§ Motion made and Question proposed, That this House do now adjourn.—[Mr. John M. Taylor.]11.13 pm
§ Mr. Elliot Morley (Glanford and Scunthorpe)
I am grateful for the opportunity to raise several issues in tonight's Adjournment debate, in particular an issue relating to one of my constituents, Mrs. Maclntyre.
For over 20 years, Mrs. Maclntyre has been suffering from what was diagnosed as a psychiatric problem. In that period, she twice attempted suicide. It was a difficult and traumatic time for her, her husband and her family. In 1983, Mrs. Maclntyre saw another doctor, who diagnosed her as suffering from a form of thyroid disorder. He prescribed another form of drug, During the same year, however, Mrs. Maclntyre decided to stop taking all the medication that she had been prescribed, and she recovered almost immediately. Since 1983, she has not suffered from the depression that had afflicted her during the previous 20 years.
Mr. and Mrs. Maclntyre have tried to pursue this matter through the courts as a case for compensation because of wrongful diagnosis. The court case took more than five years, and at the end of it, Mrs. Maclntyre had not progressed much further. The independent medical opinion and legal advice that she received concluded that she would be unable to prove her case in the courts. Therefore, she would be unable to receive compensation even though it was recognised by her independent advisers that it was quite likely that, "for an indeterminate period", as one specialist put it, she had been prescribed a drug for which there was no need. It was also suggested that there was a possible case on the grounds that her doctors did not know exactly what she was being treated for, or when the illnesses from which it was claimed she was suffering were resolved. One doctor said that those illnesses had resolved themselves.
Mr. and Mrs. Maclntyre and their barrister believe that it is a remarkable coincidence that all the symptoms from which she was suffering ended when she stopped taking the drugs prescribed. At one time, Mrs. Maclntyre went from becoming obese to becoming extremely thin because of rapid weight gain and loss brought on by her drugs.
Under our present law, the only way in which Mrs. Maclntyre can receive compensation is to prove that there was negligence on the part of the doctors who treated her, in particular Dr. Harding-Price, who diagnosed the thyroid problem and who specified the prescription of certain drugs. It is most unlikely that such negligence could be proved in court, so a stalemate has been reached because Mrs. Maclntyre can no longer receive legal aid after five years and therefore the case cannot proceed.
That lady has suffered an injustice, but there is no further way in which she can pursue her case or claim. Some countries, such as Sweden and New Zealand, have a fund that would resolve that problem, known as a no-fault compensation fund. The idea is that people who can prove that they are victims of wrongful diagnosis, wrongful medical treatment or treatment that accidentally went wrong, can apply to the fund and receive compensation on a fixed scale depending upon the amount of inconvenience suffered or damage caused.
886 There are many advantages attached to such a scheme. For example, it cuts the lengthy time that people must spend attempting to receive compensation. Mrs. Maclntyre is not alone in having to go through lengthy, drawn-out legal battles. Those battles are extremely expensive because of lawyers' fees. The fund also removes the confrontational nature of such claims, in which where the victim must prove the criminal negligence of the doctor who may have treated him. We need a system under which people can receive compensation quickly and efficiently.
That scheme could also apply to the case of another constituent of mine, a district nurse. That lady was injured when she restrained a patient who was having a fit. That patient cannot, of course, be held responsible for the injuries she suffered. She will receive the minimum compensation, and sick and invalidity benefits as laid down by the state, but she will not receive the compensation to which she believes she is entitled, a belief I wholeheartedly endorse.
If we had a system of no-fault compensation, this lady could also apply to the fund, and because she would only have to demonstrate the injuries that she had received, she could get compensation without going through lengthy court proceedings and without proving who was directly responsible.
The Swedish system is confined to cases of medical negligence. The New Zealand system goes further and includes compensation for the victims of road traffic accidents, for example. I ask the Minister to consider such issues carefully. Many victims of road accidents—and sometimes of hit-and-run accidents for which it has not been possible to find the culprits—have found that it has taken years to settle their claims for compensation. Their cases have been dragged through the courts at great expense and with great delay, and in the end the only ones to suffer have been the victims themselves.
It would be to the advantage not only of individuals but of the insurance companies to co-operate with the Government in finding the money for such a scheme. I do not pretend that it would be cheap, but there are advantages in cutting down the legal fees that result from going through solicitors.
I understand that part of the problem in cases of medical compensation, such as that of Mrs. Maclntyre, is that there are only about 50 or 60 firms of solicitors in the country with the detailed experience to pursue such claims through the courts. That has caused some people to have great difficulty in pursuing their cases through the courts —they have argued that they got far less compensation than they were entitled to because of their solicitors' inexperience.
One such case is that of a gentleman who suffered brain damage in a hospital because the respirator was blocked. He was advised to accept a £2,000 settlement, but his family pursued the matter through the courts and received an award of £490,000 after many years of expense and much suffering.
