HC Deb 14 March 1957 vol 566 cc1442-56

Motion made, and Question proposed, That this House do now adjourn.—[Mr. E. Wakefield.]

9.35 p.m.

Mr. William Wells (Walsall, North)

The question I desire to raise is connected with the costs of a successful appeal to the Ministry of Health from a decision of the Walsall Executive Council. It arises out of the medical treatment given under the National Health Service to a young constituent of mine, Miss June Anne Evans, who died in the Manor Hospital at Walsall in January, 1955, at the age of seventeen.

Miss Evans's father is a plumber employed at a wage. The costs involved in this successful appeal amount to a total of £87 6s. 10d., which sum includes a solicitor's bill for £71 2s., which includes counsel's fees, and an item for loss of wages, amounting to £15 9s. 10d. In order to give the background to this appeal it is, unfortunately, necessary to traverse briefly the medical history of the treatment of the case without which the rest of the facts connected with the appeal must be unintelligible.

In order to avoid once again bringing too much into public what has already been made public locally about the medical individuals concerned, I shall refer to them throughout my speech as Dr. A., who was the doctor primarily responsible for the treatment of the case; Dr. B., who intervened when Dr. A had a day of rest, and Miss C., a medical student, who also plays a certain part in the history. I suggest that it would be useful to continue that practice throughout any other speeches which may be made.

Shortly, the facts of the case are that on 4th January, 1955, Miss Evans complained of severe pains and she suffered vomiting. Dr. A. was called and diagnosed gastro-enteritis. There was no further call by any doctor until 8th January, 1955, when, the patient's symptoms having become more severe, her father called at Dr. A's surgery at 9 a.m. Dr. A. called at 4.30 p.m. and again diagnosed gastro-enteritis. The following day was a Sunday. The father called at the doctor's surgery at 5 p.m., and Dr. B., who was, no doubt, standing in for Dr. A. on that occasion, called at 6.30 p.m. with Miss C., who was allowed by Dr. B. to conduct the whole of the examination. She said that there was no sign of appendicitis, the parents having suggested that appendicitis was in fact the malady.

The doctor, who had taken no active part at all in the examination, said that Miss Evans was to be given a boiled egg and toast to eat. Following this visit by the doctor and Miss C., the patient spent a very uncomfortable night. The father, who, as events tragically turned out, was right, was dissatisfied with the conduct of the examination. He decided to get another doctor the next morning, and did so.

On 10th January this third doctor, of whom no complaint is made, called in response to the father's request. He ordered Miss Evans's immediate removal to hospital where she was X-rayed. As a result of the X-ray it was decided that an operation was urgently necessary but, unfortunately, the patient's condition was considered too weak for the operation then to be performed. On the following day, however, which was a week after Dr. A's first call, an operation was performed at 12 noon. At 4.30 p.m. the patient died, and after her death the causes of death were certified as, first, peritonitis: secondly, a perforated appendix, which was gangrenous, and, thirdly, a perforated small intestine.

