§ Motion made and Question proposed, that this house do now adjourn.—[Mr. Goodlad.]
§ 11.4 pm
§ Mr. Alan Meale (Mansfield)
I am extremely grateful for the opportunity to bring this case to the attention of the house. A grave miscarriage of justice has led to horrific circumstances and insecurity for one of my constituents—Mrs. Molly Davidson of 5 Enderby crescent, Mansfield. Her husband Ronald died of an asbestos-related disease, contracted through his employment in the mining industry. His widow has been denied justice because of a wrong decision by a medical appeals tribunal.
The background of the case is as follows. My constituent's deceased husband, Ronald Davidson, was 58 years old when he died at 4.40 am on 23 July 1987 in a hospital in Mansfield, Nottinghamshire. He had worked in the mining industry locally straight from school and had continuous employment with British coal for 43 years, working as an electrical engineer at crown farm colliery, Mansfield, until being made redundant in 1986. His death, when it came, was not prolonged and was totally unexpected by his family because of its suddenness. It occurred after a short but debilitating illness lasting less than four months.
Before his illness, Mr. Davidson had always been a comparatively fit man, particularly for someone who had worked underground in the mining industry for so long. He was an active man who fully enjoyed a healthy family life—a factor which many friends and relatives have confirmed to me.
The house should be made aware that in respect of this case and the subsequent support claims by Mr. Davidson's widow for compensation and benefit, a number of delays and mistakes have occurred. Considerable delays took place in the processing of the claim. My constituent experienced delays at the start of the process when, after making a claim for industrial death benefit, on advice from various knowledgeable sources, she made a posthumous claim for disablement benefit which required her to act on her late husband's behalf. The Minister is aware that the local office did not ask Mrs. Davidson to do this until 9 September 1987.
After the form was completed, it was referred to the Sheffield medical board centre for respiratory diseases for certification of death and level of suffering caused, and here again delays ensued. The board sought a consultant pathologist's opinion and it took from October 1987 until January 1988. More delays transpired because the adjudication officer in charge had not been asked to give a decision on the claim for death benefit. An answer to the decision was not given to my constituent until April 1988. It arrived then only because of the swift action of the Minister whom I contacted to intervene on behalf of my constituent, and I am extremely grateful for that.
Even so, this means that Mr. Davidson's widow—my constituent—had to wait from July until April of the following year to be told of the decision. That is extremely unacceptable in the circumstances.
§ Mr. Don Dixon (Jarrow)
I am grateful to my hon. Friend. I am dealing with the case of a chap who used to work with me in the shipyards and who died of asbestosis. When he died, the inquest found that his death was caused 133 by asbestosis. His widow took a common law case against the firms for which he had worked. As a result of the case taking so long and the traumatic effect of her husband's death, his widow died before the claim was settled. The widow's son got in touch with me after being told by solicitors acting on the family's behalf that because the man's dependant—his widow—had died, the eventual damages would be lower.
I mention this case because my hon. Friend made the point about the length of time some cases take. It is unfortunate that firms which are negligent in protecting their workers, and whose employees contract asbestosis, should get away with this primarily because of the length of time that it takes to settle a claim, and the fact that the dependant dies. I am dealing with such a case and I understand my hon. Friend's concern about the length of time that such cases can take.
§ Mr. Meale
I am extremely grateful to my hon. Friend. He has my sympathy for the case in his constituency.
Next, I want to raise the decision of the panel that dealt with the case. I found it inaccurate and disturbing, putting into question the sacrosanct nature of post mortem results and coroners' inquest decisions. Ronald Davidson died on 23 July 1987. He was first admitted to hospital in Mansfield on 6 April 1987 because of shortness of breath, a symptom of a few weeks' duration, and a pain in the right side of the chest. Later, in June, he was admitted to the city hospital, examined and found to have a malignant tumour. Soon after being discharged from hospital, he fell at home and was taken to hospital, where he had an operation for a fracture found to have been caused by a tumour deposit in the bone, spread there by the bloodstream. Following the operation, he continued to deteriorate and he died on 23 July.
