken on board the comments that have been made by patients groups—that seems to be a correct and admirable thing to do.

We have to accept that the scheme is a UK scheme, so we do not have unilateral control over some of the issues. I am not sure what level of detail you refer to when you express your wish for further involvement.

It would be helpful if the committee knew the details of the parameters that are being agreed, so that we could compare them with what was discussed in Scotland and agreed by the Parliament.

Where might the process go next? For example, are there proposals for a review, in relation to dependants who are left behind? The public ask us such questions and they think that we should be able to answer them.

The terms of the scheme, the payments and the criteria are those that the Minister for Health and Community Care announced last year. The UK Department of Health announced in August last year that it would extend a similar scheme to England; the other devolved Administrations also made that decision.

The discussions are about implementing the scheme, which is an announced scheme with clear payments and criteria attached to it. They are about how the scheme will be applied, what form of application process there will be and what people will need to do to apply for payments. There are two levels of payment, so certain tests will be needed to ensure that the higher payment goes to people who are more seriously affected by the disease. Clinical issues have to be determined with regard to exactly what tests will need to be used, and how those issues are determined will affect the questions that need to be asked and the design of the application form. Those are the sorts of issues that are being discussed.

A framework is being set for the scheme and important issues are being discussed, but they are concerned with the operational application of the scheme that was announced last year.

If there is a commonality of view and the four Administrations are working on a uniform basis, should there be—for the sake of argument—a successful legal challenge in England, would that apply automatically in Scotland?

We are talking hypothetically. Since it is a UK scheme, you can presume that we would want to keep together on it. I am not currently aware of any legal challenges.

Heaven forfend that we should give legal advice, but is it not the case that if a decision is taken in England it is very persuasive, but not binding, in Scotland?

Obviously a decision would not be binding, but since it is a UK scheme I am suggesting that we would probably want to stick together on it. That is my point; I am not making a legal point. I would not presume to make a legal point in front of the convener.

This is all very interesting. If there had been a legal solution to the matter, the committee would not have had to do as much work as it did to ensure that people would get some compensation. The report in the Sunday Herald about a statement by an Irish civil servant has prompted a half-hour debate in the committee with the minister and goodness knows what. That is all very well and some people may be particularly interested in that issue for their own purposes, but the constituents whom I meet are concerned about the time that it is taking for some compensation to be handed out. I hope that all the diversions about what has been reported in the Sunday Herald and what has been said in Ireland or wherever have not reduced the minister's focus on the issue.

The real issue is that people are ill and the money could make a big difference to their quality of life. Some of those people know that they do not have long before them and they feel a driving need to put their house in order. That is the type of person that we are dealing with. We need to get the payments processed and delivered to people as soon as possible.

I agree entirely, but I do not see evidence that anybody is deliberately trying to delay the process; people are genuinely trying to get the detail of the scheme right.

As Andrew Macleod said, the parameters have been set out clearly and they have been adopted by all the Administrations. The discussions are very much on the detail—the forms are the best example of that. If patients groups have asked us to look again at what is on the forms, it is perfectly reasonable for us to take that request on board. Like Duncan McNeil, I want the details to be finalised as soon as possible. The First Minister said in Parliament on Thursday that there will be an announcement this month—I hope that the announcement will indicate clearly that the matter will all be sorted very soon.

I remind my colleague that I asked the question at First Minister's question time. I am sure that the minister can handle queries about the niceties, which are still relevant, in relation to the basis upon which decisions will be made and address issues on the substantive procedures and processes. I am glad to hear that the work on the forms is accelerating after all this time.

You may or may not be able to tell us at this stage whether legal aid or advocacy assistance will be available to applicants who go to an appeals tribunal when all or part of their claim is refused—either for the first £20,000 or the additional £25,000. Do you have information about that yet? If you do not, when shall we have it?

Sorry—I do not have that level of knowledge about legal aid, but we will write to you on the matter.

That concludes the evidence session. Thank you very much, minister.

Meeting continued in private until 17:36.