Clinical Mishap (Investigation) (Hansard, 9 December 1981)

§ Mr. Colin Shepherd (Hereford)
I am particularly grateful to my hon. Friend the Minister for Health for having come to the House to reply to this important and significant debate. His action reflects the importance that he attaches to the subject and it is always pleasing to know that a Minister properly appreciates public concern. I am also grateful to my hon. Friend the Member for Leominster (Mr. Temple-Morris) for being present in the Chamber. I know how keenly he has followed this issue.
The matter that I raise came to light as a result of events following the terrible mishap that befell my constituent, Mr. David Woodhouse. Briefly the position is that Mr. Woodhouse, a very fit man, aged 27—with a young wife and four small children—entered Hereford county hospital on 14 May with appendicitis. During the course of, I understand, a comparatively minor operation by today's standards, something went very wrong. As a result, he lapsed into a coma and I believe that he has suffered considerable brain damage. He is still in a coma seven months later.
I am informed that immediately the mishap occurred the hospital set in action the machinery set out in the Department's guidelines, HM (55)66 "The Reporting of Accidents in Hospitals". As a result of a complaint, the area health authority moved to set up an inquiry under the guidelines set out in HM (66)15. The Medical Defence Union then intervened and advised the doctors concerned not to take part in any area health authority inquiry into the mishap. At first, I was puzzled about the reasons for that. As far as I can make out, that advice was given because participation might prejudice the doctors' rights in any civil law proceedings that might follow. The background to that lies in the decision made in the case of Waugh v. the British Railways Board in July 1979, which undermines the legal privilege of evidence given to an inquiry.
The Medical Defence Union's concern is understandable, but in the absence of public understanding, much more base motives have been ascribed to its actions. Dark allegations have been made to me that the Medical Defence Union is merely seeking to minimise its financial exposure, and that it is seeking to delay because it is cheaper to settle on behalf of a dead man than a living man. They are not pleasant allegations.
This situation has caused immense concern throughout the country, not least in Herefordshire. I emphasise that, although the worry has its epicentre in Herefordshire, it has spread from one end of the country to the other. Indeed, it is reasonable to say that there is now wide recognition in all parts of the Health Service that there is a yawning hole in the investigative procedures into clinical mishaps.
The National Association of Community Health Councils supported wholeheartedly the call by the Herefordshire community health council for something to be done to remedy the situation. I am informed that the regional medical officers, as a body, are disturbed at the action by the MDU. It is feared that it represents an attitude that could lead to a block to all future health authority inquiries into medical mishaps.
966 Not all such inquiries lead to civil law proceedings. Often it is sufficient for the complainant or his relatives to be satisfied that such an occasion cannot happen again. Nobody wants recourse to the civil courts to be the only method of establishing fact. If that becomes the only way of getting at the facts, we can be certain that litigation will proliferate. That is just what the Medical Defence Union does not want to happen. It is a deplorable aspect of the American medical scene where litigation is every doctor's perpetual nightmare.
As the area health authority is unable to initiate an inquiry that would have any value, recourse must be to a higher power. My right hon. Friend the Secretary of State knows that the buck stops with him. It seems that there is no stopping short of an inquiry under section 84 of the National Health Service Act 1977.
