HC Deb 20 March 1973 vol 853 cc395-404

10.45 p.m.

Mr. Charles R. Morris (Manchester, Openshaw)

I am grateful for the privilege of raising tonight the whole sad, distressing, indeed tragic circumstances, in which my constituent, Miss Anne Marie Williams, a bright intelligent child of 7 years of age, underwent a tonsillectomy operation at Macclesfield Royal Infirmary in Cheshire on 14th September 1957 and as a consequence found herself paralysed down the whole of her left side—a disability which, unfortunately, has tended to deteriorate over the years.

The House might well ask how a child undergoing an operation that is performed on literally millions of youngsters came to suffer these agonising consequences, and why her parents are obliged to fight for an ex gratia payment when they had a right to legal redress in the courts. Medical opinion to which her parents have had access suggested that the cause of the paralysis might have been an embolism, arising during the course of the operation, which cut off the supply of blood to a section of the brain, thus paralysing the whole of the left side of Anne Marie's body.

From their observations of their child on the afternoon of the day of the operation Anne's parents are convinced that the paralysis is directly related to the operation and did not, as was suggested by one eminent medical authority, arise from some latent condition in the child. Mr. Williams, the father of Anne Marie, asserts that he informed the ward sister of his theory that the child was paralysed as a result of the tonsillectomy on the day of the operation. This was at a time when she was isolated, in the mistaken belief, as it subsequently transpired, that she may have contracted poliomyelitis.

Anne Marie was discharged from the hospital two weeks after the operation. Although suffering from paralysis and disabled the child resumed school and was subsequently able to take up employment. During this period—this is the central and crucial point in the argument—my constituents insist that they were encouraged to believe that their daughter's condition would improve. Her condition did not improve, and in December 1967 she underwent a brain operation at the Manchester Royal Infirmary in an endeavour to unlock the paralysis.

Regrettably, this operation did not lead to any lasting improvement and her condition worsened. Her father was informed that she would never fully recover. In 1968 he consulted a solicitor about the possibility of legal redress for his daughter's disabilities, only to find that in heeding the advice and encouragement he had received, to the effect that his daughter's disabilities would improve, he had lost, under the provisions of the Limitations Act, any legal rights he may have had because of the time which had elapsed between the operation and the commencement of legal proceedings.

I accept that even had my constituent been able to exercise his legal rights there would have been difficulty in proving negligence but, equally, I submit that it cannot be proved that there was no negligence. The indisputable fact is that the child had a tonsillectomy and found herself terribly and agonisingly disabled as a consequence of that operation.

I note the Department's definition of negligence as explained in the Minister's letter to me of 17th February 1972, when he stated that the test of negligence is not whether what the doctors did turned out to be right in the event, but whether they acted with the standards of care to be reasonably expected of a professional man. It could be argued, I submit, that that criterion is far too protective of the medical profession. In circumstances such as these the Department cannot sit back complacently and say that there is no evidence of negligence, because it is a fact that something did go wrong. This child found herself cruelly disabled following the operation and now, as a young lady, faces the years ahead with little hope that her disabilities will improve.

My constituents believe that there is a parallel between the sad circumstances of Anne Marie's operation and the recent case, heard in the High Court before Mr. Justice Croom-Johnson on Monday, 12th February 1973, concerning a girl of 5 years of age who went into hospital to have her adenoids and tonsils removed and, in the words of the Press reports, came out a vegetable. Again, in that case, as in Anne Marie's, liability for negligence was denied by both the doctors and the Department. Again, the cause of her disability stemmed from a tonsil-lectomy operation. Again, how the child's disability arose remains a mystery, yet in this case the Department faced its moral obligation by paying substantial damages to the parents of the unfortunate child.

All I ask in Anne Marie's case is that the Secretary of State reconsiders the decision not to make an ex gratia payment. Additionally, I hope—and I think the nation would demand—that the Minister will consider referring the circumstances of this and similar cases to the recently established Royal Commission on Civil Liability for Personal Injury, under the chairmanship of Lord Pearson, in order at least to ensure that no other parents will be obliged to experience the distress which, unfortunately, has been the lot of Anne Marie's parents over so many years.

Before concluding, I draw the Minister's attention to two minor yet important features of this case which have perplexed the parents of Anne Marie for many years. Why is it that the name of the consultant who performed the operation has never been revealed? Why should this fact be shrouded in secrecy? Why is it that not one of the Minister's medical advisers on this matter thought fit to examine Ann Marie's medical condition before giving advice to the Minister? Not one person has medically examined Miss Williams before arriving at his advice to the Minister on the case. In a situation when even the medical case history is challenged, why have those concerned based their judgments wholly on that case history, without examining the girl or even interviewing her parents?

