§ Order for Second Reading read.9.34 am
§ Mrs. Rosie Barnes (Greenwich)
I beg to move, That the Bill be now read a Second time.
I feel privileged to be able to introduce a Bill which will spare thousands of people unnecessary distress, uncertainty and, often, bitterness. My proposals are fair, just and reasonable. As a civilised society, we have a responsibility for each other. In providing the invaluable services of the national health service, we must ensure that the highest standards are observed and that the quality of care is carefully maintained and monitored. It is our national health service and it owes us a duty of care. We should not accept anything less than the best.
We place our trust in doctors in the health service. It is an ethos that has been fostered and encouraged. To shy away from the consequences of medical accidents would be to undermine and to betray that trust. Most people are thankful for and satisfied with the care that they receive from the national health service, but a few have unfortunate or even tragic experiences. The Bill is intended to help that minority.
I used the words "unfortunate or even tragic" with care, because it is important to establish straightaway that I am not proposing compensation for every minor incident, thus creating a system that would soon become bogged down under myriad trivial complaints. I felt that it was right to restrict compensation to those whose lives have been seriously adversely affected by medical accident—not, of course, excluding anyone who is currently eligible for compensation under the present legal system.
The Bill provides that people injured, distressed or subjected to unnecessary pain or suffering during care by the national health service may be awarded compensation. Injury is defined as the result of a mishap in NHS care and not as the foreseeable and reasonable result of that care or of the person's pre-existing condition. The Bill also covers patients who, as a result of injury, die, require hospital treatment for 10 days or more, are prevented from engaging in normal activities for more than 28 days, suffer significant pain, disability, harm, distress or significant loss of amenity, or suffer from a reduction in life expectancy.
I propose a medical injuries compensation board which, with the approval of the Secretary of State, will lay down a code of guidance establishing criteria by which it will determine whether a mishap has occurred during NHS 1224 care. The hurdles are rightly high and include death, lengthy hospitalisation, being unable to work or to pursue one's normal life for a period of a month or more and unnecessary pain and distress, which are, as I said, eligible for compensation under the present system. Amounts offered would take into account the severity and duration of the suffering. If a full recovery is made, the award would reflect that.
Some people receive compensation at present. I know that the Government believe that the current system is reasonable and, with modifications, can be made acceptable. I dispute that wholeheartedly. The current system is a lottery and it is necessary to prove negligence to be awarded compensation. There may be negligence, but proving it can be distressing, costly and time consuming—and quite often impossible. The only witness may be unconscious at the time of the incident, unaware of what is being done and why. Finding out exactly what happened, who made what decision, what might have been done instead and who took what action is often virtually impossible. Even if the patient is not unconscious, he is often far from at his best and most alert; he may be alone, in pain and frightened, and is probably undressed. Those are hardly the best circumstances in which to be impartial and to take careful note of what is going on around one, so that the necessary evidence can subsequently be produced in a court of law.
The miseries involved in proving negligence were graphically described by a woman who discussed her plight in a number of recent television interviews. Her husband died some seven years ago, as a result of what she believed to be negligence following a fairly routine and relatively minor piece of surgery. She was left a young widow, with three children. She took the matter to court, and was eventually awarded £250,000 in compensation —although she made it clear that it was not the money, but a proper investigation and explanation, in which she was interested.
The matter did not end there, however. The health authority chose to appeal and, seven years after her husband's death, the woman discovered that she had lost her £250,000 award; even worse, costs of £150,000 were awarded against her. The only way in which she can meet those costs is by selling her house.
Any civilised society would recognise that what happened to that young woman and her family is a tragedy —and we have made matters not better, but considerably worse. In many ways, the most damning aspect of the incident is what those seven years have done: they have melted into a sea of bitterness and legal wrangles. A speedy and just settlement of the woman's case would perhaps have enabled her to come to terms with her loss and to start to rebuild her life and those of her children; instead, she is embittered and obsessed by the whole experience.
