Contaminated Blood (Support for Infected and Bereaved Persons) Bill [HL]

Earl Howe Excerpts

Friday 22nd October 2010 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, I congratulate the noble Lord, Lord Morris of Manchester, on the reintroduction of the Bill and echo the noble Baroness, Lady Wheeler, in paying tribute to the noble Lord. On a personal level, I am sorry that I was unable to be present at the Second Reading of his Bill in the previous Session, but I am pleased to be able to rectify that situation today, albeit on a different side of the House.

Since this debate was scheduled, an important development occurred in another place, which is of direct relevance to the debate today. My honourable friend the Under-Secretary of State for Public Health laid a Written Ministerial Statement on 18 October which stated that the Government are reviewing a number of aspects of the support available to those affected by contaminated blood. This includes ex gratia payments for hepatitis C, access to insurance, access to nursing and care services, and prescription charges.

I can confirm to my noble friend Lady Hussein-Ece that the review will look at a number of aspects of the hepatitis C payments scheme, including the size of payments, whether annual payments should be made, payments to spouses or dependants of those who died before the scheme was set up, and additional payments in respect of spouses or dependants of those who are still alive. The terms of reference of the review have been placed in the House Library, and I can confirm to the noble Baroness, Lady Wheeler, that the issue of free prescriptions for this group will indeed form part of the Government’s review. I believe that my honourable friend sent copies of the Statement to the noble Lord Morris of Manchester, and the noble and learned Lord, Lord Archer of Sandwell.

It is important that the House understands that this review is under way and that Ministers of this Government are not impervious to representations made to them to reconsider these matters. The noble Lord, Lord Morris, is I hope already aware of my sympathy for the group of people affected by this tragedy and the fact that I recognise and respect what he is trying to achieve with this Bill. Nevertheless, I have to be candid in expressing some reservations as to the need for legislation on this issue. We all acknowledge the plight of those affected, but in debating the Bill we should consider whether it delivers tangible benefits for those affected by this tragedy. In this respect, there are three main themes in the Bill that we need to consider: first, improving treatment and services for those affected by this tragedy; secondly, preventing a similar tragedy occurring in future; and thirdly, financial support for those affected.

I will start with the issue of improving treatment and services for those affected. This Government are firmly committed to the principle of ensuring that NHS services for all patients are of the highest possible standard, and that standards continue to improve. That principle is at the centre of our approach to the NHS. It applies as much to those infected by contaminated blood as to any other patient group. Where services are failing or inadequate, there are established procedures in place to address this. Clause 1, the main clause in the Bill, aims to establish a statutory committee,

“to advise on the treatment of haemophilia”.

The purpose of the committee would be to provide advice on the selection, procurement and delivery of therapies, as well as access to those therapies, for haemophilia patients. But what additional benefit would be gained by placing the proposed committee on a statutory footing? The only clinicians that the Bill stipulates should be members of the proposed committee are the haemophilia centre doctors themselves. I take this to be implicit acknowledgement of the effectiveness of haemophilia doctors in using their clinical expertise to secure the best treatments for their patients. We have to ask: what more is to be gained from their forming a committee?

I recognise that there is a wider issue here of patients being involved in decisions about their care and that, historically, haemophilia patients feel that they were subjected to treatment without sufficient knowledge of the risks. However, it is exactly for those reasons that the Government’s White Paper, Equity and Excellence: Liberating the NHS, published in the summer, sets out a vision to place patients at the heart of the NHS, giving them greater choice and control over their treatment, with the objective of making shared decision-making the norm. Progress is already being made in achieving this objective for this patient group through the Haemophilia Alliance, a network of patients, doctors and others involved in caring, which was established in 1999. The Department of Health now formally meets the alliance twice a year. Two such meetings have already been held and the group has unanimously agreed that it would be helpful for all parties to better understand how specialised services for haemophilia patients are commissioned, and to identify how the Haemophilia Alliance can influence service provision countrywide. The alliance is working well, and I have not yet heard a convincing rationale for replicating its role in a statutory committee.

[Lord Archer of Sandwell]

I am most grateful to the Minister. Does he appreciate that one matter that concerned us was the establishment of a permanent secretariat to the committee, so that one would not have to wait for a meeting of the committee before responding to something that had happened? It would monitor events as they arrived and respond to them quickly.

[Earl Howe]

I am grateful to the noble and learned Lord. My understanding is that there are established routes of communication to enable the alliance to contact officials in the department if such a contingency were to arise. I am not sure that the fact that the meetings are at intervals makes any appreciable difference in this context.

