THE CASE OF MISS MACMICHAEL (Hansard, 25 October 1955)

§ Mr. Kenneth Robinson (St. Pancras, North)
I want tonight to raise the case of Miss MacMichael, an unfortunate young woman who endured over a long period, quite unnecessarily as it turned out, considerable suffering. This is a rather wretched and somewhat complicated story and although we are fortunately not bound by the normal half-hour limit of the Adjournment debate, I will give the story as briefly as I can. It is, however, necessary to go into some detail.
Miss MacMichael as a fit and healthy young woman joined the Women's Royal Naval Service as a rating in February, 1942, at the age of 19. Her family had long associations with the Navy and it was very natural that she should wish to serve her country in time of war in that capacity. It was at that time, and as long as she was in the Service, her ambition to make her career in the Wrens, to become a Regular, and, if possible, to obtain a commission. In 1946, after the war was over, she was, in fact, selected for cadet training and underwent a course which she successfully completed. She was commissioned as third officer in August of that year.
About a year after, in 1947, Miss MacMichael began to notice a slight swelling in her abdomen, coupled with a tendency to tire rather more easily than she had hitherto. Early the following year this swelling became more pronounced and she was sent by the medical officer in charge of the Royal Naval Hospital at Port Edgar to Hairmyres Hospital, East Kilbride, for examination.
Here she came under the care of the tuberculosis specialist attached to the hospital who conducted an examination of her and reached the conclusion she was suffering from abdominal tuberculosis or, more precisely, peritoneal tuberculosis. He made a report to the naval authorities, dated 25th October, 1948, in which he said categorically: This officer is suffering from abdominal tuberculosis of the ascitic type. 154 I think it a most unfortunate thing that the substance of this report was communicated to Miss MacMichael as, not unnaturally, it caused her acute distress.
Miss MacMichael was at Hairmyres Hospital under the care of the same specialist for nine months until April, 1949, when she was transferred to a sanatorium in Aberdeenshire for serving officers suffering from tuberculosis. While there she was seen, not only by the resident medical staff, but was visited on two or three occasions by the visiting specialist in non-pulmonary tuberculosis, who was a professor of Edinburgh University. Despite the fact that they failed at this sanatorium to isolate any tubercular bacilli, all the doctors confirmed the diagnosis and repeated the statement that this woman had peritoneal tuberculosis.
Miss MacMichael was at the Scottish sanatorium for eleven months and was then moved to another sanatorium in Switzerland, at Montana. Although the transfer to Switzerland was made under Service arrangements, the Admiralty were able to contribute only nine guineas a week towards the cost of keeping her there, out of a weekly charge of seventeen guineas, which left eight guineas to be found by Miss MacMichael herself. She remained in Switzerland for six months which meant a cost to herself or her family of over £200.
Again, the doctor in charge of the Swiss sanatorium said he had at no time any occasion to question the diagnosis of the doctor in whose care Miss MacMichael had been in the Scottish sanatorium, a doctor whom he described as a physician for whose special knowledge of tuberculosis, clinical acumen and judgment I have the highest respect. He also said that in his view the patient's condition was compatible with the diagnosis.
On her return from Switzerland—and we are now in September, 1950—Miss MacMichael entered the Royal Naval Hospital, at Chatham, and three months later was discharged from the W.R.N.S. on medical grounds and subsequently awarded a 100 per cent. disability pension.
While in Switzerland she had been recommended to put herself in charge of a general practitioner and this she did after her discharge from the Navy. The general practitioner sought the opinion of 155 a Harley Street consultant in tuberculous diseases. Once again, these two doctors agreed with the original diagnosis as being the most probable—but with one difference. The consultant who had been called in recommended that if, after a time, the condition showed no signs of improvement surgical treatment should be tried.
This, in fact, happened and ultimately Miss MacMichael entered St. Mary's Hospital, Paddington, and was operated on in July, 1952. That is almost exactly four years after her first entry into hospital in Scotland. The surgeon who operated found an ovarian cyst, which was promptly removed. He also found that all the other organs were perfectly healthy and that there was no trace whatever of any tuberculous disease. Miss MacMichael made an excellent recovery and was soon restored to complete health.
