Sir Robert Francis QC - Compensation
Compensation Framework Study Document
§1.9 - We know now that the government did not provide its response at the same time the study was published. What is his understanding as to why that was and when did he become aware this would be the case?
§1.10 - Is there a reason why this recommendation was limited to those infected who are still alive, beyond what is stated here?
Would he accept that the rationale he presents was true of all those who have already died?
Would he agree that, were a relatively simple mechanism available, it would be right for interim payments to be made to those affected and estates?
Would he agree that one potential mechanism would be for interim payments to be made to those affected who have received a payment through a support scheme, for example the Skipton/HCV Stage 1 payment? This premise is referred to, albeit in a slightly different context, at 11.8: “In cases where the applicant has already been accepted by one or more support schemes in the past, that fact alone should be all that is necessary to trigger acceptance of an applicant’s general eligibility”
Would he accept that by only making interim payments to those infected and still alive - this would continue to leave those who receive no support at all (for example bereaved parents) waiting longer for compensation (if they are still alive to see it, bearing in mind their likely older age)?
Does he accept these are the same groups of people who were excluded from all of the announcements made in, for example, 2019 and 2021?
What consideration did he give to people totally excluded from any on-going support when recommending who should receive interim compensation payments?
§1.15 - Did he meet with anyone who had lost both of their parents to infection?
§1.17 - “For some, the priority is speed of resolution, to enable them to seek closure and settlement before they die. Others desire the ability to claim large awards” - He presents these as exclusive ideas (e.g. speed = smaller awards), presumably no one indicated they would prefer a lesser award more quickly?
§1.20 - “the infected and the affected”. There is a risk when grouping individuals together in this way to forget their individuality, and even their humanity.” - Was there something in particular which led him to make this observation?
§1.23 - Could he summarise the nature of the involvement of NHS Resolution in putting together the study?
§2.13 - “known to be capable of transmitting one or more of the relevant diseases” - Known now or at the time of infection?
§2.15 - Would he accept that eligibility being “automatic for those who have already been accepted as eligible for regular support” is unnecessarily narrow because it excludes automatic entry for those bereaved who have received a lump-sum payment but receive no regular support?
For example, bereaved parents, children of those infected who have died.
Such persons have already had to jump through all the hoops to get a lump-sum, for example HCV Stage 1 lump-sum. Why make them do it again?
§2.16 - Was part of his rationale in making this recommendation that, if it were not the case, it means the government will save money the longer that it does not pay compensation?
Was he also aware that those co-infected with HCV/HIV would be disportionately disadvantaged, if this were not the case, as the vast majority of people in this group have already died?
§2.17 - For the sake of clarity, the reference to “children”, does this encompass those who were children of an infected person and are now adults?
And we can assume that is the case for references to children throughout the report in this context?
§2.22 - “Loss of earnings and job opportunities” - Can he explain why this is restricted to those infected?
Was it not conveyed to him that those affected also suffered such losses?
§5.4 - What consideration was given to the fact that, at present in terms of those affected, only bereaved spouses/partners are eligible for annual payments and certain bereavement awards?
Is there the potential for unfairness if some affected families are to receive compensation (on an equal footing) and to continue to receive annual support payments, whereas others may stand only to receive compensation with no access to annual payments?
Was there any consideration of what can be done to address this potential imbalance?
Same questions as above in relation to “Discretionary income top-ups”
Same questions as above in relation to “Discretionary one-off grants”
Was consideration given to who is defined as a beneficiary of the schemes has changed over time in order to inform considerations on the interplay between compensation and a support scheme? For example, we know that in the original MFT deed, parents and offspring were considered beneficiaries however this is no longer the case with EIBSS.
§6.1 - Would he accept “NHS-supplied blood products” would be a better description than “NHS blood products”, in order to clearly encompass commercial blood products supplied by the NHS?
§6.8 - “It is difficult to identify such a strong moral case for compensation for treatments received before, for example, HCV or HIV were known to exist.”
Does he agree that his use of the term “HCV” in this context would include its previous encompassing descriptors serum hepatitis/NANB/non-b?
Does he agree that his use of the term “HIV” in this context would include its previous descriptors AIDS/HTLV-III/LAV?
§6.8 - “The defined period should be that during which the administration of infected blood or blood products was avoidable”
Has he given due consideration to the fact that, in particular for haemophiliacs, many if not most of them, were given various factor concentrate treatments over periods spanning years and so many, if not most, of them cannot point to a particular batch and say this was definitely the one that infected me with X.
