Lieutenant-Commander J. A. Bird

HC Deb 06 February 1986 vol 91 cc534-40

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

10 pm

Viscount Cranborne (Dorset, South)

My hon. Friend the Under-Secretary of State for Defence Procurement has had a long and productive day and I owe him a great debt of gratitude for being so good as to stay on to reply to the debate.

Perhaps the best I can do to introduce the subject of my unfortunate constituent, Lieutenant-Commander J. A. Bird, is to read an extract from a letter he wrote on 6 November 1984 to the Naval Secretary. He said: I was operated on for a cataract on my left eye at Haslar on 11th October, 1983 and left hospital on 17th October. The intention was then that a contact lens would be fitted in the eye. I attended Haslar as an out-patient at approximately fortnightly intervals after the operation and eventually a contact lens was fitted in early February 1984. Although wearing the lens regularly, it made no improvement in my vision and eventually I asked for an examination by a surgeon other than the one who had performed the operation. The operating surgeon had, by this date, seen me as an out-patient on at least half a dozen occasions. I visited Haslar on 13th March 1984 and was examined by a different eye surgeon who diagnosed a detached retina requiring a prompt operation. During his examination he used the expression 'time is not on our side'. I entered the hospital the next day and was operated on 15th March, leaving on 21st March. I then made at least two further out-patient visits to Haslar (at my own expense) with no resulting improvement in my vision. Early in May I transferred from treatment at Haslar to the specialist eye hospital at Weymouth to avoid the expense of constant travelling to and from Haslar. As my hon. Friend the Under-Secretary of State knows, that is in Portsmouth or thereabouts.

Mr. Peter Viggers (Gosport)

It is in Gosport.

Viscount Cranborne

I beg my hon. Friend's pardon.

The letter continued: This action was with the knowledge (and, I presume agreement) of the surgeons at Haslar. (I have visited my local eye hospital on several occasions and my local GP also arranged for me to visit Moorfields eye hospital in London. I understand that this latter is the best eye hospital in the country. I have eventually been told by an eye specialist that I cannot expect to recover any sight in my left eye as the retina is totally destroyed. The current state of my left eye is that I now have no vision in it, it is bloodshot, the lids are partially closed and it has a cast in it.

I have seen Lieutenant-Commander Bird. He is an unfortunate sight. It is unfortunate from his point of view that he has suffered so long. He followed up that letter with another letter on 25 November in which he added that the vision in his right eye has now deteriorated to the extent that I am unable to drive a car any more and can read for short periods only. He underwent a retirement medical examination at HMS Osprey at the end of February 1984. He said—I hope that my hon. Friend the Under-Secretary of State will mark this— no mention was made of the prospect of such a rapid deterioration of my right eye, nor of its onset after a matter of a few months.

On 31 December, Commander Bird received a reply to his letters advising him that he could not pursue his claim under section 10 of the Crown Proceedings Act 1947. I am sure that my hon. Friend the Under-Secretary is all too familiar with that. The civil servant wrote: This Act effectively debars any claim against the Department in respect of injuries suffered by members of the Armed Forces who are on duty or on property being used for the purposes of the Armed Forces of the Crown. The letter further suggested that Commander Bird should write to the Department of Health and Social Security asking it to consider paying a pension or gratuity in respect of the injury. My hon. Friend will be aware that that is standard practice.

The plot begins to thicken with a letter that Commander Bird received from Surgeon-Commander Tolley dated 6 February 1985 which finished by again advising him to pursue the DHSS route. The letter also stated: Although it could be said that a cataract operation is a routine matter it is, like any operation, not without its attendant risk of complications and, should they occur in ocular surgery, it is usually to the detriment of the expected results. Unfortunately, you"— that is, Commander Bird— Unfortunately suffered one of these complications in that a haemorrhage developed. This was noted on the first post-operative examination of the eye and prevented good vision being obtained, even with a contact lens".