Those are the facts of the case and, I think, a melancholy series of facts. For four years this young woman was consistently and wrongly told that she was suffering from what I think hon. Members will agree is one of the two most dreaded diseases. In addition, she was—unnecessarily as it proved—exposed to tuberculous infection for more than 18 months in two sanatoria. A promising career, in which she was extremely happy, was erroneously terminated on medical grounds, and—although she was a young and attractive woman—she was forced to put out of her mind throughout the period any thought of marriage. One slightly happier aspect is that when I last saw her she was, I am glad to say, engaged to be married; but clearly while she thought she was suffering from tuberculosis she would not, as a responsible person entertain thoughts of marriage. In addition, she was put to heavy financial expense.
How did it come about that this young woman had to suffer all this anguish of mind and virtually to lose four whole years out of the all-too-short span of youth? This happened for no other reason but that one doctor—negligently, as I shall show in a minute—made a wrong diagnosis, and that error was perpetuated by at least six other doctors—and probably many more—among them distinguished specialists in this particular disease. She had to suffer all this because never once in four years did any of these doctors think of calling in a 156 gynaecologist. I am no doctor, but a doctor friend of mind tells me that an ovarian cyst is one of the simplest things to discover and to diagnose, and it is inconceivable that if this woman had been seen by a gynaecologist at any time during that four years he would not immediately have seen what was wrong.
When this case was brought to my notice by a friend whom Miss Mac-Michael consulted, I at once expressed the view that, whatever the legal position, the heaviest moral liability rested upon the Admiralty as her employers, and that she was entitled, in common justice, to some kind of compensation or redress for the pain, suffering and expense she had undergone. Miss MacMichael told me that she did not want to engage in any legal action, and when I wrote to the First Lord of the Admiralty in December last I made it perfectly clear to him that there was no question of litigation.
It may be that I was wrong to do it, but I thought that it was right to be perfectly frank, and, to be honest with the House, I thought that the case was such an overwhelming one, upon grounds of common justice and humanity, that it certainly would not be prejudiced by saying that there was no danger of litigation. I did not ask the First Lord to admit any legal liability I did not even ask him to admit any moral liability, but merely to make some offer of redress, as an act of grace. I felt confident that the First Lord, who is a reasonable and humane person, would see this case in the same light as I did.
Seven and a half months elapsed before I got a reply. I did not let the grass grow under my feet entirely during that period; I sent several reminders to the Department. I saw the First Lord and the Parliamentary Secretary upon several occasions, and when it was quite clear that the old Parliament was coming to an end I even tabled a Question just before the Dissolution. On each occasion I received the answer that the matter was still under consideration, with the usual polite apology that one always gets, and, indeed, expects from the Admiralty. Not unnaturally, I did not worry unduly. I assumed that there was some difficulty in arriving at the appropriate sum that might be offered in compensation. I thought this especially as I gathered that there had been some consultations between the Admiralty and the Treasury.
157 Then, a day or so after the House rose for the Recess, I received a letter from the First Lord turning down my request flat—the request which I had made seven and a half months previously. The letter stated that the most careful consideration had been given to this case by the Admiralty and the Treasury, and that it had had the personal attention of the Chancellor.
Looking back upon the matter, I can come to only one conclusion. It now seems to me to be all too clear that when I thought a discussion was going on between the two Departments as to the appropriate amount of compensation, the only thing that could have been happening was that the Admiralty and the right hon. Gentleman considered that they had a moral liability and the Treasury—as one might have expected—disagreed. I believe that if there were any justice it would not be the hon. and gallant Gentleman who should be replying from the Dispatch Box tonight in defence of a case in which, so far as I know, he may not have any belief or confidence at all; it is the Treasury at whom I should be directing my fire. Unfortunately, such is our procedure that, for technical reasons, it is the Admiralty which has to reply.
The reasons given to me in the letter from the First Lord—which, to do him justice, expressed deep regret—were two in number. The first I can only describe as contemptible. It was said that any claim for personal injury against the Crown would be out of time, under the Law Reform (Limitation of Actions, &c.) Act, 1954. The First Lord said that in his view—which, I suppose, means in the Treasury's view—it would be wrong if a limitation so recently set by Parliament were lightly set aside by administrative action. I think it was an affront to this House to suggest that any hon. Member would object to a discretionary ex gratia payment in the exceptional circumstances which I have described. I am quite sure that no hon. Member would have taken any exception whatever to it.
