HC Deb 15 October 1990 vol 177 cc1029-36

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

10 pm

Mr. John Marshall (Hendon, South)

I cannot promise to be as brief as my hon. Friend the Member for Stafford (Mr. Cash). I should like to thank Mr. Speaker for exercising his discretion so that that we can have a wide debate rather than a narrow one this evening.

As the House will be aware, we have had a number of Adjournment debates on the vexed subject of compensation for those haemophiliacs who have contracted the AIDS virus. The House may ask why we are having yet another. There are two reasons. First, as my hon. Friend the Member for Staffordshire, South (Mr. Cormack) has said, this problem will not go away. Secondly, developments during the summer recess have underlined the need for yet another debate.

I should like to remind my right hon. and learned Friend the Secretary of State and my hon. Friend the Minister who is to reply to the debate of the words of Boswell in 1773: A lawyer has no business with the justice or injustice of the cause he undertakes. The justice or injustice of the cause is to be decided by the judge. Certainly Mr. Justice Ognall has expressed his views clearly as to what should happen in this case. I believe that my right hon. and learned Friend should look once again at the judge's recommendation in that case.

I should like to remind the House of the sequence of events that have led to this problem. In 1974, the Medical Research Council, concerned at the possible spread of hepatitis from infected blood recommended that the United Kingdom should become self-sufficient in blood products. In 1975, the right hon. Member for Plymouth, Devonport (Dr. Owen), as Minister for Health, promised that we would become self-sufficient in two to three years. It is a chilling indictment of what happened in the 1970s that, if that promise had been met, some of the 1,200 individuals who became infected with the HIV virus would not have been infected. Individuals who have died might otherwise have lived.

If we look at the history of the warnings given, we learn that the first death of a haemophiliac infected by AIDS took place in Florida in January 1982. In July 1982, Dr. Bruce Evatt, the director of disease control in Atlanta, published his first warning. In 1983, there was a further warning in The Lancet. In April 1985, national health service heat-treated factor 8 became available, 10 years after the pledge given by the right hon. Member for Devonport.

The result of all that was a human tragedy. Some 1,215 haemophiliacs—one in four—became infected with the HIV virus; 210 have developed full-blown AIDS, of whom 150 have died. One of the greatest tragedies of all is that two dozen wives and girl friends have been infected by individuals who did not know that they had the HIV virus.

Those statistics cannot convey one iota of the depth of the human problems involved. It is a great irony that factor 8, which was designed to improve the quality of life for haemophiliacs, has granted many a suspended sentence of death. Many haemophiliacs have battled to overcome the consequences and difficulties of their illness. Some hon. Members will have seen that, only three weeks ago, Dr. John Herdman, a relative of one of my constituents, with a PhD in physics, was snatched away at the tender age of 28. No one could fail to be moved by the description in The Sunday Times stating that three years ago he was an active young man who went swimming every day. Now, because of the medical difficulties, he has died, and we have lost a brilliant life.

When I was a university lecturer, one of my most brilliant students was a haemophiliac. Throughout the course, he could not attend one lecture because he lived in Dunoon and could not make the boat and train journey to Glasgow. Despite the fact that he did not attend one lecture and had only two tutorials a term, he came second out of 200. That said a lot for his determination; and it may also have said a little about the quality of the lectures he did not attend and something about the impact of the distractions of the students union on academic performance.

We are faced with the problem of a man seeing his brother die and not being able to say, "There but for the grace of God go I," but knowing that his brother's physical suffering is a dress rehearsal for his own illness and death in perhaps weeks, perhaps months. We face the problem of a widow who is dependent on her sons for financial support, knows that they are both HIV-positive and realises that she will have to attend both their funerals and her financial support will disappear.

It involves the problems of a sister—haemophilia is one of the strange, unique diseases carried by ladies but directly affecting only men—who sees her brother suffer and says, as one has said, that she is witnessing the destruction of all the men of her generation in her family. Haemophiliacs must attend the funerals of victims, not knowing whose funeral will be next. We all attend family funerals, but for some haemophiliacs, doing so has become a way of life, if one can talk about a way of life under such circumstances.

AIDS is a particularly vicious disease, and the physical pain is only part of the problem. The difficulty facing its victims is not merely physical because, in the public mind, AIDS is associated with sexual promiscuity and drug addiction. It is a disease whose mysteries are clouded in prejudice throughout society; that has compounded the problems facing its blameless victims.

