HC Deb 07 March 1977 vol 927 cc1143-57

2.47 a.m.

Mr. Terence Higgins (Worthing)

It has been the practice of the House over many centuries to provide that the Crown, as represented by the Government and Ministers, shall not have the supply of funds to carry out their responsibilities until grievances have been redressed, or at least until grievances have been brought to the attention of the Ministers concerned. It is true also that it is traditional for such debates to go on during the night.

Although I have risen to my feet at just after a quarter to 3 in the morning, it is not altogether inappropriate that I should do so at this hour, because my particular concern is with the provision of hospital beds for emergency cases. There may well be people awake at this hour who are deeply concerned about either their own welfare or that of relatives or friends and who are wondering whether it will be possible at such an hour of night—or, indeed, at any time of the day or night—to secure admission to hospital when that is desperately needed.

I shall concentrate on the question of emergency cases rather than on the other equally important but different problem of the provision of hospital services in general. I shall relate my remarks to Class XI, Vote 1 of the Supplementary Estimate, which is particularly concerned with the health and personal social services in England. The sums of money involved here are vast. The original Estimate was for about £4,078 million, and we have a further Supplementary Estimate, which brings the total to £4,496,547,000.

Is this vast sum of money being expended in such a way that even that most fundamental medical service, emergency treatment in hospital, is being provided adequately? I do not believe that it is being provided adequately, and in particular that it is being so provided in my constituency.

My remarks arise in particular from a report by the Parliamentary Commissioner for Administration and Health Service Commissioner for England, on a constituency case that I had brought to his attention. One of my constituents, an elderly lady, became seriously ill and, in the opinion of her doctor, was in desperate need of hospital treatment. She was, however, unable to obtain admission to hospital, and as a result she was admitted to a private nursing home. Subsequently, she and her son asked for compensation for the cost of admission to the nursing home, which had arisen because the National Health Service had not, in the urgent circumstances I have described, provided a bed for her.

This raises questions at three levels. The first is the question of compensation for an individual case; the second is the question whether the National Health Service has a duty to provide a bed for an emergency case; the third is the whole question of the provision of hospital services in the Worthing area. It will be convenient to take the second point first—that is to say, the general question whether the NHS has a duty to provide beds in emergency cases. I am glad that the Under-Secretary of State is here to reply, since he and I have often debated trade matters in days gone by. This subject is a change for both of us.

In his detailed report, after recounting the history of the affair, the Ombudsman stated in clear and categorical terms that …in my opinion a health authority has a duty to provide accommodation when a patient from one of their districts needs admission to hospital immediately as an emergency. That, I think, is certainly the general public's understanding of the position. People believe that that is what they have paid their national insurance contributions and taxes for over the years.

I tabled a Question to the Secretary of State asking whether he accepted such a duty. His reply was not as precise as I would have wished. On 22nd February, he replied that The decision whether to admit a patient to a National Health Service hospital rests with the hospital doctor to whom the patient has been referred and is a matter for his clinical judgment. A decision by a hospital doctor below the grade of consultant not to admit a patient to hospital may be referred to the responsible consultant who would decide the matter. I would expect a health authority to provide accommodation for the admission to hospital of a patient who a responsible hospital doctor considered should be admitted immediately as an emergency."—[Official Report, 22nd February 1977; Vol. 926, c. 324.] He says that he "expects" it. He went on to say that he was writing to me about the case, and he has been kind enough to do so. But here again, in his letter his terminology leaves the matter a little unclear, so I hope that the Under-Secretary of State will now make an absolutely clear statement accepting that the NHS has a duty to provide accommodation for a patient if it is needed as an emergnecy. It is the word "duty" that is crucial. It is quite different from simply saying that one "expects" that a bed will be provided. People are concerned not with whether they may expect it but with whether they get it, and whether the Department accepts that it has such a responsibility.

Having said that, I want to make it clear that I realise that the expression "an emergency" may require interpretation. Indeed, whether a particular case is an emergency may be a matter of clinical judgment. As the Secretary of State has pointed out, particular procedures may be necessary to establish whether this was so. But what I want to establish is whether the Department accepts that the NHS—there is no partisan point here, it would apply under a Government of any colour—does have such a duty.

In his letter the Secretary of State says: Sometimes, whether a case can be treated as an 'emergency' is a matter of degree: immediate or early hospital admission may be desirable but not essential and whether a particular patient is admitted as an emergency will depend on the need to use available hospital beds for more urgent cases. In this particular instance it was quite clearly the view of the Parliamentary Commissioner, and certainly of the patient's own general practitioner, that it was necessary that the lady should be admitted in order to preserve her life. Happily, as a result of going into the private nursing home, her life was saved and I am happy to say that she has recovered.

