The role of the criminal law in healthcare malpractice in France: Examining the HIV blood contamination scandal

This chapter examines the use of the criminal law in relation to the healthcare scandal that arose out of HIV contamination of the blood supply in France in the 1980s. This resulted in high levels of infection with the virus by those who had received blood transfusions, as well as people with haemophilia (PWH) who had used plasma-derived products (factor concentrates) in the treatment of their condition. Known as L’Affaire du sang contaminé, it persisted over a fifteen-year period, resulting in three sets of criminal legal proceedings. It led to a number of prominent doctors being jailed, in addition to bringing the careers of several politicians to a premature end. It also contributed to widespread reform of the national blood system, as well as public health governance more generally. The criminal law played a prominent role in structuring the emergence and longevity of this blood contamination episode. However, its role and impact raise broader questions about the extent to which it should be used to deal with episodes of healthcare malpractice. In this chapter, we examine how and why the criminal law was used to deal with the fallout from the HIV blood contamination episode in France. This is in addition to considering briefly what aspects, if any, of the French criminal law, which operates in the context of a civil law tradition, could prove useful in dealing with cases of healthcare malpractice in a common law system such as England. We suggest that serious consideration should be given to the legislative adoption of general offences where negligence has resulted in serious injury or death. Such offences could then be invoked in cases of blameworthy conduct in healthcare settings where patients have suffered serious injury and/or death. We first situate our examination of these issues in the context of an overview of the events that led to the HIV blood contamination episode in France. An analysis is then provided of the use of the criminal law in the three sets of legal proceedings that arose out of the episode. In the concluding section of the chapter, we briefly consider the use of the criminal law in cases of healthcare malpractice more broadly, drawing on its use in the contamination episode as a point of reference.