Even in Britain, famed as a tolerant and fair-minded society, the very word AIDS is likely to generate prejudice in at least some minds. That has compounded the problems of the father who says that he cannot accept that his son has died of AIDS. It has compounded the problem of the victim who, having told his employer that he has AIDS, loses his job. It has compounded the problem because the friendships enjoyed by the victims have all too often turned out to be skin deep. When people mention that they have AIDS, their friends tend to move away rather than come closer, as they should do.

The victims of the disease do not seek compensation for themselves but for their families. The problem was summed up for me in a few short sentences: "The victim has had to give up work. He knows that he is dying. He only wants peace of mind. He wants to know that his family will be all right." What the victims seek is to die with dignity, secure in the knowledge that their relatives will be cared for and their wives and children will not face a lifetime of penury and penny pinching. Perhaps they want that last family holiday together.

Physical hardship can be alleviated by medicine, but peace of mind cannot be guaranteed by someone's saying, "Let us have a court case to be determined next March, April or June." If we wait for a court case to be determined then, a number of the victims will not be around to see the verdict. Posthumous justice will not grant them peace of mind; it may help their relatives, but it will not help them.

The full majesty of the law is clearly suitable for the vast majority of cases, but I do not believe that it is always a happy vehicle for cases in which speed is of the essence. I do not think that we are in a happy position when litigants are legally aided and the defendant—the Crown—is also relying on the taxpayer to pay the costs. A certain amount of public money will be spent, and it will not bring the law into good repute. I ask my right hon. and learned Friend to examine the matter again.

In 1964, my right hon. and learned Friend and I fought our first general election. The slogan under which we fought was "Prosperity with a Purpose". The reason why Lord Home chose that as a slogan was that he was not following a course of sheer naked materialism, but rather underlining the simple, basic fact that he sought to create greater prosperity—not as an end in itself, but as a means to a far nobler end: the relief of hardship in our society.

There is no conflict between a belief in the social market economy and a social conscience; indeed, only if we have a social market economy can we afford a social conscience. I believe that the challenge to the Secretary of State is a simple one, and I appeal to him as a practical man to come to the House and re-examine the issue.

We are told that it would create a precedent if we paid compensation on a larger scale to the haemophiliacs tomorrow or next week; but are we really being asked to say that, if a further example of this were to hit us, no compensation would be paid? Would we say to another group in our society that they must go to the law? Of course not. I do not believe that the collective conscience of the nation would allow any future Government to walk down the other side of the road like a Pharisee.

Clearly the Secretary of State has been advised that he can satisfy the courts of the land, but I ask him to consider making a short statement to the House. I suggest that the statement should read as follows. He should say that this is an inherited problem, caused by decisions made long before he became Secretary of State or before the Government were returned in 1979; that, as Secretary of State, he cannot be held responsible for decisions made in 1976 and 1977. He should say that the Government provided the resources to permit the heat treatment of blood products so that a similar disaster would never befall the nation. However, I would also like him to say that he will reconsider his decision—reiterated today—about the wisdom of fighting the case through the courts.

I would also like the Secretary of State to show a willingness to enter into discussions with representatives of the Haemophilia Society. The chairman of that society is a constituent of mine who is a respected vicar, and I believe that any agreement that he reached would be honoured by the vast bulk of his members.

Finally, I should like the Secretary of State to say whether he is willing to reconsider whether £20,000 should be the limit for individual compensation. Is that an adequate figure to compensate for the physical difficulties, the emotional traumas, the financial suffering and the loss of life involvd in this case? I fear that if there is no early solution to this problem many people will raise the issue time and time again. The last time I spoke in an Adjournment debate the only Members present were waiting for a lift to Hampstead; the fact that there are several hon. Members here tonight shows that there is disquiet, and I hope that the Minister—

Mr. Tam Dalyell (Linlithgow)

Hear, hear.

Sir Geoffrey Johnson Smith (Wealden)

My hon. Friend will be aware that many hon. Members who are not here tonight warmly support what he has said and want further action from the Government.

Mr. Marshall

I thank my hon. Friend for that short, pertinent and welcome observation, and I thank the hon. Member—I shall not be so indiscreet as to mention his name—who said, "Hear, hear," from a sedentary position.

I thank the House for the way in which this debate has been received.

