In November 1987 Lord Owen learned that the objective of national self-sufficiency in blood products had not been achieved, and initiated the correspondence referred to in Chapter 4. He then sought access to the papers relating to his period as minister, which had of course been retained by the Department. It is clearly recognised that a former minister is entitled to consult documents which formed the basis of his decisions as a minister. The current Ministerial Code, published by the Cabinet Office in July 2007, reads (paragraph 2-9):
“By convention and at the Government’s discretion, former ministers are allowed reasonable access to the papers of the period when they were in office…subject to compliance with the Radcliffe rules (section 8, 10) former ministers may have access in the Cabinet Office to copies of Cabinet or Cabinet Committee papers which were issued to them when in office, and access in the relevant department, to other official papers which they are known to have handled at the time”.
It came as a surprise to Lord Owen to be told that the papers had been destroyed “under the 10-year rule”. We have made inquiries, but have been unable to identify “the 10-year rule”. But it would be strange indeed if any rule prescribed that documents should be destroyed after a given period of time without some responsible official considering whether they might prove relevant to future discussion or inquiry. Since in 1987 there was continuing public discussion of the self-sufficiency policy, and of the reasons for failure to achieve the objective, it should have been obvious that the papers in question might prove relevant to ongoing issues. In June 2006, the Department of Health commissioned a review “to access the extent and content of documents held by the Department of Health in relation to non-A non-B Hepatitis”. The outcome of the Review was published in May 2007. It includes a table entitled “The Chronology of Events”. And one item reads:
“1986: Research identifies the need for retrospective NANBH studies, recognising that the initial disease might be quite mild but progression to symptoms associated with severe disease may be very protracted”. And by September 1988, it had transpired that the discussion was not concluded. Another item reads:
“September 1988: the UK was not self-sufficient in plasma products due to errors in estimating both the amount of plasma stockpiled and the net yield for Factor VIII production at BPL and could not expect to be so for a couple of years”.
We have been unable to ascertain who carried out the destruction of the papers, and who gave the instructions. But the conclusion appears inescapable that some official made a decision which he or she had no authority to make, or that someone was guilty of a serious error of judgement. The consequence is that Lord Owen has done his best to recollect details of events a quarter of a century ago, but both he, and we, have been deprived of the primary sources.
Lord Jenkin of Roding was Secretary of State for Health and Social Security for two years from 1979 to 1981. He explained to us that the Minister of State of the Department was Sir Gerard Vaughan, MP who, sadly, is no longer alive. Since Sir Gerard was a doctor, Lord Jenkin delegated to him the handling of matters relating to blood and blood products used by the NHS, asking only to be kept informed of important developments and matters arising in Parliament.
In October 2004 Lord Jenkin was asked to attend a meeting of the All Party Group on Hepatitis. In consequence, it was suggested to him that he might ask to see the papers which were presented to him during his period in office. Accordingly he wrote to Lord Warner, the Parliamentary Under Secretary of State, requesting certain papers. In his reply, Lord Warner stated that officials had carried out a search, but could find no trace of the papers described. He added:
“The Government takes the issues of haemophilia and blood products very seriously and has great sympathy for anyone who has suffered harm as a result of NHS treatment. Ministers do understand the hardship and great distress that people with haemophilia and their families have suffered from both HIV and Hepatitis C, and deeply regret that so many people were infected through blood products”. He added that, notwithstanding the ex gratia payments: “the position with regards to accepting liability has not changed” See Chapter 9
Lord Jenkin pursued the matter by making an appointment to see Sir Nigel Crisp, the Permanent Secretary. On 10 March 2005 Lord Warner wrote further to Lord Jenkin, explaining that he had not meant to convey that the Department held no records on the treatment of Haemophilia patients and blood safety, and offering to discuss the papers required. Enclosed with the letter, no doubt by oversight within the Department, was a Departmental note from the Blood Policy Team explaining that the original reply had been drafted by the correspondence unit “using a number of standard lines”, and adding that the new draft “seeks to reassure Lord Jenkins [sic] that the Department of Health does operate an effective management system”.
On 13 April 2005 Lord Jenkin met Sir Nigel, who apologised for the original reply. Lord Jenkin was left with the clear impression from their subsequent conversation that all the files bearing upon the issue of contaminated blood products had been destroyed, and that this had been done “with intent, in order to draw a line under the disaster”. We enquired whether Sir Nigel was available to give evidence to us as to whether this was what he intended to convey, but were informed that he is now on an extended visit to another part of the world. However, he added that there were files available in the Records Office, and that staff were seeking to identify those which may be helpful. Lord Jenkin was subsequently able to inspect some of them. He discovered no files relating to the source of infection, but his inspection confirmed that the Department was aware that Hepatitis C had been identified, and that blood and blood products used for transfusions were routinely tested for contamination. He subsequently received from the Department two bundles of documents. One of these was to be treated as confidential.
