PNEUMOCONIOSIS MEDICAL PANEL (CLAIM) (Hansard, 18 July 1962)

§ Mr. Frank Tomney (Hammersmith, North)
I offer my congratulations to the hon. and gallant Gentleman on his appointment as Parliamentary Secretary. It is one of the pleasant features of the House of Commons that we always offer our congratulations to hon. Members on the occasion of their maiden speeches and on the occasion of appointment to office.
I do not suppose that the case I am raising tonight is the first of its kind. It has certain unusual features, one of which is that the commissioner's judgment is very long. The circumstances raise the question as to what reliance may be placed upon the decision of a 597 local tribunal when, after the tribunal had reached a majority decision in favour of the claimant—with a dissenting chairman, whose appointment is the prerogative of the Minister—the insurance officer thereupon referred the matter to the commissioner. In my submission, the whole concept of delegated legislation as we know it in this country according to the accepted concept of established law and practice is brought into doubt, at least from the point of view of claimants.
Most claimants in these cases are very ordinary citizens who do not know the intricate aspects of the application of the law by local tribunals. Even in a case like this where the claimant had the advantage of being represented by her husband's trade union, the National Union of General and Municipal Workers, neither the weight of argument nor the weight of representation can ever be equal. The Minister is able to call upon the experience and advice of his own expert and specialist staff. I can imagine that his specialist staff are some of the best men in the country that the Minister can recruit to his service. He is far more able to reinforce his opinion if necessary by further expert consultancy.
However, in this matter the judgment of the Commissioner is complicated by the fact that the medical expert. Dr. Hinson, who was Director of Pathological Services at London Chest Hospital, has on occasion acted for the Ministry in other cases and surely on this occasion his judgment could have been unbiased and objective. Chiefly on his judgment the local tribunal made an award in favour of the claimant. On 21st April, 1961, the pneumoconiosis medical panel, which, I understand, is a consultative body, completely nullified the evidence of Dr. Hinson and said that its findings were based on medical facts. This case is unusual in so far as the claimant is making a claim on behalf of her deceased husband and we have medical expert opinions at variance with one another.
It is interesting to note the obvious leaning of the Commissioner towards the pneumoconioisis medical panel, whose decision he obviously wanted to support, and he states in his judgment that such changes as occurred were due to general emphysema and chronic bronchitis and 598 changes due to dust were insignificant. He refers to Dr. Hinson's report in this manner—that he stated there were black silicotic nodules in the lungs, but he does not go into any details about the numbers, extent or distribution. We found no silicotic nodules. If such were present, they must have been extremely sparse. In his description of the deceased's heart, equally brief, the pathologist states that apart from early purulent pericarditis, the organ was normal. Just because a statement of medical fact and opinion is brief does not, in my submission, rule out its expertise.
The Commissioner was wrong to draw his conclusion that because the statement of the pathologist was brief it was not of any value, but when we look at paragraph 9 of the report of Dr. Hinson there is no doubt that he claims that although bronchitis and emphysema were present pneumoconiosis was the material contributory factor in the deceased's death. He goes on to say quite frankly: In my view this is a difficult case for decision but I think there is just sufficient pneumoconiosis to hold that it materially accelerated this death. The presence of calcified tuberculosis in the lymph nodes and the mainly subpleural location of the large nodules of the fibrosis in the lungs suggest that this disease while never overt, may have played some part in the progression of the fibrosis. He concludes: I should like to emphasise that the case is a 'borderline' one and that I have considerable sympathy with the Pneumoconiosis Medical Panel's opinion. But there is no doubt that he is of the opinion that pneumoconiosis materially affected this man's death.
Therefore, we now arrive at the position, surely, when, according to the Commissioner's own statement of the views of both medical panels, Dr. Hinson's opinions seem to stand medically discredited. I would take a very poor view of the credentials of the panels if I were the specialist involved. This situation alone should have given the Commissioner food for a much longer period of thought, and should have led him to seek further consultations before arriving at this decision, so that, as he suggests, justice should not only be done but should be seen to be done.
If the opinions of Dr. Hinson, an acknowledged expert, can be overturned by a medical panel, what injustice has been done in innumerable 599 cases to claimants who could not afford extra medical advice and had no union representation? The issue of payment for expert witnesses on behalf of claimants has never been dealt with adequately by Parliament and it is one which should be considered.
The dilemma in which the deceased's union found itself, because evidence by one of the foremost experts in the country was being cast aside in doubt, was that it could become involved in endless expense in contesting the opinions of the experts which the Minister might choose to call.
This is not a very satisfactory position. A union does not have unlimited funds at its disposal for these purposes. But the Minister has, of course, the taxpayer to foot the bill. This was one of the reasons which led the union to seek further adjournments of the case so that it could be sure that there was some point in securing further medical opinion.
A union cannot proceed in cases of this kind as smoothly as can the Minister. It has to call together its executive and general committee members from different parts of the country to consider exactly what is involved, how much it will cost and whether there is a good chance of the outcome of the original application being supported.
The Minister, under Regulation 41 of the 1948 Regulations can secure an oral hearing of Dr. Hinson. But the Commissioner, in his submission, says that he no such power. But after reading the Regulation carefully, I am of the opinion that while the Regulation does not say that he shall do so, it does not say that he shall not seek further medical opinion.

