National Blood Authority (Hansard, 29 March 2001)

§ The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)
My Lords, the judgment is long and complex and we are unable to offer any comment until we have had the opportunity to assess it carefully.

§ Lord Morris of Manchester
My Lords, I am grateful to my noble friend; but would he at least accept Mr Justice Burton's core finding that the supplier of blood to NHS patients has a legal duty to supply clean blood? Is he aware that, of 4,800 people with haemophilia who have been infected with hepatitis C by contaminated NHS blood and blood products, 114 have now died of liver disease and that of 1,200 infected with HIV, 900 have since died of AIDS? Would it not thus be cruelly unfair to deny a stricken haemophilia community even the benefit of the High Court's core finding? Is it not time now to let right be done?

§ Lord Hunt of Kings Heath
My Lords, I agree with my noble friend that the community in relation to whom he addresses his remarks has suffered very much. We feel a great deal of sympathy for those people. The issues are distinct. Prior to 1985, the technology to make blood products free from hepatitis C in sufficient quantities to treat all haemophiliacs in the UK was simply not possible. Once it was, the NHS introduced it. Government policy in this case is that compensation or other financial help is not payable. That decision was reached by the previous government. The judgment given on Monday does not affect that decision as the Consumer Protection Act did not come into force until March 1988.

§ Lord Clement-Jones
My Lords, the Minister mentioned that it was too early for the department to have made an assessment. However, his officials seem to be warning journalists about the implications. The Independent stated: Department of Health officials privately warned that the implications of the 173-page judgment were that the NHS could face claims for hundreds of millions of pounds in compensation if the same reasoning was applied in other cases where patients suffered unpreventable injury". Despite the timing, is that not so in the case of haemophiliacs who have been infected with hepatitis C? Would not it be far better if the department finally came up with a compensation scheme after all these years? That would save the cost of litigation and the eventual damages to be paid.

§ Lord Hunt of Kings Heath
No, my Lords, there are two distinct issues. The judgment is very long. It was published on Monday of this week. It is important that we have enough time to consider the full implications. When we have done so we shall give our views and an assessment of the implications for the NHS as a whole.
As regards compensation, I can only repeat what I said earlier. We have reviewed the decision taken by the previous government not to offer financial assistance to haemophiliacs infected with hepatitis C through blood products. We met the Haemophilia Society and spent a good deal of time considering the evidence it presented. The decision was not easy. However, the decision was that we could not make an exception in this case to the general rule that compensation or financial help is only given when the NHS or individuals working in it are at fault.

§ Lord Peston
My Lords, does not my noble friend find his own Answer somewhat surprising if one applies to it even the most elementary ethical principles? The logic of his position seems to be that we could not know that we were to produce this catastrophe, and because we did not know, we cannot compensate people for the consequences of our actions. I well understand the technicalities of my noble friend's Answer. However, I do not understand the ethical position now adopted by the Government. People have died as a result of these actions and others are in danger. I should have thought—on all sorts of grounds in which once, at least, our party used to believe—that compensation is exactly the right path to take.

§ Lord Hunt of Kings Heath
My Lords, the position is clear and has been stated policy by successive governments. It is that, in general, compensation is paid only where legal liability can be established. Compensation is therefore paid when it can be shown that a duty of care is owed by the NHS body; that there has been negligence; that there has been harm; and that the harm was caused by the negligence.
411 Of course the Government have every sympathy with the people who were so affected, but I do not believe that sympathy can lead us to change that general principle.

§ Baroness Gardner of Parkes
My Lords, will the Minister confirm that this case was the first to be brought under consumer legislation and that it therefore opens up many new concerns, particularly in the part of the NHS? Can that consumer legislation apply in the case of anyone who dies as a result of a blood transfusion, even a life-saving blood transfusion which subsequently develops into a disease such as BSE'? Furthermore, is it correct that the Government are appealing against the decision?

§ Lord Hunt of Kings Heath
My Lords, the question of appeal will be considered when we have received full advice from the lawyers involved. I repeat that this is an extensive judgment, 320 pages long. Potentially, it has wider implications for the NHS and we need to give careful thought to it before deciding what further action might be taken.
As regards the NHS, this is the first judgment under the Consumer Protection Act 1987. The judge's main findings were that the public are entitled to expect that the blood they receive will be 100 per cent safe. The judge's conclusion was that the knowledge of the medical profession is not relevant in determining the legitimate expectation of the public, nor is it a relevant circumstance that that effect could not have been avoided. The judge concluded that once the risk is known about, the product is defective even if the risk could not be identified in the product. As noble Lords will realise, we must give careful consideration to those implications.

§ Lord Walton of Detchant
My Lords, some 10 years ago there were extensive discussions in this House about the possible introduction of a no-fault compensation scheme along the lines of those which exist in New Zealand and certain other countries. At the time, the government of the day said that they did not want to introduce such a scheme but that they would give the matter further consideration.
That proposal has fallen by the wayside. When these blood products were produced no one could have known that they were likely to transmit these viral infections. Hence, in my view, it would be impossible to come to a decision that the Government were negligent. However, is it not time that the question of no-fault compensation should be reconsidered?

§ Lord Hunt of Kings Heath
My Lords, I assure the noble Lord that we are reviewing a range of issues surrounding compensation, in particular the problem of litigation in the NHS and the best way to tackle that, including the process used to deal with clinical negligence claims and how we can improve it. We shall continue that work in considering how best to take the matter forward.
412 In the context of the NHS, no-fault compensation schemes offer some advantages, but there are disadvantages, too. Once one examines the position in detail, one sees that it is not easy to reach a simple conclusion on that matter.

§ The Countess of Mar
My Lords, since the Government came into power, what has been the cost of litigation within the NHS? Are those costs balanced against compensation which might be paid to individuals who are aggrieved?

§ Lord Hunt of Kings Heath
My Lords, I shall give clinical negligence payments over the past five years. In 1994–95 they were £160 million; 1995–96 they were £173 million; in 1996–97 they were £235 million; in 1997–98 they were £144 million; and in 1998–99 they were £221 million. Those are substantial payments and anyone concerned with the well being of the NHS must be worried that such a degree of resources is being spent in negligence payments.
Two issues are involved. The first is the question of whether we can improve the whole clinical negligence process. The second is to improve our procedures within hospitals and other healthcare services so that we are less vulnerable to claims in future.

§ Lord Colwyn
My Lords, will the Minister try to persuade his department to publicise the fact that it is beneficial to health, particularly of men, to give blood on a regular basis? Furthermore, are there any age limits on blood donors?

§ Lord Hunt of Kings Heath
My Lords, I believe that there are age limits but we want to encourage as many people as possible within those limits to give blood. It would be fair to say that, under new leadership in the National Blood Service, during the past two or three years the stocks have blood have increased enormously. I echo the noble Lord's remark that we must encourage more people to give generously in that respect.