As far as I know, Lieutenant-Commander Bird and Surgeon-Commander Tolley have never met. Surgeon-Commander Tolley was obviously referring to medical reports that he had received from the doctors who attended Commander Bird. Nevertheless, Commander Bird maintains emphatically that he was told nothing of that by the doctors whom he saw. I shall support that assertion by quoting from a letter that my constituent sent to me commenting on letters which my noble Friend Lord Trefgarne sent to me when I first inquired about Commander Bird's case. Commander Bird said: I was indeed informed of a state of my left eye on all my visits to Haslar between October 1983 (the date of my first operation) to the middle of April 1984 when my case was transferred to the Weymouth Eye Hospital. Without exception I was told that the eye was healing satisfactorily and that I could expect, with a contact lens, to be able to see 'half way down the chart'. I wish that I could do as well. Surgeon-Commander Tolley can have only hearsay knowledge as he was not present on any of my visits to Haslar and I have never met him. We are all clearly sorry for Commander Bird. As a result of my noble Friend's replies to my inquiries on my constituent's behalf, I have a suspicion of the type of things that my hon. Friend will say when he replies. First, he will say that the Crown Proceedings Act 1947 has been under fairly constant review for some considerable time, that it is difficult to discriminate between officers serving in the front line and officers who are pursuing other duties out of the front line; and that those difficulties of definition are beyond the Ministry of Defence and the Act must stay where it is. I suspect that he will go further and say that the arrangements with the DHSS, to which Commander Bird referred, and which were mentioned by the Ministry of Defence, were invented to ensure that there was some redress which did not cut across the provisions of section 10.

Far be it from me to impute such thoughts to my hon. Friend, but I suspect that some of us might think that doctors are a pretty tightly run trade union, that if one is going to sue for negligence it is difficult to get one doctor to say that another has been negligent, and that if Commander Bird were sensible he would forget about going through the trouble and expense of suing even if he could, because he would find it difficult to obtain a judgment in his favour. That may well be so. Even if my hon. Friend does not say so, perhaps he would agree with that.

Against these considerations, perhaps we should set others arising from Commander Bird's circumstances and from the general points which arise from this rather tragic case. There is some disagreement—I hope that this is clear from the rather lengthy quotations which I have read from the correspondence — between Commander Bird and the doctors who examined him repeatedly at Haslar during the months following his operation as to whether they thought his recovery was proceeding satisfactorily. However difficult it is to prove negligence, surely it is only fair that people who are subject to this kind of operation on what is, after all, a pretty important sensory item in anyone's physical make-up should at least know that, if they suspect that somebody has been negligent, they have the opportunity to put it to the test. It is very difficult for poor Commander Bird to sit there in pain, doubtful about whether he can see anything at all and finding it difficult to travel and to get a job.

I suggest also that it is not good enough to say that the DHSS benefit, which is the alternative—if, indeed, it is granted—is a sufficient compensation on the grounds that it is a permanent grant and anyway can be updated to take account of inflation. This seems rather absurd when one considers that at present Commander Bird is drawing invalidity benefit amounting to the princely sum of £54.99 a week. If one considers some of the court settlements in such cases, that amount would hardly come to the interest that he could get on any lump sum settlement if he decided to invest it sensibly.

More generally, my hon. Friend may like to consider that it is not conducive to good management, however professional doctors are, to except operatives of any kind from consequences of negligence. It only encourages people to be negligent, however sensible and assiduous they may be. I think that all of us in the House, saving my hon. Friend's presence, realise that Ministers, for all their good intentions, would get away with murder if it were riot for the attentions of the Conservative Back Benchers, if not of the Opposition Back Benchers—who, yet again, are conspicuous by their absence.

Commander Bird served for 39 years 10 months in the Royal Navy. He joined, aged 16, as a cadet. He is a loyal Navy man. He refers to taking his case outside the family —something he was reluctant to do. He feels strongly that he owes loyalty to the Navy, and, perhaps, that the Navy owes loyalty to him. I think it is a pretty scurvy repayment of that loyalty if Commander Bird is not able to get some crack of the whip and some public attempt to ascertain whether that difference of opinion between him and the doctors is a matter that it is his right to have considered.

Mr. Viggers

My hon. Friend has the respect of the House for the manner in which he is putting his constituent's case before the House. I am not in a position to comment on the case at all. However, I should like to say that the Royal Naval hospital, Haslar, is in Gosport, my constituency, and serves civilians and service personnel. Its facilities are excellent and its reputation in the locality is extremely high. I am anxious that that should be known and recorded in the debate.

Viscount Cranborne

I am grateful to my noble Friend. I have no experience of Haslar. It is clearly important that my hon. Friend's experience of this institution in his constituency should be brought to the defence of its reputation in a debate of this kind. I have no means of knowing what its reputation is and I gratefully accept the good character which my hon. Friend has given the hospital.

Finally, I shall ask my hon. Friend four questions, and I should be extremely grateful if he would address himself to them when he replies. First, is there any chance of an inquiry into the case of Commander Bird, if only to clear Haslar's name, which may have a shadow over it as a result of my raising the matter this evening, let alone to set at rest Commander Bird's mind about whether there was negligence? Secondly, it may be sensible to put in the fast lane a review of the effects of section 10 on serving officers who are away from the front line. After all, civil servants can sue if they have the same trouble as Commander Bird had at Haslar. Thirdly, have there been any other complaints about Haslar? If there have not, it will certainly support the contention of my hon. Friend the Member for Gosport (Mr. Viggers). Fourthly, in the event of an inquiry reporting that there has been negligence, is it possible that a lump sum of compensation could be paid to the unfortunate Commander Bird, whose loyalty has been severely stretched by his past two years' experience?