The post mortem examination subsequently carried out showed what the pathologist consultant, a Mr. P. J. Stocks, considered to be compatible with a malignant tumour of mesothelioma, an asbestos-related cancer. A microscopic examination was also carried out, and it confirmed this diagnosis.
However, on hearing the result of the board's deliberations on this case, and being disturbed by its outcome, my constituent's representative, a Mr. Baker, again contacted the consultant pathologist who had carried out the autopsy, to ask again about his diagnosis of mesothelioma. The consultant's reply, in summary, Stated that his impression was that the illness was indeed the cause of death. He arrived at that impression from information that he had been given that Mr. Davidson had a history of exposure to asbestos at work, a factor subsequently confirmed to him by reports compiled since the person's death.
The report gathered on Mr. Davidson at his workplace showed conclusively that—contrary to Statements made in the examination held by the board and in paragraph 7 of the Secretary of State's own observations, completed on 17 march 1988:The late Mr. Davidson's exposure to asbestos was minimal and sporadic and occurred while working as a chargehand electrical engineer at Mansfield colliery over a period of some 43 years"—this is a gross underestimation of his exposure to the deadly substance.
For instance, the report shows that he regularly came into contact with asbestos while at work—
§ Mr. Frank Haynes (Ashfield)
This is similar to many cases in the mining industry. The local consultant makes a decision about asbestosis or pneumoconiosis and then the panel in Sheffield seems to be a law unto itself. The law must be changed; when post mortems are carried out on these people and their lungs are inspected, they are found to be 60 or 70 per cent. Gone. These people suffer, while the panel makes the wrong decisions. The cause of illness is established only after people die. We must do something about the many people who suffer from this sort of problem.
§ Mr. Meale
My hon. Friend is right. Inquiries into incidents at work involving asbestos show how grossly underestimated the problem was in this case. First, between 1946 and 1951 my constituent worked in an area heavily contaminated with asbestos at Mansfield colliery, during the installation of new electrical winding equipment. Secondly, during 1951 and 1953, my constituent was involved in work connected with the removal of old steam winding and turbine generator gear at the same colliery, including work in confined spaces while substantial amounts of asbestos lagging was removed from the site. Thirdly, he was regularly involved in the removal and installation of cables inducts which also housed pipes insulated with asbestos.
Fourthly, as an electrical engineer, Mr. Davidson carried out regular maintenance on machinery, checking brake interlock switches, etc. Many haulage and conveyer brakes and clutches have asbestos-based linings that deposit dust on mechanisms, around which my constituent worked. Fifthly, again in his employment he regularly jointed electrical cable, some of which was of the double wire, armoured-cable type that was packed with asbestos string wool. Undoubtedly he regularly handled that substance. Sixthly, he would have been exposed regularly to asbestos fibres when handling asbestos seals and insulation on electrical heaters, resisters and electric fires. Seventhly, he was exposed before his redundancy to asbestos fibres when carrying out maintenance on arc chutes used on electrical switchgear at the colliery in which he worked.
Finally, as a miner Mr. Davidson would have used the pithead baths every day of his working life, which were insulated with asbestos-based materials. That may have caused contamination on many occasions, due to the replacement of pipes and electrics with which my constituent may have been involved, and/or their insulation.
As these factors have not, I believe, been fully taken into account, I appeal to the Minister to ask the tribunal to look again at this case or to allow it to go before the commissioner. My reason for such a request is explained by the clear scientific evidence that a single fibre of asbestos can cause cancers and asbestosis more than 20 or 30 years after being inhaled. Further, it is known that the deadly asbestos-related disease, mesothelioma, which affected my constituent can develop more than six years after exposure.