Here is an Act which is designed to protect the Crown against abuses in the way of litigation being prayed in aid by a Government Department to evade a moral responsibility that almost any employer, private or State, one would imagine, would admit without hesitation.
158 So much for the first of the two reasons. The second, I think, is completely fallacious. The First Lord writes in his letter: It is true that the diagnosis of tuberculosis in her case was mistaken but it was made in good faith by a large number of doctors, both Service and civil, and an honest mistake of this kind could hardly be said to amount to negligence. I am no lawyer, but it is news to me that in order to establish negligence one has to prove bad faith. In the report of the first specialist to see this young woman, the man who first made the erroneous diagnosis, there are enumerated by him no fewer than six medical factors each one of which points contrary to the indication of tuberculosis. I will not weary the House with medical details because neither I nor the hon. and gallant Gentleman is a doctor, but I am assured by medical opinion that each of these factors should have made him hesitate before he diagnosed tuberculosis and that the six taken together amount to an almost overwhelming argument that his first conclusion was wrong.
I suggest that that is certainly negligence. Was it not negligence that not one of the half-dozen doctors who subsequently saw Miss MacMichael, and into whose care she came, never bothered to make a proper examination of her themselves but meekly accepted the diagnosis handed to them by the previous doctor? Did not a special responsibility in this respect rest on the naval doctor who finally recommended her discharge from the Service on medical grounds? Was it not negligence that a young and previously healthy young woman with an abdominal swelling was never once seen by a gynaecologist? If there is no negligence here, I can only conclude that negligence is a human frailty to which the medical profession can never plead guilty.
These were the flimsy reasons which led the Admiralty, backed by the Treasury, to turn down this request for some kind of compensation or redress for wrong done and injuries suffered. We have the miserable spectacle of a Department of State sheltering behind its privileged position in respect of personal injury and claims against the Crown and using the special immunity which this House conferred on the State to evade its 159 moral liabilities and responsibility. I think it is a pitifully mean decision.
Had she been employed by any private company in the country and undergone this suffering as a result of negligence by the employees of the company, or by anybody else while in the company's employ, the employers would have come to her aid and given her some compensation or redress. I think we are entitled to ask that the State should behave not as generously but more generously than private companies and private employers when dealing with their employees.
This is more than merely a personal case. It is an illustration of the whole question of fair dealing between the State and the individual. I hope the hon. and gallant Gentleman will at least be able to tell us tonight that he will give further consideration to this case. It is a very sad story and I am sorry that it involves the Navy and the Admiralty, not only because the Navy is Miss MacMichael's old Service but because it was the hon. and gallant Gentleman's old Service and, as long as the war lasted, it was my Service. I hope that even at this stage the hon. and gallant Gentleman will say that as an act of grace, purely ex gratia, he will do something to try to compensate what, in fact, is not compensatable, namely, the four years of misery which she suffered through the negligence of the naval and other authorities.

§ The Parliamentary and Financial Secretary to the Admiralty (Commander Allan Noble)
The hon. Member for St. Pancras, North (Mr. K. Robinson) has gone into this sad case in great detail, and I will do my best to answer the points that he has raised.
The Admiralty has considered this matter most carefully and sympathetically. The hon. Member complained that we had taken seven and a half months to say "No." It would, of course, have been very easy to say "No" quickly, but we wanted to do everything possible in this case. As the hon. Member said, my right hon. Friend the First Lord took a personal interest in it, and so did I. I also had a further personal interest in the case because this lady was a constituent of mine at one time, and the hon. Member 160 and I discussed this matter and arranged that he should raise the case with the Admiralty.
As the hon. Gentleman said, this lady was serving in the Women's Royal Naval Service, and in July, 1948, after six years' service she went ill and was sent by her medical adviser for examination at the civil hospital at Hairmyres. There a tuberculosis specialist diagnosed abdominal T.B. after three months' observation. It was not a snap diagnosis. That is the diagnosis which the hon. Member says was negligent, and to which I shall revert in a moment.
