Lee James Whitmore (Hansard, 17 December 1981)

§ Mr. Fred Silvester (Manchester, Withington)

The debate takes place a little earlier than I anticipated. Normally I can say that I am pleased to bring before the House the case of a constituent. On this occasion, I can say that I am pleased that it is possible to bring be fore the House the case of my constituent, Lee James Whitmore, but I would rather that it was not necessary.

I am grateful to my hon. Friends in the Department for the care that they have taken over this case. I know that they have given personal attention to the papers and that they would like to say "Yes" if they could, but they are bound by the law.

I should begin by stating what the law is and to state those parts of the law that I should like the Minister to use. The law gives the Secretary of State power to make an award to a child who has been vaccinated and has suffered harm as a result. The Minister is not obliged to accept the recommendation of any medical adviser, although he usually does. His is the first decision. If the decision is "No", the parent has a right to appeal. That appeal is taken to a medical tribunal and that decision is binding on both the Secretary of State and the parent. That is the stage that we have reached in the case of Lee James Whitmore.

The Secretary of State may on his own initiative, without consulting anyone, reopen a case if he is satisfied that the decision was made in ignorance of, or based on a mistake as to, some material fact. Once he has decided officially to reopen the case, and if, after consulting the new facts he still decides against the claimant, the decision to reopen is crucial because it again gives the parent a right to appeal to an independent tribunal. I should make it absolutely clear that the mere reopening of the case, even if the Minister subsequently decides against the claimant, opens the way to a further appeal. That is important.

The Minister may believe that it would be extremely unkind to follow this route. It would be typical of his considerate approach to these matters if he felt that reopening the case without any guarantee of success would be to raise the parents' hopes, only to have them dashed again. I urge him not to take that view.

Obviously I want him to come to a decision today—or soon—clearly and unequivocally in favour of making an award. If—and I have today checked this with the parents—he is willing to reopen the case and decides against it, they would rather take their chance with the tribunal, despite the pain and difficulty that may cause, than not have the chance at all. I hope that my hon. Friend will come to a favourable decision without further reference to any tribunal.

Lee Whitmore was born a perfectly healthy baby with a normal birth weight on 14 June 1967. He received his first triple vaccination, including vaccination against whooping cough, on 25 August. Just under two months later, on 2 October, he received a second dose. That date of 2 October has turned out to be crucial.

Mrs. Whitmore noticed that the child was going stiff, screaming and rolling his eyes on 21 October—19 days after the vaccination. The GP could not diagnose the child's complaint, and referred him to the Duchess of York hospital on 23 October. The hospital was unable to identify 514 the trouble, and the mother eventually sat by the cot to indicate to the ward sister the symptoms about which she was worried. Despite that, the child was sent home on 26 October without the spasms having been identified. The mother records that she was told that she was "an over-anxious mother".

That might have been an adequate and understandable reaction had the future not proved the mother right and the hospital wrong. By December 1967, three months after the inoculation, it was clear that convulsions were taking place regularly, even though their cause was not known. Today, Lee, a boy of 14, is unable to speak and is severely mentally damaged.

The sequence of events cannot be disputed. It is known that Lee was healthy before the vaccination. It is known that the first electroencephalograph report on 12 December 1967 identified abnormalities, and it is known that from that day to this there has been a continuous deterioration.

The question therefore is: can what occurred between 2 October and 12 December be regarded on the balance of probability—that is the phrase in the Act—as an unbroken link in a sequence of events?

It is worth emphasising, before we analyse that in greater detail, that, if we decide that there was no sequence of events, we are faced with the singularly unattractive alternative of having to believe that the cause of Lee's malady—not to this day identified—arose independently but within a few days of the administration of the vaccine. I doubt whether that would stand for long on the same test of the balance of probability.

