Laureen Joan Fargie For Judicial Review Of The Eligibility Criterion Of The Skipton Fund As Agreed To And Determined By The Scottish Executive
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2008] CSOH 117 |
| Court | Court of Session |
| Published date | 13 August 2008 |
| Date | 13 August 2008 |
| Year | 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 117 | |
| OPINION OF LORD UIST in the petition of LAUREEN JOAN FARGIE for Judicial Review of the eligibility criterion of the Skipton Fund as agreed to and determined by the Scottish Executive in so far as it restricts payments to representatives of persons who have died having been infected with Hepatitis C as a result of infected blood, blood products or tissue from the National Health Service to the representatives of those persons who died after 29 August 2003. ________________ |
Petitioner: Gale QC, Miss Sutherland; Drummond Miller WS
Respondents: Johnston QC, Miss Poole; Solicitor to the Scottish Executive
13 August 2008
Introduction
[1] This is an application to the supervisory jurisdiction of the court by Mrs Laureen Jean Fargie. She is the widow and next surviving kin of the late George Fargie ("the deceased"), to whom she was married on 17 November 1978. He worked as a gardener, ultimately becoming the head gardener at four hospitals in Edinburgh. He had to retire in 1987 after he suffered a major heart attack. He suffered a further heart attack the following year and subsequently underwent a quadruple heart by-pass operation on 9 November 1990. On or about 11 November 1990 he lost consciousness for a period of about three weeks as a result of medical complications following upon an infection at the site in his leg where a vein had been removed. On 17 November 1990 he had to undergo an operation for the amputation of his right leg. In March 2001 he had to go back into hospital for exploratory surgery on a suspected bowel carcinoma. In the course of that surgery a nurse pricked herself with a needle. Blood tests therefore had to be carried out and it was discovered that the deceased had contracted Hepatitis C some time previously. He was told by the doctors that he must have contracted it from a blood transfusion at the time of either his heart by-pass operation or the operation for the amputation of his right leg. The deceased died from acute pulmonary oedema due to ischaemic heart disease at the Western General Hospital, Edinburgh on 7 March 2003. The petitioner has since obtained an opinion from Dr Andrew Bathgate, Consultant Gastroenterologist at the Centre for Liver and Digestive Disorders at the Royal Infirmary of Edinburgh, who concluded, after considering all the relevant medical records, that the deceased contracted Hepatitis C from an infected blood product.
[2] Hepatitis is inflammation of the liver. An explanation of the Hepatitis C virus ("the virus") is given by Burton J in A v National Blood Authority [2001] 3 All ER 289 at pp 300-301, para 8. Screening tests to eliminate the virus from blood donations were not introduced in the National Health Service (NHS) until 1 September 1991. The effects of the virus were described by Burton J as follows:
"In so far as its consequences are concerned, although it is and can be a serious condition, leading in rare cases to eventual death, many sufferers from Hepatitis C have few or no clinical symptoms, life expectancy is often unaffected and little, if any, change in lifestyle results ..."
The Skipton Fund
[3] The Skipton Fund ("the Fund") is a private company limited by guarantee which was incorporated on 25 March 2004. Its registered office is at 35 Belmont Road, Uxbridge, Middlesex. Included in the objects clause of its memorandum of association is "to administer the Hepatitis C ex gratia scheme on behalf of the Department of Health". It is called the Skipton Fund because the meetings to set it up were held at Skipton House, an office of the Department of Health in London. The history of events leading up to the establishment of the Fund is briefly as follows.
