Reports & recommendations

I recommend that the scheme should offer redress to those infected with HCV and/or HIV, and/or HBV (limited to chronic HBV unless the infection has resulted in a fatality in the acute period), and to defined categories of persons indirectly affected by such infections.

I recommend that the conditions of eligibility for admission of relevant infected persons to the scheme should be that: a) they have been diagnosed as being infected with one or more of HCV (including natural clearers who have suffered loss), HIV, or HBV (limited to chronic cases of HBV unless the infection has resulted in a fatality in the acute period); b) they received a transfusion of blood or components of blood, blood products or transfer of tissue capable of transmitting one or more of the relevant diseases; and c) their infection was not unlikely to have been caused by administration of the relevant treatment, regard being had as to the available evidence as to the measures in place at the time to reduce the possibility of infection, including but not limited to the date of relevant effective screening tests or effective viral inactivation treatments; or d)(i) it was not unlikely to have been caused by transmission to them by a person who fulfils conditions (a) to (c) above, or (ii) by transmission to them by a person who fulfils condition (d)(i), such as a child or children infected by their mother who had previously been infected by her partner, who in turn had been infected as in (a)-(c).

As above, save that (a) the last bullet point should read: "eligibility is accepted if the information available points towards eligibility and the opposite cannot be shown to be more likely" and (b) eligibility should be automatic for individuals already accepted under an existing support scheme.

I recommend that the following relevant affected persons should be admitted to the scheme: a) spouses, civil partners and long term cohabitees (for at least one year in the case of the latter) of living or deceased eligible infected persons; b) children of an eligible living or deceased infected person; c) parents of an eligible living or deceased infected person; d) siblings of an eligible living or deceased infected person; e) providers of care to an eligible living or deceased infected person, as a result of the infection; and f) members of the family, or friends of an eligible living or deceased infected person, whose relationship with them was so close that it could reasonably be expected that their mental or physical health would be seriously affected by the consequences of the disease, and who have suffered emotionally, mentally and/or physically as a result.

I recommend that infections eligible for compensation should be classified in the following manner: a) there should be defined categories for each type of eligible infection, and the stages through which it progresses, and for each category defined degrees of severity to which a range of possible awards for the impact of the disease can be applied; b) the stages and degrees of severity for each disease should be defined by an independent clinical expert advisory panel, by reference to clinical professional consensus; c) the range of potential awards for the impact should be determined by an independent advisory panel of legal experts, taking account of but not limited by current practice in courts and tribunals across the UK.

I recommend that the appropriate award in any case should be composed under the following categories of loss, applicable to both eligible infected and affected persons: a) an Injury Impact Award for past and future physical and mental injury, emotional distress and injury to feelings caused by the infection and treatments for it, or (whilst not being personally infected) being affected by them or by the death of an eligible infected person (including, as part of this, an award for loss of society of the deceased); b) a Social Impact Award for past and future social consequences of the infection including stigma and social isolation; c) an Autonomy Award as additional redress for the distress and suffering caused by the impact of the disease, including interference with family and private life, including where relevant: personal autonomy, loss of marriage/partnership prospects, loss of chance to have children. It should include sums for the aggravated distress caused by interferences in their autonomy and private life such as lack of informed consent, lack of sufficient information about the risks of treatment, and about diagnosis, treatment and testing, or being the subject of research without their informed consent. It should include the effects of lack of candour and inadequate responses by authority. d) a Care Award for the future care needs of the eligible infected person, and to compensate for past losses in respect of care necessitated by their infection (to be paid directly to the infected person where they have paid for care, and/or directly to an affected person who has provided care); and e) a Financial Loss Award for past and future financial losses suffered as a result of the infection.

I recommend that the Government should approve a scheme setting out a framework of tariff based compensation for eligible infected and affected persons, at rates which broadly take account of but are not limited by current practice in courts and tribunals across the UK and sums payable in other UK compensation schemes, and allowing an assessed basis for defined financial losses. The rates of compensation should be based on the advice of the independent clinical and legal panels and set by the scheme.