10.15 pm

The Parliamentary Under-Secretary of State for Defence Procurement (Mr. John Lee)

I congratulate my hon. Friend the Member for Dorset, South (Viscount Cranborne) on his good furtune in securing an Adjournment debate. I also pay tribute to the vigorous way in which he has pursued his constituent's case through correspondence with my Department and, of course, in his deeply sincere and elegant speech tonight. I am also grateful for the praise of the Royal Naval hospital Haslar from my hon. Friend the Member for Gosport (Mr. Viggers).

My hon. Friend the Member for Dorset, North set out clearly the grievances felt by his constituent, Lieutenant-Commander Bird, over the complications that arose from a cataract operation performed at the Royal Naval hospital Haslar in October 1983. As I understand it, there are three main aspects. First, Lieutenant-Commander Bird feels that as a cataract operation is, in the majority of cases, a routine affair, the unsuccessful outcome of his operation is not entirely due to misfortune. Secondly, he feels that he was not kept properly informed, and thirdly, that a claim for compensation is being hindered by section 10 of the Crown Proceedings Act 1947. I shall answer each of those points in turn, but, before doing so, it would be helpful to set out briefly the sequence of events, as they have a bearing on the somewhat complicated legal aspects of the case.

Lieutenant-Commander Bird had two operations. The first, which is the one that he feels aggrieved about, was a cataract eye operation performed at Royal Naval hospital Haslar in October 1983. At that time Lieutenant-Commander Bird was still a regular serving officer. In February 1984 he left the service, and at the time of his second operation in March 1984, for a detached retina, which was also performed at Royal Naval hospital Haslar, he was a civilian. I shall come to the details of the medical and legal aspects of the case in a few moments.

The medical aspects of the case are straightforward. The operations were carried out at the Royal Naval hospital Haslar, which is experienced in this type of operation, and carries out approximately 150 a year—most of them by the consultant who operated on Lieutenant-Commander Bird. The treatment and medical management of the case have been closely investigated by Defence Ministers, and have been found to be correct at all stages. The claim of negligence, which is implied by Lieutenant-Commander Bird's phrase not entirely due to misfortune", is without foundation.

It is recognised within the medical profession that every operation has its attendant risk of complications. In operations, such as that undergone by Lieutenant-Commander Bird, it normally prevents restoration of reasonable eyesight without further treatment. Although it has been said that a cataract operation is a routine matter, it is not without hazard. As a national average approximately 2 per cent. of those operated on experience some form of complication. Unfortunately, Lieutenant-Commander Bird suffered one of these hazards in that, subsequent to his first operation, a vitreous haemorrhage—internal bleeding of the eye—developed. It was noticed at the first post-operative examination. The haemorrhage may have been caused by the slightly raised blood pressure combined with the patient's restlessness on the first post-operative night. The contraction of a vitreous haemorrhage and formation of fibrotic bands—clotting of blood—is a well-known precipitating cause of detachment of the retina. The haemorrhage and subsequent inflammation which developed prevented reasonably good eyesight being restored, even with use of a contact lens.

As a result of these indications, Lieutenant-Commander Bird was examined very carefully on a number of occasions but no sign of a detachment was discernible until 13 March 1984. The longer such a condition, once discovered, is left untreated, the poorer the chances of successful corrective treatment. Lieutenant-Commander Bird was therefore operated on a second time almost immediately, on 15 March 1984. Despite careful surgery and post-operative care, the result was less successful than had been hoped. However, the last record at Royal Naval hospital Haslar of Lieutenant-Commander Bird's eyesight does not accord fully with the statement, made in one of the officer's letters to my Department, dated 6 November 1984, that he had no vision at all in the left eye.

With regard to the second issue of being kept informed, it is not normal procedure to speculate on possible untoward complications of an operation in advance of surgery, but any questions asked by a patient would be answered. The consultant would, moreover, routinely explain the operative procedures and likely outcome. Following the operation, Lieutenant-Commander Bird was kept fully informed at all stages—indeed, it was recorded that he had on many occasions produced a written list of questions and the answers to these were discussed with him. The Defence Medical Services believe that keeping the patient informed of his condition and prospects is an important aid to attaining a good recovery. For these reasons, I cannot agree that Lieutenant-Commander Bird was not kept informed.

