Hepatitis payment scheme cutoff legal, court rules
15 Aug 08
Ministers entitled to rule out claims where patient died before August 2003 start date
A widow whose husband contracted hepatitis C following a blood transfusion at an NHS hospital, has failed to overturn a decision that a compensation fund for such cases should only to patients alive at a date after his death.
Laureen Fargie, whose husband George died on 7 March 2003, was challenging by judicial review the decision by Scottish ministers that the fund known as the Skipton Fund, launched on 29 August 2003, should only apply to people still alive at the launch date.
The fund was set up on the recommendation of an expert group whose remit included considering financial assistance to people who were infected with the hepatitis C virus as a result of contaminated blood products. It recommended that the then Scottish Executive should establish and fund a discretionary trust to make ex gratia payments to all people who could show they had become infected with hepatitis C after receiving blood products or tissue.
The then minister, Malcolm Chisholm, told Holyrood's Health Committee in January 2003 that a scheme would be set up but would focus on speople who were still alive, at a date to be decided, in order to target people who were still suffering. Though the expert group subsequently described this limitation as "unjust", the scheme finally announced, and later enacted in the Smoking and Health Care (Scotland) Act 2005, kept the restriction.
The fund pays a lump sum of £20,000 to those who have become infected, and a further £25,000 if they reach a more advanced stage of the illness.
Mrs Fargie argued that the selection of the start date was arbitrary, irrational and unreasonable, and in breach of her legitimate expectation. However Lord Uist in the Court of Session agreed with the ministers' arguments that the choice of date was within a range of reasonable responses and might be justified by resource considerations. It was also necessary to work along with the UK Government to resolve benefits issues, and reasonable to adopt and administer a UK scheme.
The judge added that she had failed to establish any of the criteria necessary to create a reasonable expectation, or any right to a "possession" so as to found a claim on breach of human rights.
Lord Uist's decision can be read at http://www.scotcourts.gov.uk/opinions/2008CSOH117.html.