HC Deb 22 March 1977 vol 928 cc1243-54

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

11.30 p.m.

Mr. Robert Adley (Christchurch and Lymington)

Tanya Price is now two years old. At six months she had a whooping cough vaccination and shortly thereafter she developed convulsions. She is now a motionless and expressionless being.

I make no apology whatever for raising her case specifically again tonight and the general case of children who are suffering from the side effects of the whooping cough vaccination. We are fight- ing a war of attrition. I am fighting a war of attrition on behalf of Tanya, and many hon. Members on both sides of the House are fighting a war of attrition against the Government for justice for these children.

It is not surprising that the debates that we have had on this issue in the last few weeks have tended to get a little heated. I shall do my best to lower the temperature tonight because I am sure the Minister will agree that we shall not get anywhere if we start shouting at each other across the Chamber.

This fight has been going on for a long time. Certainly in the last four years a group of parents have sought to get what they see as justice for their children but they have had precious little satisfaction. The battle is in many ways a repetition of the thalidomide debate in which my hon. Friend the Member for Wirral (Mr. Hunt), whom I am glad to see present, played a significant part. The patience of these parents has so far not been rewarded.

The result is decaying confidence in all the immunisation programmes. It represents a flirtation with tragedy, particularly when most of the other vaccines appear to be safe, harmless and have litte or no disadvantageous side effects. But the position adopted by the Secretary of State in his refusal to consider compensation, and until very recently, his refusal or at least unwillingness even to discuss the problem openly and publicly, reminds me of the position of the general of an ill-equipped army whose troops are unable to defend themselves and who seeks to run away from his responsibility by blaming his critics, rather than getting new weapons. What I want to see is the Secretary of State getting new weapons in this battle of vaccination so that once again the parents of Britain can obtain confidence in the vaccination programme. Awarding compensation would be one weapon.

Fighting Tanya's battle has meant fighting the NHS. It is rather like sparring with at giant octopus. But David beat Goliath and I certainly do not intend to stop fighting on Tanya's behalf and many hon. Member's on both sides of the House do not intend to stop fighting until we have obtained what we believe to be justice for these children.

In Tanya's case the wheels of the administrative machine grind mighty slow. The Secretary of State told me on 4th February last that he had agreed to my request to overrule the refusal of the Dorset Family Practitioner Committee to investigate the circumstances surrounding Tanya's vaccination and the events subsequent to it. But I received a letter dated 18th March, only a few days ago, from the solicitor acting for the Price's and he says As yet I have not been told when the hearing is due to take place". I do not know whether the Minister can tell me why. The only reason I have been able to adduce is the difficulty of identifying the locums who examined Tanya after she had her vaccination! When one realises that on 22nd December last—col. 234 of Hansard—it was stated that the administrative costs of running the National Health Service amounted to £172,566,000, that seems to be a wholly inadequate excuse for not getting the hearings under way.

The case that we are discussing is not yet sub judice, although Tanya has now been granted unrestricted legal aid to fight not only the doctor who vaccinated her but the DHSS and the drug companies. The battle that those of us who are concerned are fighting is not just a battle based on the question whether or not only wholly fit children are being vaccinated; one of the great problems is: how many children who are vaccinated may, at the time of vaccination, be suffering from a minor medical impediment which the vaccination then magnifies? Quoting the British Medical Journal on 31st August 1974, They include children with existing disorders of the central nervous system, a history of convulsions, or a family history of convulsions. It is because of the dangers to children in these categories that the availability of their medical records is essential not only to their parents but to people who may be called upon to vaccinate these children. It is essential that we do everything that we can to determine both the family's medical history and the current history of every child before he or she is vaccinated.

When I started probing into Tanya's case, at every turn I was told why her subsequent brain damage had not been caused by vaccination. I resent the use of the phrase "coincidental illness", which the Minister of State used to me in a letter to me of 21st February of this year, when he said: It is often difficult to determine whether such reactions are attributable to vaccination or to a coincidental illness. The fact is that Dr. Rogers, who finally was able to examine Tanya Price's medical records, after I obtained help from the Minister and advice from my hon. Friend the Member for Wirral; said, in describing the situation between the routine examinations that Tanya had before her vaccination and afterwards, that Tanya was not pushed out of a window and did not fall under a bus. The only significant medical event in her life in these few weeks was that she had the whooping-cough vaccine.