Referring to the tragic Woodhouse case, the Minister will recall that he has been asked to set up a section 84 inquiry by myself, the area health authority and the community health council. In each case he has seen fit to refuse. In his letter of 8 September to the area health authority he says that he considers it to be "a one off case" that does not suggest deep rooted failures in the service such as would be likely to give rise to national concern. The duties and powers entrusted to the Secretary of State in clauses 1 and 2 of the 1977 Act are wide and sweeping—one might say that they are onerous.
The failure to be able to initiate an inquiry is a deep-rooted failure of the service. The failure to initiate an inquiry is far more likelly to give rise to national concern. I beg the Secretary of State to reconsider on the basis of his criteria set out in his letter of 8 September.
The people of Hereford have a real interest. All parties want to know what is happening—and rightly. The Woodhouse parents have been to see me. The hospital sector administrator is reported by The Hereford Times as saying: If there is not going to be an inquiry I am disgusted. In a letter to the Minister on 24 November, the area health authority states: The position of the Authority is that the cause of the incident is obscure; that the best—and probably only—way of establishing the cause is to set up an inquiry attended by all the relevant staff and that a civil Lawsuit cannot be relied upon to achieve the objective. The medical staff also want an inquiry. Who can blame them? They feel that the hospital is under a cloud. The Observer quotes the anaesthetist as saying: an inquiry would be best for all. … An inquiry would be a good thing. The community health council, in its letter to the Minister dated 16 September advised him of a resolution stating: The problems raised by the inability of the AHA to promote a full inquiry into the case of an incident involving David Woodhouse cause grave concern and in our opinion such inability is against the best interest of the public, the health authority and the medical profession. Those are massive representations from Herefordshire and I know that they are very much reflected by my hon. Friend the Member for Leominster.
It is a reflection on the excellent standards and achievement of the Health Service that it has taken nearly two years for an incident such as this to show up the appalling gap in investigative ability in the event of clinical mishap. It is not reasonable to say, as the Minister said, that the proper procedure now is through the courts. What happens if the parties to litigation settle out of court? Then we shall never know and the public's genuine interest 967 will not be served. What happens if it takes two years to get the case heard in court? Should the public have to wait that long to find out whether negligence or incompetence was the cause? Will they be charged with confidence in their hospitals and in their surgeons if they believe that when anything goes wrong it could take up to two years after the accident to find out about it?
The Minister's letter of 10 November 1981 implies human error and caused more than a little confusion. I cannot help but feel that the Minister was not correctly advised about that. I do not allege that any of those factors are behind the case. I do not deny that I am anxious to know, but the public would not be natural if they did not suspect some or other of those causes to be the case. If it was incompetence or carelessness, would the public interest be well served by having a two-year period without correction?
Those are legitimate concerns to the public, who use the National Health Service and subscribe a not insubstantial part of their incomes to it. They must not be let down. There is a need for an urgent review of the current position. I am not putting forward solutions this evening, but I hope that they will emerge from discussions and consultations with all parties potentially involved. I hope also that the Minister will tell me this evening that he will consider the proposal seriously and put consultations in hand forthwith.
With regard to the Woodhouse case, I still believe that a section 84 agreement is not inappropriate in the light of the current state of play. It seems to be the only way in which an answer can be obtained reasonably speedily within the present restraints. I hope that the Minister will think along those lines.

