Legal perspective from Patrick McGuire of Thompsons Solicitors

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Legal perspective from Patrick McGuire of Thompsons Solicitors

“It may sound odd and entirely contradictory but I would describe the outcome of the work of the Contaminated Blood Financial Review Group as a great victory and a terrible failure.  Thompsons_logo-md

A lot has been written about the Group’s recommendations.  Many people point to the significant increase in funding that the Scottish Government will commit to spending. Others suggest that it was an opportunity lost.  Both views, in my opinion, are correct.  

Victims of the contaminated blood scandal deserve no less than full civil court levels of compensation.

That is to say, that the amount of damages they would be awarded in a court under all of the relevant heads of claim upon which the courts award compensation.

  • That is pain and suffering;
  • a loss of earnings;
  • care costs;
  • and other financial costs, such as increased insurance and heating costs.

The vast majority of the victims of the scandal are unable to pursue civil claims because of the operation of timebar.  A lot of people hoped and trusted that the Scottish Government would recognise that they should not hide behind the timebar provisions in the law and should instead create a compensation scheme to provide the victims with full court assessed damages.

There is precedent for this approach such as the Miners’ Compensation Scheme set up by the UK Parliament to compensate former National Coal Board employees who contracted chronic bronchitis and emphysema. That would also square with the recommendations of the Lord Ross report.  However, it was made clear to the Group at an early meeting that its initial purpose was to make recommendations not in relation to a compensation scheme but instead towards a financial support package. The two are different and every member of the Group made it clear that by exploring and making recommendations to a financial support package they would not give up on their primary objective of seeking justice through the creation of a compensation scheme.  With that point made clearly and understood by the Minister the group had to focus on pushing for as good a financial package as could be achieved in those circumstances.

Having served on the Group, listened to the debate and witnessed the intelligent, compassioned and compelling arguments made by the victims’ representatives I can say that outcome was achieved.  Every victim will now receive the Lord Ross minimum payment of £50,000.  The payments made to those victims who receive ongoing support (currently called Stage 2 victims, although that is also to change) is to increase the Scottish median wage.  This is not only a large jump but I believe it is the first time the median wage has been used as a measure of financial support. It is a very positive and progressive approach.

The complete removal of means testing and the creation of a £1million pound per year discretionary fund are also very positive outcomes.

Finally, and I think most importantly, is the recommendation that victims’ widows will continue to receive financial support at three quarters of the full support package.  These are significant achievements and achievements of which everyone in the group should be proud.

There is however still a lot of work to be done.

Firstly, even in the context of a financial support package, I do not believe that the distinction between the classes of victims who receive financial support and those who do not is fair, appropriate or even in line with current medical opinion.

The categories of victims whose injuries attract ongoing financial support therefore require to be reconsidered as a matter of urgency.  This matter was explored at length by the working group with that clear recommendation.

The effects and consequences of Hepatitis C and HIV must continually be kept under review with reference to the world’s leading experts and the categories changed accordingly.  Scotland must be at the forefront of providing and recognising support for all of the effects of these devastating conditions.

Finally we must not give up the fight for a full compensation scheme. The Scottish Government and the First Minister have shown themselves time and time again to be committed to standing up for victims of the contaminated blood scandal.  They set up the public enquiry that England refused.  They are now putting together a financial support package that will leave the English schemes a pale imitation.  They must however see their political support for victims of the worse scandal in the history of the NHS to its logical conclusion; and the only way of doing that is by creating a proper compensation scheme. The victims, their families and the people of Scotland will accept no less.”

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