He tabled a Parliamentary question:
“Whether the Department of Health’s report ‘Self-sufficiency in Blood Products in England and Wales’, published on 27 February 2006, is a complete account of the circumstances leading to the infection of National Health Service patients with HIV and Hepatitis C due to contaminated blood products”.
Lord Warner replied on 19 April 2006:
“My Lords, the Report published on the 27 February examined key issues around self-sufficiency in blood products in the 1970s and early 1980s. The review was commissioned following suggestions that implementation of what was called “the self-sufficiency policy” in blood products in this period might have avoided haemophiliacs being treated with infected blood products. The report makes it clear that it was based on surviving documents from 1973, but that self-sufficiency would not have prevented infection from haemophiliacs with Hepatitis C”.
Lord Jenkin enquired about the destruction of Departmental files.
Lord Warner replied. Reply given on 26 May 2006
“We regret that the papers were destroyed in error, which was, I think, explained to the noble Lord in a meeting with the former Permanent Secretary to the Department of Health. I think that it has been explained to him on a number of occasions that there was no deliberate attempt to destroy past papers. We understand that many of the papers were unfortunately destroyed but I have to say that that did not take place under this government”.
Baroness Barker asked:
“My Lords, does the Minister accept that the report, which contains no information about what patients were advised at the time and no information about what Government policy was on blood donations from high-risk groups, is an unsatisfactory report and will not help to move this policy or this practice forward”.
Lord Warner replied:
“My Lords, the document is helpful in setting out the chronology and the changes in scientific understanding during this period, which had a considerable impact on policy under successive Governments on blood products and their use with haemophiliacs. There was a lot of clinical uncertainty in the early days in identifying Hepatitis C. The document sets out clearly those clinical and scientific uncertainties. It gives an extensive 158 references to other documents, on which it relied”.
In addition to the ministerial papers of Lords Owen and Jenkin, two other instances of misfiling or mishandling have been identified. The first example arose in connection with the litigation consolidated in 1989 by the “Multi-Party Group” (See Chapter 9). A substantial number of documents were removed from Departmental files and provided to solicitors acting for the Department which were a party to the action. Some of them were photocopied and copies provided to solicitors acting for the claimants. After the litigation was concluded, folders thought to contain the documents which had been removed were returned to the Department, but when in January 2005, the Department received a request under the Freedom of Information Act for some of the records, it was discovered that they were missing.
The resulting publicity led to the return in May 2006 by a firm of solicitors acting for claimants in the litigation, of the photocopies of 610 documents with which they had been provided. This appeared to result in searches within the Department for files that had not been registered, meaning that their content had not therefore been previously recorded. Consequently, a further 4,629 documents were discovered. These were in addition to the copies returned by the solicitors. It follows that 5,239 documents or photocopies were recovered, and it is thought that the majority of the missing documents have now been located.
The second instance of the mishandling of documents arose in connection with a number of files relating to the Advisory Committee on the Virological Safety of Blood between May 1989 and February 1992 which were found to be missing. It was the subject of an internal audit review, which reported in April 2000. Staff who may have been involved were interviewed, but they were seeking to recollect details and events up to eight years previously. It appears that the files were closed in February and March 1993 and marked for review five years from the date of the last paper in each file. But in July 1993 they were marked for destruction. They were in fact destroyed over a period from July 1994 to March 1998. The decision to mark them for destruction took place when the Department was undergoing major reorganisation, in accordance with the Functions and Manpower Review.
The audit review concluded that there was either a delegation of responsibility without proper instructions, or an assumption of responsibility by someone who had not been authorised. The files should have been recalled when it was known that they might be relevant to the litigation. It was also judged that the periods assigned for review were shorter than should have been assigned.
The audit review made a number of recommendations. In particular, it recommended that new and existing staff should receive training in the importance of record keeping, and guidance in what is required. In many cases it noted that record keeping is seen as an onerous and boring job.
It is not surprising that some of those who gave evidence to us suspected that there was an exercise in suppressing evidence of negligence or misconduct. We have not been able to interview any of those responsible, and even had we done so, recollections may have been eroded by the passage of time, but we have discovered no evidence of malicious destruction of relevant records. Comment on the standard of record keeping at the period in question is not within our Terms of Reference. But had an official Public Inquiry been established while recollections were fresh, the suspicions might have been addressed
The Archer Inquiry 