I have noticed that, in the many cases that have been brought to my attention, the misery caused by prolonged and uncertain court proceedings often matches, and in some instances even outweighs, the effect of the original tragedy. A study of claims made against one English district health authority between 1984 and 1987 found that, on average, abandoned-claim cases lasted between one and three years, settled cases two years and defended cases four to seven years. We are talking about years of prolonging the agony.
We should bear it in mind that the worst cases are always settled out of court. Those who say that the current 1225 legal system brings important matters to light, introduces an element of human justice and brings negligence to the forefront of the public's attention are misleading themselves. Only the more controversial cases reach the court; severe cases of reprehensible behaviour and negligence are settled quickly and quietly and we, the public, hear nothing. I dispute the adequacy of the legal system in cases of medical negligence, because the die is loaded so heavily against the patient. Right may not always be done; in fact, I believe that it is rarely done.
Let me go a stage further. My second reason for challenging the legal system is that—apart from the delay and the cost involved in proving negligence where it exists —there will inevitably be genuine accidents in an organisation as large as the national health service. Things go wrong as a result of a variety of decisions made by many people and may culminate in a tragic outcome which is no one person's fault.
The philosophy behind my Bill accepts that a degree of human error and human frailty is inevitable and understandable. We all make mistakes, but most of those mistakes will not adversely affect the rest of someone's life so dramatically. We are asking our doctors and nurses —our medical practitioners—to shoulder that burden and we should recognise it.
I do not intend the Bill to be in any way punitive towards practitioners or staff. In a humane and civilised society, however, we should be prepared to make amends when something goes wrong that is no one's fault, or no fault can be proved, or we do not wish to pin the fault on a respected and trusted practitioner. Let me give an example. Three young brothers are admitted to an emergency and casualty department. The doctor in charge must make immediate decisions. He perceives that two of the young men are critically injured, while the third appears not to be so badly hurt. He attends immediately to the first two and saves their lives. But he has omitted to notice that what he put down to a whiplash injury in the case of the third brother is, in fact, a broken neck. As a result of his failure to stabilise the neck, the third brother's spinal cord is severed and he becomes paraplegic.
What are the family to do? Are they to take to court, on grounds of negligence, the doctor who has saved two of their sons and whose judgments and actions no one could have challenged? The relationship between doctor and patient has sometimes been carefully fostered and a patient who has been on the receiving end of one mistake may not wish to bring the doctor to his knees. A confrontational and adversarial approach does nothing to sustain the vital doctor-patient relationship.
My Bill provides for what I judge to be appropriate levels of accountability. While I emphasise again that I have no intention of instigating a witch hunt, when reprehensible behaviour or repeated mistakes by one practitioner come to the attention of the compensation board, it will surely be inappropriate for the board simply to pay up, say nothing and wait for the next case. I suggest that the board be empowered to refer the matter to the appropriate authority—be it the professional body to which the practitioner belongs, the health authority or, in the most extreme cases, the Director of Public 1226 Prosecutions. Let me stress that I would expect that power to be used only in the event of reprehensible behaviour or repeated acts of negligence.
The Bill allows for compensation to be paid without evidence of negligence, although there must, of course, be evidence that the injury was caused by national health service treatment—or lack of it—and was not a result of inevitable progression of a disease, a known and disclosed side-effect of a drug or treatment, an agreed risk or some other cause.
I find it extraordinary that my Bill has been attacked for allowing the problem of causation to remain. In what circumstances does the state provide money without demanding evidence that the appropriate criteria have been met? The Criminal Injuries Compensation Board must establish that a criminal injury has occurred and that someone did not simply fall down stairs. When unemployment benefit is paid, the authorities go to great lengths to ensure that the recipient is genuinely available for work and is not simply sponging. All social security benefits are carefully vetted. It is quite within the medical injury compensation board's ability and remit to take sensible decisions about mistakes that were caused by NHS treatment and to differentiate between those and mishaps that have nothing to do with the service.