§ Mr. Speaker
Order. I may not be hearing the hon. Gentleman quite rightly. If so, I apologise. Could he explain to me what his complaint is about? It appears to be a complaint about a decision of a tribunal. Can he satisfy me that it is within my power to let him go on about that—that is to say, that there is Ministerial responsibility for the decision? I may not be following him.

§ Mr. Tomney
There is Ministerial responsibility in this case because these tribunals were set up by the Ministry under the National Insurance Acts. In fact, these tribunals operate under a 600 system of delegated legislation. The tribunal decided in favour of the claimant, but the Commissioner upset the decision and the claimant has therefore been put to further expense to try to prove his case.
I appreciate what you say, Mr. Speaker, that the Minister has no power to intervene to upset this decision of the Commissioner, but surely in a case of this kind, where the expert witnesses are at variance with each other, if there is any doubt about the matter the claimant should be given the benefit of that doubt. The Commissioner failed to realise this, although paragraph 18 of the regulations says: To discharge the burden of proof it must be shown that the balance of probabilities favours the contention which it is sought to establish, and accordingly in proceedings under the Industrial Injuries Acts no question of the claimant having been given the benefit of the doubt arises.

§ Mr. Speaker
I am sorry to interrupt, because I do not want to use the hon. Member's time, but he knows the limits of my power. I am not following. The hon. Member seems to be complaining about some decision of the Commissioner, but not suggesting that the Minister has any power to intervene in the matter. I do not follow how there could be Ministerial responsibility for the subject matter of the complaint.

§ Mr. Tomney
I do not know whether the Minister has power to intervene, but I suggest that in cases like this he should consider the possibility of making medical witnesses available to the claimant without involving the claimant in extra expense. There is also the point that, having secured one adjournment, the union was desirous of producing further medical evidence and asked the Commissioner to further postpone the case to enable that evidence to be brought before him, but this the Commissioner refused to do. The union contends that the claimant should be given the benefit of the doubt which has been created by the medical evidence being at variance
I realise that the Commissioner has every right to refuse to grant a further adjournment, but surely in justice to the claimant he could have said, "Very well. This is a complicated case and I will therefore grant a further adjournment ". The claimant is unable to call further medical evidence unless the union provides the money for this to be 601 done. Union funds however are not unlimited, and because this is such an unusual case I ask the Parliamentary Secretary to issue a direction that in a case of this kind every effort should 'be made to grant adjournments to enable the claimant to call such evidence as is necessary to prove his case.

§ The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Lieut.-Commander S. L. C. Maydon)
I start toy thanking the hon. Member for Hammersmith, North (Mr. Tomney) for his kind reference to my having recently taken over this position. I very much regret, however, that the hon. Gentleman has seen fit to raise this case on the Adjournment without previously writing to my predecessor in office or going to see him to discuss it. If that procedure, which is normal and consistent with the courtesies of the House, had been followed, I am sure that the hon. Gentleman would have been reassured and would probably not have asked for this Adjournment debate. I know that the hon. Member did see my hon. Friend who is now the Parliamentary Secretary to the Ministry of Public Building and Works, but not until after he had given notice of the Adjournment debate.
These cases, in which there is often much physical suffering and which sometimes end in the bereavement of a family, always arouse, and very rightly so, the sympathy of hon. Members. I want to reassure hon. Members that the processes of determining and of making awards are as considerate as they can be and have for long been generally accepted as the best that can be devised. My right hon. Friend the Minister has responsibility for the Industrial Injuries Fund. He must see that the wishes of Parliament as expressed in legislation are properly carried out so as to ensure the proper use of the Fund to allay hardship and suffering, that the scales are adequate and that the rules are such that there is fairness as between one case and another and that they are clear to those whose responsibility it is to administer them.
I want to make it plain to hon. Members that, very properly, the Minister is not responsible for the determination of individual cases. Responsibility for this has deliberately been given by Parliament to independent persons over 602 whom the Minister has no influence. Cases such as the one which has led to this discussion tonight involve the insurance officer, the local appeal tribunal and, finally, the Commissioner. The Commissioner is appointed by the Crown and is the highest authority for determining questions on the cause of death under the Pneumoconiosis and Byssinonis Scheme just as he is the highest authority under the Industrial Injuries Acts.
In his speech the hon. Member remarked that the Minister could call upon the most expert medical advice in the country, and he seemed to imply that that was unfair. I put it to the House that quite the contrary is the case. If the Minister is to have advice on these matters it should and must be the most expert advice in the country. The hon. Member also commented on the payment of witnesses' expenses. The Minister in this matter has no power to pay the fees of doctors who attend hearings at the request of a claimant, or, for that matter, any other costs which a claimant may choose to incur in support of his claim. The claim procedure has been laid down so that it should be just, comparatively speedy and inexpensive.
The other matters which the hon. Members has raised in the course of this debate tonight seem to rest upon the position of the local appeal tribunal, and the hon. Member inferred that its position in this case was doubtful. I think that by the very nature of events it must be so because the decision was not unanimous. It was a majority decision of the two lay members of the appeal tribunal against the appointed chairman. Failure to agree is not altogether unusual, and the fact that the majority decision was later upset by the Commissioner on appeal by the insurance officer does not to my mind make this process an invalid or an unfair one.
I have examined this case with considerable care, and am quite convinced that although the process has been a rather more complex one than usual— and the hon. Member commented on the length of the report of the Commissioner, which admittedly runs to five foolscap pages—justice has been done and can quite clearly be seen to have been done.