HC Deb 12 November 1965 vol 720 cc640-52

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

4.57 p.m.

Mr. William Yates (The Wrekin)

The House now has to leave the debate which we have been having on Rhodesia. As a matter of fact, I cannot see very much difference between what Mr. Smith is doing in Rhodesia and what Her Majesty's Government have been doing in Aden during the last six weeks. But, in the meantime, the duty of the House which is accorded to each Member is to concern itself at this time of day with a matter of grievance. Therefore, I am glad on this occasion—the third ocasion this year—to feel obliged to ask the House for time to plead for redress. I am not surprised that the rot set in about a year ago.

In raising the case of Nicholas Wedge, the son of Mr. and Mrs. Wedge of Tong Forge, Shifnal, in Shropshire, I do not start to apportion blame or pass judgment on those who were involved. To my mind, perhaps to the Minister's mind, perhaps to the mind of the House and, indeed, probably the country, Mrs. Wedge has raised a matter of cardinal principle which concerns parents, patients and doctors and the National Health Service.

I must apologise to the House for two things. First, I am not an expert on the National Health Acts. I do not understand all the rules, regulations and procedures involved; they fill two or three volumes. I do not understand the rules and regulations of executive committees in the various counties. Secondly, I regret that I cannot afford to drive all over the country conducting private interviews with doctors, surgeons, patients, constituents and interested parties to find out exactly what has happened. Nor can I afford to employ a private investigation bureau or agency to find out the facts for me.

However, I should like to thank the Research Department of the Library whose members have given me invaluable help and have drawn my attention to even more regulations, Lord Halsbury's Laws of England, the International Code of Medical Ethics and the B.M.A. members' handbook for 1965. The principle involved for the Minister in this debate is one fundamentally of the liberty of the individual. It concerns the relationship between the patient and the doctor and the duty of care owed by the doctor to the patient, both ethically and within the terms of his service under the National Health Service Act.

May I present the facts of the case as I have been able to discover them without a private C.I.D. or other organisation to find out. In 1963 Nicholas Wedge was five years old. He complained of a pain in his left side, situated, as any child of that age would say, somewhere between his ribs and his hip bone—at five he was not sure where it was. This recurrent pain used to last for two days. He did not eat, he was sick and he vomited a watery liquid. He had difficulty in walking because the pain appeared to affect the movement of his hips.

When this pain occurred he was, naturally, seen by the family doctor, Dr. Stewart, of Shifnall, in my constituency. Having physically examined Nicholas, the doctor was unable to find the cause of the pain. I have four boys of my own, and whenever they complain of a pain I am not quite sure exactly where the pain is. One would have some sympathy with an ordinary family doctor in these circumstances.

But Nicholas had repetitive attacks of this pain, and Mrs. Wedge eventually suggested, after two or three attacks, that it might be a good idea if her son had an X-ray. He was sent to the Royal Air Force Hospital at Cosford and the child's chest was X-rayed. As a result of that, the family doctor, Dr. Stewart, told Mrs. Wedge that her son had at some time had a rather nasty attack of bronchial pneumonia and that the X-ray had revealed it. The mother was somewhat surprised, because the family doctor had never indicated to her that her child had at any time been seriously ill with pneumonia.

In November 1964, Nicholas had another attack of this same complaint. This time Mrs. Wedge asked the doctor the great question—what was causing the pain? The doctor said, "As a matter of fact, I do not know. I expect the child will grow out of it". This is the problem which we have to face. Mrs. Wedge saw some friends connected with the medical profession and then obtained an appointment to see the child specialist, Dr. Macaulay, in the Wrekin hospital in Wellington. Nicholas was seen immediately. He was sent to Shrewsbury where an X-ray was taken and an examination was made under an anaesthetic. On Thursday, 21st January, 1965, the surgeon of the R.S.T., Mr. Dunning, removed an enlarged and diseased kidney.

Mrs. Wedge spoke to Mr. Dunning about whether it would have been possible to have saved the child's kidney had a more careful examination taken place two years previously. She contends that as a matter of principle Dr. Stewart owed her a duty of care as a reasonable and ethical practitioner; she says that, being unable to diagnose the complaint, he should have sought a second opinion. I think that this is a perfectly fair issue for any mother to dispute. Hon. Members will recall that the family doctor had just hoped that the child would grow out of the pain. Well, may I ask if that is a reasonable attitude for a family doctor to adopt? The child may eventually grow out of the pain! It all being a bit of a bore, I suppose.

I must say that I was in sympathy with the mother when she said "I am not too happy about all this." So that Mrs. Wedge, on her own initiative, thought that perhaps it was better to get somebody else to examine the child.

