Court rules againist Northern Irelands Health Minister.
A lifelong prohibition on blood donations from gay men was introduced in the UK in the 1980s from fears arising out of the AIDS epidemic. The ban was lifted in England, Scotland and Wales in 2011, and was replaced with a requirement that men wait 12 months after engaging in sex with other men before donating blood. However Northern Ireland’s Health Minister Edwin Poots refused to enact the policy change in Northern Ireland. This he claimed was on public health grounds despite the fact that blood from elsewhere in the UK where gay men can donate if they have not engaged in sexual activity with another male for over 12 months was imported to Northern Ireland.
A High Court judge in Northern Ireland has ruled that a ban on gay men giving blood is "irrational." Justice Treacy held that Health Minister Edwin Poots breached the ministerial code by failing to take the matter before the Stormont Executive.
The new rules allow blood from men whose last sexual encounter with another male has been over 12 months prior to donation. This 12 month period itself has been controversial as a Government Advisory Committee report identified a considerably shorter time scale during which infection with blood-borne viruses could not be detected. Despite this however the 12-month deferral was left in place. Poots, the Northern Ireland Health Minister maintained the lifetime ban in his jurisdiction on supposed grounds of public safety.
An anonymous applicant took judicial review proceedings against the decision. His legal counsel revealed that the man is now a Christian who is opposed to homosexual activity but was previously a homosexual.
The Belfast Telegraph quoted David Scoffield QC as saying in the case that "Although the applicant, perhaps curiously in these circumstances, shares the view that homosexual practice is wrong, he simply takes the view that homosexuals should not be banned from giving blood... The applicant's case is that the approach displayed by the Minister on this issue goes beyond the expression of orthodox religious views and amounts to prejudice."
On 11 October Justice Treacy ruled that Poots decision to continue the prohibition was made contrary to the recommendation by the Secretary of State that the report from the advisory committee on the Safety of Blood, Tissues and Organs should be followed.
Justine Treacy stated that “The Minister has decided that MSM behaviour creates such a high risk of infection to the donor that such donors must be permanently deferred with the result that such blood cannot enter the Northern Ireland Blood Stock. Importing blood from other places which do accept MSM donors, even in limited quantities, leaves the door open for MSM blood to do just that. There is 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”.
He is also reported to have stated that the prohibition was "controversial and cross-cutting, taking in equality issues" and "As such, the Minister had no authority to act without bringing them to the attention of the Executive Committee - which he failed to do... In doing so the Minister breached the Ministerial Code and had no legal authority to take a decision."
However the ban remains in place despite the judicial review
finding.
Minister Poots said in reaction to the decision that "The judge
believes it is a decision for Jeremy Hunt. Jeremy Hunt didn't believe it was,
but obviously the judge is contradicting the Department of Health in England
and it's a matter for the Department of Health to take whatever action it
believes it should." However Minister Poots and Jeremy Hunt have decided in the past number of weeks to appeal against the legal ruling. Minister Poots is to appeal against the entirety of Justice Treacy’s ruling, which is known as JR 65. Secretary of state for health Hunt is to only appeal against the finding that responsibility for blood donation policy was a reserved matter.
A spokeswoman from Mr Poots’s Department of Health, Social
Services and Public Safety stated. “Secretary of state for health, Jeremy Hunt,
and the local DHSSPS have each lodged appeals to JR 65 on blood donor
deferral... The decision in JR 65 potentially has wide-reaching consequences
beyond the immediate subject matter of the case, and DHSSPS has strong legal
advice recommending an appeal, and accordingly it is appropriate that those
arguments should be presented to the Court of Appeal... It would not be
appropriate for the department to comment further when an appeal to the court
is pending.”
The Ulster Unionist health spokesman Beggs said: "UK scientists and
statisticians have deemed that it is safe to accept blood donations from gay
men who have abstained for a period of 12 months or more... There are risks in
receiving blood donations from anyone; there are also considerable risks in
having a shortage of blood available for donations to those who need it... I am
concerned that a high court judge has deemed that the minister of health has
breached the ministerial code. Clearly he has questions to answer on this matter.
In the interest of the public I would call on Edwin Poots to release the legal
advice he received from the attorney general on this matter."However despite such calls, The Democratic Unionist minister Edwin Poots and Northern Ireland's attorney general, John Larkin, have won an information rights tribunal that allows them to withhold the legal reasons why Minister Poots continues to ban gay men from donating blood in the province. Equality campaigners have condemned the secrecy regarding legal advice the minister has received on the issue. Matthew McDermott, the policy manager at the Belfast-based Rainbow Project, was reported to have said the tribunal's decision was "hugely disappointing" given that the high court in Northern Ireland ruling relating to the ban. He said this prevents sufficient parliamentary scrutiny of the decision, "If the assembly is to hold the minister to account, part of that process will be to know upon what legal advice the minister made his decision,"
Here in Ireland health authorities have said there is no plan to update legislation regarding the ban enforced against men gay men from giving blood despite the changes in the U.K.
Similarly in Ireland, organ transplantation services ask the next of kin several questions which can automatically eliminate a potential donor. One of these questions is if the potential donor is man and has ever had sex with another man.
Many countries such as Italy, Spain and New Zealand, have removed the prohibition on men who have sex with men. Rather than elimination they set out a basis under which donors are considered, one aspect of which is, gay or straight, it is risky sexual practices that give rise to a risk of infection regardless of the sexual orientation of a potential donor.
The Irish Blood Transfusion Service, which oversees blood donations in the Republic of Ireland, stated in 2011 that it has no intention to follow the U.K’s lead. “We currently ask those who may have a particularly high risk of carrying blood-borne viruses not to give blood,” a spokesperson stated. “This includes men who have ever had sex with another man or men.”
An IBTS spokeswoman said Ireland would not be following the U.K. on this issue for a number of reasons. "While safer sex, through the use of condoms, does reduce the transmission of infections, it cannot eliminate the risk altogether... The issue of monogamous partners is difficult. Evidence from heterosexual partnerships suggests that 'innocent' partners are very often entirely unaware that their partner is unfaithful.” She stated that “IBTS considers therefore that individuals can only attest to their own behaviour when donating and not speak for their partner."
The European health commission John Dalli commented reportedly commented on the issue saying that while countries should not discriminate against potential blood donors on the basis of their sexuality, they are allowed to prohibit donations from people on the basis of sexual activity itself.
Click here to read the full judgement from Northern Ireland
James Dooley
GCD FLAC
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