Three reasons have been advanced for refusing compensation, and new evidence has been presented to my hon. Friend and his predecessor on each of these three reasons. The Minister's first and, so far, only decision was based on the report of someone known only as a consultant with particular experience of vaccine damage. That report, dated 30 January 1979, contained a serious error of fact. It stated that the onset of spasms occurred three weeks after the second injection and that that period was too long for a cause to be established. It went on: Moreover, there is no evidence from these notes that spasms were influenced by the administration of the third dose of triple vaccine on 4 or 6 December. There is only one natural meaning to that sentence—that the consultant was in part influenced by the lack of reaction to a third vaccination. As my hon. Friend knows, we have now proved that, contrary to all the evidence of the records submitted to the tribunal, the third whooping cough vaccine was not administered. This is the first new evidence presented to the Department, and it is relevant not to the whole but to a significant part of the consultant's opinion.

My hon. Friend wrote to me on 2 December 1981 that he was advised that the possibility that the pertussis element"— that is, the whooping cough vaccine— was omitted from the third immunisation was known and taken into account but not considered material when the Secretary of State's determination on this case was made. That is not shown by the record, which reveals that the third vaccination was a significant part of the consultant's opinion and, therefore, of the Secretary of State's consideration.

The parents then secured a review by an independent tribunal, whose decision, by Act of Parliament, is conclusive. The tribunal, unlike the Minister, does not mention the third vaccination, but, as it was included in 515 the documents, it may well have affected its judgment. The tribunal's decision turned on the view that there was not a slow, progressive decline, but a marked deterioration in the second year. Frankly, it is difficult to see how the tribunal came to that conclusion, because the medical record clearly shows otherwise.

As I said, the first EEG, which took place when the child was six months old, revealed—all of these quotations are taken from the child's medical records— marked generalised abnormalities including epileptic discharges. That was at six months. At 6½ months, Lee was unable to sit up. At seven months it was thought that he was improving, but by nine months the spasms had returned and were recorded as numbering up to 20 or more a day.

For a while, Lee again responded to treatment, and at 12 months he was making rather slow but steady progress. But he was still having about six attacks a day. During the second year, according to the tribunal, the deterioration was more marked, but the records show otherwise. At 15 months they report "minor attacks" and "improving in many ways." At 18 months, the reports refer to "attacks almost every day", and at two years to "attacks quite frequently" and that they tended to be "more severe."

Looking at those quotations, one sees clearly, even if one judges by the number of attacks per day, that the number of attacks per day in the first year was greater than in the second year. Whichever way one cuts that cake, there is no sign that the condition was more marked in the second year than in the first.

On the basis of this evidence, it seems to me that it is perverse to suppose that nothing much happened in the first year but that a lot happened in the second year. Where is the evidence to support such a conclusion? Yet it was clearly the determining factor in the tribunal's decision. The tribunal reported: It also seems unlikely that there was a disabling illness following discharge from hospital on the grounds that both the mother and her health visitor regarded the baby as normal at 10 months. In a way, that is the cruellest part of the affair. That the baby looked perfectly normal is understandable, but to rely upon the mother's evidence of normality in the face of other evidence to the contrary is a doubtful practice. Mrs. Whitmore had continually reported spasms throughout this period. The child was on drugs and in danger of appearing cushingoid. He was behind in his development. All this is clearly reported from contemporary records.

However, one has to satisfy my hon. Friend's requirement for further evidence. I sent to my hon. Friend's predecessor letters from people who did not present evidence to the tribunal. Those letters, from Mrs. Beaton, Mrs. Bainbridge, Mrs. Campion and Mrs. Grant—women who knew the child intimately during the crucial early period—prove beyond peradventure that Lee was not normal and was often convulsed within the first 10 months. I hope that my hon. Friend will recognise the force with which this evidence questions the tribunal's conclusion.

When my hon. Friend's predecessor wrote to me on 30 January he said that those letters do not seem to throw any further light on the events of the period 2 October to 23 October"— 516 the three-week period. They were not meant to do so, but that is not the only consideration. The tribunal was unquestionably affected in its assessment of the balance of probability by its view of the whole of the first year. Otherwise, the comments that I have quoted were meaningless and the letters are new evidence which must be taken into account.