§ Mr. Patrick Nicholls (Teignbridge)
The hon. Lady is making an important point and it would be wrong to attack her Bill on the causation issue in that way. However, what troubles some of us, and particularly legal practitioners in the area, is that, because the hon. Lady has sensibly restricted the kind of cases that can qualify for compensation, there are bound to be matters of causation that will concern the board. In other words, the board will have to decide whether particular cases fit in with its criteria. There will be quasi-litigation around the margins to decide whether people qualify for compensation. The problem of proving negligence will be removed, but causation problems will then arise in respect of whether a particular case fits the criteria. The only way in which the hon. Lady can solve that problem is to have compensation across the board without any criteria, and that would be prohibitively expensive.
§ Mrs. Barnes
I do not accept that argument. It has never been my intention to have an across-the-board compensation scheme, on the lines of the scheme in New Zealand, for all accidents. My Bill is about accidents and mishaps in the NHS. If the hon. Gentleman will allow me, I want to make progress because I intend to cover in more detail the point that he has raised, which I believe is very important.
No one can challenge the fact that I have reduced the hurdles that must be crossed. Instead of having to prove negligence and causation, there is simply an obligation to establish causation. That is perfectly within the powers of the board.
Of course, there are inherent problems in establishing causation. Many cases will be quite straightforward, but none will perhaps cause quite so much heartache and soul searching as those caused by cerebral palsy. In a recent address to the Royal College of Midwives, the chief medical officer said that the upward trend of lawsuits against obstetricians for cases of cerebral palsy is both unjustifiable in the face of present medical evidence and unacceptable in terms of its potential consequence to the 1227 quality of care available for pregnant women. In 1983, 50 legal cases were brought claiming medical negligence in cases of cerebral palsy. By 1989 there were 200 and it seems that the final figure for 1990 will be nearly 600—and that out of approximately 1,500 cases of cerebral palsy a year. It may not be long before all those cases come to court. With or without my Bill, that matter must be addressed seriously.
The levels of award are also soaring.
§ Mr. Peter Thurnham (Bolton, North-East)
How would the Bill treat the victims of cerebral palsy? There may be 1,500 such cases every year, but it is uncertain how many of those result from NHS treatment and how many occur during pregnancy. How would that be resolved? Would they all receive compensation under the terms of the Bill?
§ Mrs. Barnes
I shall deal with that in a moment.
There is growing evidence and consensus in medical opinion and research that very few cases of cerebral palsy are caused by the birth process. There seems to be a conviction stemming from papers that were written during the last century that asphyxiation during the birth process is the cause of cerebral palsy. However, that view is now widely and legitimately challenged.
The needs of those tragic children in many cases would not be met by my Bill. Some of the aspects of the problems created by decisions taken by midwives and obstetricians while attending to the births of some children when they may have an eye as to what might happen in a future court of law rather than be considering what is best for the mother and child would certainly be addressed by the Bill. The Bill would allow the board to decide that cerebral palsy was caused by the birth process if that could be demonstrated, but it would not have to attribute negligence or fault to the practitioner. That is what must happen at the moment.
At present is is not just a matter of establishing that cerebral palsy occurred at birth. It is a matter of establishing that someone was at fault. Even if it occurred at birth, that birth might have been properly handled by the midwife or obstetrician in charge. The Bill would remove one major anxiety—defensive medicine—which particularly threatens our maternity services.
§ Mr. Tony Favell (Stockport)
The hon. Lady is referring to children who suffer from cerebral palsy or other kinds of brain damage. I am president of my local Mencap organisation. Enormous problems would be caused for parents of mentally handicapped children, especially those who are profoundly mentally handicapped, if some were to scoop the pool because they could establish that their children suffered because of a mishap within the definition of the Bill while other parents could not prove that. How will the hon. Lady overcome that problem? The hon. Lady's proposal seems almost to replace one lottery with another.
§ Mrs. Barnes
Mencap firmly and completely supports my Bill. It accepts that there are instances when mental handicap may be caused by the birth process or as a result of other medical injury for which compensation should be paid. Mencap is also aware that in other cases that might not apply.
My Bill will redress the difference in some respects. I will consider those points in a moment. However, my Bill 1228 is not intended to compensate according to need all those with an inherited or congenital disease. I am honest about that, but I am also sad about it.