Lieutenant-Commander Bird's third point touches on the application of section 10 of the Crown Proceedings Act 1947. It may be helpful if I begin by summarising how section 10 works. The section is not a complete ban on legal action by service men but in broad terms provides an absolute defence for the Crown, and for other service men, against actions alleging negligence brought by service men or their next of kin who are injured or killed in circumstances attributable to their service. Instead, a special gratuity and pension scheme is available to these service men upon leaving the service. There is not, I accept, the prospect of courts possibly awarding a lump sum under the law. But, importantly, the individual does not have the considerable burden of attempting to prove negligence in the courts. For example, if he failed to prove his case, the court would award no compensation and he might be called upon to pay costs. Court procedures can often be lengthy and uncertain, and an award—if made — cannot be adjusted if his condition subsequently deteriorates. Moreover, the income from any damages is taxed as unearned income. By contrast, a service man entitled to an invalidity pension does not have to prove negligence. The pension is based purely on the level of the disability and is payable irrespective of the presence of negligence, and even in cases where the negligence is his own. The pension is tax free, adjusted each year for inflation and can be further increased if there is a deterioration in the service man's condition.

Section 10 was originally enacted because service personnel, by the very nature of their profession, are called upon to perform hazardous tasks which go beyond anything likely to be encountered in normal civil employment. Parliament accepted, and successive governments since 1947 have concurred, that it would not be appropriate for service personnel to be able to bring civil actions for negligence against one another, given the risks associated with the necessarily highly realistic military training that service men undergo. To do so would run counter to the fundamental requirement for mutual trust, confidence and loyalty which is so essential to an effective fighting force.

It has been suggested that this argument should not apply to situations such as treatment in service hospitals, where a civilian in the same circumstances would not be debarred from an action at law. However, attempts over the years to distinguish between activities with a military character and those which are essentially civil in nature have always foundered because of the discrimination it would cause against one category of service man in favour of another. It would, I fear, create more anomalies than it would solve. Nor is it possible for decisions to be taken whether to apply section 10 on a case-by-case basis; if the conditions of section 10 are met. the provisions do not allow any discretion and the law automatically applies.

That said, the Government wish to be sure that it is right for section 10 to continue and have undertaken a comprehensive review of how section 10 works and whether any changes should be made. This review necessarily involves complex legal and disciplinary questions and is not yet complete. I would not wish to pre-empt the conclusions which might be drawn but I can assure the House that we shall take account of all the relevant factors before coming to a final decision.

Turning to the specific aspects of Lieutenant-Commander Bird's case, it has already been explained to him in correspondence that the provisions of section 10 of the Crown Proceedings Act 1947 rule out a compensation claim in common law by him against the Department, alleging medical negligence arising out of his cataract operation at Haslar in October 1983. It has been pointed out to him that alternative provision for compensation for service men injured in the course of duty is available through the conditions of the DHSS war pension scheme. Lieutenant-Commander Bird has been advised several times that his best interest would be served by applying to the DHSS for a war disability pension, and he is aware that he does not have to prove negligence by the Ministry of Defence to succeed in his application. It has only to be established that his disability was attributable to, or aggravated by, service with the Armed Forces. However, inquiries with the DHSS have shown that, apparently, no application from Lieutenant-Commander Bird has been received.

Lieutenant-Commander Bird might be reluctant to apply for a war pension because he considers such action might weaken any case against this Department, alleging medical negligence on the part of Royal Naval Hospital, Haslar. I can only repeat that payment of common law compensation by the Ministry of Defence is ruled out by section 10 of the Crown Proceedings Act, and I should say that Lieutenant-Commander Bird is only damaging himself financially by not applying to the DHSS. I must again reiterate that the Ministry of Defence does not, in any case, believe itself to have been negligent and, in a hypothetical absence of section 10, could have been expected to contest any writ for damages. Thus, Lieutenant-Commander Bird might well have received nothing by this route, even if it had been open to him.

In conclusion, the case of Lieutenant-Commander Bird is one of those most unfortunate cases which arise from time to time. Through no fault of any of the medical personnel involved, a complication arose and the desired outcome of the operation was not achieved. I deeply regret this, but I cannot accept any suggestion of negligence on the part of the Ministry of Defence and surgeons at Royal Naval hospital Haslar. As I said, Lieutenant-Commander Bird's interests would be best served by applying to the DHSS for a war disability pension, which does not require him to prove negligence.

Question put and agreed to.

Adjourned accordingly at twenty-six minutes past Ten o' clock.