Clause 3 also focuses on treatment. It provides for a scheme of NHS cards for those infected through treatment with contaminated blood and blood products. These would enable access to NHS services, including prescriptions, free of charge. In fact, the majority of services specified in the Bill, such as counselling and physiotherapy, are already available in England under the NHS, where needed, free of charge. Perhaps I may venture that the real issue for this patient group is not that of cost, but whether they receive high-quality, adequate levels of treatment and care. I recognise, however, that prescription charges are a particular grievance for this patient group, and that some have experienced difficulties in accessing nursing and care services, including specialised counselling. That is why these issues are included in the current Department of Health review.

I was concerned to see that the clause also provides cardholders with priority access to NHS treatment. This could have significant implications. At one level, it would give priority access for everyday treatments such as chiropody services. At another, it could provide for jumping the organ donation queue, which, when organs are at a premium for everyone, cannot be justified. Those decisions must be based on clinical need and nothing else.

[Lord Morris of Manchester]

My Lords, perhaps I should explain why I made that provision. Other people know all the statistics about the disaster, but I personally knew hundreds of its victims—and now, day by day, I hear of the deaths of valued friends. That is why I approached this in the way that I did. As honorary parliamentary adviser to the Royal British Legion for many years, since 1985, I know that the priority that their members are given under the National Health Service is never abused. No one has ever said that disabled ex-servicemen abuse that privilege. I am certain that the Haemophilia Society will act just as honourably as those who so readily give their lives in the service of this country.

[Earl Howe]

My Lords, I respect greatly the points that the noble Lord, Lord Morris, has made. Nevertheless, it is difficult to enshrine in legislation priority access to NHS services for an individual group of patients. That is the real issue, but of course I shall reflect the point that he has made.

As I have indicated, the issue is whether patients infected with contaminated blood receive prompt access to the necessary treatment, based on clinical need. I have heard no reports that anyone in this patient group faces difficulties in this regard. I therefore argue that nothing in the Bill would improve treatment or services for those affected by contaminated blood beyond what is already on offer from the NHS or the Department of Health, or is being considered by Ministers.

I turn now to the critical issue of making sure that no similar tragedies occur in future. The Government are firmly committed to ensuring that the blood supply is as safe as possible, and we continue to work to provide ever safer blood and blood products. Clause 2 provides for haemophilia patients to be offered testing for a number of specified infectious agents, and for blood donations to be screened for those agents; yet testing for all but one of the agents is already available to haemophilia patients, and all blood donations are screened for those same agents. The sole exception is variant CJD, for which there is currently no validated test available. We cannot legislate on something that it is currently not possible to implement. The Bill rightly acknowledges that the list of agents for which the blood supply is screened needs to be kept under constant review. There are effective systems in place to ensure that this is done, both within the UK blood services and also through the Advisory Committee on the Safety of Blood, Tissues and Organs, SaBTO—which I can assure the noble Baroness, Lady Finlay, will continue to exist. Therefore, there is no need to replicate this function on a statutory basis.

The Bill also provides for the introduction of prion filtration. The Government are currently undertaking an evaluation of the costs, benefits and implications of prion filtration to inform our decision on whether to implement this recommendation. We do not need primary legislation to do this.

Finally, blood safety is regulated by European directives that set standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components. Blood products such as clotting factors are regulated in accordance with the Community code for medicinal products. Therefore, there is nothing in the Bill that would improve the safety of the blood supply. I fully support the principle of making the blood supply as safe as practically possible, but it is not appropriate to use legislation to require the blood services to adopt a specific technology such as prion filtration. Such legislation cannot properly take account of emerging scientific advances, and it is important for the blood services to retain the flexibility to introduce the most appropriate measures on the basis of expert advice.

I now turn to the subject of Clause 4, the issue of compensation. In recognition of the plight of those affected, the Department of Health has already set up ex gratia payment schemes for those infected with HIV and hepatitis C. It is worth pausing to lay out the level of financial support currently available to people in this group. Those infected with HIV receive a flat-rate payment of £12,800 a year. They may also be eligible for additional discretionary payments. In the year ending April 2010, the average total payment to an individual infected with HIV was £17,400. Those infected with hepatitis C are eligible to receive an initial one-off lump sum of £20,000 when they develop chronic infection. Despite contracting the virus, some people will make a full recovery. However, others may go on to develop serious liver disease. For this group, there is a second one-off lump sum payment of £25,000. All these payments are tax-free and are not counted when calculating individuals’ eligibility for state benefits. Therefore, if they are unable to work for health reasons, they will receive state benefits in addition to these payments.

One of the key elements of this clause is subsection (4), which states that,

“the Secretary of State shall have regard to any comparable compensation schemes offered in other countries”.