I must just continue the story with the Admiralty emphasis as opposed to the hon. Member's. This officer was then accepted for long-term treatment, and was moved to a sanatorium in Aberdeenshire where a number of eminent tuberculosis specialists confirmed the diagnosis, as the hon. Member said. In 1950, nearly two years after the start of the illness, it was recommended that she should go to Switzerland. The hon. Member did not think it right that the Admiralty should only have paid 9 guineas. Actually Miss MacMichael asked the Admiralty to pay 7 guineas and the Admiralty paid nine. One must also remember, when talking of expense, that this officer was on full pay for the whole of this period.
While she was in this sanatorium in Switzerland she was under the care of a great authority on tuberculosis. Something then occurred which rather encouraged her medical advisers to confirm the diagnosis, because she began to get better and after six months in Switzerland she came home, but a naval medical board recommended that she should be invalided from the Service. In February, 1951, she left the W.R.N.S. with a gratuity and a pension, and I am sure that we are all very sorry that she had to give up her naval career at that stage.
Then, as the hon. Member said, she consulted a general practitioner and a Harley Street tuberculosis specialist. Both these doctors agreed that the probable diagnosis was tuberculosis, but they also agreed between them that if she did not get better they might try surgical treatment. I would emphasise here that when they did try surgical treatment that was not a fresh diagnosis. They operated to try to find out whether there was anything there. About eighteen months 161 later, in 1953, an operation was performed and, as the hon. Member said, they found that her condition was caused by a cyst. This was removed and she made a complete recovery and is now leading a normal life. As I have already said, I am sure she has all our sympathy. I was very interested to hear what the hon. Member said at the end of his speech about her future.
I now want to revert to the original diagnosis which the hon. Member suggests was negligent. My advice is that there is no doubt that that diagnosis was reasonable in the circumstances. There were T.B. symptoms and there was a T.B. history to which the hon. Member did not refer.

§ Mr. K. Robinson
I am reluctant to interrupt, but the hon. and gallant Gentleman said that I did not refer to this lady's earlier history. Is it not a fact that she had tubercular glands removed at the age of 17, and that when one has a mild tubercular infection like that in youth one is much more likely to develop immunity to tuberculosis in later life? What I left out of my remarks was a point in my favour and not in the hon. and gallant Gentleman's favour.

§ Commander Noble
I will give the hon. Gentleman that point. I wanted to say something about these symptoms because in medicine I think there is always room for more than one opinion, hence the expression, which we all know so well, that one often asks for a "second opinion."
On this occasion it was not a question of merely a second opinion. There was the specialist at the Aberdeen sanatorium, the specialist at the Swiss sanatorium, the naval medical board, the officer's own doctor and the Harley Street specialist, all of whom confirmed this diagnosis. As I said earlier, the final operation was only to find out; it was not a fresh diagnosis. The hon. Gentleman says that there were other symptoms which did not 162 point to tuberculosis. There may have been, but I think that one has to be awfully careful about this, because I feel that these other symptoms would perhaps loom now very much larger than they did then—seven years after the original diagnosis.
Medicine in retrospect is always very much easier than at the time when the patient is seen for the first time. I think that we should bear that in mind. We consider that the diagnosis was made in good faith, on reasonable grounds in the circumstances, and that there was no negligence.
I do not think that I need refer very fully to the legal position. The hon. Gentleman mentioned it, and I think that one has to bear in mind the legal position, because he said that Miss MacMichael had not intended to take legal proceedings, but that does not get away from the fact that she would have been bound by the Crown Proceedings Act, 1947, and the original Limitation Act, 1939, and since then by the Law Reform (Limitations of Actions &c.) Act, 1954. I think that, in spite of what the hon. Gentleman said, the House would agree that it clearly would be wrong "to try to set aside"—these are the words of the First Lord to the hon. Member— such recent legislation by administrative action except in the most exceptional circumstances. I am afraid that we are unable to make a ex gratia payment for the reasons which I have given. I am extremely sorry that this young lady had to go through that experience through no fault of her own and no fault of anyone else. I think that we should be making a very grave error if we confused an honest mistake with negligence. She has our sympathy and good wishes for a happy life in good health.