What Happens When the Evidence Died With Them?

By The Unheard Voice

And now their family may be asked to reconstruct what happened.

That creates a question which goes to the heart of whether compensation for historic injustice can ever truly be fair: what happens when the evidence died with them?

This is not a theoretical problem. The Infected Blood Inquiry found widespread failures in record-keeping and said many people’s medical records had been destroyed, lost or were materially incomplete. It identified numerous reasons, including hospital closures, NHS reorganisations, separate record systems, computer changes and poor historic record management.

The Inquiry also examined the destruction of government documents relevant to infected blood and found that some important files should never have been destroyed.

This history matters now, because compensation inevitably requires evidence.

For people who were already accepted onto one of the recognised infected blood support schemes, some aspects of eligibility are already established. But there are also families seeking recognition for people who died without ever having been accepted onto those schemes. For those cases, the evidential problem can be enormous.

Government-commissioned expert work on the compensation scheme has already acknowledged this difficulty. The Infected Blood Inquiry Response Expert Group recommended that where direct records showing receipt of contaminated blood products no longer exist, other evidence should be capable of supporting a claim.

It said receipt of a blood product could potentially be inferred from circumstances such as major surgery, even where transfusion itself was not specifically recorded. It also recommended that applicant narratives, including narratives given on behalf of somebody who has died, could form part of the evidence considered.

That is important, because historic truth does not always arrive inside a neat medical folder.

Sometimes it survives in fragments: a discharge letter, a laboratory result, an abnormal liver test, a death certificate, a hospital appointment, a family member remembering months spent visiting a ward, a GP entry referring to an infection diagnosed elsewhere, evidence that somebody underwent major surgery at a time when transfusion was likely, later medical records referring back to an earlier diagnosis, or records held by haemophilia centres, laboratories or other institutions when the original hospital file has disappeared.

Individually, those pieces might appear incomplete. Together they can tell a story.

The compensation scheme already operates in some areas using the civil standard of proof — the balance of probabilities — rather than demanding absolute certainty. Government material states, for example, that in certain cases IBCA will need to establish on the balance of probabilities whether infection came from NHS blood or blood products.

That principle matters profoundly for historic claims.

Balance of probabilities does not mean guesswork. It means assessing the evidence that still exists and deciding what is more likely than not to have happened. That is very different from demanding a document which may have disappeared forty years ago.

And even the Government’s Technical Expert Group has recognised the danger. Discussing evidence for deceased estates, the group recorded a significant risk that requiring new clinical evidence could create inequality because many historical medical records have been lost or destroyed.

That acknowledgement should be impossible to ignore.

Because there is a fundamental unfairness if the consequences of poor historic record-keeping are transferred onto the family.

Imagine the position. A patient receives treatment in the 1970s or 1980s. Decades pass. The patient becomes ill. They die. The hospital changes name, merges or closes. Records are destroyed according to retention schedules or lost during administrative changes.

Forty years later, the family is asked: where is your evidence?

Sometimes the truthful answer will be: the NHS had it.

That does not automatically prove that every historic claim is valid. A compensation system still needs safeguards. Evidence still needs testing. Alternative explanations must sometimes be considered.

Not every missing record means wrongdoing, and the Inquiry itself did not conclude that the majority of missing medical records had been deliberately destroyed. It identified poor systems, administrative failures and the passage of time as major causes, while also examining particular cases that raised more serious concerns.

But safeguards and fairness are not opposites.

A credible system should be capable of doing both. It should test claims properly while recognising the circumstances in which those claims have arisen.

These are not ordinary insurance claims made shortly after an event. Some concern treatment given half a century ago. The delay is not the family’s creation.

Many people spent decades without knowing why they were ill. Some were never told the full truth. Some died before the infected blood scandal received the scrutiny it has today. Families may now be trying to reconstruct lives from surviving scraps of evidence.

That demands something more sophisticated than: no record, no proof.

The question should instead be: what does all of the surviving evidence tell us?

If somebody underwent treatment in which blood transfusion would commonly have occurred, that matters. If later records document hepatitis or HIV, that matters. If death certificates record infection, that matters. If contemporaneous letters exist, they matter. If recognised treatment centres hold separate information, that matters. If family testimony is consistent with the surviving clinical history, that should be considered too.

The Expert Group itself recommended that mention of HIV, hepatitis C or hepatitis B on a death certificate should be sufficient evidence of infection, while also saying that the absence of such a reference should not automatically exclude infection.

That is exactly the kind of approach historical justice requires.

Look at the whole picture. Do not pretend missing paperwork never existed. Do not confuse the absence of a surviving document with evidence that an event never happened. And do not make families carry the consequences of institutional record failures they had no power to prevent.

For living people, there may still be an opportunity to obtain new clinical evidence, undergo tests or explain events themselves.

A deceased person cannot do that. They cannot request their own notes. They cannot challenge an incorrect entry. They cannot explain which hospital treated them. They cannot describe the transfusion they remember receiving. They cannot tell an assessor what happened.

Their family is left trying to speak for them.

That creates an additional responsibility for any system judging their case, because the dead cannot fill the gaps.

The state must therefore be extremely careful about using those gaps against them.

There is another reason this matters. The Infected Blood Inquiry was established because conventional records and official accounts did not tell the whole story. Thousands of individual testimonies helped reconstruct what had happened. Families remembered what paperwork had forgotten. Those experiences became part of the historical record.

It would be a bitter contradiction if, after finally recognising the value of those voices, families were then told that their relative’s experience could not be recognised because the right piece of paper no longer exists.

Compensation cannot restore a medical file. It cannot recreate a hospital that closed thirty years ago. It cannot bring somebody back to explain their own history.

But it can decide how uncertainty is treated.

And that choice matters.

Missing evidence should trigger careful investigation. It should encourage the search for alternative records. It should require the whole history to be examined.

What it should not automatically create is a presumption against the person who died.

Because sometimes the absence of evidence tells us something too. It tells us how long this scandal lasted. It tells us how badly records were sometimes kept. It tells us how much history has already disappeared. And it reminds us why families are still fighting to reconstruct it.

The people who died cannot produce another document. They cannot answer another question. They cannot search another archive.

Their families are doing that for them.

The very least a system created to provide redress can do is make sure that when the paperwork disappeared, justice did not disappear with it.

— The Unheard Voice