*Friday 11 October 2013*

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*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 <http://www.courtsni.gov.uk/>).

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*ENDS*

 

If you have any further enquiries about this or other court related
matters please contact:

 

Alison Houston

Judicial Communications Officer

Lord Chief Justice’s Office

Royal Courts of Justice

Chichester Street

BELFAST

BT1 3JF

 

Telephone:  028 9072 5921

Fax:  028 9023 6838

E-mail: _Alison.Houston@courtsni.gov.uk
<mailto:Alison.Houston@courtsni.gov.uk>_