I should like a system of generous benefit based on need and everyone in the House would favour that if it were possible. However, I have not tried to change the world with one Bill. I have tried to tackle the problem of NHS accidents that cause harm to patients and I do not apologise for those limitations. I had to set the boundaries and I knew that there would be tragedies. I considered the possibility because, as a human being I was tempted, as I am sure many judges are, to say, "What if we told the board 'nod and a wink, let all the cerebral palsy cases have compensation'?" However, only 8 or 13 per cent. of those cases may have been caused at birth. And what about the deaf children? What about the blind children? What about the spina bifida children?
The Bill is about accidents and mishaps caused by the NHS. While I regret that it does not allay every kind of human misery, I make no apologies for sticking to the main thrust of the principle.
§ Mr. Roger Gale (Thanet, North)
This is a crucial issue. A young friend of mine suffers from cerebral palsy and I do not know, and the hon. Lady does not know, whether it is congenital or it happened at birth. The Royal School for Deaf Children is in my constituency and it deals with kids who suffer from deafness and other unfortunate multiple handicaps. In many cases no one knows why or how those children came to suffer as they do. Will not the hon. Lady's process simply create a desperate scramble after birth to jump on to a bandwagon? Will she really solve the problem?
§ Mrs. Barnes
Perhaps one of the main disservices done to children with cerebral palsy is the conviction that has pertained for many years that the condition is due to asphyxiation during the birth process. If the medical experts are right and that is not the case, the current legal scramble has inhibited what is really needed, which is research into the cause of cerebral palsy, establishing much earlier in a pregnancy when it is present and addressing that issue in the same way as many others have been addressed.
§ Miss Emma Nicholson (Torridge and Devon, West)
The present system has not inhibited research into the causes of cerebral palsy. I am glad to tell the hon. Lady about the Little Foundation, which was launched last November and of which I have the honour to be a trustee, whose whole basis of existence is to examine the formation of the brain pre-conceptually and post-conceptually, because it is thought that that will be the way forward to understanding the causes of cerebral palsy.
I am enormously concerned. I deal a lot with handicapped children. As I shall say later, if I am fortunate enough to catch Mr. Deputy Speaker's eye, the Bill will create extraordinary misery for somebody who falls on one side of the Bill and a handicapped child who falls on the other side. As the hon. Lady correctly said, medical knowledge is not perfect. One minute we know one thing, and another minute research shows that a medical matter is due to something else.
§ Mrs. Barnes
I do not wish to trade credentials for the care of and concern about handicapped children. The Bill is not about handicapped children. That is not a 1229 shortcoming in the Bill. It is a shortcoming in our society, perhaps, that we are not sufficiently generous to some of those unfortunate people. The Bill is about mishaps or accidents that are caused by the NHS when a patient who puts himself into the hands of the NHS, rightly expecting and, let us remember, having paid for the best, does not get it. Something goes dreadfully wrong and we leave them worse off. That is what the Bill is about.
I accept—indeed, it is my intention—that more people will be allowed through the net. In addition to those who experience and can prove negligence, my Bill will cover people who experienced negligence but could not prove it and people who experienced a genuine accident that was nobody's fault.
However, I challenge the assertion that the proposals will attract infinitely more cases than would be just. With or without the Bill, the number of claims will rise. It is widely acknowledged that the frequency and number of medical negligence claims has risen markedly over recent years. The Medical Protection Society and the Medical Defence Union have produced figures showing that claims have at least doubled. However, a major further boost to claims is about to happen. As from 1 November, patients will have access to all their medical records, the handwritten ones as well as the computerised ones to which they already have access. We all know that gaining access to medical records has been a major barrier to initiating a claim in the past. That will change.
We have only to examine what has happened in the United States to know that, for a variety of reasons, people are demanding more and expecting better and that the consumer society and consumer associations are fostering expectations. I challenge the Government to commit themselves, in deeds as well as words, to the rights and demands of consumers.
Again, I emphasise that I am not offering a soft option for anyone wishing to exploit the system. My attention has been drawn to some ludicrous examples of what happens in New Zealand. For instance, when a prisoner tries to escape, falls and breaks his leg, he is entitled to compensation. Theirs is a general scheme including car crashes and sports injuries. Indeed, there is evidence that the New Zealand system has worked poorly for the victims of medical negligence.