That brings me to the question of compensation in this individual case. I have pursued this matter by way of parliamentary Question. I asked the Minister concerned if he will give directions so that when the Parliamentary Commissioner for Administration and the Health Service Commissioner for England recommend that an individual should be made an ex gratia payment following an investigation into a specific failure of the National Health Service, such a payment shall be made".—[Official Report, 21st February, 1977; Vol. 926, c. 427–8.] I do not want to overstate my case. I well understand that it would be extremely difficult for the Government to accept, in every instance where a claim for compensation was made, that such a payment should be made out of public funds. I am not suggesting that it should be automatic, but judging from the reply that I received to my Question that seems to be what the Department is suggesting.

I would have thought there is a clear difference between an automatic form of compensation and one where the Parliamentary Commissioner, after extensive and detailed investigation, comes to the conclusion that compensation should be paid.

That is what he did in this case. I have been pursuing the matter, and the Secretary of State referred it to the area health authority. It has gone into the matter in considerable depth. Indeed, the Chairman of the West Sussex Area Health Authority wrote to my constituent's son commenting on the Commissioner's report. The Commissioner suggested that the area health authority should look at the matter again. The chairman's letter says: However, whilst it is agreed the Report is in general fairly presented, this Authority cannot agree with the Commissioner's opinion that…a health authority has a duty to provide accommodation when a patient from one of their districts needs admission to hospital immediately as an emergency'. It is regrettable fact that it is quite impracticable always to guarantee admission to hospital even in cases of emergency—although this is our wish and endeavour. Consequently we cannot accept liability for alternative arrangements made. I have already covered the first point—the question whether there is such a duty. Certainly the Parliamentary Commissioner takes that view, and I take that view. I hope that the Minister will confirm that that is also his view.

One also has to take account of the fact that the area health authority has to weigh up the pros and cons. I fully accept that it has looked into the matter carefully and has done so again following the views expressed by the Parliamentary Commissioner, but I put it to the Minister that it is not very appropriate that the responsibility in this sort of case, where a full investigation has been carried out by the Parliamentary Commissioner, should fall upon the area health authority.

If, as would seem to be the case, the National Health Service is failing in a number of instances to provide beds in emergencies, the claims for compensation that would be justified by reports from the Parliamentary Commissioner would tend to fall on those areas where the facilities were less good and, consequently, where the financial strains were greatest. That would not seem to be a very satisfactory arrangement.

That is why, in tabling the Question to which I referred, I suggested that the Secretary of State should give a direction to the area health authority to pay compensation not automatically but where a full investigation had been carried out by the Parliamentary Commissioner into the case.

I am sure that the Minister will understand why I think it is more appropriate that it should come from central funds such as those covered by the Supplementary Estimate that we are considering. Therefore, I hope that he will feel it right, in cases such as this and in this case especially, that such a direction should be given.

The Secretary of State is perhaps being a little naive in saying that this would override the responsibilities of the area health authority. In a case where a full investigation has been made, it is more appropriately dealt with by the Secretary of State and paid out of central funds than put as an added burden on the funds of the area health authority concerned.

I turn to my third main point—the actual provision of hospital services in the Worthing area. One of the disquieting features resulting from the publicity that this case has received is the number of representations that I have had about the inadequacy of the hospital services in Worthing. I should mention that in the Parliamentary Commissioner's report he distinguishes this case from other cases that the area health authority said were similar. He believed that there was a case that could be distinguished as one not justifying compensation, whereas the area health authority's argument that there were other similar cases, that it would open the floodgates to claims for compensation, and so on, was not a view that the Parliamentary Commissioner accepted.

There will be no dispute among people in the Worthing area about the desperate need for increased hospital facilities in the area, and I believe that that is a matter of great urgency.

Some years ago, soon after I first became Member of Parliament for Worthing, I introduced to the Minister's predecessor in the previous Labour Government a deputation led by the Mayor of Worthing and others, as a result of which Worthing Hospital was planned to expand. A degree of expansion has taken place, but the next stage has been, I believe, unduly delayed and, as a result, the situation is very serious. Again, I make no party point.

There are also problems about the allocation of resources between Worthing Hospital and Southlands Hospital, both of which serve the area. It is an area that has real transport problems, because Southlands Hospital is very much on the extreme edge of the area and, therefore, presents very real problems in transporting emergency cases and in visiting the hospital.