§ The Minister for Health (Dr. Gerard Vaughan)
I am glad that my hon. Friend has brought this matter before the House, because some important principles are involved.
I wish to make it absolutely clear that I fully share my hon. Friend's concern about this tragic case, and I wish to express my deepest sympathy to Mrs. Woodhouse and her family. My hon. Friend has raised a number of serious points, especially about the steps available to health authorities to pursue inquiries into such situations.
This may turn out to be a tragic but isolated local incident that could not have been foreseen, but, whatever the cause, I am in no doubt at all that health authorities should be able to know as far as possible exactly what happened and why. It is then a basic responsibility of the health authority to ensure, again as far as possible, that it does not happen again. We must be certain that whatever went wrong will not be repeated. In order to do that, we must know exactly what went wrong.
In most cases it is enough for officers of the authority to inquire of the staff concerned and make a report. If that is not sufficient, the authority can appoint a panel of its members to consider the matter. Exceptionally, a formal inquiry by the health authority can be set up, with a chairman and members completely independent of the authority. Those are all essentially fact-finding procedures.
968 Fortunately, such serious mishaps occur rarely. When they do, the responsibility for taking the necessary action right away lies squarely with the health authority. In most cases I am glad to say that the procedures work very well.
If necessary, but only in special circumstances, the Secretary of State can set up an inquiry under section 84 of the National Health Service Act 1977. The inquiry can summon witnesses and take evidence on oath. The powers for that are extensive, as my hon. Friend rightly said, but setting up such an inquiry is a major procedure. It takes a long time and it must call upon experienced and eminent people. It is also an expensive process. In practice, it has been used only rarely—usually where the matter causes national concern.
We are discussing a situation which, to my regret, has not been resolved so far. Public anxiety has not been allayed, and it is important that it should be.
Press reports and letters suggest that in this case the Hereford and Worcester health authority has been unable to establish the cause of the incident, so it has not been able to say—and that is extremely important—that it is reasonably sure that it has done all that it could to prevent a recurrence. That is a very serious situation.
I understand that soon after the incident occurred, inquiries were made of the hospital staff. A report was made by the district administrator based on statements from the staff, including the medical staff involved in the operation. Soon after, a technical expert from my Department, at the authority's request, examined the anaesthetic equipment which had been used in the operation. He found no defects which could have been the cause of the patient being deprived of oxygen. The reports were considered by the authority, which proposed that there should be further inquiries by a formal independent inquiry set up by the authority.
At that stage the Medical Defence Union made it clear that, because civil proceedings were then a very real possibility it would have to advise its members not to cooperate with the inquiry—that is the Waugh problem—so that their position in such proceedings would not be prejudiced. As a result, the authority decided not to set up an inquiry, because it would have no power to compel the attendance of witnesses. It decided instead to press me on behalf of the Secretary of State to set up a section 84 inquiry, under which witnesses could be required to attend, whatever advice they had received. That inquiry would be a statutory inquiry and take evidence on oath.
I understand my hon. Friend's concern and that of the authority in wishing to have further inquiries made in a thorough and impartial manner, but knowing that in the absence of important witnesses it could turn out to be inconclusive. I gave the most careful consideration to the authority's request, but, in view of the major process of setting up a section 84 inquiry I did not feel that a full inquiry was the right answer unless it proved absolutely essential.
As my hon. Friend knows, there has been further correspondence between the authority and my Department and between myself and the chairman. I have in the past few days received a further letter from the chairman, to which I replied as follows: It seems to me to be absolutely fundamental that your authority should be able to know the facts of what occurred, in a hospital for which you have responsibility, and that you should be reasonably sure that an incident of this kind is not likely to happen again. 969 You appear in your letter to be saying that you cannot be reasonably sure. This puts a rather different aspect on the view I took earlier about civil proceedings. I had thought you had done what you could to ensure that this incident does not recur. But in view of your latest letter I am not now happy that you should rely on court action by relatives to find out what happened. There is also the possibility that the case would be settled out of court. My hon. Friend said how unsatisfactory it would be if there were a settlement and the real facts were never known.
My letter continues: I have only in the last few days received copies of papers which date back as far as May and include statements from the doctors concerned. Having seen these, I suggest that you now put this evidence right away to the scrutiny of outside experts. They can be asked to give a view on possible causes, and on what further evidence may be needed. In this way, it may very well be possible for you to have all the information you need"— to bring this to a satisfactory conclusion— and I hope you will then be able to clear this up locally. I am reluctant to set up the panoply of a section 84 inquiry into what may turn out to be a tragic accident which could not have been foreseen, unless it is clear that all other means of investigating the issues have failed. Would you please give me a full report on the action you take and its results as soon as possible. That is the situation as it stands at the moment. I think that my hon. Friend was right to raise this subject tonight, and I hope that he will agree that there are now good prospects for sorting this out satisfactorily. As my hon. Friend said, wider issues are involved. For example, a problem faces the Medical Defence Union when it has to advise its members not to give statements because of the possibility of a civil action later. I suggest that we should examine that point carefully and take it up with the appropriate legal authorities.
On that basis, I hope that my hon. Friend will accept the answer that I have given. I am glad that he raised the matter.

§ Mr. Shepherd
With the leave of the House, I should like to reply to some of my hon. Friend's points.

§ Mr. Deputy Speaker (Mr. Ernest Armstrong)
The hon. Gentleman has the leave of the House.

§ Mr. Shepherd
Thank you, Mr. Deputy Speaker.
I am grateful to my hon. Friend for the deep consideration that he has given to the matter, and I welcome his recognition of the wider issues involved. It is sad that we have had to have a case as tragic as the Woodhouse case to set in train the events that my hon. Friend is now to initiate in his consideration of the legal aspects of the position. That is to be welcomed widely not just by the medical profession, because it has wider ramifications than that.
My hon. Friend was kind enough to let me have a copy of the letter from which he quoted, which I received during the last division and which I had a chance only to glimpse before the debate. I am still slightly perturbed that it may not be possible, under the proposals that he has made to the area health authority, for the people of Herefordshire to be openly satisfied that there can be no repetition. Nevertheless, I am happy to go along with my hon. Friend's proposals, secure in the knowledge that, if things do not go right, he still has the section 84 inquiry to fall back on if all else fails. I am grateful to my hon. Friend for his consideration of the matter tonight.