It was because of this that I wrote in Clause 5 of my Whooping-Cough (Vaccination) Bill a brief provision which reads: In any action for the recovery of damages under this Act, injury or damage incurred by a child within 14 days of the administration of whooping-cough vaccine shall be deemed to have been caused thereby unless proved to the contrary. Who should get the benefit of the doubt, the National Health Service; or the parent, and the children themselves? I think that in a humane society the benefit of the doubt must be granted to the child and the parents.

Is the Minister satisfied with the standard of the pre-vaccination checking procedures being carried out under the National Health Service at the moment? I asked the Secretary of State recently if he is satisfied that the standard procedures followed by doctors and clinical staff in ascertaining the medical history of children prior to their being vaccinated against whooping-cough, is fully adequate to prevent vaccinations being administered to children with medical histories, or from families with medical histories that might be deduced, in the light of current medical knowledge, to be susceptible to harmful side-effects from the vaccination. The Minister of State replied: This is a clinical matter for the medical and nursing professions. 1 realise that, but when I further asked the Secretary of State what proportion of children vaccinated against whooping-cough were vaccinated (a) by their own general practitioner in his or her surgery, (b) by their own general practitioner at a health clinic, or (c) by someone other than their own general practitioner for each of the last five years. I was told: The information requested is not available from information collected centrally."—[Official Report, 22nd March 1977; Vol. 928, c. 489–90.] This means that medical staff may be vaccinating children in clinics without full knowledge of the medical history of the children themselves, or of the family.

In the few minutes left to me, I want to turn the spotlight on the manufacturers who, until now, seem to have escaped. We know that the manufacturers are Duncan Flockhart and Company Limited, Evans Biological Limited, Glaxo Laboratories (NZ) Limited, the Lister Institute and Wellcome Research. Is it just coincidence that, in the only three cases so far where legal action has been taken or is being considered, the manufacturer concerned has been the Lister Institute?

I should like to inform the Minister that I had a recent meeting with the Association of Trial Lawyers of America, whose President, Mr. Robert Begam, has put his association's facilities completely at my disposal in fighting this battle. He believes that, if it can be shown that any of the manufacturers supplying the National Health Service has any financial connections with American companies, it would be possible to consider taking action against them in United States courts. The Secretary of State informed me that the Wellcome Foundation had four subsidiaries in the United States. I passed on this information to Mr. Begam, whose colleague, Mr. Tom Bendorf, the director of national affairs of ATLA, will, through our resources in Washington, explore the United States connection' of the Wellcome Foundation Limited. I welcome that very much. Mr. Begam goes on: I am convinced that on this issue you and your colleagues are right and I am still naïve enough to believe that being right on an issue is an advantage. I believe that, too.

It is appropriate for me to finish with the words of the late Martin Luther King in that I know that in due course "we shall overcome". We shall obtain justice. I shall obtain justice for Tanya, and we shall obtain justice for all these children.

11.42 p.m.

Mr. David Hunt (Wirral)

I congratulate my hon. Friend the Member for Christchurch and Lymington (Mr. Adley) on having so vigorously pursued the case of Tanya Price which raises so many emotional and serious problems. His perseverance has been a major contributory factor in securing the partial success so far achieved. But I ask the Minister whether the case, the availability of medical records and the general problems involved do not raise a much wider question.

In the cases involving thalidomide children, there was recourse to legal action at first. But eventually, mainly through public pressure and revelations in The Sunday Times, a fund was set up by the Distillers which is now working extremely well. I am involved in a professional capacity for one of the thalidomide children.

Have not we there an example which we could follow? The Secretary of State agreed on 8th March that there were hazards involved in the vaccination. That was accepted. But he said that the hazards of the disease itself far outweighed the hazards of the vaccination. But, in acknowledging the existence of hazards, was not the right hon. Gentleman really saying there must be some responsibility for compensation?

I know that the Pearson Committee is considering this, and I hope that the part of its report which deals with this aspect will be expedited and made retrospective. But, irrespective of that, this agonising episode and the agonising cases of all the other children who are in some way affected would be dispelled by the Government acknowledging their responsibility and, like Distillers, setting up some method by which compensation could be paid to these unfortunate children. If such a fund were set up, it would help to alleviate much of the public unrest about these cases in general. Distillers set an example, albeit under pressure. Cannot the Government follow that example and take a much more constructive approach?

11.45 p.m.

The Under-Secretary of State for Health and Social Security (Mr. Alfred Morris)

This is the second occasion on which this very unfortunate and tragic case has been debated in the House, and I welcome the opportunity now of trying again to be of some help.

