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CN v Secretary of State for Health and Social Care

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CN, R. (On the Application Of) v The Secretary of State for Health and Social Care
CourtCourt of Appeal (Civil Division)
Full case name The Queen on the application of CN and the Secretary of State for Health and Social Care and the NHS Business Authority
Decided25 January 2022
Citations
  • [2022] EWCA Civ 86

  • [2022] WLR(D) 68, [2022] EWCA Civ 86[1]
Case history
Prior actionsPermission was initially refused by Spencer J.; permission was refused once more at a hearing by Stacey J.; then Holroyde LJ granted permission to appeal the refusal of Stacey J.
Appealed fromHigh Court of Justice
Court membership
Judges sitting
Case opinions
Decision bySir Geoffrey Vos
ConcurrenceLady Justice King,
Lord Justice Dingemans
Keywords

CN v Secretary of State for Health and Social Care [2022] EWCA Civ 86[1] was an appeal against the refusal of permission to apply for judicial review to challenge the infected blood support[a] scheme administered by the NHS Business Services Authority (NHSBSA) for non-inclusion of those infected with chronic Hepatitis B virus.[7] The appeal was based on the grounds that the exclusion of those infected with HBV from the England Infected Blood Support Scheme (EIBSS) was unreasonable and discriminatory,[8] contrary to article 14 when read in conjunction with article 8 and article 1 protocol 1 (A1P1) of the ECHR. The appellant also claimed that there was different treatment and that the failure to include those infected with HBV was unreasonable, and that the original application for review should not have been deemed out of time.[2]

The permission appeal was unanimously dismissed because the application was deemed to be out of time and the claims under article 14 and the one based on unreasonableness and irrationality both failed.[9] The court felt that the support scheme (EIBSS) was a response to a "pressing moral claim" and "an exception to the regime of fault based liability".[10]

History of 'CN'

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The appellant, known only as "CN", was infected with the hepatitis B virus which they believe to have contracted around the time of April 1989 at Hammersmith Hospital, where a blood transfusion was required during the course of a bone marrow transplant. Since being infected with HBV, CN experienced a number of serious health issues, including: chronic liver disease, renal failure, a compromised immune system, joint degeneration, Hypertension, short-term memory loss, and breathlessness.[1] CN had been running a successful catering business which had to be relinquished in order to seek medical treatment, and for the last 13 years, CN has had to be sustained by state benefits. In March 1995, CN had initiated litigation in the civil courts with the NHS and the National Blood Authority (NBA) as joint defendants, however the case was eventually discharged following the removal of public funding.[1]

CN claimed to be in a "relevantly similar" position to beneficiaries infected with HIV and HCV who already came within the scope of support offered by the EIBSS,[2] yet the scheme did not include infection with hepatitis B because blood donors were screened for hepatitis B from 1972,[11][12] which meant that the likelihood of blood being contaminated with hepatitis B in the 1980s was far more remote than for infection with HIV and hepatitis C.[1]

Detailed grounds

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The appellant argued the appeal on four grounds:[1]

  1. that they were in a relevantly similar position to those infected with HIV and HCV
  2. that the different treatment could not be justified by the Secretary of State
  3. that it was unreasonable to fail to include those with HBV in the EIBSS scheme
  4. that the judge should have extended time for the application to be made

Judgment

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In dismissing the appeal, the court stated that it could not be said that CN was in a "relevantly similar position" since the proper comparison would need to be drawn with those who received blood or blood products which had not been screened and as a result were infected with Hepatitis C. Similarly, the other comparator group would be those who acquired HIV who would be unable to claim if the blood or blood products administered to them had been treated.[13]

The Master of the Rolls argued that it was possible for the Secretary of State for Health and Social Care to reasonably justify a differential approach to treatment, especially where "economic policy" and decisions concerning disability were involved. The court maintained that the Secretary of State had to be afforded a broad "ambit of discretion" in setting up an ex gratia scheme such as EIBSS.[14][15]

Even if there were different treatment of persons in a relevantly similar position, it is not arguable that the Secretary of State is unable to justify that different treatment. A sliding scale of intensity of review is appropriate in this case, which is concerned with judgments of social and economic policy and with disability, but the Secretary of State must nonetheless be given a wide margin of appreciation in creating an ex gratia scheme of this kind.