I recommend that, with reference to the status of awards: a) eligible infected and affected persons should not be required to accept the offer of an award in full and final settlement of any right to pursue legal actions related to the infection; b) any accepted scheme award should be set off against any entitlement to damages for the same subject matter; c) the availability of an award under the scheme should be a factor to which the court could have regard when determining liability for costs in any court proceedings related to the infection.

I recommend that: a) awards should be made in a lump sum in respect of an Injury Impact Award, Social Impact Award, Autonomy Award, and an award to compensate for past losses under the Care Award and Financial Loss Award for infected and affected persons; b) at the option of the applicant, for continuing future losses under the Care Award and Financial Loss Award, there should be paid either a lump sum award or payment by way of guaranteed periodical payments uplifted annually for inflation for life, or the predicted period of the loss, if earlier; c) an infected person should have the option of receiving a lesser lump sum as a provisional award (i.e. one assessed on the footing that as a result of receiving infected blood or blood products or tissue transfer there is a chance that at some definite or indefinite time in the future they will develop some serious disease or suffer some serious deterioration in their physical or mental health) such that in that case they may return to the scheme, or in accordance with arrangements to be made by the scheme, for further compensation then to be paid in respect of the newly developed disease or deterioration; and d) unless the option to have a provisional award is taken, all awards should be final.

I recommend that interest be payable on awards for past financial losses and past provision of care, from the date of infection to the date of the award, in accordance with the practice in personal injury damages claims; alternatively, that such awards are uplifted for inflation during that period.

I recommend that an interim payment of £100,000 should be paid to recognise the deaths of people to date unrecognised and alleviate immediate suffering. This should be done as follows: a) where someone infected died as a child or died as an adult without a partner or child, the interim payment should be made to their bereaved parents (split equally if separated); b) where someone infected has died and there is no bereaved partner but there is a bereaved child or children (including any adopted child), the interim payment should be paid to the child or children (split equally); and c) where someone infected has died and there is no bereaved partner, child nor parent but there is a bereaved full sibling or siblings, the interim payment should be paid to the sibling or siblings (split equally).

I recommend that, with regard to the relationship between compensation, support payments and benefits: a) in assessing compensation under the scheme, no account should be taken of any past payments made under the support schemes or their predecessors; b) the current annual payments under the support schemes should be continued (or merged into the compensation scheme) and guaranteed for life, by legislation or secure government undertaking; c) such continued payments should be taken into account in assessing awards for future financial loss or care provision; d) such deductions as would be made from damages under the Social Security (Recovery of Benefits) Act 1997, but no other, should be made in respect of equivalent awards under the scheme; e) awards of financial loss should be made net of tax, but the awards themselves should not be liable to taxation, and should be regarded for tax purposes as if they were support payments; f) any lump sum award under the scheme should be made exempt from inheritance tax by an equivalent addition to the inheritance tax free allowance of the recipient.

I recommend that an Arms Length Body (ALB) should be set up to administer the compensation scheme, with guaranteed independence of judgement, chaired by a judge of High Court or Court of Session status as sole decision maker, transparent in its procedures so far as the law permits and accountable directly to Parliament for the expenditure of public funds and the fulfilment of its terms of reference. Appeals should be to a bespoke independent appeal body with a legal chair which will reconsider the decision of the scheme in any case appealed to it. The scheme should have procedures in accordance with the principles set out in this report and in particular which: a) have regard to the need of applicants for speed of provision, simplicity of process, accessibility, involvement, proactive support, fairness and efficiency; b) involve potentially eligible persons and their representatives amongst those in a small advisory board, and in the review and improvement of the scheme; and c) permit the hearing of applicants in person. d) should have access to the records held by or on behalf of any previous publicly funded support scheme (subject to any necessary consents by the data subjects), and take into account the reasoning of any appeal from the decisions it takes.

I recommend that the scheme should include provision of the following support services to be provided without charge to the applicant: a) an advice and advocacy service, supplemented where necessary by discretionary access to independent legal advice and representation, where necessary and within a pre-authorised budget, to assist and advise applicants; b) a financial, insurance and benefits advice and support service, to assist recipients in accessing financial and insurance services and obtaining any relevant benefits; and c) advice and referral to appropriate specialist services, signalling or certifying access to any special arrangements.