My scheme is confined to the national health service. After all, the national health service accounts for a huge proportion of our national expenditure—nearly 15 per cent., or £27 billion this year if yesterday's Library figures are accepted. We have a duty to ensure that that money is properly spent and that standards are safeguarded.
Also, if serious mistakes are made or if accidents occur, we cannot simply wash our hands of the matter and say, "Tough luck. You put yourelves in the hands of the NHS. The staff did their best, but they inadvertently made matters much worse. It was nobody's fault. You are on your own; there is nothing that we can do about it." That is what the debate about the haemophiliacs was about. It is now academic whether there was negligence by the NHS. We all know that imported blood products were used some time after the possible dangers of those products were known. There is no question that anyone intended haemophiliacs to be infected with the HIV virus with all its horrific consequences. A blood-clotting agent, which for 1230 many years made their lives infinitely more tolerable, was found to be the carrier of an even more virulent disease. Something went terribly wrong.
Those who were greatly disadvantaged by the miseries of haemophilia were dealt a cruel blow. We as a society sat wringing our hands watching the tortuous legal proceedings while they died. It is to the Government's credit and to that of the new leadership that they brought that appalling situation to an end with a financial offer. What was that if not no-fault compensation? It was a recognition of intolerable circumstances that were brought about by the well-intentioned actions of our national health service. It was a response to the public clamour for justice and recompense. It was a long-overdue gesture to put an end to the obscene sight of those hapless victims struggling on through the courts knowing that, before verdicts, appeals and counter-appeals were reached, many of them would be dead. They would have died, as many did, not knowing what provision, if any, was made for their families.
I was invited to appear on a Channel 4 "Comment" programme some months ago and I chose the subject of the haemophiliacs. While I was researching that subject, one thing struck me very forcefully. We all hear of the haemophiliacs, the Thalidomide victims and the Opren victims. It is hard to say that anyone has an advantage if they have been on the receiving end of such a tragedy, but one benefit that they have is that there are enough of them to form pressure groups to maintain media attention and to keep in the newspaper headlines until the public clamour for action is heeded. However, what about all the one-off cases about which we never hear anything? They are perhaps reported once in a local newspaper and then they are forgotten—they are on their own.
§ Sir Robert McCrindle (Brentwood and Ongar)
Is not there also the further point, which the hon. Lady might deploy in defence of her Bill, that if, as at the moment, one or two cases occur in a certain health authority area, with considerable necessary outlay by that health authority, it could be to the disadvantage of patients who are served in that area, whereas another area that may be fortunate enough not to have had such a series of claims is able to direct its finances to where they were intended to be spent —on patient care?
§ Mrs. Barnes
That is a fair point and I shall refer to it in a few moments.
When the next tragedy strikes—and strike it will; the House will have to deal with it and may regret the decision not to support my Bill—on behalf of the haemophiliacs and the Thalidomide and Opren victims and, perhaps, more important, all those cases that we will never know about, we must effect a fairer, speedier and more suitably generous system than the courts. Hence my proposal to establish a medical injury compensation board to define eligibility for compensation, make the necessary assessments and make payments speedily and fairly, ending the bitterness and uncertainty of the current system.
I have not suggested that people should be denied access to the courts. That would impinge on their constitutional rights. The Bill proposes that all claims for compensation should be directed to the board first and should be made within six months of the claimant's becoming aware of the relationship between his or her injury and NHS care. The Bill says that the board should 1231 notify the claimant of the result of its investigation within three months of receiving the claim or, where that is not practicable, at the earliest opportunity. The reason why I have kept the timing tight is that, in order to find out what happened, it is important that the investigation is carried out as soon as possible after the injury occurs. Of course, that will not always be possible, but we hear too often of investigations that could have been made much earlier being carried out after doctors and nurses have dispersed to various parts of the world and no one can get to the bottom of the matter.