I should like to inform the House that previous Governments did indeed have regard to comparable schemes when the Macfarlane and Eileen Trusts for HIV were first set up, and we are taking account now of schemes elsewhere. The current payments for those with HIV generally compare very favourably with payments in other countries, and I direct that remark particularly to the noble Lord, Lord Low of Dalston.

I acknowledge that there are anomalies between the current payments for HIV and those for hepatitis C, whose payments are less favourable. That is why the Department of Health’s current review includes payments for hepatitis C, as well as looking into whether there are any alternative payment mechanisms. In the light of that, the House needs to consider what purpose there is in trying to legislate on this issue.

Finally, Clause 5 requires the review of a number of issues which were covered in the previous Government’s response to the report of the noble and learned Lord, Lord Archer. Again, the question is whether any benefit is to be gained from putting this work on a statutory footing.

The one issue in Clause 5 on which I should like to comment specifically concerns medical insurance. I am aware that patients infected with HIV and/or hepatitis C by contaminated blood either cannot obtain health insurance or are subject to a significant premium loading. However, one of the underlying rationales of the welfare system here in the UK is to provide services for those who cannot obtain insurance, for whatever reason. The whole point of the NHS is that people should not need private medical insurance. For the state to assist a particular uninsurable patient group to obtain private medical insurance would, I believe, set a dangerous precedent that could undermine the core principles of our welfare system.

In conclusion, I should like to address a few of the questions raised in this debate, dealing first with some of those raised by the noble Lord, Lord Morris. He asked what the Government have done in relation to the recent case of variant CJD having been found in a haemophilia patient. My advice is that, although these concerns are of course very understandable, no haemophilia patient has ever developed clinical variant CJD.

The noble Lord, Lord Morris, asked about the calculation of the £3.5 billion—a point mentioned by a number of other noble Lords. A note of how much the department estimated it would cost to replicate the compensation scheme of the Republic of Ireland in the UK has been placed in the Library, and I refer noble Lords to that document.

The question of comparability with Ireland was raised not only by the noble Lord, Lord Morris, but by the noble and learned Lord and the noble Lord, Lord Corbett of Castle Vale, among others. I have taken the opportunity of looking carefully at this comparison. From what I have seen, I am satisfied that the Irish scheme was set up in response to a very specific set of circumstances which are unique to the Republic of Ireland, and I say that not least for the following reason. In an article in the Irish Times dated 5 August 1997, Brian Cowen, then Minister for Health and Children in the Republic of Ireland, and currently Taoiseach, confirmed that the Irish Government knew in 1995 that the Blood Transfusion Service Board had been negligent and had attempted to conceal this fact. I do not believe that I have ever heard the noble Lord, Lord Morris, or others acknowledge the contents of this article.

The noble Lord, Lord Morris, raised the question of Crown immunity in respect of Bio Products Laboratory. I understand that the activities of BPL were covered by Crown immunity and therefore fell outside the requirements of the Medicines Act until 1991. Therefore, it could not be prosecuted under the Act. This immunity did not protect from civil suit but only from prosecution under the Medicines Act. Indeed, some affected persons brought an action in 1988, which was settled out of court. Affected persons did and do therefore have rights of redress in civil law. Our legal advice is that permitting prosecutions under the Medicines Act after all this time would be seen as unfair and oppressive by the courts for various reasons, not least the breach of the European Convention on Human Rights.

The noble Lord, Lord Low, called into question the use of commercial blood products. Most countries experienced similar tragedies as a result of contaminated blood and blood products—even countries that were totally self-sufficient. The fact that the UK domestic blood supply was also contaminated with these viruses does not therefore mean that the tragedy could have been avoided if the UK had been self-sufficient in blood and blood products.

The noble Baroness, Lady Kennedy, asked about the future of benefits in this context. My honourable friend the Parliamentary Under-Secretary of State for Public Health said during the Back-Bench debate in the other place last week that she would be raising the issue of benefit payments with the Minister responsible, and at this point I have nothing to add to that assurance.

I urge the House to consider the Bill very carefully. The contaminated blood issue is enormously emotive, but we should not be passing legislation simply because we have compassion for those affected. All legislation passed by your Lordships’ House must deliver meaningful benefits. I have argued that any changes that this Bill would introduce are limited. Some are impossible to deliver, some are inappropriate, and the tangible benefits that might arise from others are unclear at best. The Bill will not of itself improve patient safety; it will not of itself improve treatment or services; and it will not of itself influence Ministers to agree to more generous ex gratia payments for this patient group. I refer again to the review currently under way. For these reasons, I respectfully suggest to the noble Lord that there is no need for recourse to legislation on the issues that he has brought before us.