At all events, these are decisions that have resulted in physical installations being made, and, obviously, in these circumstances the right course is to make the best use of them. Therefore, I do not comment in detail on the allocation of resources between the two hospitals on this occasion, though I shall seek to do so at some time in the future. But it is vitally important to expand Worthing Hospital itself.

I think that that point will be supported by those who live in the area. Of course, my constituency has one of the highest average ages in the country, and this presents very real problems in terms of geriatric facilities. But it is also extremely important that an adequate provision of acute beds should be made, so that the elderly who can be treated and discharged from hospital should have adequate facilities, particularly in the kind of case I have outlined.

The extent to which the existing availability of beds is not being taken up is also very worrying. On 21st February I asked the Secretary of State the maximum number of beds in Worthing that were not being used in 1974, 1975 and 1976 because of staff shortage. I also asked whether he expected that sufficient staff would become available. He replied: I understand that no beds were closed because of staff shortages prior to the commissioning of a new ward block early in 1975. By the end of 1975 175, and by the end of 1976 72 of the net additional 248 beds remained unopened because of difficulties in recruiting staff. Fifty of the unopened beds are for geriatric patients to whose needs the district management team is giving urgent consideration."—[Official Report, 21st February 1977; Vol. 926, c. 450.] Although the hosptal was expanded, a considerable number of beds were not brought into operation. One of those beds might have been used by my constituent whose case the Parliamentary Commissioner was investigating.

It is therefore a question of a desperate need for additional investment and rapid progres on the expansion of the hospital, coupled with the need to ensure that adequate staff are available to man the beds that are provided. Taking the picture as a whole, there is very grave cause for concern about the hospital situation in Worthing. I hope that we shall have an assurance from the Minister that urgent steps will be taken to proceed with the next stage of the expansion of the hospital.

One of the things that has given me gravest cause for concern has been the number of representations that I have received in addition to those that I was already receiving from GPs in the area and from various other interested groups. I hope, therefore, that the Minister can tell me in quite clear terms that the Government accept the duty of providing beds for emergency cases, subject, of course, to the qualifications of definition and procedure that I have mentioned. Secondly, is he prepared to give a direction of the kind that I have suggested? Thirdly, will be give considerable priority to the needs of an area which has a high percentage of elderly people, and where, clearly, the need for additional beds and the staff to man them is becoming a matter of desperate concern? That concern is reflected so much in the individual case that I have brought to his attention this evening.

3.8 a.m.

The Under-Secretary of State for Health and Social Security (Mr. Eric Deakins)

With your permission, Mr. Deputy Speaker, and that of the House, I should like to reply to the points made by the hon. Member for Worthing (Mr. Higgins). I am grateful to the hon. Member for the spirit in which he has made his remarks tonight. He has raised a very important topic about the provision of health services and, as he has made clear, he has been pursuing vigorously a grievance in this area on behalf of one of his constituents with the local health authority and with my Department. The subject he has raised presents many difficulties.

First, I should like to clarify the responsibilities of the NHS in relation to this matter as laid down in the relevant statutes. This is not because Ministers and the Department are disposed to take a narrow legalistic approach to the points that the hon. Member has raised. This is not at all the position, as I hope to show. But it is necessary to be clear from the out-set what the statutory position is.

The main points are, first, that the National Health Service Reorganisation Act 1973 provides in Section 2(2): It shall be the duty of the Secretary of State to provide…to such extent as he considers necessary to meet all reasonable requirements… hospital accommodation, medical and nursing services, and certain other facilities and services.

Secondly, under regulations, the function of providing hospital services on behalf of the Secretary of State has been made exercisable by regional health authorities and, through them, by area health authorities.

Thus, the NHS does not have a statutory duty to meet all demands made upon it—either in general or in any particular circumstances, such as emergencies, however, these may be defined. The key word in the statute that I have quoted are "all reasonable demands", and it is this phrase that necessarily guides the Secretary of State, and health authorities acting on his behalf, in deciding to what extent services should be provided.

In practice, of course, the level of services provided is on the one hand determined by the assessed needs in particular areas and, on the other, limited by the resources available to the NHS. In the case of hospital services, the major factor determining admission of in-patients is medical priority, although other factors, such as personal and social circumstances and the efficient organisation of services, may also influence individual admissions. Where it is clear to a responsible hospital doctor that immediate admission to hospital is essential for medical reasons, this would be an overriding priority. Such cases have the first claim on NHS hospital services.

Whilst the formal duty to provide hospital services—and, therefore, the formal power to admit or refuse to admit a patient to the hospital—falls to the health authorities, in practice the decision whether to admit a patient rests with a responsible hospital doctor. This is because whether a patient needs medical treatment in hospital, and the medical priority that should be given to his admission, is normally a matter of clinical judgment. This judgment must be exercised by a doctor accountable to the health authority, since in this respect he is discharging a duty laid on the health authority.

