Judge's ultimatum on hepatitis deaths probe

Lord Mackay said he wanted to know within the next four to five weeks whether ministers had decided who would chair the inquiry, and what its start date and terms of reference would be.

The families of Eileen O'Hara, 72, and the Rev David Black, 66, who both died in 2003 after contracting hepatitis C through infected blood, have been fighting for an inquiry into their deaths.

They launched a legal action and, last February, Lord Mackay ruled that the Lord Advocate and ministers had flouted Article 2 of the European Convention of Human Rights, which states "everyone's right to life shall be protected by law".

The law says that when someone dies following hospital treatment, ministers are obliged to have in place a system capable of providing an effective investigation of the facts relating to the death.

Lord Mackay ruled that the only way such an investigation into the death of either Mrs O'Hara or Mr Black could be achieved would be if the authorities were to initiate a public inquiry.

Weeks later, Nicola Sturgeon, the health secretary, announced an independent public inquiry was to be carried out to discover how patients had been infected with HIV and hepatitis C through contaminated blood.

She said that inquiry would investigate the deaths of Mrs O'Hara and Mr Black, as well as looking more generally at the circumstances in which hepatitis C and HIV were transmitted through NHS treatment with blood and blood products.

The minister also announced the inquiry was to be chaired by Lady Cosgrove, a former judge and sheriff.

However, in a supplementary opinion on the case, Lord Mackay said she was no longer in a position to take on the role.

The judge said: "Her replacement has not yet been identified. The proposed inquiry has not yet been set up."

He added that, "furthermore and very importantly", ministers had not yet specified the setting-up date for the inquiry and had not determined its terms of reference.

Lord Mackay said he would fix a further hearing on the matter – to take place in about four or five weeks.

And he said if ministers had not made decisions on the issues in question by then, he would "expect to be addressed on behalf of the respondents about the further actions which each of them propose to take to ensure that the convention rights of the petitions under Article 2 are going to be complied with".

The legal action is being taken by Mr Black's widow, Jean, and Mrs O'Hara's daughter, Roseleen Kennedy.

In his supplementary opinion, Lord Mackay stated that both families were entitled to have an "independent, effective and reasonably prompt inquiry" into the deaths.

A Scottish Government spokeswoman said: "We are keen that the public inquiry should begin as soon as possible. However, the withdrawal of the original chairman inevitably resulted in some delay. Ministers do not want any further delay and we expect to announce the new chairman imminently."

She added that draft terms of reference had already been agreed between ministers and the incoming chairman.

Ross Finnie, the Liberal Democrats' health spokesman, said the government had to meet the deadline set by Lord Mackay.

He said: "The health secretary has failed to give any explanation as to why, having appointed a judge, she has failed to appoint a replacement and therefore failed to meet the requirements of court."

FACT BOX

HEPATITIS C is an infectious blood-borne virus that can seriously damage the liver and lead to liver disease and liver cancer.

It is spread mainly through contact with the blood of a person who is infected. The disease can take years, or even decades, for symptoms to appear. These can include frequent headaches, fatigue, depression and liver pain. There is no vaccine or cure for Hepatitis C.

About 50,000 people in Scotland are estimated to be infected with hepatitis C, with some 38,500 chronic carriers.

But experts believe these figures are just the tip of the iceberg and there are many more people who are unaware they are infected.