Following the death of this young girl, her father, as he was entitled to do, made a complaint to the Executive Council set up under the National Health Service Acts in relation to the medical treatment which his daughter had received in her last illness. The hearing of this complaint took place on 3rd June following. The Executive Council decided that there had been no breach of the doctor's terms of service, and in this connection it may be right for me to refer to the letter which the then Minister of Health—now the Minister of Labour and National Service—wrote to me on 2nd November following. There had been a considerable volume of correspondence with which I need not trouble the House, but this letter forms an essential link in the chain. The Minister said: As I explained in my letter of 2nd August, the Walsall Executive Council investigated the complaint made by Mr. Evans with regard to his daughter's medical treatment, and reached the decision that there had been no breach of the terms of service of the doctor responsible, either through her personal actions or through the actions of the doctors who treated Miss Evans on her behalf."— there was in fact only one doctor— I mentioned that Mr. Evans had the right of appealing to me against this decision and he in fact did so. An oral hearing of his appeal will be held in the near future. The oral hearing of the appeal took place subsequently, but because it is most relevant to the complaint in relation to the cost of these proceedings, at this stage I must mention the terms of the third finding of the local Executive Council. It runs as follows: The practice of allowing advanced students to accompany qualified medical practitioners in their day-to-day work is not only recommended but encouraged both by the Cohen Committee of the Ministry of Health and the General Medical Committee of the British Medical Association and has been accepted as a desirable and necessary procedure for a number of years. This opinion was explained to the complainant, but both he and his wife remained emphatically unconvinced and insisted on maintaining that the examination, done by a student, was null and void and of no value. although done in the presence of a qualified medical practitioner. That finding could scarcely have been more misleading to all concerned. Of course, it was no part of the parents' complaint against the doctor that a medical student had been present at the examination. It was not even a part of the complaint that the medical student had conducted an examination. The essence of the complaint was that, the parents having expressed a definite view as to the cause of the patient's very great suffering, the doctor rested content with an examination by the student, took no trouble to verify the facts which he felt she had adequately ascertained, so that in this critical stage, as it proved, of her illness, the diagnosis was conducted by somebody who, certainly in law and to a large extent in fact, was at that time an unqualified person.

The essence of the complaint was therefore misapprehended by the Walsall Executive Council in this crucial finding after the hearing before it. It was this complete non sequitur which emerged in its finding which led to what ultimately proved to be a false and misleading conclusion on the facts of this very tragic case.

The appeal to the Minister followed its normal course. It was heard orally before, I believe, two inspectors. A letter from the Minister. who was then the right hon. Member for Thirsk and Malton (Mr. Turton), communicated the Minister's decision after the hearing of the appeal, in a letter dated 15th March, 1956. That decision referred to the finding of the executive committee and held that there had been a lack of proper medical attention in the visit on the crucial day, 9th January, 1955, when the examination was conducted by an unqualified person, Miss C. On this, the most vital element in the case, the finding was in favour of the complainants.

As I have already explained, Mr. Evans is not a man of means; he is a plumber working for a wage. The sum involved in this appeal was a serious matter to him. Following the appeal, in which no order had been made as to the payment of costs, Mr. Evans wrote to me, and I took the matter up with the Minister. In a letter which I wrote to the right hon. Member for Thirsk and Malton, I said: Mr. Evans is, however, concerned that no order has been made as to costs. He is by no means a wealthy man, and to find £71 is probably not an easy matter; but in any event, surely it follows from the fact that the appeal has been allowed that Mr. Evans' efforts have been justified, and surely the costs should to some extent at least follow the event. The right hon. Gentleman replied to me in a letter of 27th March, 1956, saying: On the question of costs, it is an established practice to make an order for costs against one of the parties to an appeal only in quite exceptional circumstances; for instance, where the case was pursued unreasonably. This principle was indicated in a letter sent to Mr. Evans' solicitors last August, when they were informed that the Minister had the power to award costs against either party to the appeal, but would not award costs against an appellant unless he came to the conclusion that there was no reasonable justification for the appeal. It has never been held that a respondent was acting unreasonably in defending himself against an appeal seeking to reverse a decision that he had not failed to comply with his terms of service, and I am afraid that the doctor could not properly be penalised in this way, especially since the appeal was allowed only in relation to treatment on a particular day of Miss Evans' illness, and thus was in effect allowed only in part. I place myself in the hands of the House, but really could an argument be more sophisticated than that? The Minister, on the crucial point in the appeal, after having had placed before him the evidence and after having consulted his Medical Advisory Council, had come to the conclusion that Dr. A. had failed to comply with the terms of service of medical practitioners, in that her deputy failed on the 9th January, 1955, to render all proper and necessary treatment in a case which subsequently proved fatal.