I understand that the representative body, the B.M.A., endorsed a resolution of the International Medical Code of Ethics that it is the duty of an attendant practitioner to propose a consultation where indicated or acquiesce in any reasonable request for consultation expressed by the patient or his representative. That, I think, is the internationally and generally accepted ethical position. If I am wrong, I hope that the Minister will correct me because I would not like to put forward things which are wholly wrong on a subject in which I am not really very well versed.

However, I now understand—and I am sure the Minister can correct me on this, and I am sure every parent in the country wants to know this—that there is no such obligation within the terms of the National Health Service Act. It may be that the Minister will correct me if I am wrong. My researches may not have gone far enough into it, but I understand that under the terms of the National Health Service Act no doctor is obliged to ask for a second opinion. If one has a pain—"Get on with it; it will be all right it will just cure itself" A doctor is not, under the rules of the B.M.A. or the ethical medical conduct, according to law, so I understand, and according to the terms of his National Health Service contract, actually obliged to suggest a second opinion. Of course, the Minister will correct me if I have got this all wrong and my researches are totally void.

Mr. Speaker

If what the hon. Member is saying is true then he must seek to change the law, and he cannot on the Adjournment seek to change the law.

Mr. Yates

I do not seek to change the law, Mr. Speaker. I seek only to discover what the law is, and the only person who can answer is the Minister. I have done my researches in the Library, but I am not a magician. Aladdin is not my second name, and the only man who can possibly answer will be the Minister, because I do not know the law. Let me continue from there. We do not know, therefore, whether or not under the National Health Service Act a second opinion is required.

Mrs. Wedge, therefore, took up this matter as one of principle, and I myself commend her courage, and I cannot think why other parents in this country apparently—I may be wrong again—have never questioned this fundamental matter of principle which, of course, exists between every private patient and a doctor outside the National Health Service.

She was very nice about it. She said, "Well, of course, all human beings can make mistakes." Doctors are human. Last year at any rate the cost, I think, was £4 million paid out by insurance companies and others for mistakes which doctors made in dealing with their patients.

Mrs. Wedge took her complaint as a matter of public interest to the appropriate Medical Services Committee of the Executive Council for Shropshire. The matter turns on one point in particular, and it is for the Minister to answer this: would any reasonable person, knowing the medical history of Nicholas Wedge and owing him the duty of care as a doctor within the terms or without the terms of the National Health Service, have advised a second opinion? In the event, of course, it was proved necessary.

The complaint was examined in the ordinary way by the Chairman of the Medical Services Committee of the County of Shropshire. He conducted his inquiries, no doubt, thoroughly, fully and with great effort in the normal way, but I should be grateful if the Minister would tell the House how he does conduct his inquiries. He decided that Mrs. Wedge had no complaint within the terms of the Act because the doctor had failed to diagnose a diseased kidney which the X-ray failed to detect at either Royal Air Force, Cosford, or at the Wrekin Hospital. I think that is quite interesting and a fair reply for the chairman to make following his long and exhaustive inquiries into whether there was a prima facie case for Mrs. Wedge to complain.

No doubt the investigation was searching. I understand that Nicholas Wedge had an X-ray at Royal Air Force, Cos-ford, but that he was never given an X-ray at Wrekin Hospital. I desire to know from the Minister, so that the country may know, whether Nicholas Wedge had an X-ray at Wrekin Hospital and whether the statement of the chairman is true or false. If it is false, then he must resign. He has no business to make false statements to mothers on matters of medicine at all.

Mrs. Wedge was entitled within seven days to make a statement to the Minister under the National Health Act. On 1st March, she pointed out that of course she had never suggested that the wretched practitioner should have diagnosed a diseased kidney. I understand that it is quite a difficult problem to diagnose a diseased kidney. What she complained of was that her child had had recurrent pains and inexplicable symptoms, and it was in her opinion the clear duty of the doctor to have the child examined by someone competent to diagnose the problem.

We are back to the same thing. It is a matter of principle. Do the terms of edical practitioners operating under the National Health Service place a responsibility on those engaged in the service to obtain a second opinion?

At that juncture, Mrs. Wedge came to see her Member of Parliament, and I am very glad that she did. I am interested in the position of the Chairman of the Medical Services Committee, because Mrs. Wedge told him that I was now looking into the matter. That was in March. I was far more interested in the letter of 27th May that the Clerk to the Executive Council for Shropshire wrote to the Minister of Health, stating that the complaint had been dealt with according to the procedure laid down in the First Schedule of the National Health Service (Service Committees and Tribunal) Regulations. He went on: It is agreed that it might have been wiser, as ultimately proved, for the doctor to have referred the patient to the hospital and specialist services at an earlier date. What a pity he did not say that to Mrs. Wedge. However, he said that in his letter to the Minister.