So dangerous is the substance that professor Irving Selikoff of mount Sinai medical centre in New York, acknowledged to be the world's leading asbestos expert, said recently:just one day's exposure to asbestos could lead to cancer and asbestosis.He also warned that it is so poisonous a substance that 135 clothing contaminated at work can similarly put the home, and anyone who lives within it, at risk and in extreme danger.
Another reason for my disquiet in this case concerns the medical diagnosis of the consultant who was engaged by the board to review the case. To say the least, he seems to have approached his task on a "prove it isn't" basis. Since he was employed by the board, he seems to have adopted a doubting attitude from an early stage towards the findings of the local hospital, the post mortem and the inquest findings. In his letter of 4 November 1987, which I have in my possession, to dr. Rahman of the medical board in Sheffield, he Stated:I have noted that there is a malignant tumour involving the pleura and peripheral lung tissue. I am not absolutely certain that it is a mesothelioma, as in some areas it could be a peripheral adenocarcinoma. Before coming to a final conclusion, I think that it is important to examine sections of the tumour stained by Diatase PSA method. As you have commented in your letter, this stain had not been carried out. The block of tumour which you mentioned in your letter was not, in fact, included in your parcel. Could I therefore ask you to send me several paraffin embedded blocks of the tumour, so that I may carry out the stain.What he seems to be saying is, "I'm not sure about the findings of the family doctor, hospital, pathologist and coroner but need to have more time to experiment and test another theory I've got."
What I want to know from the Minister is whether we are after the truth or the theory of an individual. If it is the latter, I think that the structure is wrong, especially as no mention has ever been made in the findings of whether the diagnosis is absolute, or even whether it would be possible for both mesothelioma and adenocarcinoma to be present at the same time. I have been informed by experts that that is possible.
Either way, the outcome of the decision is that opinions differ. Therefore, I ask again whether the Minister is willing to take another look at the case, particularly as opinion is divided and inconclusive. A third independent opinion should be sought. If not, the whole basis of pathologists' reports and coroners' decisions at inquests hangs in the balance.
Finally, a widow in my constituency who has lost her husband has been told by the family doctor that he believes that asbestos was the cause, a fact that was substantiated by a pathologist at an autopsy after a vigorous examination and by a coroner at an inquest. The cause of death on the death certificate was Stated to be malignant mesothelioma.
I beg, urge and appeal to the Minister to use her influence to sort the matter out. She may wish to know that provision is open to her as a Minister in a number of ways. One way is to adopt the method advised in the department of social security's guide on reviews and appeals, which States:A decision made by an mat can be set aside if it appears to the tribunal just to do so,…on the grounds that it is in the interests of justice".
I believe that, taking into account all the unnecessary delays, mistakes and contradictory views in this case, the Minister can, using her special authority, ensure that justice can prevail for this poor widow, who has already suffered for long enough.
§ The Parliamentary Under-Secretary of State for Social Security (Mrs. Gillian Shephard)
I congratulate the hon. Member for Mansfield (Mr. Meale) on raising this important matter in an adjournment debate and I also thank his hon. Friends for their contribution.
I am grateful to have the opportunity to give the background to social security procedure in this area, and to explain the details of Mr. Davidson's case. I am also glad to have the chance to express my sympathy to Mrs. Davidson and her family, particularly because of the delayed and distressing circumstances that have surrounded consideration of the case.
I should like first to explain the general procedures as they applied in 1987 for claims where the cause of death was thought to be one of the prescribed respiratory diseases. With the exception of matters relating to adjudication, some of those procedures have changed since the abolition of industrial death benefit for deaths occurring after 10 April 1988.
Claims for industrial death benefit were determined solely by the lay statutory authorities, in the first instance, the adjudication officer. He had to determine whether the deceased had one of the prescribed diseases and if so, whether death was due to the effects of that disease. In reaching a decision, he could seek medical advice from an independent medical authority called the special medical board, which is made up of specially qualified medical practitioners, who have a wide experience in respiratory diseases.