Considerable argument followed that letter of the Minister, but on the crucial point that he raised, that the appeal was allowed only in part, I cannot do better than quote from a letter written by the solicitors to Mr. Evans himself, in which they said: In conclusion, we observe the concluding words contained in the last paragraph of the letter, that the appeal was in effect allowed only in part. Considering that the 9th January, 1955. was the last and most vital visit to your daughter, the observation is in very had taste, to say the least. The Minister's letter of the 2nd March. 1956, as to the decision makes no reference to disallowance of costs because of this or any other reason. I do not comment on the taste, bad or otherwise, of the then Minister's reply, but I do complain that it is certainly illogical and possibly a little bit evasive, when a finding has been made on a crucial part of the case, on a crucial visit two days before the patient died, and when a finding has been made that on that crucial visit proper medical treatment was not supplied, to say that the appeal was allowed only in part.

I think it is just to say that to some extent one faces here a certain logical dilemma. If the Regulations state that a party is not to be condemned in costs if the contesting of an appeal is reasonable, it is, I concede, hard to say that Dr. A was unreasonable in contesting an appeal when the tribunal which had heard the complaint in the first case—the executive council—had found in Dr. A's favour. The plain fact is that it was the executive council itself, by its extraordinarily illogical third finding, that had been the cause of the trouble.

I am not concerned with any precise analogies from the courts of law. At one stage in the correspondence, it was put to me that a tribunal whose decision was reversed was never condemned in costs; and of course, when dealing with courts of law, that is the truth. I would only say, to do the council credit, that in this case the executive council itself, in a letter written to myself, has expressed the view that The council feel that on the Minister's decision the complainant's appeal was allowed and therefore he should be recompensed for expenses incurred in exercising his right of appeal. Mr. Evans, as he was entitled to do and finding that my representations appeared to carry no weight with the Ministry of Health, approached a Government supporter in the person of the hon. Member for Walsall, South (Sir H. d'Avigdor-Goldsmid) in the hope that his representations might be more fruitful. The hon. Member for Walsall, South made what, I thought, was a constructive suggestion and in a letter written by him, of which he was good enough to send me a copy, he said: I expect that your council, in common with other National Health Executives, has at its disposal funds not controlled by the Ministry of Health out of which it would be possible to make a contribution towards the complainant's expenses if this is thought desirable. As the Council pointed out, however, it has no such funds and all expenditure…can only be made by a council with the approval of the Minister of Health. That, therefore, is the position.

It is a sad and tragic story. One may think that it is not a very good argument in favour of the claim that is being made by the medical profession that it alone, out of all classes in the community, should be exempt from the effects of the inflation from which we are all, in common, suffering. I have some sympathy with Miss C. and I hope that she will have a very successful medical career, in spite of this initial disaster, a disaster to which, if her superiors had conducted themselves properly, she would never have been a party.

It being Ten o'clock, the Motion for the Adjournment of the House lapsed, without Question put.

Motion made, and Question proposed, That this House do now adjourn.—[Mr. E. Wakefield.]

Mr. Wells

I can only say on this part of the case that, having had a cousin of my own, a girl recently married, die as a result of a failure to diagnose appendicitis and having in my professional career encountered several cases of the same kind, it seems that this question of appendicitis, which is, one would have thought, a common enough complaint, is a kind of medical pons asinorum. But that is on the medical aspect of the matter.

The issue tonight is simply that the father, out of his natural feelings, out of his desire that what he and his wife have suffered shall not be suffered by other parents, and out of his anxiety that in future at any rate responsibility should rest where it belongs, on the shoulders of the doctor in charge of the case, has pursued this matter. He has pursued it with success, and in my submission there is an overriding case in plain justice and equity for the costs which he has incurred in doing so to be recompensed. The unreasonableness in this case lay in the Executive Council's third finding, and the Minister of Health should either accept responsibility for this himself or else approve payment by the Council of the costs incurred.

10.1 p.m.

Sir Henry d'Avigdor-Goldsmid (Walsall, South)

I know that we are anxious to hear the reply from my hon. Friend the Parliamentary Secretary and I do not propose to take up the time of the House by going over again the ground which has been so fully covered by the hon. and learned Member for Walsall, North (Mr. W. Wells). He and I share the honour of representing the borough in the House, and I must say that it is a great pleasure to be able to speak with him on a subject on which we both feel the same. It is a tribute to our Parliamentary democracy that his constituent has had the services of this eminent forensic expert and that the matter is now being brought to the very highest level we know in order that justice may be done.