It was these considerations that led my right hon. Friend to say, in answering a recent parliamentary question by the hon. Member, that he would expect a health authority to provide accommodation for the admission to hospital of a patient who a responsible hospital doctor considered should be admitted immediately as an emergency."—[Official Report, 22nd February 1977; Vol. 926, c. 524.] With this proviso, that a responsible hospital doctor must decide whether immediate admission is essential, my right hon. Friend accepts the Commissioner's view that a health authority has a duty—a public duty, not a legal duty—to provide accommodation for a patient who needs immediate admission as an emergency.

The "responsible hospital doctor" would ultimately be the hospital consultant concerned. Of course, in emergencies the senior hospital doctor on the spot may be a registrar or a more junior doctor. There may sometimes be disagreement between the general practitioner concerned and a hospital doctor below the grade of consultant, on whether a patient should be admitted immediately as an emergency. If so, and if the general practitioner is not prepared to accept a refusal to admit immediately, he has the right—indeed the duty—to refer the matter to a responsible consultant. The final decision would normally rest with the consultant. If he decided that immediate admission was essential, a bed would have to be found somewhere, if necessary in another hospital.

The well-understood practice in the NHS is that patients are referred to consultants for specialist treatment by general practitioners. A general practitioner may decide not to appeal to a consultant against an initial refusal by a less senior hospital doctor to admit a patient immediately—for example, if the general practitioner accepted that a hospital bed was not available for a patient where it was desirable but not essential that there should be immediate admission. The onus of deciding whether a consultant should be brought in over disputed cases must rest with the general practitioner who refers the case.

Decisions about whether immediate admission is essential are not always clear-cut. The more straightforward situations include those where a patient is suffering from a condition that could not reasonably be expected to be treated successfully without the equipment and skill that are normally available only in the hospital setting—for example, severe haemorrhage, some acute surgical emergencies such as intestinal obstruction or a perforated bowel, certain kinds of trauma. and conditions that require the aid of a respirator for a temporary period, often in an intensive therapy unit. For such patients a bed would normally be found somewhere, and they are admitted as quickly as possible.

There are, however, other patients referred to hospital who would benefit from admission but who a doctor might reasonably expect to treat successfully elsewhere. When such patients are referred to hospitals under pressure, the benefits they may expect from admission have to be carefully weighed against the needs of other patients, and the hospital doctor has often rapidly to take difficult priority decisions. In assessing priority in such cases, not only the medical condition and its severity but the surrounding social and other circumstances of the patient have to be taken into account. For example, home conditions or the family situation may be important factors in deciding whether it is essential that a patient should be admitted immediately into hospital. It is in such cases that disagreements about admissions sometimes arise.

The Department has not attempted to give central guidance on the emergency admission of patients to hospital. It would not be practical or desirable to do so, since there would be so many exceptions in differing circumstances to any general advice that central guidance could well do more harm than good. Where acute medical emergencies are concerned, the only practical way of proceeding is by hospital doctors weighing all relevant factors and exercising their clinical judgment in individual cases. This inevitably places a heavy burden on hospital doctors who sometimes have very difficult decisions to take.

The difficulties that can arise are well illustrated by the case that arose in the hon. Member's constituency and to which he has drawn attention in raising this topic.

Mr. Higgins

I was trying to pick a point in the hon. Gentleman's remarks where I could reasonably make the point that I wish to make. I understand both the points on definition about which there are difficulties and on the procedure for reference to a consultant. I am glad to see from the Secretary of State's letter that the chairman of the local medical committee has written to all general practitioners in my area describing the steps that might appropriately be taken in these circumstances.

Perhaps I may try to pin the Minister down on this particular matter. The hon. Gentleman quoted from the 1973 Act and said that there was a duty to provide…to such extent as he"— the Secretary of State— considers necessary to meet all reasonable requirements". Does the Minister agree that if the procedure outlined is used and the relevant consultant says that a particular patient is such an emergency case that he should be admitted, the National Health Service, working through the area health authority, has a duty to provide a bed? If so, and if it failed to provide a bed, it would not be providing facilities to the extent that was necessary to meet all reasonable requirements. Therefore, does the authority not have a legal as well as a social duty to provide such a bed and to provide compensation if it fails to do so?

Mr. Deakins

The authority has a public duty to provide a bed. But, as I tried to make clear earlier, there is a distinction between a public and a legal duty. The hon. Gentleman was very fair on this point. We are discussing not clear-cut categories but the interpretation of what constitutes an emergency.