In my view, this remarkable young lady has borne her disabilities with great fortitude. As I have watched her dragging her paralysed leg I have found the wretched circumstances in her case and the award of an ex gratia payment dragging at my conscience. I hope that the case I have outlined will impress itself on the conscience of the Under-Secretary of State and on those who, I believe, have a moral obligation to see that this young lady receives the justice she has been denied for so long.

10.56 p.m.

The Under-Secretary of State for Health and Social Security (Mr. Michael Alison)

I congratulate the hon. Member for Manchester, Openshaw (Mr. Charles R. Morris) not only on securing this Adjournment debate but also on the persistence and deep sense of personal commitment to the case of Miss Williams which he has shown over a substantial period of time.

Perhaps I should set the background to the debate by making a reference to the admissibility, in principle, of an ex gratia payment. We make ex gratia payments only where a normal remedy of legal action is, for one reason or another, not available. In this case it is too late to claim within the period allowed by the Limitation Acts, and therefore we start the debate against the background that, prima facie, it is possible to consider whether an ex gratia payment would be appropriate. It is now the only sort of payment which would be feasible in any circumstances.

The main question is whether there was proof of professional negligence which could have led to a successful claim if made in time. This is bound to be the guiding principle which the Department observes when it considers the question of ex gratia payments. I want to say something about the concept of negligence, since the hon. Gentleman has quoted from the earlier letter I sent to him. It is germane to the subject.

A doctor owes a patient a duty to use care, knowledge and skill in administering treatment. The standard of care and skill which the law requires is that of the ordinary, competent medical practitioner exercising the ordinary degree of professional skill. A doctor against whom negligence is alleged can clear himself— and I do not think this is really a very privileged position—-if he can show that he acted within general and approved practice—that is, general and approved practice at the time when the alleged negligence occurred.

I turn now to the sad details of Miss William's tragic case. She was found to be suffering from partial paralysis after a tonsillectomy operation in 1957, when she was 7 years old. Possible explanations have been put forward but no conclusive proof of what caused paralysis has been shown. At one stage, it was thought that the cause could be either poliomyelitis or post-operative embolism, but tests enabled poliomyelitis, at least, to be discounted as a factor. A later suggestion was that the condition might have been latent, and manifested itself only after the operation.

Whatever the cause, there was general agreement among all medical staff who examined Miss Williams or reviewed her case that there was no irregular or untoward episode in the operation or in the administration of anaesthesia, or any evidence of negligence.

In 1968, Mr. Williams consulted solicitors about the possibility of taking legal action against the Manchester Regional Hospital Board. Case notes were supplied to his doctor. I understand that counsel's opinion, based on the doctor's report was, again, that there was no evidence of negligence.

Two independent consultants also expressed opinions, at the hospital's request. One said that in his view paralysis was not associated with the tonsillectomy. The other, a professor of child health, said that in his view there had been no negligence. Therefore, if legal proceedings had been taken in time it seems certain that they would have had little chance of success.

I draw a distinction between the case we are here discussing and the second case which the hon. Member mentioned, of a child in a not dissimilar set of circumstances. In that case I understand that counsel's advice was that negligence might have been proved if the case had proceeded through the High Court—which was one reason why it was settled out of court. That is the fundamental difference between the two cases, and in Miss William's case all the evidence that I have heard is that negligence was not a serious factor.

A full investigation was carried out by my Department when the possibility of making an ex gratia payment was raised by the hon. Member in November 1971. The Department's medical officers obtained, in confidence, the case notes for the original operation and those for the remedial operation carried out in 1967, in an attempt to reduce the disability. They also had a report from the surgeon who carried out the second operation. Was it this surgeon whose name the hon. Member asked for?

Mr. Charles R. Morris

The original surgeon.

Mr. Alison

I take the point. 1 think the hon. Member had not brought this to my notice but I will happily make available to the hon. Member the name of the surgeon in the first case and will advise him if it is thought proper to give further publicity to this. I will take this up with the hon. Member later, if I may, in correspondence.

My Department's medical officers also had a report from the surgeon who carried out the second operation. Like others, previously, he had been unable to determine the precise cause of the disability. After considering all the information supplied, the Department's medical officers concluded that, in all the circumstances, there was no evidence of negligence.

I understand that Mr. Williams feels that my Department should have arranged for a physical examination of of his daughter to establish the direct cause of paralysis. My Department's medical officers have advised me that there is virtually no chance of establishing the cause 15 years later, in a case where original examinations and those before the second operation failed to lay it bare. My medical officers felt that such an examination could not have assisted in advising on the case, and would only have raised hopes unjustifiably, which we were anxious not to do.