In this regard I note the statement of the hon. Member for Christchurch and Lymington (Mr. Adley) early in his speech that he wants not confrontation but constructive exchanges in further service of Tanya and her parents who are his constituents. They could hardly have had their case put with more persistence and consistency.

Before summarising the latest developments, I must first make it clear that it would not be proper for me to comment in any way on the merits of the case for reasons that I shall explain later. Moreover, I understand from Press reports that Mr. and Mrs. Price have now either taken or are contemplating litigation against, among others, the Department of Health and Social Security.

I refer to a report in the Daily Mail of 18th March. It said: The parents of Tanya Price, the two-year old girl who suffered severe brain damage after a whooping cough vaccination, have been granted full legal aid to sue the Government for compensation. Writs are to be issued before the High Court in the next few days, citing three defendants—the family doctor who vaccinated the child, the Department of Health and one of the country's three vaccine manufacturers, the Lister Institute of Preventive Medicine. Nevertheless, I can make some more general points about the principles governing the disclosure of medical records. I explained to the House on 20th December last that the Dorset Area Health Authority was urgently pursuing the possibility of disclosing Tanya's hospital and clinic records to a medical adviser nominated by Tanya's parents. This was in keeping with a suggestion that I made to the hon. Member when I met him to discuss Tanya's case on 11th November, 1976. The hon. Member kindly referred to that occasion, and recalled that his hon. Friend the Member for Wirral (Mr. Hunt) had joined us in a very important discussion of the case.

I am pleased to be able to say that the hospital and clinic records were made available on 6th January to Dr. Rogers, who was nominated by Mr. and Mrs. Price to provide them with an independ- ent medical opinion. I understand that Dr. Rogers subsequently reported to Mr. and Mrs. Price verbally. As the hon. Member will confirm, it was at my suggestion that he put to Mr. and Mrs. Price the possibility of having Tanya's medical records made available to an independent medical adviser nominated by them.

I turn now to those aspects of the case involving the general practitioners concerned. Through their solicitors, Mr. and Mrs. Price lodged a formal complaint with the Dorset Family Practitioner Committee last December. They alleged that, irrespective of whether Tanya's brain damage actually had been caused by the vaccination, not enough care was taken in deciding, first, whether the vaccination should have been administered, secondly, what the content of the vaccination should have been, and thirdly, treatment for the consequences as soon as they occurred.

The procedure for investigating complaints against general medical practitioners is, of course, governed by regulations made under the National Health Service Acts. These regulations prescribe that a complaint must normally be lodged within eight weeks of the event giving rise to it. If, however, the Family Practitioner Committee's medical service committee decides that the delay in lodging the complaint was due to illness or other reasonable cause, they may seek the consent of the doctor or, failing him, of the Secretary of State, to an investigation of the complaint.

In Mr. and Mrs. Price's case, the events complained of took place in August, 1975. But their formal complaint was not lodged until fifteen months later. At their meeting on 15th December last, the medical service committee of the Dorset Family Practitioner Committee decided that the reasons given for the delay, basically that Mr. and Mrs. Price were ignorant of the complaints procedure, did not constitute reasonable cause and that consent for an investigation of the complaint should not, therefore, be sought.

The regulations provide a right of appeal to the Secretary of State against a decision of a medical service committee not to seek consent to an investigation of an "out-of-time" complaint. Mr. and Mrs. Price exercised this right, and an appeal was received from their solicitors on 29th December last. As the regulations require, my Department then sought the comments of Dr. Gweneth Brown, who was the doctor who administered Tanya's vaccination. My right hon. Friend the Secretary of State then considered the matter in the light of the original statement of appeal and of Dr. Gweneth Brown's comments. He concluded that, in all the circumstances of the case, he should allow the appeal and direct the medical service committee to investigate the complaint. His decision was conveyed to Dr. Gweneth Brown, Mr. and Mrs. Price's solicitors, and the Family Practitioner Committee in a letter dated 4th February.

This did not, however, conclude that aspect of the case. After the decision of the Secretary of State had been given, my Department realised that Tanya was on the list of another doctor in the same partnership for whom Dr. Gweneth Brown was, in her treatment of Tanya, acting as a deputy. My Department was advised by the Family Practitioner Committee that a locum mentioned in the original complaint, though unidentified, was on the list of the Family Practitioner Committee. In the circumstances, the regulations provide that the complaint against Dr. Gweneth Brown is to be deemed to have been made against the principal and through him the locum if in fact the locum is on the Family Practitioner Committee medical list. But neither of the doctors had been given the opportunity, to which the regulations entitle them, of making representations against the "out-of-time" appeal.