Sir Geoffrey Vos, Master of the Rolls, Court of Appeal, 25 January 2022[1]

Delay

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The refusal of permission to apply for judicial review was made on 15 February 2021 by Martin Spencer J on the basis that the application was "manifestly out of time".[14] The non-inclusion of those infected with Hepatitis B was not considered a renewing act but an historic one, which can be pinpointed to the formation and alterations of the support schemes in 2004 and 2017. The court accepted that the limitation clock had started running with the inception of EIBSS on 1 November 2017.[16]

See also

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Notes

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  1. ^ Some sources state "compensation" scheme.[2] However, EIBSS stands for England Infected Blood Support Scheme[3][4] and administers payments which have been described as "ex gratia" in nature as opposed to "compensatory".[5][6]

References

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  1. ^ a b c d e f g "CN, R. (On the Application Of) v The Secretary of State for Health and Social Care [2022] EWCA Civ 86 (4 February 2022)". www.bailii.org. Retrieved 26 February 2022.
  2. ^ a b c McCann, Lucy (21 February 2022). "Court of Appeal refuses permission to judicially review infected blood compensation scheme". UK Human Rights Blog - 1 Crown Office Row. Retrieved 28 February 2022.
  3. ^ "CN (claimant/appellant) -v- The Secretary of State for Health & Social Care & anr". European Union News. Right Vision Media. 28 January 2022. Retrieved 26 February 2022. The Appellant sought to challenge his non-inclusion in the English Infected Blood Support Scheme (EIBSS)...
  4. ^ "EIBSS News". www.nhsbsa.nhs.uk. England Infected Blood Support Scheme. 29 November 2021. Retrieved 2 March 2022.
  5. ^ Dorries, Ms Nadine (16 June 2020). "Blood: Contamination". parliament.uk. UIN 59714. Retrieved 28 February 2022. The Government established the England Infected Blood Support Scheme (EIBSS) in 2017 to provide dedicated ex-gratia financial and non-financial support to people infected by HIV and/or hepatitis C through treatment with National Health Service-supplied blood or blood products, and their affected families. This scheme is currently administered by the NHS Business Services Authority.
  6. ^ Rawlinson, Kevin (7 March 2017). "NHS tainted blood scandal: victim payment scheme to be scaled back". The Guardian. London. Retrieved 28 February 2022. This article was amended on 14 March 2017. References to ″compensation″ have been changed to ″payments″. The sums received by victims of the contaminated blood scandal have only ever received ex gratia payments and not compensation.
  7. ^ "CN (claimant/appellant) -v- The Secretary of State for Health & Social Care & anr". www.judiciary.uk. 28 January 2022. Retrieved 26 February 2022.
  8. ^ "Christian J Howells". www.30parkplace.co.uk. 30 Park Place Chambers. Retrieved 28 February 2022. Instructed by a claimant infected with Hepatitis B in the 1980s who seeks to challenge the discriminatory (art 14 ECHR) failure to include persons infected with Hepatitis B in the infected blood support schemes...
  9. ^ CN, R. (On the Application Of) v The Secretary of State for Health and Social Care, 86, 46 (EWCA 2022) ("The parties did not deal separately with the question of unreasonableness or irrationality, save that Mr Howells suggested that the government could not, on that basis, take advantage of an ex post facto justification. As the judge held, however, I take the view in this case that, if the article 14 claim cannot succeed, neither can the claim based on irrationality.").
  10. ^ Sir Robert Francis QC (7 June 2022). "4.54". Compensation and Redress for the Victims of Infected Blood - Recommendations for a Framework (PDF) (Report). Cabinet Office. p. 56. Retrieved 12 June 2022.
  11. ^ A & Ors v National Blood Authority & Ors [2001] EWHC 446 (QB) at para. 8, [2001] EWHC QB 446, (2001) 65 BMLR 1, 65 BMLR 1, [2001] Lloyd's Rep Med 187, [2001] 3 All ER 289 (2001), High Court (England and Wales)
  12. ^ "Final Report: Chapter 25 - Screening of Donated Blood for Hepatitis B". www.penroseinquiry.org.uk. 2015. Retrieved 28 February 2022. Testing to screen for the Australia antigen was introduced for all blood donations in the rest of the UK from December 1972.
  13. ^ CN, R. (On the Application Of) v The Secretary of State for Health and Social Care, 86, 8 (EWCA 2022) ("...I have concluded that it is not arguable that CN is in a relevantly similar position, because the true comparison is either (a) with HCV sufferers who contracted their condition from unscreened blood or blood products, or (b) with HIV sufferers who would be very unlikely to be able to claim if they received treated blood or blood products.").
  14. ^ a b CN, R. (On the Application Of) v The Secretary of State for Health and Social Care, 86, 14 (EWCA 2022) ("The government had to have an ambit of discretion in setting up an ex gratia scheme, and it was not arguably irrational or unlawful to exclude those infected with HBV.").
  15. ^ "Court of Appeal refuses permission to judicially review infected blood compensation scheme – UK Human Rights Blog". innertemplelibrary.com. 22 February 2022. Retrieved 6 August 2022. In any event, the Secretary of State's justification for who was to be compensated under the ex gratia Scheme was to be given a wide margin of appreciation by the courts.
  16. ^ Court 71, Court of Appeal (Civil Division) (25 January 2022). CN (claimant/appellant) -v- The Secretary of State for Health & Social Care & anr (video) (Hearing). London. Event occurs at 02:30-02:49. Part 1. Retrieved 1 March 2022 – via YouTube. The judge found the time ran from the establishment of the English Infective Blood Support Scheme in 2017 at paragraph 27 of your judgment and the respondent relies in particular on the Court of Appeal judgment in Delve which could be found at Tab 13...
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