The board would have a variety of options open to it, including giving an explanation and, where appropriate, an apology, as well as compensation, of course. It could refer any serious matters on to other bodies for further consideration.
§ Mr. Favell
I had better confess that I am a lawyer. Clearly, an enormous number of cases will be referred to the board. Any right hon. and hon. Members will know from their surgeries that people regularly come and say, "Auntie Flo has died in odd circumstances. Would you have a look at it?" When people lose a loved one, they look around to find a reason for the person's death. I have experienced that myself. How will the supposed victim or the family be sure that the board will go through the procedures properly? It is a great tragedy when anyone dies. In the law courts at least people can see what is going on. Will the board operate behind closed doors? Will lawyers be involved? If so, shall not we return to the position that we are now in?
§ Mrs. Barnes
There are possibilities for appeals and judicial reviews. Once established, the board, like many other similar bodies, will achieve a proper professional code of conduct and will he respected. It will complete the necessary investigations properly.
It is important to stress that many organisations to which I have spoken who represent the patients' or consumers' view feel strongly that explanations and, where appropriate, apologies are as important as, if not more important than, financial compensation. If a child's life is lost as a result of a medical mishap, it is virtually impossible to put a price on that loss. In monetary terms, nothing will alleviate the misery. The only constructive outcome is a proper explanation of what went wrong and some reassurance that lessons have been learnt and that, as a result of that tradegy, it is less likely that someone else will experience the same misery. Therefore, it is important to ensure that explanations are given and people have the answers to the questions that so often drive them to the courts. So many people say—it is not a cynical statement —"I did not take this matter to the courts for the money but to get to the bottom of it."
§ Mrs. Barnes
No, I must press on.
After the loss of a loved one, finding out exactly what happened is not only a dominant force within a person but becomes a right. With a proper answer at an early stage, much of the bitterness and the punitive approach that we see in the courts will evaporate.
Patients will have two months to decide whether to accept the offer. If they accept, any legal claim that they may have will fall and become the property of the board. 1232 If they reject the offer, they will, of course, be free to pursue the matter through the courts independently, with all the risks and uncertainty that that involves.
I believe that if the scheme is properly funded it will satisfy all but the most litigious. If it is not adequately funded there will be obvious and inherent problems. The fundamental problem will be that all the claims that did not have a chance in the courts will take the board route and the others will go via the courts as usual. I recognise that that will be an inherent problem unless the funding is right. I shall address the matter of funding in a little more detail in a moment.
I have included measures to help to control the level of the board's income and expenditure. I am all too aware of the genuine fear of escalating and uncontrollable costs. I sincerely believe that that is a misplaced fear. I have included the power for the Secretary of State to control the level of the board's expenditure. If he feels it appropriate to fix the amount at the current level of expenditure on administering, litigating and compensating current claims, he has that right. Some would argue that the Bill gives the Secretary of State too many powers, but I judged it necessary to allay his and the Government's fears that the system could run amok and out of control.
It is important to remind ourselves of how the money is currently spent. It is conservatively estimated that under the current system almost half the money spent on compensating, administering and paying legal costs goes on legal and administrative costs. More recent evidence shows that the breakdown may be even less favourably inclined towards the patient and that perhaps as much as two thirds of the costs go on lawyers and administrators. My Bill would enable that money to be directed, at a stroke, to patients, which is where it should be spent.
Another financial aspect that my Bill addresses is the provision in the Law Reform (Personal Injuries) Act 1948 that the availability of national health service care shall be ignored when awarding compensation for personal injuries. In practice that means that when a judge is calculating an appropriate level of compensation, he or she cannot take into account any provision made by the NHS for on-going medical needs, even though NHS care may be the best available and what the patient wants. For example, a patient with a spinal injury caused as a result of a medical mishap may feel that the best place for him is in Stoke Mandeville where he will receive national health service treatment and he will go there, but a judge making an award is not allowed to include that in his calculation. He must calculate all medical costs at private levels and there is no obligation on the patient to avail himself of private care. Indeed, many do not.