It is only by the action of geography that Mr. Evans' residence falls within the boundaries of Walsall, North. His is a case which attracts much interest locally and I would say that my constituents, who live in Walsall, South and who are not always conscious of the boundaries between the two, are equally concerned to see that justice is done to Mr. Evans.

This is a case in which a working man with no special advantages of birth or education has been able, by his persistence and patience and by the conviction with which he has pursued his claim, to persuade the Minister to uphold his appeal from the decision of the Executive Council. Furthermore, at the rehearing of the case he succeeded in winning it. In the circumstances, the Walsall Executive Council thought that he ought to be recompensed for the expense incurred in exercising his right of appeal, and I think that most reasonable people would agree with this. Nothing can bring Mr. Evans' daughter to life, but the reimbursement of his expenses is all the modest indication that he asks; and opinion in Walsall —and this is certainly not a party matter —is unanimous that he deserves to get it.

I think that one of the difficulties that Mr. Evans has had in having his claim recognised can to some extent be attributed to the extraordinarily high state of medical care and attention obtainable in Walsall, which is such as to make this charge of failing to give all proper treatment virtually unheard of there. if the Parliamentary Secretary thinks it possible to meet Mr. Evans' request, I can assure 'him that in Walsall it will be taken as 'representing mere justice in an altogether exceptional case, and in no conceivable circumstances as a slur on medical conditions in the town.

10.5 p.m.

The Parliamentary Secretary to the Ministry of Health (Mr. J. K. Vaughan-Morgan)

I make no complaint about the manner in which this issue has been raised both by the hon. and learned Member for Walsall, North (Mr. W. Wells) and by my hon. Friend the Member for Walsall, South (Sir H. d'AvigdorGoldsmid). I think that they have deployed the facts and the questions involved in this difficult issue very fairly. The issues involved arise from the death of June Anne Evans. I will add nothing to the facts which the hon. Member for Walsall, North gave about that unhappy incident except, if I may, to express my sympathy, and that of my right hon. Friend with all her relations.

The real question which is at issue here is the complaint to Walsall Executive Council of the standards of professional practice of a given practitioner in so far as his terms of service under the National Health Service are concerned, and the necessary and relevant costs in an appeal. There are no other issues with which we are concerned. Mr. Evans, at one stage, issued a writ against the doctor concerned, claiming damages on account of his daughter's death. That is a matter for the civil courts, and would involve questions and issues with which we are not concerned tonight. The issue tonight is the different one, to which I have referred, and which involves the machinery set up under the National Health Service Act. I must again emphasise the importance of not confusing the two issues.

Mr. Evans made a complaint to the Walsall Executive Council under the National Health Service (Service Committees and Tribunal) Regulations. On the advice of their chairman, the Medical Service Committee in the first place proposed to dismiss the complaint as not showing prima facie ground of complaint, but the Council referred back the committee's report to this effect. The committee then heard the case, and advised that there had been no breach of the doctor's terms of service.

In a summary of the position, they said that the complainant's case seemed to rest on the following points: first, failure on the part of the doctors concerned to make a correct diagnosis; second, failure to make more frequent visits, and third, permitting examination by a student. They observed that a wrong diagnosis was not a breach of the terms of the service of doctors working under the National Health Service; secondly, that the doctor did not follow up his first visit because he thought that the girl would get better very soon; and that the practice of allowing advanced students to accompany doctors in their day-to-day work had been accepted as a necessary and desirable procedure for a number of years.