My Department must, therefore, try to establish the identity of the locum and then invite the additional respondent doctor or doctors, as the case may require, to comment on the out-of-time aspects of the case. Once this has been done, the Secretary of State will decide whether he should direct the Medical Service Committee to investigate the complaint in so far as it relates to either or both of those doctors.

Mr. Adley

I know that the Minister is doing his best when reading a prepared brief, but does he not realise that my constituent had to draw an Identikit picture to try to find this locum? We are surely talking of only a handful of people. It should not take seven weeks to complete that agonising process. Cannot we administer a quiet or even a noisy kick up the backside to get the process moving?

Mr. Morris

My right hon. Friend wanted to do his best to assist in terms of the appeal. His concern was reflected in the action he took after the discussion I had with the hon. Gentleman. I have carefully noted what the hon. Gentleman said in his opening speech. If there is anything I can do to facilitate matters, I shall be delighted to do so. He can be assured that we shall move with the maximum possible expedition.

These are matters that bring out the complexity of the case. I am sure that with all his experience of thalidomide cases the hon. Member for Wirral will agree that there is scarcely one of them that is not a complex matter when subjected to detailed study. The hon. Memmer for Christchurch and Lymington has made his point very strongly. I shall do whatever I can to help to ensure that there is progress at the earliest possible date.

Mr. Adley

Does the Minister realise that those concerned are cocking a snook at him and his right hon. Friend by refusing to get moving?

Mr. Morris

I note what the hon. Gentleman says. He can be well assured that every point he has made in the debate will be carefully considered.

After the medical service committee has investigated the complaint, it will report its findings to the Dorset Family Practitioner Committee, which will then decide whether the doctor or doctors concerned have complied with their terms of service. The party to whom the Family Practitioner Committee's decision is adverse will have a further right of appeal to the Secretary of State against that decision. For this reason, reverting to the point I made at the beginning of my speech, it would be quite wrong for me to pass any comment at this stage on the merits of the case.

I shall come to the question of the availability of medical records in medical service committee proceedings in a moment. Before doing so, I should like to deal with one or two general matters relating to the Department's policy about disclosure from medical records. I have already give the House a considerable amount of information about this in the speech I made in the debate on 20th December.

There is, first, the question of the ownership of medical records and the powers of the Secretary of State in relation to them. This was raised by the hon. Member for Derbyshire South-East (Mr. Rost) in the debate last December. The question involves both the law and the policy and practice of my Department.

It is the view of my Department's legal advisers, which I accept, that medical records produced in the course of the provision of medical services in the National Health Service belong to the Secretary of State. Any copyright in the material entered on these records created by the officers of the Secretary of State, being created arising out of and in the course of their employment, belongs to the employing authority. It follows that the Secretary of State could direct that records be produced to such person or persons as he deemed appropriate.

That is the legal position. It is, however, the long established policy and practice of the Department, which has been upheld by successive Administrations since the inception of the National Health Service, that questions of disclosure from medical records are a matter for the doctor responsible at the time for the patient's treatment and are part and parcel of the exercise of his clinical judgment. It is a judgment which he can be expected to exercise responsibly, and I believe does, in accordance with his professional ethic and in the best interests of the patient. It would be a sad day for the medical profession, for the National Health Service and, I believe, for patients, if any Minister sought to intervene for whatever reason, in the exercise of that judgment. This is certainly not a precedent which I would care to see established.

It is for these reasons that questions of legal ownership do not figure largely in my Department's policy on confidentiality of, and disclosure from, medical records. This is a matter for the good sense and sound judgment of the responsible clinician.

In his speech last December, the hon. Member for Christchurch and Lymington referred to the recourse which may be had to the courts for the production of documents. I should like to deal briefly with this and also with the production of documents in connection with the proceedings of Medical Service Committees.

As I have said before, when litigation is in process or contemplated, the patient or his representative may wish to see more of the medical records than the doctor concerned has judged it appropriate to disclose. The doctor will, if so requested, usually be prepared voluntarily to make the contents of the records available to a medical adviser nominated by the patient or his representative, who will be in a position to interpret them without risk of misunderstandings. Indeed the Department has advised—

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

Adjourned at Twelve o'clock