I must stress at this point that the board's advice on cause of death did not constitute a decision but formed one of the pieces of evidence on which the adjudication officer based his decision. To help the special medical board determine the cause of death, it was able to carry out examinations on the thoracic organs of the deceased person, and it also received copies of any coroner's or pathologist's reports following the post mortem.
When notification of a death, thought to be due to a prescribed respiratory disease, is received by the department, action is taken immediately to alert the special medical board so that arrangements can be made for an examination of the thoracic organs. At this stage, there may or may not have been a claim for industrial death benefit. Where no claim was made, but the special medical board considered death was due to a prescribed respiratory disease, the department invited a claim for industrial death benefit and a posthumous claim for industrial disablement benefit.
When a claim for industrial disablement benefit is received, the adjudication officer refers the question of whether the deceased was suffering from a prescribed respiratory disease to the special medical board. That reference, unlike that on a claim for industrial death benefit, is for statutory decision by the board. If a disease is positively diagnosed, the medical adjudicators assess any resulting disablement.
The adjudication officer is bound by the decision of the special medical board, which will gather whatever information it requires and consider any evidence supplied by the claimant before giving its decision. When claims for industrial death benefit and industrial injuries disablement benefit were to be determined at the same time by the adjudication officer, he invariably awaited the statutory 137 decision of the medical authority on industrial injuries disablement benefit before determining industrial death benefit entitlement.
Questions determined by the adjudication officer on whether entitlement to benefit exists and, if so, how much is payable, carry a right of appeal to the social security appeal tribunal. Where the adjudication officer's decision is based on a statutory decision given by the special medical board and its decision causes dissatisfaction, the appeal rights lie with the medical appeal tribunal, which is the final arbiter of the medical aspect of a claim for disablement benefit. There is a further right of appeal to the social security commissioner from decisions of the social security appeal tribunal and the medical appeal tribunal, but only on the ground that the decision given was wrong in law. I shall return to that point because it was specifically raised by the hon. Member for Mansfield.
I shall set out the sequence of events regarding Mrs. Davidson's claims for industrial death benefit and industrial injuries disablement benefit. Before he died, Mr. Davidson was submitting medical certificates to the department of social security, which showed his incapacity as hypertension and coronary artery disease. He was receiving invalidity benefit and mobility allowance at the time of his death.
Sadly, Mr. Davidson died on 23 July 1987. A post mortem examination was carried out and the subsequent post mortem report listed malignant mesothelioma as the cause of death. The Nottingham coroner then issued a death certificate.
Mesothelioma is an asbestos-related disease that can be contracted by the inhalation of asbestos dust. It has a long latent period, so exposure to asbestos may have taken place many years before the disease develops and can be diagnosed.
Mr. Davidson had worked as a chargehand electrical engineer at Mansfield colliery for 43 years, during which time he had been exposed to asbestos. I assure the hon. Gentleman that that was accepted by the adjudicating authorities. In august 1987, following his death, Mrs. Davidson claimed industrial death benefit and industrial injuries disablement benefit. The basis of the claim was that her husband had been in contact with asbestos dust and that death had been certified as due to mesothelioma.
After making inquiries of British coal, the adjudication officer accepted that Mr. Davidson had been employed in a job where he had been exposed to asbestos dust. The diagnosis of diffuse mesothelioma then had to be established.
Mr. Davidson's death was notified to the Sheffield medical boarding centre (respiratory desease) on 26 august 1987, and two doctors from the Sheffield MBC, specially qualified medical practitioners, examined the thoracic organs. They established that a carcinoma of the lung had been diagnosed three months before Mr. Davidson died. The pathologist had diagnosed a pleural mesothelioma after the post mortem. The specially qualified medical practitioners considered that it was advisable to have expert opinion on the nature of the tumour because it is impossible to distinguish between a mesothelioma and adenocarcinoma of the lung—another form of cancer—using the naked eye. Indeed, distinguishing between those two conditions, even using a microscope, may be very difficult.