Often, compensation is a windfall for relatives. That clause of an Act passed when the NHS was in its infancy and many remained suspicious of it has caused some of the headline-grabbing figures that we see in the newspapers nowadays. The measure is inappropriate in this day and age. High-quality NHS care should be included as an in-kind element of compensation. To return briefly to the argument about cerebral palsy children, such a measure would reduce at a stroke a great deal of the disparity between children who receive awards and those who do not. A large part of the awards made at present is based on on-going medical care for the rest of the patient's life at private levels, when many do not need private care because the state makes adequate provision.
1233 The board will also be in a position to settle any claims involving a third-party supplier of goods to the health service. That will particularly affect suppliers of drugs. Again, that frees the claimant from lengthy and uncertain court proceedings. Only yesterday we heard that some Opren victims are to be denied compensation because the time for claims has run out. However, the board would be able to pursue any legal claim that has arisen from a case, so if there is another Thalidomide or Opren tragedy the board could, where appropriate, award compensation and then take the pharmaceutical company to the courts itself. That will take away the misery caused to individuals in the present unacceptable situation.
For that reason a number of pharmaceutical companies and the Royal Pharmaceutical Society have expressed enthusiasm for my Bill. They are only too aware of the adverse effects of the publicity that some cases have brougnt to their door. They recongise that the current situation is, not to put too fine a point on it, a mess. They also recognise the advantages of dealing with one board rather than tens, hundreds or thousands of individual cases.
The Bill will also allow for periodic payment of compensation. At present, a judge is in the impossible position of having to decide how long someone will live. In the event that someone dies much earlier than expected the compensation is simply a windfall to relatives. Conversely, as a result of medical development, a child who is not expected to live beyond its teens may live to 40 or 50. The parents of that child must continue to cope long after the money has run out.
§ Mr. Michael Shersby (Uxbridge)
The hon. Lady has said that her Bill is supported by the Royal Pharmaceutical Society and by some pharmaceutical companies. Would she care to name one or two of those companies, as that may be helpful?
§ Mrs. Barnes
Eli Lilly has written to express support for the Bill, as have a number of others. I should be happy to give the hon. Gentleman a list of them.
The Bill will seek to ensure that NHS patients have the same benefits as private patients by applying the terms of the Sale of Goods Act 1979 to all goods supplied through the NHS. I have examined the specific financial aspects connected with the Bill and I am of the firmest opinion that, in the long run, the scheme will be virtually self-financing.
We must remember that medical error does not have a cost implication only for the victim. The NHS is already having to bear the cost of mistakes that have been made. Those mistakes can be extremely costly in terms of the emergency treatment that may be necessary following avoidable complications as well as in terms of additional surgery and the occupation of a bed, which will mean the postponement of other patient admissions. In some cases such mistakes require the facilities of intensive-care units. The cost of such mistakes is, at present, unidentified, but it should be brought to the attention of NHS managers, along with the current total cost of negligence litigation, which possibly amounts to £100 million.
At present there are no reliable figures on the aggregate expenditure on compensation and related legal, administrative and professional costs. Careful research 1234 undertaken in 1988 suggested that that cost was about £75 million. Given the increased number of cases and the level of awards since then, it is not unreasonable to suggest that that cost is now £100 million.
I have researched the issue of costs thoroughly, but reliable information is scarce. I suspect, however, that the hidden cost of subsequent NHS care following negligence, including those cases that never come to light, combined with the direct costs of compensating, may put a new perspective on the desirability of a medical injury compensation board.
The BMA has suggested that the likely cost of establishing that board would be £100 million—the Secretary of State has suggested that the cost might be slightly higher—but that cost would account for only 0.37 per cent. of the £27 billion that we spend on the NHS. We should also remember that in 1986–87 the cost of the privatisation of British Gas was £162 million—those costs were incurred in just one year.
We should regard the board as a quality-control measure, rather than as a charter for incompetence, as some have suggested. If the board were able to publish reports and research programmes it could make an additional contribution to cost effectiveness in the NHS. Such information would certainly help to raise standards of care and management that would benefit the victims of negligence, other patients and the nation.
