Infected Blood Inquiry: culture change in our public institutions – is it possible?

Seven years after a public inquiry into the scandal was first announced, last week marked the publication of the final report of the Infected Blood Inquiry (“the Report”).

Over thousands of pages the Report collates the harrowing details of the “worst treatment disaster in the history of the NHS” which led to the infection of over 30,000 victims treated with contaminated blood products. It is resolute in its criticism of successive governments, the NHS, and Whitehall civil servants in their handling of the scandal and provides the Government with 12 overarching recommendations.

The need for culture change

It has been the privilege of members of our Public & Regulatory team to work on a number of high-profile inquiries in recent years. Sadly, in many of them, as in the case of the Infected Blood Inquiry, closing reports repeatedly criticise a subtle and pervasive culture amongst state institutions of seeking to avoid accountability for mistakes. The Report makes clear that for the most part, this tragedy could have been avoided, and to add insult to injury, decades of “institutional defensiveness” has compounded victims’ pain.

Four of the Infected Blood Inquiry’s recommendations relate specifically to the duty of candour for a range of professionals. Although such a duty has long existed for healthcare workers and is a well-established principle in judicial review, this Report urges the government to consider the introduction of a statutory duty of accountability for senior civil servants regarding “candour and completeness” in their advice to permanent secretaries and ministers. The introduction of such a duty would be significant.

The impact of public inquiries

Whilst public inquiries are undoubtedly important, they are usually established in the wake of a significant failing. More often than not, they are very expensive to mount, and those substantial costs are met from the public purse. They also have the capacity to be extremely distressing for those who participate in them – especially if those participants are the victims of the failing/s which caused the inquiry to be established at the outset.

Although the Government has begun action on at least two of the Inquiry’s recommendations, as provided for under the Inquiries Act 2005, public inquiries cannot direct that any particular actions be taken. It is instead left to the relevant government department to decide in its discretion to what extent it will accept and implement recommendations from an inquiry.

It is that reality which has perhaps led to the frustration expressed in the Report about the disappointing similarities in the findings and recommendations of this inquiry and others that have concluded in recent years. The Report references the Hillsborough report, which although a “disaster of a very different kind”, provided many learnings that were directly applicable to the subject of the Infected Blood Inquiry.

And as the Report details:

“It is a sad fact that very few inquiries into aspects of the health service or parts of it have ended without recognition that the culture needed to change. Over the past 50 to 60 years there have been several inquiries, of different types – but nearly all have had some such recommendation.”

It is through that prism that the Chair of the Inquiry, Sir Brian Langstaff, devoted a substantial portion of the Report to recommendations for the Government, which are designed to bring greater transparency, openness, and accountability in public institutions.

If those recommendations are embraced, particularly as regards to the duty of candour, the Report could mark a significant first step towards resetting institutional culture at the highest levels of government, and a true commitment to the reduction of institutional scandals of this kind.