Judge rules Lord Advocate and Scottish Ministers breached victims' human rights
Thompsons Solicitors have won a landmark judgement that the Lord Advocate and Scottish Ministers breached the European Convention on Human Rights by refusing to hold public inquiries into the deaths of two victims of Hepatitis C acquired through infected blood transfusions from the NHS.
Solicitor Advocate Frank Maguire Thompsons' Senior Partner spent four years fighting the case with the support of the families, and Mr Philip Dolan, Chairman of the Scottish Forum of the Haemophillia Society.
Mr Maguire said: "This is an historic judgement which raises serious questions about how the Lord Advocate Elish Angiolini has been discharging her duties.
"This judgement goes to the very core of her function which is to uphold the right to life as laid down in the European Convention on Human Rights, and to investigate deaths and hold inquiries.
"Now a senior judge has found she was wrong in law not to order an inquiry into these deaths, and in breach of the deceased's' human rights.
"This is the first time to my knowledge that the Lord Advocate has ever been successfully challenged through the courts over a refusal to hold a fatal accident inquiry."
Mr Philip Dolan Chairman of the Scottish Forum of the Haemophillia Society which helped underwrite the costs of the action said:
"This is tremendous news for haemophilliacs who have paid a terrible price for the government's failure to ensure the integrity of the treatment they received through the NHS.
"We have been campaigning for a public inquiry into the use of contaminated blood and blood products for the past ten years.
"I personally have been trying to pressure MSPs ever since the Scottish Parliament was set up, but it was depressing that Scottish Ministers at Holyrood seemed to spend their time acting like puppets being told by Westminster to say 'no'.
Thompsons raised an action in the Court of Session seeking a judicial review of the Lord Advocate's refusal to hold an inquiry into the deaths Eileen O'Hara and Rev David Black in 2003.
Mrs O'Hara received blood transfusions while undergoing treatment for a heart condition, while the Rev Black was a haemophilliac.
In his judgement, issued at the Court of Session, Lord Mackay of Drumadoon quashed the Lord Advocate's decision not to hold fatal accident inquiries into the two deaths.
Lord Mackay said Scottish Ministers and the Lord Advocate had "acted in a manner incompatible with the convention rights of the deceased" at the time.
A summary of his findings added: "In the particular circumstances of these cases, Lord Mackay has reached the conclusion that the only means by which a practical and effective investigation into the death of either Mrs O'Hara or Mr Black could be achieved would be if the state were to initiate a public inquiry.
"That could be done by the lord advocate seeking the holding of a fatal accident inquiry before a Sheriff or by the Scottish ministers setting up a public inquiry under the provisions of the Inquiries Act."
Lord Mackay has arranged a legal hearing for ministers and Ms Angiolini to decide what action they intend to take, before making any further orders.
The new Scottish Government announced last year that they would hold a public inquiry into Hepatitis C cases, but has not yet announced the form the inquiry will take.
Mr Maguire added: "We must now have a full judicial inquiry by a Court of Session judge with full powers to compel witnesses to appear, including the Scottish Blood Transfusion Service, and to order production of all relevant documents, notes and memoranda from both Holyrood and Westminster.
"We know that 40,000 people in Scotland received blood transfusions in the eighties and early nineties, but we have no idea how many contracted Hepatitis C.
"The longer this disease is left undiagnosed the greater the risk it develops into cirrhosis of the liver or liver cancer with fatal consequences, and all the while unsuspecting victims could be infecting their loved ones."
The families of both victims have welcomed the judgement.
Roseleen Kennedy, one of Eileen O'Hara's four children said: "I am just delighted that at last we have an opportunity to find answers to some of the questions that we have haunted us for all this time.
"We are now five years and four grandchildren on from when my mother died, and we finally seem to be getting somewhere.
"It has a been a long and difficult time, but we are a strong family, and we were determined to carry on for our mother's sake, and for all those other people who may also have been infected.
"We don't even know if anyone else received the same contaminated blood as my mother, because we have never found out exactly when she was infected."
Mrs Kennedy, a school teacher added: "We can't thank Mr Maguire, Mr O'Neill, QC and Mr Caskie, Advocate enough for their determination to see our case through."
The full judgement is available at: http://www.scotcourts.gov.uk/opinions/2008csoh21.html
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The Glasgow Evening Times
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