10.15 pm
Mr. Hugo Summerson (Walthamstow)

rose—

Mr. Deputy Speaker (Mr. Harold Walker)

Does the hon. Gentleman have the consent of the hon. Member for Hendon, South (Mr. Marshall) and of the Minister?

Hon. Members

Yes, Sir.

Mr. Summerson

I thank my hon. Friend the Member for Hendon, South (Mr. Marshall) and the Minister for giving me one minute in which to speak.

I cannot understand the Government's obduracy over this matter. I can understand the legal frame of mind that shrinks from anything that implies liability, but the lawyers who fear liability should turn their minds to finding a way that would permit payments without imputing liability. If the will exists, the words will be found.

I have at least one HIV-infected haemophiliac in my constituency. His story wrings the heart. He and the others are suffering grievously through no fault of their own. They need a generous and just sum to enable them to live out the rest of their lives in some comfort and dignity. I should like to add my voice to that of my hon. Friend and appeal to Ministers—including my right hon. and learned Friend the Secretary of State—to take whatever action is necessary to ensure that that comes about.

10.16 pm
The Parliamentary Under-Secretary of State for Health (Mr. Stephen Dorrell)

My hon. Friend the Member for Hendon, South (Mr. Marshall) has used the opportunity of this first Adjournment debate of the autumn term to draw attention to an issue of undoubted public concern. I shall begin by trying to sketch out what I see as the common ground between him, the Haemophilia Society and Ministers. I am struck by the extent of the common ground between us on this subject.

First, it is clearly common ground that this story represents a terrible human tragedy, made more poignant by the fact that its cause was that people came to the NHS to receive treatment intended to enhance their lives and it ended up shortening them. There is sometimes a tendency for Ministers to reply to debates of this sort by citing statistics and legalistic arguments, and I shall have something to say about the Government's legal position in a few moments, but I begin by reminding the House of the facts.

We are talking about 1,200 men and women who sought care from the NHS and received a lethal dose. We are talking about people who relied on the expertise of health professionals and—although they could not have known this at the time—found it wanting. We are talking about 1,200 families of people who were already sick and who looked to the NHS for hope and found it cruelly snuffed out.

Of course my right hon. and learned Friend the Secretary of State and I feel a profound sympathy for the people caught up in this tragedy. He and I want to help, and of course we both feel these basic human emotions. However, those emotions do not add up to a policy.

As I have discovered in the last six months, it is part of the lot of a Health Minister to witness a wide variety of human devastation. If my hon. Friend the Member for Hendon, South doubts that, I invite him to come with me on some of my visits to national health service installations, where I see people whose lives have been permanently scarred by spinal injuries or mental handicap that may have been caused at the moment of birth. A visit to the patients in any children's hospital is also enlightening. One learns quickly that a Health Minister cannot right all wrongs, because that object is not achievable. All that we can do is to offer the best health care within the resources that are available.

My hon. Friend asked us to look again at the judge's statement on which he placed some weight. Much of what Mr. Justice Ognall said in that statement gives rise to no disagreement from the Government. He said: The plight of the plaintiffs—or many of them—is a special one: (a) All of them suffer from or live in the shadow of a fatal condition for which there is presently no known cure. That is obviously true. The judge said: Many have already died, and in the nature of things many more will die without knowing the outcome of this litigation. It seems to me, at least, that this factor should be treated as cardinally important. As I shall show, the Government have already acted on that understanding. The judge said:

It is common ground that all plaintiffs are entirely blameless … I believe that the legal profession has a duty to do its best to see that the legal system does not become a scapegoat in the eyes of the public for what I fear may be perceived as the unjust and inhumane denial of any significant measure of compensation to the plaintiffs. 'The law must take its course' is not an attractive principle in the context of this case. I agree with all those quotations. The judge's argument is based on the proposition that the Government have a moral obligation to the victims in this case. The Government accept that moral obligation and that is why funds have been made available, first in 1987 and again last year, to the Macfarlane Trust. Those funds were made available well ahead of this litigation and made possible a minimum payment of £20,000 to each person affected and assistance to families in need. We gave an undertaking, repeated many times, that the Government will review that assistance to ensure that it is adequate to meet the case. The total already amounts to £34 million.

Mr. John Marshall

Will my hon. Friend give way?

Mr. Dorrell

Only once.