§7.28 - “Obviously, such claims are limited to the impact of the disease on the deceased during his or her lifetime.” - For the clarity of CP’s, can he outline how this would differ from someone who is alive in the sense of which awards outlined in his study an estate could/could not claim for?
§9.3 - Many of those infected/affected have spent large amounts of money and/or suffered loss of earnings having to fight for an investigation/compensation. Sometimes over the course of decades. For some, these figures would run into thousands of pounds and in some cases may consume or exceed certain elements of awards of compensation. Is it worth considering a mechanism for people to claim back these expenses where evidence can be produced?
Would he accept that if this doesn’t happen, some people will not be in the financial position, or as close to as possible, they would have been had the injury not occured?
Would he accept this would likely mostly impact people without whom the inquiry and/or the compensation framework would not exist?
§9.48 (social stigma) - Are there potentially other considerations which could be given to the example here?
For example, the reality of stigma for HIV/AIDS sufferers in the 1980s/90s is without question - To put such levels of well documented and elevated stigma suffered within a certain time period on a par with that which exists today may not be fair in reflecting the undoubtedly greater levels of stigma suffered. Would he agree there is scope to take this into consideration? For example, suffering AIDS stigma during the 1980s might provide a basis for an additional percentage of award to be applied in recognition of the increased levels of widespread stigma at that time.
§9.50 - What evidence did he receive during the course of his study in respect of where infections did contribute or cause the breakdown of a marriage/relationship?
§9.54 - What might the barriers be in this respect?
For example, must the person have never been married? / Never in a relationship?
Could the award be given to someone who had been married but subsequently their marriage broke down and were then unable to form a new relationship?
§9.55 (deprived of the chance of having children) - Are these losses which can be claimed by estates? If so, what could form the evidential basis of such claims, would this be based on the opinion of the personal representative?
§9.57 (deprived of the chance of having children) - How might the use of fertility treatment affect these claims? For example, a number of victims’ families employed the use of sperm donors to avert infection risks. An infected person might argue that they were unable to have their own (biologically) child - but it could be argued they do, legally, have a child but the child is not biologically their own.
§9.73 - What might evidentiary barriers be and how might they be overcome for care provided many years ago, for example in the 1990s?
For example, people who provided unpaid care at this time may say they spent ‘six months’ providing care, but with little or no documentary evidence. This may become even more challenging where the person who provided care has since died and the claim is being made by their estate.
§9.88 - Is the £10k payable to those who have already died?
§9.128 - Given the rationale for interim payments is… “There is a strong desire to be able to obtain the satisfaction that families will be secured after the infected person has died”... “many seek compensation in reality not for themselves but for their loved ones”....”increases that infected persons will die without the reassurance of knowing of the financial benefits available to pass on to their families”
Again returning to the point, does he accept that all of these things were also true of those who have already died?
Does he accept to make interim payments only to the families of living infected persons risks, once again, repeating the mistake of the current support schemes by prioritising some families over others, deepening their sense of injustice?
If interim payments are made to some victims and not others, would it be appropriate for an additional award of interest to be made later down the line on the interim payment that could/should have been given earlier?
§11.15 - Would it be beneficial for such a service to employ some of those infected/affected who might want to be involved in this work?
§12.2 - Would he accept that those impacted must have choice in representation because if, for example, they were given no choice but to use “in-house” lawyers, there stands a risk of lack of trust?
Off-study questions
What consideration was given to loss of education for those bereaved as children?
What considerations might apply to those who have lost both parents?
What consideration was given to those placed into foster care after the death of a parent?
What consideration was given to those who were left unable to work following the death of a child where there is evidence of psychological injury?
What consideration has been given to the fact that for those infected with HIV who died in the 1980’s/early 90’s, life insurance was almost, if not, impossible to obtain so many died without it?
In the study there is a £10,000 payment for living victims to assist with increased costs of insurance, which presumably includes life insurance, but there does not appear to be reflection of the families disadvantaged by lack of life insurance.
It is noted in the reflection of the 9/11 scheme appended to the study that it is said: “benefits received as a result of a death, such as from life insurance, pensions, and state benefits, were required by the legislation to be set off against the assessed awards, which were accordingly reduced.”
In the case of the 9/11 scheme, this presumably means that for the estates of those who did not have life insurance at the time of death, all being equal, compensation awarded would be higher because of the amounts covered by life insurance?