There remains what has become the final bolthole of the argument for upholding the original decision—that the period between 2 and 21 October, between vaccination and the recorded spasms, is too long. New evidence has also been presented on that point. My hon. Friend has received the analysis of Lee's case undertaken by Professor Ehrengut of Hamburg, who is regarded as a leading authority on vaccine damage in Germany. He reviews two or three cases a week and submits conclusions, which are accepted by the Social Court, which adjudicates on such matters in Germany. His standing is not in question.

The opinion of Professor Ehrengut is apparently regarded by the DHSS as "highly committed and partial". That will not do. Apart from the professor's eminence in Germany, his attitude towards British cases submitted to him by The Sunday Times does not reveal any lack of detachment. Five cases relating to whooping cough vaccine have been submitted to him, and Lee's is the only one that he has supported. The professor's opinion is based on much research, not only by himself, but by people in this country.

The professor's opinion is that, while a link could not generally be assumed after a three to four-week period when the child suffered from convulsions, the same is not true if the child suffered from infantile spasms. In that case, the inoculation is not the actual cause, but the precipitating factor, and there can therefore be a delay of several weeks. He underlines further the unsafeness of the tribunal's decision because of the difficulty in diagnosing this convulsive disease. The decisive EEG diagnosis was neglected and this omission cannot be laid at the door of Lee's parents. The first time the test was applied in December the evidence became available that the child was suffering from convulsions and had been seriously affected. That judgment, taken from the first EEG, has not been disputed.

The least that can be said of that third piece of new evidence is that it opens an area of doubt where reputable medical opinion treads uncertainly. It is unthinkable that Lee should be caught in that crossfire. His is the only case of which I am aware which is so close to the date of vaccination. There are others, but they involve delays of some months. If there is doubt among the medics, it is the Minister's duty to see that Lee is not harmed by it.

Let me summarise the story. A healthy baby was born of a healthy mother who had an untroubled pregnancy and delivery. Lee was known to be healthy and progressing well until his second vaccination. He then entered a period of convulsions and decline, documented and attested and continuing from within two or three weeks of the vaccination to the present day.

We are asked to believe that some unknown cause intervened in those two or three weeks, unconnected with the administration of the vaccine, and that that explanation is somehow more probable. I believe it it much more probable that the two events were causally connected, but that the early stages of the convulsions were inadequately recorded.

517 I do not doubt that my hon. Friend should reverse his decision. He can do so in the knowledge that the case would not establish a wider precedent. It is a simple case of individual justice.

My hon. Friend might argue that any one of the three additional pieces of evidence is insufficient, but I cannot see how he could argue that, taken together, they do not disturb the original decision. Put in the scales, they must upset the balance of probability test in the Act. If he cannot bring himself to reverse the decision, let him reopen the case and reject the decision so that we may again try our hand with the tribunal. However, I urge him to take the direct and, in my view, just course of awarding Lee his compensation.

§ The Under-Secretary of State for Health and Social Security (Mr. Geoffrey Finsberg)

I start by making it plain that I have every sympathy both with those who are themselves severely disabled and with the families who have to care for disabled children. The Government have repeatedly made clear their intention to improve the provision for the disabled generally when resources permit.

In the meantime, the Vaccine Damage Payments Act 1979, provides for a lump sum payment of £10,000 in cases where, on the balance of probability, severe disablement has resulted from vaccination against any of the diseases specified in the Act.

Of course, that is a very substantial preference for the vaccine damaged over other groups of the disabled, and although there has been considerable pressure on us to extend or amend the scheme, we have not felt it right to do so in view of our preference for improvements for disabled people generally when the state of the economy permits.

