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Judicial review against the retention of lifetime blood ban for gay men successful

In a decision that has attracted a high local media profile ,the Minister for Health, Edwin Poots has been told that his decision to retain the permanent ban on gay men donating blood is irrational.

In 2011, the Health Ministers for England, Scotland and Wales decided to allow gay men to donate blood if they had been sexually inactive for a year. The decision was taken following the receipt of reports from the authority responsible for the storage of blood and organs. The reports included reference to improved abilities to detect the presence of diseases in the blood.

The Health Minister in Northern Ireland did not take the same action as his counterparts in other areas of the UK.

However, despite this decision of Mr Poots, there were times when due to shortages of blood, donations were sought from the blood banks in Great Britain. When receiving this blood, the Northern Ireland Department of Health did not state that they would not accept donations from gay men who had given blood following the changes to the rules in those jurisdictions.

The High Court in Belfast analysed the reasons for the decisions of the Health Minister. In Court he argued that he had not taken any decision yet. This argument was rejected by the Court.

The Judge noted the contradiction between local donations by gay men and the acceptance of donations from such donors from elsewhere. In these circumstances the court held that the decision taken by Mr Poots was irrational.

The court also considered the importance of the decision locally. The court was referred to the Ministerial Code that applies to the local devolved system of government. The code states that decisions affecting more than one governmental department, or a decision that is of such importance, must be put before the full Executive.

In this instance Mr Poots did not refer this decision to the Executive as a whole. Therefore, the Court held that Mr Poots had breached the Ministerial Code. The decision of the court on the subject of the Ministerial Code has also generated discussion: read here.

It would seem that the decision on retention of the ban might now fall to the UK Health Secretary. Comments made by First Minister Peter Robinson suggest that it is possible consideration is being given to appealing the decision.

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