Friday 11 October 2013
COURT ALLOWS CHALLENGE TO LIFETIME BAN ON GAY MEN GIVING BLOOD
Summary of Judgment
Mr Justice Treacy, sitting today in the High Court in Belfast, allowed a judicial review seeking to challenge to the DHSSPS policy which maintains a lifetime ban on males who have had sex with other males donating blood. The application also challenged the Minister’s decision not to alter the ban and adopt the same position as applied throughout the rest of the UK.
Since 1985, the UK has had in place legislation and procedures which permanently prevent men who have engaged in male to male sexual relations (“MSM”) from donating blood. In 2011 the Advisory Committee on the Safety of Blood, Tissues and Organs (“SaBTO”) completed a review of the donor selection criteria and recommended that the previous policy of permanent deferral applying to MSM donors be replaced with a temporary 12 month deferral period. This recommendation was accepted in England, Scotland and Wales and came into force in November 2011 however Northern Ireland did not follow suit.
The applicant in this case (referred to as “JR65”) is a man who has previously engaged in homosexual conduct with other men however he no longer considers himself to be a homosexual but “someone who struggles with homosexuality”. He was disappointed when the ban was not lifted in NI as he feels the act of giving blood is socially responsible. He feels that the continuation of the policy of permanent deferral of potential MSM donors sends out a message of rejection to members of the male homosexual community. JR65 is also concerned that the Health Minister’s membership of the DUP may have prejudiced his consideration of the issue and prevented him from considering the matter fairly. He sought to quash the ban on the grounds that it was unreasonable and contrary to domestic and EU law, taken without any consultation or without the Minister giving appropriate reasons, and infected by the Minister’s apparent bias.
The court heard that in September 2011 the Minister was presented with information relating to the appropriateness of maintaining the policy of permanent deferral of MSM donors following the SaBTO review. Mr Justice Treacy said that at this stage the Minister was required to choose whether to maintain the status quo or to change the existing policy. The Minister chose to keep the status quo but maintained that he is seeking further information before making a final decision on the issue. The judge said that in effect this meant that the Minister had rejected the persuasiveness of the SaBTO evidence and by choosing between the two competing options had reached a decision.
Mr Justice Treacy said that in continuing the lifetime deferral policy the Minister had deviated from the position taken in England, Scotland and Wales and went on to consider whether this was an unreasonable decision. He said the decision was made against the recommendation of the Secretary of State who recommended that the SasBTO report should be followed. The judge said it was clear from the SaBTO report that some homosexual acts do increase the risk of acquiring blood borne disease but that the additional risk from deferring donation for 12 months instead of permanently deferring donation was very minimal. He said he must consider whether it was open to a reasonable decision maker to choose the permanent deferral option over the temporary deferral option in circumstances where blood is in fact imported from other parts of the UK where MSM donors are not subject to the permanent deferral criteria. Mr Justice Treacy said that was clearly a defect in reason here:
“If there is a genuine concern about the safety of MSM donated blood such that the blood stock must be protected absolutely from such blood then the security of that blood must actually be maintained absolutely. Applying a different standard to imported blood defeats the whole purpose of permanent deferral of MSM donors. [It appears] that when blood is imported from the rest of the UK the authorities in NI do not request that such blood is not derived from the MSM community.”
The judge concluded that, for these reasons, the decision was irrational.
Mr Justice Treacy further concluded that as the Secretary of State for Health is the competent authority for the purposes of the EU Directive and the Blood Safety Quality Regulations 2005 he is responsible for the determination of the appropriate deferral periods in NI and whether or not to maintain the lifetime ban. Accordingly the Minister was not empowered to give any directions in relation to the implementation or interpretation of the Directive. He also held that the Minister had no power to act incompatibly with EU law in accordance with the Northern Ireland Act 1998.
Mr Justice Treacy went on to consider whether the Minister had breached the Ministerial Code in that this was a decision which required Executive approval (paragraph 2.4 of the Ministerial Code provides that any matter which cuts across the responsibilities of two or more Ministers or is significant or controversial must be brought to the attention of the Executive Committee). He said that the lifetime ban is both controversial, in that it has generated much publicity and public debate with highly polarised views, and cross-cutting in that it touches on equality issues, and as such the Minister had no authority to act without bringing the matter to the attention of the Executive Committee. The judge said that in doing so the Minister breached the Ministerial Code and had no legal authority to take this decision.
Mr Justice Treacy accordingly allowed the judicial review.
NOTES TO EDITORS
1. This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).
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