It is a sad truth that a number of parents have been disappointed that their claim for a payment under the scheme has been turned down. The circumstances in which vaccine damage payments can be made are clearly laid down in the Act and, as my hon. Friend will no doubt recall, the provisions were fully debated during the passage of the Bill.

Apart from the conditions of residence and the like, the main provisions are that the person should have been severely disabled as a result of a type of vaccination specified in the Act or by the Secretary of State in an order made by statutory instrument, the disablement is to the extent of 80 per cent. or more and, on the balance of probability, the disablement resulted from the vaccination.

The onset of spasms in a baby and subsequent mental or physical handicap, despite a normal healthy birth, is a known medical condition, which may coincidentally be present after vaccination, but without vaccination being the cause.

It may be helpful if I explain the steps that are taken when a claim is made. On receipt, an application is examined to ensure that the basic qualifications are met. My Department then contacts the medical sources quoted in the application form and obtains all existing relevant medical records in connection with the claim.

In addition, where doubt exists a consultant opinion is obtained. All the medical evidence forms a basis for the 518 Secretary of State's determination. When the determination is that the conditions required for an award are not met, the claimant is informed that he may apply for a review by an independent appeal tribunal.

When a request for a review is received, all the evidence used in the initial stages is submitted to the tribunal and a copy of the submission is sent to the claimant. Any new information which may have come to light is, of course, included in the submission. A date for the hearing is set with the claimant's agreement and claimants are encouraged to attend the hearing. After the hearing the tribunal makes its determination which is conveyed to the claimant.

The decisions of the vaccine damage tribunals are conclusive, except that there may be a reconsideration of the case if there has been a material change in circumstances since the determination was made or if it was made in ignorance of, or was based on a mistake as to, some material fact.

I come to the case that my hon. Friend the Member for Manchester, Withington (Mr. Silvester) has brought to our notice. In the sad case of Lee James Whitmore, the claim was received in September 1978 and turned down by the Secretary of State in March 1979 on the basis that although Lee's disablement amounted to at least 80 per cent. it was not caused by vaccination. Mrs. Whitmore then sought a review of the case and it was heard by an independent medical tribunal in March 1980. This upheld the Secretary of State's determination that on the balance of probability the disablement was not due to the vaccination.

In April 1980, Mrs. Whitmore requested that the case be reopened under the appropriate section of the Act which, as I previously mentioned, enables the Secretary of State to reconsider a case where the determination was made in ignorance of, or was based on a mistake as to, some material fact and she has made considerable efforts to produce new evidence as my hon. Friend has said.

My hon. Friend too has been extremely diligent in pursuing the case and has written to us several times during 1980 and 1981. He has received three letters from my predecessor and one from me and he also had a meeting with my predecessor in May of this year. Following that meeting he wrote again with what was felt to be new evidence about the constituents of the third vaccination, which was given to Lee after the spasms had occurred.

I replied recently, after looking again in very close detail at this case, explaining that the components of that vaccination were in fact known by the Secretary of State when he made his original determination and that the tribunal knew that it was a possibility that the pertussis element had been excluded but did not consider it a material fact. I reiterated the view expressed by my predecessor that there are at present no grounds on which a reconsideration by the Secretary of State would be justified. However, my hon. Friend has made a number of points tonight that require, and indeed demand, examination. I shall ensure that they are considered carefully and the papers re-examined yet again to see whether there is any basis whatever for a reconsideration by my right hon. Friend the Secretary of State.

My hon. Friend said that the parents realise that if there were a reconsideration and the case was able to go yet again to a tribunal, there could be no guarantee what the outcome might be. I am undertaking, however, to have the 519 papers re-examined and I will look at them myself again. I shall write to my hon. Friend with the results as soon as possible.

I hope that my hon. Friend will feel that this is a satisfactory outcome to the very distressing case that he has raised and that the assurance I have given him means at least that the new points that he has produced tonight, together with any light that they may shed on the facts already in our possession, will enable me to ask my right hon. Friend to consider this case and to take whatever final decision he needs to take.