If, in the case mentioned by the hon. Gentleman, a senior consultant had said "A place must be found for this patient", obviously the health authority would have had a duty to provide a hospital bed. But it does not have to be in a particular hospital. I am sure that the hon. Gentleman will accept that it may not be the hospital to which the consultant would prefer the patient to be taken.

If the hon. Gentleman will read my remarks—I was careful about this point; it is on the second page of my brief—he will see that I sought to distinguish between a public and a legal duty. I hope that I have met the point that he was seeking to establish.

As far as I am aware, there is no legal duty to provide compensation. There is, of course, a natural public duty to consider all the circumstances of a case. However, I should like to take up the point about compensation later in my remarks. I do not want to anticipate what I propose to say later.

We have not attempted to give central guidance on the emergency admission of patients to hospital. I was about to refer to the particular case which led the hon. Gentleman to raise this matter. In that case a general practitioner failed to persuade the registrars at two hospitals to admit as an emergency an elderly patient who had contracted acute bronchial pneumonia. In the face of this refusal, and because of the urgency, the general practitioner arranged admission to a private nursing home at the patient's own expense. When, later, the matter was referred to the Health Service Commissioner, the consultant concerned told the Commissioner's officer that had a consultant been brought in a National Health Service bed would probably have been found somewhere.

The Health Service Commissioner found in this case that there had been a failure of service by the area health authority. Having regard to the evidence presented to the Commissioner about the patient's medical condition, and the statement by the consultant concerned—that a bed would have been found had a consultant been brought in—my right hon. Friend accepts the Commissioner's findings that there has been a failure of service.

I must add, however, that the admissions procedure does not seem to have been fully explored in this case. I know that it is easy to say that with hindsight—and there is no doubt that the general practitioner involved did what he thought was in the best interests of his patient in very difficult and urgent circumstances. The health district concerned is one in which there is a high proportion of elderly people in the population and a shortage of hospital beds, mainly because of staffing difficulties, so it is not possible to accommodate in hospitals in the district all elderly patients who may possibly benefit from hospital care but whose condition does not render hospital admission absolutely essential. This means that general practitioners cannot always secure the admission to hospital of patients for whom they feel that immediate admission is desirable.

All that helps to explain the unfortunate outcome in this case, where a patient who was an acute medical emergency did not gain admission to a National Health Service hospital, but it shows how important it is in such circumstances to bring in the consultant in all disputed cases about emergency admission to hospital.

I now come to the point of the intervention by the hon. Member for Worthing.

Mr. Higgins

The Minister said that the general practitioner failed to convince them that it was necessary. That is an unfortunate phrase. It would be fairer if he had said that the GP was "unable to do so", because the GP in this case did all that was possible in the circumstances for his patient.

Mr. Deakins

I do not think that I said that there was any failure on the part of the GP. I was very careful to avoid that expression, because I understand the difficult circumstances in which he had to operate.

The question of making an ex gratin payment is for the health authority. The Health Service Commissioner has asked the health authority to give further consideration to making an ex gratia payment. Such a recommendation from the Health Service Commissioner—as with the Commissioner's findings and recommendations generally should be considered very carefully and seriously by the health authority.

Since the health authority has reached its conclusion not to make an ex gratia payment only after due considertion of the relevant circumstances, the Secretary of State does not feel that it would be appropriate for him to intervene.

I understand that the gentleman concerned may take the matter up once more with the Commissioner under the provisions of the legislation. The matter might, therefore, be referred to again.

Important as the case raised by the hon. Member is, it should not be seen out of perspective. There are about 5 million hospital admissions each year, including about 2½ emergency admissions—that is, emergencies account for about one half of all admissions. Many of these emergencies present difficult decisions for hospital doctors, but the unfortunate outcome in the particular case raised by the hon. Member is comparitively rare. The position varies, of course, from place to place, and districts with exceptional pressure on available hospital beds may have a higher than usual proportion of emergency admissions, and consequently a higher than average proportion of difficult decisions to make. But in all areas it should be possible to find a bed somewhere for a patient who would be accepted by a National Health Service consultant as an acute medical emergency.

I turn finally to the hospital services in Worthing and the decision on the hospital. I should like to consider what the hon. Member for Worthing has said and write to him, as it would be inappropriate for me to give an off-the-cuff answer at nearly 3.30 a.m. I know of the problems in areas such as Worthing—there are one or two other similar areas, but Worthing is exceptional because of its high proportion of elderly people. The regional health authority is well aware of the situation. It is perhaps a case of seeing what resources, within a limited total, can be made available.