Miss Williams's case was referred by the hon. Member to the Parliamentary Commissioner for Administration—the Ombudsman—who investigated the action of my right hon. Friend the Secretary of State in refusing to authorise an ex gratia payment. He declared himself satisfied that the decision had been made without maladministration, and made it clear that he did not question it.

When the matter was raised again, my Department's medical officers once more reviewed the information received from the hospital where the tonsillectomy took place, but remained of the opinion that there was no evidence of negligence. They also considered the hon. Member's contention that if a latent condition caused the paralysis, tests should have been carried out before the first operation in 1957 to establish whether or not the patient was likely to be subject to such a condition. My medical officers have pointed out that a latent condition was suggested only as a possibility, and advised that paralysis was not a condition which could have been anticipated even if attempts had been made to do so. No tests before the operation could have guarded against paralysis. I must, therefore, regretfully confirm that my right hon. Friend and I can find no grounds for directing the hospital board to make an ex gratia payment in this case.

Mr. Charles R. Morris

In a situation where;—with the greatest good will—there are so many uncertainties as to exactly what happened during this operation, is it unreasonable to ask the Minister and the Department to give the benefit of the doubt to the young lady who has suffered so much as a consequence of the operation?

Mr. Alison

It is desperately tempting to me to respond in the vein in which the hon. Gentleman has put forward the proposal, but I am sure he understands that the closer one gets to legal liability the easier it is to consider ex gratia payments. An ex gratia payment is properly a substitute for legal liability which has only just been missed. The further one gets away from legal liability, the more one gets into the area of an unpredictable, chance, haphazard, indeterminate event, to which, alas, the hospital world is susceptible owing to the nature of its work. If we concede the case of Miss Williams, which so clearly involves misfortune and mischance, for which no negligence can be established and for which no legal liability arises, we open the door to hundreds or even thousands of similar cases.

Mr. Morris

The Minister will be aware that the whole question of negligence was challenged in the thalidomide tragedy.

Mr. Alison

That goes much wider than this case. It would hardly be proper for me to comment on that in too great detail, but the hon. Gentleman will know that the thalidomide case had not proceeded through the High Court, and that offers to settle out of court had been made, I imagine—speaking as a layman, and not under advice—precisely because those who had or might have had liability thought that they were running close to the possibility of legal liability and therefore preferred to settle privately. We do not find ourselves in that situation in this case, where we are too far away from the possibility of negligence having arisen for it to be possible to consider an ex gratia payment—anxious though we would be to try to help in any way we can—for fear of the floodgate that would be opened for similar tragedies which occur in the context of hospital-isation, operations, and so on, where unpredictable and unpreventable accidents occur in the nature of the inexact though marvellous art of medical science.

I assure the hon. Gentleman that we look at individual cases with the greatest care and, I hope, compassion. Had there been grounds to authorise the making of an ex gratia payment, my right hon. Friend and I would have been more than delighted to respond to the hon. Gentleman as generously as he has identified himself with Miss Williams's needs, but in the circumstances my right hon. Friend had to conclude that such a payment would not be appropriate in this case and would have far-reaching implications on many similar cases.

The House will know that there are many people who have developed disability, where there is no evidence that medical negligence occurred, with no entitlement to compensation. I am advised that this general question falls within the terms of reference of the Royal Commission on Civil Liberty and Compensation for Personal Injury, under Lord Pearson's chairmanship. The commission will be starting work shortly, but my right hon. Friend the Prime Minister has already made it clear that its recommendations cannot be retrospective. I have to say, therefore, with great regret, that its findings can have no bearing on Anne Marie's case.

As always following these debates, 1 shall read carefully what the hon. Gentleman has said, and what I have said, as soon as it is in print. I reconfirm to the hon. Gentleman our desire to do all that we could to help in this case. But on the facts that he has presented, and on which I have been advised, we could not hold out any hope of finding grounds for an ex gratia payment.

Mr. Charles R. Morris

I want to raise one matter before the hon. Gentleman sits down. Will he accept my invitation, if he cannot accept my case, to refer this case, along with others, to the Royal Commission in order that other parents will not suffer as the parents of Anne Marie have?

Mr. Alison

Nothing that I could do or say, let alone would wish to do or say, could possibly prevent the hon. Gentleman, in the full scope of his parliamentary powers as the Member for a distinguished constituency, from doing everything possible to give evidence about this sort of case to the authorities involved in the review. I hope that he will be successful in doing so.

Question put and agreed to.

Adjourned accordingly at ten minutes past Eleven o'clock.