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Health Minister should decide whether gay men can donate blood, court rules

Published 16/03/2016

The ban on gay men donating was lifted in England, Scotland and Wales in 2011 and replaced with rules that allow them to give blood after a one-year deferral
The ban on gay men donating was lifted in England, Scotland and Wales in 2011 and replaced with rules that allow them to give blood after a one-year deferral

Northern Ireland's Health Minister should decide whether gay men can donate blood, not the UK Health Secretary, the Court of Appeal has ruled.

Lord Chief Justice Sir Declan Morgan has said the controversial issue should be dealt with by the devolved administration at Stormont because it is not a reserved matter.

The judge also dismissed an earlier court ruling that the region's former health minister Edwin Poots acted irrationally by retaining the current ban.

He told a sitting at Belfast's Royal Courts of Justice: "Having analysed all the relevant circumstances in this matter we have concluded that there is no basis for the conclusion that the minister's decision in this case was pre-determined by his Christian beliefs and there is ample evidence to indicate that the minister approached the decision-making by evaluating the competing factors before adopting on a precautionary basis the status quo.

"We do not consider that the fair-minded and informed observer could conclude that there was a real risk of apparent bias."

The ban on gay men donating was lifted in England, Scotland and Wales in 2011 and replaced with rules that allow them to give blood after a one-year deferral - ie 12 months since their last sexual encounter with another man.

But the lifetime deferral was kept in operation in Northern Ireland by DUP MLA Mr Poots who cited "blood safety" issues. His successor Jim Wells also declined to lift the ban.

Following a judicial review brought by an anonymous man last year, the High Court branded Mr Poots' stance "irrational", given that Northern Ireland can accept blood supplies from other parts of the UK.

Mr Justice Treacy also found he had breached Stormont's ministerial code by not consulting on the policy with fellow ministers in the devolved power-sharing coalition.

Mr Poots and his health counterpart at Westminster, Jeremy Hunt, lodged an appeal against the critical determination.

While Mr Poots was appealing against the entirety of Mr Justice Treacy's ruling in the case, which was known as JR 65, Mr Hunt was only appealing against the finding that responsibility for blood donation policy was a reserved matter.

The Lord Chief Justice was sitting with Lord Justice Gillen and Lord Justice Weir.

The judges ruled by a 2-1 majority that maintaining the current lifetime ban was not "disproportionate or contrary to EU law".

Last year the current health minister Simon Hamilton announced that the ban should be lifted if a government advisory group says it is safe.

Afterwards, gay rights campaigners said the new ruling provided clarity.

John O'Doherty director of the LGBT support group The Rainbow Project said: "It is disappointing that their lordships have failed to recognise that there is no reasonable, rational or medical reason to maintain this lifetime ban, particularly in light of the fact that all other regions in the UK have moved to a temporary deferral.

"Today's judgment clarified that the issue of blood donations remains within the purview of the Northern Ireland minister for health. We would once again urge Minister Simon Hamilton to accept the advice given by the experts and adopt a one-year deferral which exists in all other parts of the UK.

"This issue has been debated for over five years and tens of thousands of public funds have been spent on maintaining a lifetime ban. While the minister may state that he has not yet made a decision, any right thinking person would accept that five years is enough time to come to a decision."

The Northern Ireland Equality Commission said it looked forward to a decision on the issue.

A statement said: "The Commission's position has been that a ban on blood donations from any group must be based on clear medical evidence and the extent and duration of the ban must be proportionate to the level of risk identified.

"The Commission considers that the lifetime ban on blood donations from men who have sex with men living in Northern Ireland is inconsistent with the Department of Health's practice of accepting donated blood from Great Britain, where such men are permitted to donate blood after a 12 month deferral."

Later, Mr Poots said he had been vindicated.

He said: "It was regrettable that this case was taken in the first place. It was not the best use of resources. The department and minister should now be given time and space to properly consider these matters with public safety being the main priority.

"The safety of the public has always been my first and foremost objective in this matter and nothing else.

"I welcome the fact that the highest court in Northern Ireland has vindicated my position and my integrity in this matter."

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