The last paragraph of the letter said: Failure to refer the patient did not appear to the Chairman or the Members of the Medical Services Committee to consider that the doctor may be in breach of his Terms of Service. We are back to the same point. Was he or was he not in breach of the terms of service?

I think that is the crux of the matter, and the Minister alone can answer these questions. I should have thought that it would have been beyond doubt that a doctor in the National Health Service should seek a second opinion. That he did not is positively frightening.

I advised Mrs. Wedge to appeal, and I suggested that she should consult solicitors. I must say that the Minister and his officials, when I started taking official action, could not have been more courteous or more helpful to both me and my constituent.

Mrs. Wedge had now to obtain real evidence on which to base a proper appeal to the Minister. When she approached the surgeon, Mr. Dunning, to obtain evidence to enable her to submit a case under the tribunal's regulations issued by the Minister, she was informed that the surgeon would not give any information at all, that it was not his duty to do so, but he would have given information if the child had died, or if the child's health had been seriously impaired. This is all part of medical etiquette which I do not understand.

Next, in order that she could submit a proper appeal to the Minister, she naturally went to see her new family doctor, Dr. Metcalfe, in Madeley, and said, "In order that I can assure the Minister that Nicholas was examined regularly from the age of 5 onwards, may I have the medical cards to show the days on which the doctor came to see my child?" I am afraid that once again Dr. Metcalfe informed her that Dr. Stewart's medical cards would not be available to her. This is a fine situation is it not? Where is one to get evidence on which to lodge an appeal? There is no doubt that the profession had effectively estopped Mrs. Wedge from bringing any appeal to the Minister.

The solicitors then thought that they had better look into the case more carefully, and they warned Mrs. Wedge that to do so would cost her money because it would be necessary to undertake some researches. Specialist inquiries would have to be made, and this would cost her money. Here again I think the Minister was correct in what he did. He wrote to me and warned me what might happen if Mrs. Wedge brought her appeal. He agreed that there was a Section in the National Health Service Act which allowed him to pay her compensation, but he concluded with this bit of bureaucracy that there was no guarantee that she would be able to receive any money by way of redress, and that he and previous Ministers had rarely used this provision in the Act.

The solicitors came to see me and asked, "What are we going to do here? The medical profession has estopped us. The Minister says that he does not know what he is going to do about money, but if she is lucky Mrs. Wedge may get something". This is bordering on tyranny. This is a startling state of affairs. I really was quite surprised, and I thought that the best thing to do was to ask the Minister to reopen the whole case right back to the Chairman of the Medical Services Committee of the Executive for Shropshire. The Minister said,"I cannot do that. It is impossible. It is not allowed by law. I cannot do it. It is impossible. It is forbidden under the National Health Service Act for me to ask the chairman to re-examine the case all over again".

All I can say is that Mrs. Wedge, who of course is interested in this matter and is outside the bounds of this House attending on what I am saying today, has brought to this House one of the most interesting cases of principle ever brought here, which I hope the Minister can answer. From my experience in this House over the last 10 years all I can say is that one thing is essential to this country, and I commend the Government for suggesting it. For years I have fought for a Parliamentary Commissioner for the redress of grievances and wrongs, and in these terms I ask the Minister to help us. I put no blame on him. I think that he is in a difficult situation, but we would all be glad to know what should be done.

5.19 p.m.

The Minister of Health (Mr. Kenneth Robinson)

The hon. Member for The Wrekin (Mr. William Yates) has taken 22 minutes to deploy his case on an admittedly very important matter, but he has allowed me only eight minutes in which to reply to a large number of points that he has raised.

Perhaps I can pass over the details of this unfortunate case, since I think we are all agreed on the account of Nicholas Wedge's illness and what happened.

Perhaps I should start by dealing with the nature of the service committee procedure which the hon. Member said that he found rather confusing. A general practitioner is not an employee of the executive council; he is an independent practitioner providing services under contract to the council. The council can, through the service committee, investigate allegations that a doctor has failed to comply with his terms of service, but that is all that the committee can inquire into in this way. There are other bodies concerned with other aspects of the service which the practitioner provides. The profession, through the General Medical Council, is responsible for maintaining professional standards and, of course, the courts of law provide the means to consider any question of loss or damage suffered by a patient.

The method of investigating these matters is governed by regulations, and I shall give a simplified account of the procedure. When a service committee receives a complaint, it must first consider whether the complaint discloses the possibility of a breach of the terms of service by the practitioner. If it does not, the committee must tell the complainant that that is its view and give him an opportunity to amplify what he has said. Then, if the committee still thinks that the complaint discloses no prima facie indication of a breach of the terms of service, it must not pursue the matter but should report straight away to the council.

