AIDS related actions against Society, hospitals etc., defences to
5 AIDS related actions against Society, hospitals etc., defences to
Subject to this section, in an AIDS related action against —
the Society or a hospital it is a defence that —
the Society or the hospital, as the case requires —
obtained from the donor of the relevant blood within the 12 hours immediately preceding the donation of that blood a declaration made under the Transmissible Diseases Regulations; and
caused, before the relevant blood was supplied to be administered to a person, or to be used in the preparation of a blood product to be administered to a person, a sample of that blood to be tested, using such equipment and in accordance with such a method as were then required by good medical practice, for the presence of AIDS, and that the result of that test was negative;
and
neither the Society nor the hospital, as the case requires, nor any employee of, or person working without payment for, the Society or the hospital nor any other person who took blood from a donor on behalf of the Society or the hospital was guilty of any negligence or wilful misconduct in respect of the taking or testing of the relevant blood or of the storage, preparation, processing, handling, supplying, labelling or other documenting, or administering of that blood or of the relevant blood product derived from that blood, as the case requires;
or
an employee or person referred to in paragraph (a)(ii) it is a defence that that employee or person was not guilty of any negligence or wilful misconduct in respect of the taking or testing of the relevant blood or of the storage, preparation, processing, handling, supplying, labelling or other documenting, or administering of that blood or of the relevant blood product derived from that blood, as the case requires.
Subsection (1) does not apply to or in relation to an AIDS related action against —
the Society or a hospital if, after the Society or the hospital, as the case requires, had taken blood to be supplied for the purpose of being administered to a person or used in the preparation of a blood product to be administered to a person, the Society or the hospital had reasonable grounds for believing that —
a statement in the declaration made by the donor of that blood under the Transmissible Diseases Regulations might be false or misleading; or
that blood or blood product might contain AIDS,
and the Society or the hospital did not take all reasonable steps to ensure that that blood or blood product was not administered to a person; or
any employee or person referred to in subsection (1)(a)(ii) if, after the Society or the hospital concerned or that employee or person had taken blood to be supplied for the purpose of being administered to a person or used in the preparation of a blood product to be administered to a person, that employee or person had reasonable grounds for believing that —
a statement in the declaration made by the donor of that blood under the Transmissible Diseases Regulations might be false or misleading; or
that blood or blood product might contain AIDS,
and that employee or person did not —
report those grounds to the Society or that hospital; and
take all reasonable steps to ensure that that blood or blood product was not administered to a person.
Notwithstanding anything in this section, if in the opinion of not less than 2 medical practitioners —
the condition of a person was such that he was likely to die unless blood or blood products was or were administered to him; and
it was not reasonably practicable in the circumstances to obtain all or any of the blood or blood products required for administration to the person referred to in paragraph (a) from blood or blood products in respect of which the testing referred to in subsection (1)(a)(i)(B) had been carried out with a negative result,
the administration to the person referred to in paragraph (a) of any blood or blood products in respect of which the testing referred to in subsection (1)(a)(i)(B) had not been carried out does not by itself defeat a defence provided by subsection (1).
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