Mr. Marshall

I know that my hon. Friend will give way only once. Will he underline his statement that the Government are willing to reconsider the amount of assistance? That is very important.

Mr. Dorrell

As I have already said, the Government have repeatedly said that they will keep under constant review the payments made to the Macfarlane Trust and the fund attached to it to ensure that they match the case. Our track record demonstrates that in practice we have done that.

The judge argued that there is a moral obligation and, outside the context of their case, the plaintiffs also argue that case. The Government accept that obligation and acted on it well in advance of the litigation, and that reflects the sense of urgency that has been argued in support of the case. Once again, that argument gives rise to no disagreement. The disagreement between the parties is not over the principle of moral obligation, because all are agreed on that. Apart from the court case, the disagreement is over the level of compensation that will discharge the moral obligation.

We must acknowledge that here we are in difficult country and that legal practice simply does not help. The courts can help us with the amount of compensation that is payable in cases where a person is proved to have been negligent. In this case, the Government and all the defendants in the action deny negligence and we are left with the question about the level of compensation that will discharge the moral obligation.

That raises the more fundamental question—and one that is not capable of being settled by a law court: What is the value of life? The court asks not that question, but what is the amount of compensation necessary to put a plaintiff in the position in which he would have been before the damage caused by negligence. That is not the question in this case and it is not relevant when considering a moral obligation. The only disagreement is the level of payments necessary to discharge that moral obligation—a matter that, in the nature of things, can be only a matter of judgment.

My hon. Friend the Member for Hendon, South referred to the thalidomide case. That was a different case, because the payments were made in settlement of a negligence action. They were explicitly and closely linked to the scale of damages payable where negligence is proved. That would not be right in this case, because it is the defendant's view that there was no negligence. Against that background, it would be wrong to link payments made in discharge of a moral obligation to payments that would have been made in the event of a successful negligence action.

It is also argued that there should be no-fault compensation. People say, "Why inquire about fault? There is an injured party, so why not just pay damages?" That raises two points. First, even those who support the principle of no-fault compensation do not support the suggestion that, in the event of compensation being paid in cases where no fault is proved, that compensation should reflect the damages that would have been paid if negligence were proved. No one has argued that that would be the proper quantum for damages. Secondly, the whole issue of no-fault compensation was extensively examined by a royal commission—the Pearson committee in 1978—and rejected. Its advice has been accepted by Governments of both parties.

I strongly believe that this is a sad case. The moral obligation exists and has been acknowledged by the Government. The argument is not one of principle against a moral obligation. However, there remains another disagreement, and it is the subject of the action before Mr. Justice Ognall. Some 1,000 victims and their families are suing the Government and other defendants for negligence. They are perfectly entitled to do so, and I make no complaint about it.

It would be unwise to comment on the detail of the action. However, I wish to comment in general terms about why I am in no doubt that the action should be resisted. As I have already stressed, it is based not on a moral responsibility—that is not in dispute—but on alleged negligence by the Department of Health, the national health service and others. That is a quite different proposition. Each case is individual and the Government cannot simply admit negligence where they believe that none exists.

I have studied the background. I am not a lawyer, but as a layman I do not believe that, in common sense, the negligence claim stands up, not least because it has not been shown what more attractive alternative action was available at the time. What more attractive alternative decision would have been sensible on the basis of the evidence then available? When reviewing the papers, time and again I asked myself whether, on the information available at the time, I would have acted differently. Time and again, I could only answer, "No." Ultimately, it is for the court to decide whether there has been a case of negligence. If the individual plaintiffs believe that negligence exists, it is not for a politician to interfere. However, I have seen no evidence of that and therefore I believe that it is right to resist the claim of negligence, while acknowledging the moral obligation—as we do.

I see a sad story of people trying to help and, unwittingly, making matters worse. I see clearly a case in which the Government have tried to discharge—and, indeed, have discharged—a moral obligation to act. I cannot accept that that moral obligation is affected by an independent belief by some victims that they have a claim in negligence.

10.29 pm
Mr. Tam Dalyell (Linlithgow)

It is 12 long years since the Pearson commission reached its conclusions and thinking has moved on since then. A great many hon. Members, some of whom could not be here tonight, support the hon. Member for Hendon, South (Mr. Marshall)—

The motion having been made after Ten o'clock and the debate having continued for half an hour, MR. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at half-past Ten o'clock.