[4] In evidence to the Health and Community Care Committee of the Scottish Parliament ("the HCCC") on 25 October 2000 the then Health Minister stated that it was a generally held principle that the NHS did not pay compensation for non-negligent harm. On 26 April 2001 a debate on Hepatitis C was held in the Scottish Parliament. In October 2001 the Committee published a report in which it recommended that the Scottish Executive should set up an Expert Group to consider not only financial assistance to those who were infected with the virus as a result of contaminated blood products but also the wider issue of the NHS making no-fault compensation payments. Such an Expert Group was set up under the chairmanship of Lord Ross, the former Lord Justice Clerk. In its preliminary report published in September 2002 it recommended that the Scottish Executive should establish and fund a discretionary trust as a matter of urgency that would make ex gratia payments to all people who could demonstrate, on the balance of probabilities, that they had received blood, blood products or tissue from the NHS in Scotland and were subsequently found to be infected with the Hepatitis C virus. It proposed (at para 2.7 of its report) that the ex gratia payments be constituted, so far as relevant for present purposes, as follows:
"a) an initial lump sum of £10,000 to cover inevitable anxiety, stress and social disadvantage;
b) an additional lump sum of £40,000 to those who develop chronic Hepatitis C;
c) in addition, those who subsequently suffer serious deterioration in physical condition because of their Hepatitis C infection, e g, cirrhosis, liver cancer or other serious condition(s), should be entitled to additional financial support (on an ongoing basis if necessary) as may be assessed appropriate by the trust. This financial support should be calculated on the same basis as common law damages, taking account of the payments made under a) and b) above;
d) where people who would have been beneficiaries of these arrangements are deceased and their death was not due to the Hepatitis C virus, the above payments should pass to their executors. Where their death was due to the Hepatitis C virus, the trust should provide for payments to be made to dependant children, spouses, partners or parents, as appropriate."
[5] On 11 December 2002 Lord Ross gave evidence before the HCCC and spoke to the Expert Group's recommendations. He stated that the Expert Group recognised that the decision on the above recommendation was political and not for the group to make, that they appreciated that there were many competing demands made on the health budget and that that was why they had insisted on being advised what the measures would cost, but that they felt that the figures were reasonable and that it ought to be possible for them to be accommodated in the health budget.
[6] In a statement to the committee the then Minister for Health and Community Care (Malcolm Chisholm) stated:
"We said in our response to the Expert Group 's report that we share its concerns for those who, through no fault of their own, are suffering 'serious long-term harm'. Those are the words that the Health and Community care Committee used in its report last year. We would very much like to find a way of doing something to help those people.
However, there are quite complex medical, legal and financial considerations. The way in which Hepatitis C presents is variable. Finding a fair set of criteria for making payments and meeting people's needs is not necessarily straightforward. It is also clear that what the Expert Group is proposing involves a very large sum of money and that it would not necessarily focus help on those who need it most. We must take account of the costs of any payment scheme in the light of our other health priorities, which are vital to the people of Scotland.
We are looking very carefully at who needs help and at the best way to design a scheme and structure payments so that the individuals involved benefit fully. There are two considerations. First, we must act within devolved powers, and that might need clarification when it comes to the kind of payments that we are proposing. Secondly, we need to look at the interface with the social security system and devise a scheme that fits it as well as possible, avoiding a situation in which payments lead to social security payments being withdrawn or refused."
The above two considerations were in his view capable of resolution and if progress could not be made on them by the turn of the year he thought it might be necessary to explore other (unspecified) avenues. He also pointed out at one stage in his evidence that "a lot of the people that the Expert Group is proposing should be helped are no longer alive" (sic).
[7] At a meeting of the HCCC on 29 January 2003 the Minister made, inter alia, the following statements:
"I have looked at the details of the proposals from the Expert Group on financial and other assistance for NHS injury, and some difficulties have emerged as a result of my reflections. The main group about which we are all concerned is the group that is made up of people who have contracted Hepatitis C from blood products and who are still alive. It would be reasonable to focus assistance on those people who are still with us and who contracted the Hepatitis C virus in that way. That is the group I would like to help. ...
My thinking is that I would like to give a payment to everyone who contracted Hepatitis C from blood products and who is still alive. I propose the payment of a sum of £20,000 to everyone who is in that position. I still intend to follow the Expert Group 's thinking about a further payment at the cirrhosis, or more advanced, stage of the illness. That is consistent with what I said before Christmas. I propose that £25,000 should be paid at the advanced stage. In concentrating on the people who are still alive I differ from the Expert Group . That is consistent with what I said about targeting support on those who are suffering now as a result of having contracted the virus in the way in question."
When a member of the committee stated that he had emphasised the fact that...
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