They expressed themselves …quite satisfied with the manner in which the medical examination of the complainant's daughter was performed by the student under the direct supervision of a qualified medical practitioner, in that such examination formed part of the normal recognised procedure for the training of advanced students. When notified that the Executive Council had decided in accordance with the recommendation of the Medical Service Committee, Mr. Evans appealed to the Minister, and, as we have heard, on 30th November, 1955, there was an oral hearing of his appeal. Both the appellant and the doctors were represented by counsel. The result of the appeal, which was issued in March, 1956, after consultation with the Medical Advisory Committee set up under this procedure and composed of three of the Minister's medical officers and three general practitioners, was that the doctor responsible should be reprimanded on the ground of a breach of the terms of service …in that her deputy failed on 9th January, 1955, to render all proper and necessary treatment. The implication was that examination by the medical student without participation by the doctor was not adequate, but that the executive council had been right in taking the view that Dr. A. had paid adequate visits and made adequate medical examinations. The Minister did not use his power to withhold money from the doctor's remuneration.

Under this procedure, the question of costs arises only in connection with an appeal. While, of course, complainants or respondents may incur legal costs in connection with the complaint to the executive council, paid advocates are excluded from conducting the case before the service committee of the Executive Council, and the procedure is essentially an informal one conducted by the parties concerned. Accordingly, there is no power to award costs. When there is an oral hearing in connection with an appeal there is such a power, and there is also a power to direct an executive council, whether on its application or not, to contribute to the costs of the parties.

In his correspondence with the Minister, the hon. and learned Member had argued that, on the analogy of the normal rule in legal proceedings. costs should follow the event. This follows civil procedure, but it should be pointed out that costs are not regularly allowed under criminal procedure, and that, in so far as the procedure on appeal to the Minister relates to complaints of infraction of obligations to the State, and is not an attempt to obtain restitution, the analogy with civil procedure is not complete. Proceedings by way of complaint to an executive council and appeal to the Minister do not, of course, extinguish the citizen's right of going to the Courts to obtain restitution.

The general principles of the award of costs by tribunals fall within the terms of reference of the Committee on Administrative Tribunals and Inquiries under the chairmanship of Sir Oliver Franks, and have been raised in evidence before that Committee. Thus the general question is in some measure sub judice that Committee. If, however, they were to adopt literally the principle that costs should follow the event, as in the civil courts, they would doubtless recognise that this would have a restrictive effect on the use of the right of appeal by persons complaining against practitioners working under the National Health Service. It should be remembered that, except perhaps for repayment of expenses they have incurred—usually quite small expenses such as statutory charges for dental treatment under the National Health Service—complainants are not themselves hoping to obtain money under this procedure. They can, and often do, make complaints and conduct appeals without themselves incurring legal costs, and they would be deterred by the prospect of responsibility for the practitioner's legal costs if they were not successful. In other words, a rule that "costs follow the event" might seem on balance to work against complainants. Indeed, Mr. Evans proceeded with his appeal with the advantage of a statement in a letter of 22nd August, 1955, that, If there is an oral hearing the Minister has the power under the Regulations to award costs against either party to the appeal, hut he would not award costs against an appellant unless he came to the conclusion that there was no reasonable justification for the appeal. The principle implied by that letter makes it obviously most difficult to award costs against the respondent, who can scarcely be unreasonable in seeking to defend himself in a matter which might seem to bear on his professional competence. Certainly in this case, which was a borderline one from the point of view of medical care, he could not be regarded as unreasonable in defending himself, the more so that there was publicity in the local Press.

There remains the question of a contribution to Mr. Evans's costs by the Executive Council. Here the analogy with the civil courts breaks down for costs on appeal are not paid by an inferior court whose decision is over-ruled. Executive Councils have, however, occasionally been authorised or required to contribute to the costs of parties. In one case they were authorised to contribute to the cost of a complainant in providing himself with legal representation at the appeal by the respondent and thus absolving the Executive Council from incurring similar costs. Otherwise such contributions have been associated with some form of mistake, unreasonableness, or undue severity on the part of the Executive Council.

