Lawyers for the Department of Health and Social Care have told Infected Blood Inquiry chair Sir Brian Langstaff to be wary of being influenced by hindsight, suggestion and "the awareness of what came next' as he considers his final report into one of the NHS's biggest treatment disasters.
Sir Brian is set to conclude the ongoing Infected Blood Inquiry in 2023 and report back findings as to the circumstances which saw thousands - most predominantly haemophiliacs - were infected with lethal viruses like HIV and hepatitis C through NHS treatment. As the inquiry concludes, core participants including the DHSC have filed "closing submissions".
Notably, the Government legal team's 600-plus page submission warns Sir Brian that "it is now potentially impossible to trace over the decisions of the past". However, the DHSC lawyers add that "nothing in" the filing "should be taken to detract from the acceptance that things happened that should not have happened"; "that things went wrong" . Or from the unreserved apology for the fact that this was so."
The lawyers said: "The Inquiry's review of over 50 years of the National Health Service's history of treating those who suffer from illness or injury requiring treatment with blood products, or who have received blood transfusions leading to infection, has been important and salutary."
The contaminated blood scandal has seen thousands die - including patients who were treated at Newcastle's haemophilia centre at the RVI - such as Peter Longstaff, whose wife Carol Grayson. has been campaigning for justice for more than thirty years.
Hindsight
The submission notes: "The first and fundamental point is that it is now potentially impossible to trace over the decisions of the past (say, in relation to the risk of AIDS in the1980s) without being influenced by the awareness of 'what came next'. Rather like trying to retrace one's way to the centre of a maze which has been successfully negotiated, the route on the second journey into the maze will be influenced, consciously or unconsciously, by the previous successful trip or route map.
"Less weight or attention is given to the blind alleys or false starts that seemed appropriate routes, even promising ones, at the time, but later were shown to be mistaken. 14 Time spent exploring them is more likely to be discounted. Equally, it may be harder to give credence or weight to the intentions and plans of those involved at the time, when later shown to be flawed."
The DHSC legal team also cautions the inquiry that: "Witnesses too will have found it impossible to recreate, exactly, what they thought at the time or reasons for their actions. That is not only because of the issues of memory [...] but also because of the influences of hindsight and of suggestion that are inherent in the Inquiry process."
Self-sufficiency
The 600-page document deals with 14 subjects which have come before the inquiry - from why it took more than a decade after it was then Health Secretary Lord David Owen's ambition for the UK's blood supply to be self-sufficient to what was known during the early 1980s about HIV/AIDs and hepatitis.
The lawyers write that there was "no evidence" they are aware of that Government ministers or officials had made a decision to "abandon the pursuit of self-sufficiency", and that there was "evidence [....] it was being actively pursued".
Knowledge of hepatitis C and HIV/AIDs
When it comes to hepatitis C, then known as non-A, non-B hepatitis, the document says: "There is a risk when looking at events retrospectively of placing greater emphasis on research which is now known to be correct or amore accurate assessment of the progression of the disease, when that may not reflect what was reasonably understood about the disease at the time.
"An assessment of the available material suggests that, while knowledge of the infection risk and severity of NANB Hepatatis [sic] did increase over time, there was considerable uncertainty surrounding these issues."
The Inquiry has previously heard evidence, including a letter from one haemophilia centre director Dr Peter Kernoff dated 1979 which said there was a "growing awareness of the probability that commercial concentrates have a higher risk of transmitting non-A, non-B hepatitis than NHS material".
Elsewhere, the document suggests that in 1983: "More broadly, at this stage and for some time to come [AIDs] was considered to be very largely a US problem. The AIDS epidemic that later followed in the UK was not, at this stage, anticipated."
Referring to a letter from Dr Spence Galbraith in 1984, where the then-director of the UK's Communicable Disease Surveillance Centre urged the withdrawal of US-made blood factor products used to treat haemophilia, the lawyers write: "It is unclear why the letter was not more widely circulated after the Government was returned to office on 9 June 1983, or was not referred to in documents such as the briefing on AIDS that Lord Glenarthur asked for and received shortly afterwards."
US-made blood products - understood to have a higher risk of contamination with the HIV virus due to the practice of sourcing blood donations from prisoners - were not withdrawn at this time.
Eleanor Grey KC will give a verbal closing statement to the Inquiry on January 18. The Inquiry is set to conclude this year.
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