I put these points to the Minister in a positive way because I am trying to be helpful. Mrs. Maclntyre's problem is that there is no solution to her case under our law. There is no way in which she can take her case further, even though there is considerable evidence that she and her family suffered a great deal for 20 years. With a no-fault compensation fund, she could receive some compensation for her suffering without going through lengthy legal proceedings, and many thousands like her could get 887 compensation without pointing the finger at individual doctors and holding them responsible for what may have been genuine accidents.
As I said, perhaps the fund could be extended to cover many other groups. It would work more efficiently; it would deal with deserving cases more quickly; and in the long run it would be a much more civilised way of dealing with tragic cases.
§ The Solicitor-General (Sir Nicholas Lyell)
First, I congratulate the hon. Member for Glanford and Scunthorpe (Mr. Morley) on raising once again, in the form of the cases of the constituents that he mentioned, part of the subject which was so carefully addressed more than 10 years ago in the Pearson report.
On behalf of his constituent, Mrs. Maclntyre, the hon. Gentleman told a tale of frustration based on a perceived and no doubt much-felt injury or suffering for which no fault can be established against any individual, and for which a no-fault scheme of compensation is seen by some people, and urged by the hon. Gentleman, as a possible answer.
It is believed by the hon. Gentleman and others that a scheme such as applies in Sweden or New Zealand might serve his constituents and other people in this country better than our present system, but it is not entirely clear that it would do so, as I shall explain in some detail. It may help to explain the current state of the law in this field and to look back at the Pearson report and what it recommended, and to look forward—this will be helpful to the hon. Gentleman's constituents and the nation at large —to some of the recommendations of the civil justice review which reported last year and is likely to be implemented in the comparatively near future.
I should tell the House first that the Pearson commission drew attention to a number of popular misconceptions about the concept of no-fault schemes. It commented that it had found a widespread ignorance of the fact that in this country we already have a considerable element of no-fault provision and that there has been no-fault provision on quite a considerable scale since the Workmen's Compensation Act 1897.
A person who has been injured may look immediately to the medical benefits provided by the National Health Service, whether medical care is needed in the short term only or for an extended period. If the injury is sufficiently serious to prevent an immediate return to normal life, a large range of benfits and services may be available to him or her, including social security allowances and benefits such as mobility and attendance allowances, industrial disablement benefit for people injured at work, severe disablement allowance for disabled people who are unable to work, as well as invalidity benefit for sick people unable to work and local authority social service provision of a number of kinds.
However, I wish to turn specifically, as did the hon. Gentleman, to the question of medical accident and injuries that have been sustained, or are perceived to have been sustained, in the course of an illness or the medical treatment that accompanied that illness. The Pearson commission carefully considered the case for alternative methods of compensating those who suffer medical accidents. Two of its recommendations were to the effect that, with one exception, the basis of liability in tort for 888 medical injuries should continue to be negligence and that a no-fault scheme for medical accidents should not be introduced. The report also said that the progress of the two different no-fault schemes in operation in Sweden and New Zealand, to which the hon. Gentleman referred, should also be studied and assessed.
These issues have been kept under review, as have the overseas schemes. It is notable that, at the time of the Pearson report, the view of the medical profession, as expressed by the British Medical Association, was firmly opposed to a no-fault scheme, on the grounds that such a scheme might undermine the independence of the profession, particularly by obliging doctors and surgeons to defer to their employers, the health authorities.
However, there has been some shift in the view of the profession since then and it may therefore first be helpful to summarise the arguments considered by the Pearson commission when it decided not to recommend the introduction of a no-fault system for medical accidents.
The commission looked first at the cost of a no-fault system. The costs involved are inherently difficult to assess precisely, but, if the scale of the compensation envisaged were to be anything like that applicable when negligence is established under our present scheme, the costs would undoubtedly be higher.
The commission considered that the second main difficulty in the way of the scheme was how to establish causation—this is highly relevant to the case of Mrs. Maclntyre which has been raised by the hon. Gentleman—because it is by no means always possible to identify the cause of an injury. There will frequently be difficulty in distinguishing medical accident from either the natural progress of a disease or from a possible side effect of treatment. A no-fault scheme might seem to effect an improvement by achieving equal treatment of all parties suffering injury as a result of accident, but, in a significant number of cases, it would be seen to operate no less unfairly than a fault-based scheme in making a new distinction between accident cases and natural progression cases.
One of the features of the Swedish experience seemed to call for a precise definition of what is meant by medical accident. Lawyers among us will remember the great degree of attention which was given under the Workmen's Compensation Acts to the meaning ofin the course of employment.It is that sort of question, when related to medical accidents, which necessarily has to be asked unless we are to introduce a scheme which compensates everyone for any degree of suffering howsoever caused, and no one has proposed that.