In the present case the report of the Service Committee of the Executive Council showed confusion between the doctrine that a student might accompany a doctor on his rounds, and his doing the work himself, and the finding on the appeal implies that whatever the student might properly do, it was not sufficient for a doctor to supervise by eye alone an examination intended particularly to deal with the possibility of appendicitis. The Committee made also an unfortunate reference to the General Medical Council, instead of to the British Medical Association, which was a mere slip. Nevertheless, the Council's finding on the case as a whole was supported in large measure and overturned on one point only. Thus it could not be regarded as widely wrong. It was a case in which "costs following the event" might have led to the award of a proportion of costs —perhaps one-third but certainly not necessarily one-third—of the fees actually charged by Mr. Evans's lawyer or incurred by him. In the light of practice on other cases. this was not an occasion for payment by the Executive Council.

I can assure the House that this matter has been given by my right hon. Friend and his predecessors much consideration and much earnest thought. I have been through the whole record in great detail, but I regret that, on the facts, it is quite impossible for me to recommend my right hon. Friend to reconsider his decision.

10.19 p.m.

Mr. Wells

I am grateful in the first instance to the hon. Baronet the Member for Walsall, South (Sir H. d' Avigdor-Goldsmid) for the support he has been good enough to give me.

Mr. Deputy-Speaker (Sir Gordon Touche)

The hon. Member can only speak again with the leave of the House.

Mr. Wells

With the leave of the House, I am much obliged to the hon. Baronet for the support he has given me on this occasion. There is only one satisfactory aspect of the speech which the Parliamentary Secretary has made. That is that for the first time the Ministry has accepted that there was a confusion in the findings of the Committee and that that confusion, it follows, was the basis of its decision. I really find myself astonished at his argument—continued tonight as it has been in the correspondence:—that this was an appeal successful only in part. That seems to be based on an essential misconception, drawn from what field I do not know—it certainly was not drawn from the courts of law—that be-cause one of the grounds of the appeal is rejected the appeal can be said to be successful only in part.

If the appeal is against the treatment of a patient by a doctor and the appellate tribunal finds that in fact the doctor has not treated the patient properly, that is a successful appeal. It is not an appeal successful in part, but an appeal that has succeeded. It may be that one or two of the grounds of the appeal have not succeeded, but that is not the point. With all respect to the hon. Gentleman, I think that some of the analogies which he has pursued do not greatly add to the matter. He said that this was more in the nature of a criminal complaint than a civil one and that costs are not usually awarded in criminal cases. That is a very wide statement indeed. There is a great deal of qualification to that. Costs are frequently awarded in criminal cases.

The hon. Gentleman then appeared to pursue the argument that Mr. Evans has his rights in civil proceedings. That, again, in form has something to commend it but in fact very little, because, of course, in civil proceedings where there has been a death it is a matter for the Fatal Accidents Act and there, by law, it is necessary to establish that the person who claims was a dependent of the person who died. Here, of course, the exact reverse was the truth. The only exception to that is where the plaintiff brings an action as an executor or administrator and says that there has been damage to the estate through the deceased's loss of expectation of life.

I should have thought that the hon. Gentleman, from his days in the law, would have known that the courts limit themselves very narrowly to the amount of damages that they award for such claims. The issue in my submission is not on any of these rather small points. It is simply this. Mr. Evans, not a wealthy man, has at great cost and pains to himself fought a successful appeal. He has ventilated a problem of general importance. He has brought home, I would hope conclusively, at any rate to such parts of the medical public as will read the journals that circulate among them, the fact that examination by a student is no substitute for examination by a doctor and that a doctor who allows an examination to be conducted by a student places himself as well as the patient in peril. That is a very valuable lesson, which I hope will be taken to heart, but it is a lesson that Mr. Evans has taught, so far, at his own expense.

Whatever small argument can be adduced from analogies in other fields, it is a monstrous failure of equitable treatment to say that this man shall have to pay the costs of this appeal, which has vindicated complaints against medical treatment as a result of which he lost his only child, his daughter.

Question put and agreed to.

Adjourned accordingly at twenty-four minutes past Ten o'clock.