Medical negligence news

Background briefing on contaminated blood judicial review, March 2010

Michelmores' clinical negligence team provide a press release below.

On judicial reviews generally

The rule of law demands that any decision or other action the government might take complies with the legal principles of our unwritten constitution. Judicial review is the way the courts can check that government decisions comply with the constitutional principles enshrined in common law (i.e. previous cases) and legislation.

Interested parties may apply to the courts for a judge to review a government decision and check that it has been properly and lawfully taken. Applicants have to demonstrate 'grounds for review' recognised by the body of law known as administrative law.

However, judges cannot substitute their own decisions for those of the government, because they have no democratic mandate. So judicial review is not a review of the merits of the action, because there is often a range of reasonable and lawful decisions that a government could take.

But the judge also has a range of options at his disposal, looking at substantive issues as well as procedural ones. The judge may make various orders: quashing orders, mandatory orders, prohibiting orders, or order an injunction or damages, or make a declaration.

The Archer report and the government's response

 Archer recommended that payments should be made to haemophiliacs at least equivalent to the scheme which applies in Ireland (recommendation 6(h)). There, haemophiliacs infected with HIV and hepatitis C are awarded compensation according to a civil damages assessment of loss: €14,100 to €3,100,000, average €853,636.

The UK government's response to Archer on 20 May 2009 mentioned increased funding to haemophiliacs to £12,800, but ignored 6(h) - which amounts to an implicit rejection. Subsequent ministerial statements to Parliament explained the reasoning behind the rejection of 6(h):

On 23 June 2009 Gillian Merron MP said "I cannot accept the comparison with Ireland, because the Irish blood transfusion service was found to be at fault, and that was not the case here".

Then on 1 July 2009 she said ""I stand by the points that I made. Furthermore, a judicial inquiry in Ireland found failures of responsibility by the Irish blood transfusion service and concluded that wrongful acts had been committed. As a result, the government of the Republic of Ireland decided to make significant payments to those affected. As I will explain, that was not the case with the blood transfusion service here."

The government therefore claims two distinctions between here and Ireland:

• In Ireland the payment was fault-based; here, it was ex gratia compensation
• In Ireland the compensation scheme was set up in response to findings of fault by judicial inquiries; here there were no such findings of fault

What we say about the government's Response

Quite simply, the government is wrong about Ireland:

• Compensation in Ireland is not fault based. In both countries payments are ex gratia and not designed to acknowledge fault on the part of the state.
• The Irish scheme was not set up in response to findings of fault. The compensation tribunal in Ireland was set up before either of the judicial inquiries in Ireland had reported.

This makes the UK government's decision unlawful, either (a) due to material error of fact; (b) because it was unreasonable, or (c) because the government took into account irrelevant considerations.

These points therefore constitute our client's 'grounds for review', but are really different ways of expressing the same point.

What happens?

The hearing is on 25 and 26 March at the Royal Courts of Justice in London, before a high court judge. The Claimant is represented by Michael Fordham Q.C. and Jessica Boyd of Blackstone Chambers.

If the judge agrees with us, then the government's decision was unlawful and the judge will either make a quashing order, or a declaration that the decision was unlawful.

The political decision would then need to be taken again in light of the court's ruling. The government may well be able to make the same decision about the level of compensation again, but it would have to do so on lawful grounds.

Further explanation and information is available from Michael Vian Clark at Michelmores solicitors, 01392 688688.

Created: 22/03/2010
Categories: Blood products