If the committee accepts that the complaint does suggest the possibility of a breach of the terms of service, the practitioner complained against is asked for his written comments, which must be shown to the complainant for his observations. If the correspondence discloses no dispute about the facts, the service committee may then be able to come to a conclusion on the merits of the case without an oral hearing—otherwise it must be investigated at an oral hearing at which the parties and their witnesses attend.

The committee then reports its findings of fact to the executive council, with a recommendation on the action to be taken. When the executive council has reached a decision it informs both the patient and the practitioner, and both parties have a right of appeal to the Minister against the decision. The conduct of an appeal by the Minister follows very roughly the same pattern. He may dismiss the appeal if there are no reasonable grounds, he may determine the appeal on written evidence or he may appoint persons to conduct an oral hearing.

May I come back to the complaint? When the medical service committee received the complaint, the Committee read it to mean that Mrs. Wedge was complaining that Dr. Stewart had failed to diagnose her son's illness. The clerk of the council wrote to her saying that they felt that her complaint rested on the fact that the doctor failed to diagnose a diseased kidney and that for a complaint to proceed it must appear prima facie that a doctor was in breach of his terms of service. The clerk invited her further comments.

Perhaps I should explain the view expressed by the clerk. I do not think that anybody wants to argue that a doctor in the National Health Service, however incompetent, was protected against all criticism, and this was not the point of the clerk's letter. But as long as a doctor acts reasonably, neither the National Health Service nor anyone else can insist on medical infallibility, and a failure to reach the right conclusion cannot of itself be held to be a failure of the doctor's obligation under the National Health Service. That is all that the clerk's letter implied.

Mrs. Wedge then replied that she was not complaining of Dr. Stewart's failure to diagnose but of his failure to obtain a second opinion. The service committee considered this further letter but remained of the same opinion—that no prima facie indication of a breach of the terms of service existed; and it reported accordingly.

Mrs. Wedge then appealed to me against the decision of the executive council, and, in accordance with normal practice, Dr. Stewart's comments on her appeal were obtained and shown to Mrs. Wedge. It would be pointless to investigate a complaint which, even if it were proved to the hilt, would not establish a breach of the practitioner's contract, and it is clearly necessary that service committees should have the power to refuse to investigate such a complaint.

In this case, however, although I was not, of course, present at the consideration of the complaint by the service committee, from the reports submitted to me I should not myself have taken the view that no prima facie case had been established or that a hearing was unnecessary. Moreover, as I have said before, Dr. Stewart's account of what happened differed in many respects from Mrs. Wedge's account. In the circumstances, I decided to hold an oral hearing of the appeal. At such an oral hearing, the answer to one of the hon. Member's questions would have come out, which was whether an X-ray took place at the Wrekin Hospital.

It was at this time that the hon. Member first wrote to me about the case. He was then concerned only that the case should be heard, and I was able to tell him that there was to be a hearing at Shrewsbury. The hearing of the appeal was arranged for 14th September. On 1st September, Mrs. Wedge's solicitors wrote to the Department asking that the complaint should be referred back to the medical service committee for a hearing. We explained that the regulations governing the procedure would not allow this—there is no discretionary factor— and that the only way in which Mrs. Wedge could pursue the matter was by way of appeal.

The solicitors wrote again on 10th September, saying that they must withdraw the appeal as their client could not bear the costs involved. The point at issue was that, while the service committee hearing and the hearing of an appeal are both taken in an informal manner, in the first case the parties cannot employ a paid advocate, but at an appeal hearing they may be legally represented. Doctors usually are represented at appeal cases. This can make the hearing of an appeal more expensive to the parties concerned than a service committee hearing. I have power to direct an Executive Council to make a contribution towards the expenses of either or both parties, but no Minister has ever made wide use of this power.

There can be no question of making a contribution automatically if legal help is obtained by the complainant, because a Minister would have to be satisfied that the circumstances justified the expense being incurred before he could agree to use public monies for defraying this expense. This was explained on the telephone to the solicitors when they wrote to me. The solicitors then said that, in the absence of any prior assurance that Mrs. Wedge's costs would certainly be met, they could not leave her open to the risk of having to bear her costs and they persisted in withdrawing the appeal. I had no option, therefore, in the circumstances, but to dismiss the appeal.

I do not want to sit down without paying a tribute to the hon. Member for The Wrekin for his concern in this case. The whole matter, I agree, springs from a desire to see that the National Health Service should provide a good standard of treatment for patients. Mrs. Wedge, too, recognised that she had nothing to gain personally by making the complaint and that any good which came out of it would benefit others rather than herself. I hope that the House does not need assuring that I too share this concern to maintain the very highest standards of service within the National Health Service and I promise the hon. Gentleman that I will consider very carefully all that he has said today.

There is one other point he raised with which I should like to deal briefly if I have time—

The Question having been proposed after Four o'clock and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at twenty-seven minutes past Five o'clock.