The Pearson commission noted in its review of foreign practice that the Swedish experience at that time was that one claim failed for every two that succeeded. High cost has always been an important factor in the operation of the New Zealand no-fault accident compensation scheme. The scheme, which came into existence in 1974, provides rehabilitation and income-related benefits. These are financed largely by levies on employers, the self-employed and the owners of motor cars, for disabilities resulting from accidents. The scheme is not limited to medical injuries and covers all accidents. However, the New Zealand Law Commission has recently referred tounexpected and considerable increases in costs in real terms.889 The New Zealand scheme applies only to disabilities that are the result of accidents, and the very definition of that term appears to have caused frequent litigation on its application in certain cases. Disabilities caused by accident in New Zealand in the course of medical, surgical and dental procedures are expressly included within the definition of personal injury by accident, but compensation is generally refused when the disability results from the known risks of the medical procedure in question. To many patients, however, such disabilities must seem to be no less the product of an accident.
The Swedish scheme is a voluntary one that is operated by a consortium of health companies under an agreement with the health care authorities and health professions, which pay the premiums. The scheme does not compensate for injuries that are the normal outcome of a disease. There is no compensation for injuries that are unavoidable complications of treatment selected for proper medical reasons, unless it can be shown that the patient could have been treated effectively in another way. It is notable that the average level of awards under the scheme is just over £2,000.
I am sorry that I must present a somewhat depressing catalogue of comments on the Swedish and New Zealand schemes. They have been carefully studied, and we shall continue to study them. I am not sure that they offer as much practical satisfaction to those who find themselves in the categories which have been outlined by the hon. Member for Glanford and Scunthorpe as might first have been thought.
§ Sir Michael McNair-Wilson (Newbury)
My hon. and learned Friend may remember that, on 17 December 1987, my right hon. and learned Friend the Attorney-General answered a debate which I initiated on the Pearson commission's report. My right hon. and learned Friend suggested that a working party might be set up, consisting of members of the British Medical Association and the Department of Health and Social Security, as it then was, to consider another form of compensation scheme. Has any progress been made with the working party?
§ The Solicitor-General
I do not think that I can answer my hon. Friend's question. I am sorry that I am not immediately aware of the answer, though I did re-read my right hon. and learned Friend's answer to the debate which was initiated by my hon. Friend, as my hon. Friend has been a leading proponent of further study of these matters. I undertake to ascertain what the position is and to write to him.
I hope that what I go on to say provides slightly more hope in respect of dealing with the final matters dealt with by the hon. Member for Glanford and Scunthorpe, which were the difficulties of carrying forward litigation.
The principal criticism of the tort-based system in this country has been the delay, cost and complexity of civil proceedings. I know something about medical negligence cases, because I used to act in them. There have been many 890 real improvements in many respects over the past 10 years, but we believe that we could go further. In early 1985, the civil justice review was set up to improve the machinery of justice in England and Wales by means of reforming jurisdiction procedure in court administration and in particular to reduce delay, cost and complexity. The review body's report was published in the summer and it contained many recommendations offering the possibility of improvements throughout civil justice for the benefit of all litigants. Some of the recommendations relate exclusively to personal injury claims. The report has been put out to consultation and has received urgent consideration in Government Departments, and the Government have given the proposals a high priority.
Several procedural reforms are recommended in the report as a means of reducing delay. In particular, the review recommends a new system of court control of case progress which would impose time limits on litigants and their solicitors from the stage at which an action becomes defended. Measures would also be taken to cut down delay before proceedings are commenced. For cases going to full trial, the review recommends further steps to speed up the hearing; compulsory pre-trial exchange of witness statements; and greater reliance on written rather than oral evidence, with an opportunity for the judge to read relevant material before the trial.
Further proposals designed to reduce delays, specifically in personal injury cases generally, include early release of accident reports by police and of medical reports by hospitals. As a means of making progress in protracted cases, it is recommended that the court should have power of its own motion to order a split trial in which the issue of liability is tried separately and in advance of the issue of damages.
The review recommends that smaller personal injury cases—up to £1,000—should be referred to arbitration by a county court registrar under the simplified small claims procedure. That would cut out legal costs in such cases and ensure that they were speedily disposed of.
Among the further recommendations of the review body was a recommendation relating to further exploration of no-fault compensation possibilities in a specific context which is different from that referred to by the hon. Member for Glanford and Scunthorpe and by my hon. Friend the Member for Newbury (Sir M. McNair-Wilson), but it may nevertheless be of interest. It proposed that further consideration should be given by my right hon. and noble Friend the Lord Chancellor in consultation with the insurance industry to the feasibility of a no-fault scheme for less serious road accidents funded by private insurance. The review recognised a number of advantages of setting up such a scheme which would reduce pressure on the court system.
The Lord Chancellor is carefully considering that and other aspects of the civil justice review report and expects to make an announcement soon. Although he cannot give a precise date, he hopes to do so early in the new year.
§ Question put and agreed to.
§ Adjourned accordingly at twenty-two minutes to Twelve o'clock.