CN v Secretary of State for Health and Social Care
CN v Secretary of State for Health and Social Care  EWCA Civ 86 was an appeal against the refusal of permission to apply for judicial review to challenge the infected blood support scheme administered by the NHS Business Services Authority (NHSBSA) for non-inclusion of those infected with chronic Hepatitis B virus. The appeal was based on the grounds that the exclusion of HBV sufferers from the England Infected Blood Support Scheme (EIBSS) was unreasonable and discriminatory, contrary to article 14 when read in conjunction with article 8 and  article 1 protocol 1 (A1P1) of the ECHR. The appellant also claimed that there was different treatment and that the failure to include HBV sufferers was unreasonable, and that the original application for review should not have been deemed out of time. The permission appeal was unanimously dismissed because the application was deemed to be out of time and the claim under article 14 along with the claim based on unreasonableness and irrationality failed. History of 'CN'. The appellant, known only as "CN", was infected with the hepatitis B virus which they believe to have contracted around the time of  April 1989 at Hammersmith Hospital, where a blood transfusion was required during the course of a bone marrow transplant. Since being infected with HBV, CN experienced a number of serious health issues, including: chronic liver disease, renal failure, a compromised immune system, joint degeneration, Hypertension, short term memory loss, and breathlessness. CN had been running a successful catering business which had to be relinquished in order to seek medical treatment, and for the last 13 years, CN has had to be sustained by state benefits. In March 1995, CN had initiated litigation in the civil courts with the NHS and  the National Blood Authority (NBA) as joint defendants, however the case was eventually discharged following the removal of public funding. CN claimed to be in a "relevantly similar" position to sufferers of HIV and HCV who already came within the scope of support offered by the EIBSS, yet the scheme did not include infection with hepatitis B because blood donors were screened for hepatitis B from 1972, which meant that the likelihood of blood being contaminated with hepatitis B in the 1980s was far more remote than for infection with HIV and hepatitis C. Detailed grounds. The appellant argued the  appeal on four grounds: Judgment. In dismissing the appeal, the court stated that it could not be said that CN was in a "relevantly similar position" since the proper comparison would need to be drawn with those who received blood or blood products which had not been screened and as a result were infected with Hepatitis C. Similarly, the other comparator group would be those who acquired HIV who would be unable to claim if the blood or blood products administered to them had been treated. The Master of the Rolls argued that it was possible for the Secretary of  State for Health and Social Care to reasonably justify a differential approach to treatment, especially where "economic policy" and decisions concerning disability were involved. The court maintained that the Secretary of State had to be afforded a broad "ambit of discretion" in setting up an "ex gratia" scheme such as EIBSS. Delay. The refusal of permission to apply for judicial review was made on 15 February 2021 by Martin Spencer J on the basis that the application was "manifestly out of time". The non-inclusion of those infected with Hepatitis B was not considered a renewing act but an historic  one, which can be pinpointed to the formation and alterations of the support schemes in 2004 and 2017. The court accepted that the limitation clock had started running with the inception of EIBSS on 1 November 2017.