The board therefore consulted an expert of international repute on the pathology of industrial lung disease. I 138 labour that point for the benefit of the hon. Member for Mansfield, who understandably is anxious about the difference in diagnosis between the two medical opinions. That expert was a consultant pathologist, a professor of forensic medicine and a home office pathologist. After extensive tests, with which I shall deal later and which included the sectioning and staining that the hon. Member mentioned, he concluded that the tumour was an adenocarcinoma and not a mesothelioma.
The special medical board, acting in an advisory capacity, completed its report on 15 January 1988, concluding, on the balance of probabilities, that the cause of death was carcinomatosis, due to an adenocarcinoma in the lung, rather than that the tumour was a mesothelioma.
The same medical board, consisting of the two specially qualified adjudicating medical practitioners who had examined the thoracic organs, then considered the claim for industrial injuries disablement benefit. They considered all the available medical evidence, including the post mortem examination—I stress that that was taken into account—their own findings, the report from the consultant pathologist and the case notes and X-rays from Mansfield general hospital. It is important to make that point. They concluded that the patient had not been suffering from a prescribed disease or from a consequence of a prescribed disease.
An appeal against the decision of the medical board, dated 17 March 1988, was considered by a medical appeal tribunal on 25 January 1989. The hon. Gentleman was right to point out that a long time passed between those two events.
The claimant, Mrs. Davidson, and her son and daughter were present together with a representative of the union of democratic mineworkers. The tribunal was told that Mr. Davidson has worked for 43 years in the coal-mining industry, had been in good health until 1986, had had a clear x-ray in 1985, and that his final illness began just over three months before he died. Post mortem examination confirmed the presence of a malignant tumour of the pleura.
The post mortem report described the appearance of the tumour. Histology showed these to be entirely in keeping with a malignant mesothelioma. Naked-eye examination of thoracic organs usually confirms the presence of a tumour, but the actual nature of the tumour is usually not diagnosable without microscopic examination of representative microscopic sections of lung tissue. That may require special staining or other techniques. Those tests had of course been carried out thoroughly by the special expert, the consultant pathologist.
The tribunal considered all the submissions and examined all the scheduled evidence. It considered that the absence of any asbestos-related changes in the lungs and the chest x-ray in 1985, the absence of pain until the terminal stages and the short time between onset and death favoured the diagnosis of adenocarcinoma made by the consultant pathologist. In its view, it was more probable than not that Mr. Davidson died from adenocarcinoma and not mesothelioma.
The hon. Member for Mansfield has clearly and compassionately expressed the details of this extremely distressing case. I have already said that the distressing nature of the case will have been accentuated by the long period between Mr. Davidson's death and the decision. I have tried to explain how the special medical board came to its conclusions.
139 The hon. Gentleman may like to note that I am unable to alter the decision of the independent statutory authorities, but appeals or reviews may be made in cases such as this. The medical appeal tribunal's decision of 25 January 1989 can be appealed against, to the social security commissioner, on a point of law. The commissioner would have to give his leave to such an appeal, because it would be out of time.
The medical appeal tribunal's decision can also be reviewed at any time by a special medical board under section 110(1) of the social security act 1975 as modified by regulation 67 of the social security adjudication regulations 1986. That avenue of review depends on the statutory medical authority being satisfied by fresh 140 evidence that the tribunal's decision was given in ignorance of a material fact or was based on a mistake as to a material fact, although I should explain that a new opinion on the cause of death would not necessarily constitute "fresh evidence".
I know that the hon. Gentleman will be disappointed by my inability to change the decisions made on Mrs. Davidson's claims for benefit, but I hope that I have explained that they received the correct and fullest consideration by the adjudication authorities. I should like once again to take this opportunity to express my sympathy for Mrs. Davidson and her family and to congratulate the hon. Gentleman on the way in which he has brought this matter to the attention of the House.
§ Question put and agreed to.
§ Adjourned accordingly at twenty-seven minutes to Twelve o'clock.