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

Lord Archer of Sandwell Excerpts

Friday 22nd October 2010 Lords Chamber

[Lord Archer of Sandwell]

My Lords, we are debating a Bill presented by my noble friend Lord Morris of Manchester, who is very much to be congratulated on having secured this debate so early in the Session. I say at the outset that we all wish him a speedy recovery from his present affliction. For my noble friend, this is one chapter in an unrelenting campaign on behalf of a group of people who, through no fault of their own, suffered a devastating misfortune. In some cases, it ruined their lives; in others, it deprived them of close family members and for many of them it is already, sadly, too late.

Perhaps unusually among our exchanges, there is no question in this debate of seeking to pass the blame like a parcel from hand to hand. The events which led to the tragic outcome happened many years ago and extended over more than one Government. No Government who have held office during this millennium can be held responsible for what transpired, except that the years have passed and the victims understandably feel, as my noble friend said, that Government after Government have responded with little warmth or sympathy. It would not be true to say that there has been no response, but usually it has been wrung from a reluctant Government.

We are now making a little progress. It seems to be a matter of consensus across all parties that the victims have suffered too long, and that in a community that claims to care for its citizens there should be some alleviation of their afflictions and some willing recognition that those who suffer misfortune should not feel that they are on their own. When the inquiry made its recommendations—and I am sure that I can speak for my colleagues on the inquiry—it was not our intention that they should be set in stone on a take-it-or-leave-it basis. They were proposals intended to move the discussion forward. We gave reasons for them, but it was never our intention that if they were not accepted in their entirety we would walk away from all further discussion. Sadly, there was little discussion. The last Government made their response, but it would be a sad reflection on the democratic process if that were considered to be the last word.

My noble friend Lord Morris has incorporated some of our proposals in his Bill but I believe that that, too, is an attempt to move the discussion forward. A human tragedy should not become a political football. Perhaps the clearest example lies in the proposals for financial relief for the victims and their families, as my noble friend said. One obvious consequence of the condition from which they suffer is a loss of earning capacity, often followed by a forfeiture of pension rights. To that, we can add the costs of additional heating, a special diet and additional transport costs. Successive Governments have, to their credit, provided some relief, as I hope we set out fairly in our report, but some of those we are discussing were previously capable of earning and enjoying high living standards.

That raises a number of questions. Should the Government provide relief to compensate the victims for the quality of life which they have lost and for the financial loss which has exacerbated their condition? Those questions have become intertwined with yet further issues. Was there a legal liability on Governments to pay compensation? The problem about relying on legal redress—I say this from long professional experience—is that it becomes entangled with issues that are further and further remote from the suffering and need. Has the limitation period expired? Are the victims precluded from claiming by the releases they were compelled to sign as a condition of receiving government assistance? After the long delays, can people’s memory of what transpired be relied on? Were proper records kept? In all this, the important issue—the human need—is lost.

There have been long and sometimes expensive debates on whether the disaster happened because successive Governments were in some way at fault. We declined to address that question, because we do not agree with the proposition that unless a Government were at fault they have no obligation to relieve the distress. We believe that where there is undeserved suffering among an identifiable category of citizens, they are entitled to look to the Government for relief. If the Government address their duty and offer relief, that should not be construed as an admission that they or their predecessors were at fault. We summed it up by saying:

“The very purpose of Government is to protect its citizens, so far as possible, from life’s vicissitudes, and to afford them the best achievable quality of life”.

With hindsight, and this was discussed by my noble friend, we may have clouded rather than clarified the debate by suggesting a comparison with Ireland. We did so because it seemed to us that that should offer some guidance as to the standard of relief that we had in mind. The history of the catastrophe in Ireland bore strong similarities to that in England. Sadly, it gave rise to the very kind of arguments that we had been concerned to avoid. The Government said, “But there was a distinction between the two situations. In Ireland the Government were said by an inquiry to have been at fault. There has been no such finding in England by statutory inquiry”. Of course there has not; there has been no statutory inquiry. Successive Governments have refused to appoint one.

We declined to address the issue for the reasons that I have suggested, and in any event we were not a statutory inquiry. We were enabled to pursue our inquiry by the efforts of my noble friend Lord Morris, who sought to repair the omissions of successive Governments. We did not say that Governments had not been at fault; we said that the question was irrelevant to what mattered.

I want to correct a further misconception. It was suggested that the criticism of the Irish Government came from the Finlay tribunal and the Lindsay inquiry, as my noble friend said. The compensation tribunal and the compensation scheme for haemophilia sufferers were established in early 1996. The Finlay tribunal was not established until October 1996, and the Lindsay inquiry not until 1999. The provision made by the Irish Government was not a response to anything in those reports—it was a recognition of need. We believe that Ireland provides a relevant model, although we never suggested that the United Kingdom Parliament should be bound by legislation from Dublin or that it should slavishly follow the Irish mathematics.

One further consideration remains. We are conscious that this is not the most propitious time to propose government expenditure. There have been times in the past when the Government have had fewer constraints on their generosity. It is ironic that the delays by successive Governments in addressing the problem should have provided an excuse for being less generous. Surely the test of any community, though, is whether, when times are hard and resources are limited, the burden is allowed to fall on those who are least fortunate and most in need. Those who suffer misfortune do not forfeit their place in the community. The city gates are there to protect all the citizens, not to exclude those most in need. If my noble friend’s Bill initiates a conversation before yet more of the victims are no longer here to take part in it, his efforts will be justified.

--- Later in debate ---

[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.