The hon. Member for Brentwood and Ongar (Sir R. McCrindle) drew attention to the anxiety now felt by health authorities as a result of the introduction of the Crown indemnity scheme. There is little in the current system to deter negligence, which, according to its proponents, is one of its main advantages. The Crown indemnity scheme means that all direct financial liability is met by the health authority and is not passed on, either in part or whole, to the individual concerned.
We should not ignore the dilemma that will be faced by health authorities in the coming years. South Western regional health authority, for example, has estimated that medical negligence cases now in the pipeline could cost £20 million in the next four years. There are major doubts about regional health authorities' ability to cope with that. Patient care will inevitably be affected. The unpredictable nature of such costs make planning almost impossible.
§ Sir Robert McCrindle
It might help the hon. Lady to know that the BMA has suggested that, by 1996, under the present scheme it is estimated that no less than 13 per cent. of total resources available to the average health authority may go towards paying compensation for negligence claims.
§ Mrs. Barnes
That is a valuable point.
I am aware that many other hon. Members want to participate and I know that I have gone on longer than I intended, partly because of the number of interventions I have taken.
I pay tribute to the many individuals and organisations that have provided support and help towards the Bill. I put on record my thanks to the hon. Member for Peckham (Ms. Harman) for her earlier work on the subject and her support throughout the Bill's development. I also thank its sponsors from both sides of the House. I could not let this opportunity go by, however, without paying particular 1235 tribute to the hon. Member for Newbury (Sir M. McNair-Wilson), whom we are so pleased to see in the Chamber today.
I also pay tribute to the contributions made by the National Consumer Council, the Law Society and the BMA. I am grateful for the detailed work that was undertaken by the Royal College of Physicians—many of my proposals arise from, or are supported by, its work. I am also grateful for the research provided by the Institute of Socio-Legal Studies at Oxford university and the King's Fund.
I remind the House that the Bill has had the overwhelming support of a vast number of professional and voluntary organisations. I have received support from the General Council of the Bar, the Royal Colleges of Physicians, of Midwives, of Obstetricians and Gynaecologists, of Psychiatrists and of Nursing. I have received support from the Patients Association, the Haemaophilia Society, Mencap, the National Confederation of Consumer Groups and the Thalidomide Society, to name but a few.
I commend the Bill to the House for further serious consideration.
§ Mr. Deputy Speaker (Sir Paul Dean)
Order. More than 20 hon. Members want to speak, so I hope that those who are fortunate enough to be called will make brief speeches.
§ Mr. Michael Morris (Northampton, South)
I thank the hon. Member for Greenwich (Mrs. Barnes) for the depth of her work on the Bill. It is not often that we get a private Member's Bill that is backed by such research.
I also thank my right hon. Friend the Secretary of State for Health. I recognise that he is unlikely to support the Bill, but the way in which he has deployed the argument about the problems connected with it have made those of us interested in the Bill think long and hard about it and, therefore, to make a conscious decision on its merits.
We all know that there are patients who are adversely affected by negligence, and through no fault of any party. I shall concentrate my remarks on no-fault cases. I recognise that the negligence dimension is essentially a category for the law and for tort. I therefore welcome the proposals that I hear are to be brought forward to speed up negligence claims and I shall listen with interest to what my right hon. Friend the Secretary of State has to say about them. Such changes, if they take place, will be greatly welcomed.
I suspect that most of us have reread the Pearson commission report, in particular that rather damning paragraph which describes the tort system astoo costly, too cumbersome, too prone to delay, too capricious in its operation to be defensible.I also suspect that no hon. Member would like to copy the American system under which lawyers go trailing behind the ambulance.
No fault arises because medicine is an inexact science and the human body is one of the most complex of organisms. Medicine often operates on the frontiers and we do not exactly know what its results will be. And occasionally, as the hon. Member for Greenwich said, accidents just happen.
One reason why the Bill has attracted support is that it is all very well for those who take their cases to court to be 1236 paid compensation of £500,000, £750,000 or £1.2 million, but the haemophiliac case was a prime example of the fact that sums of that size are often not needed to alleviate distress and to rectify problems associated with restrictions on lifestyle. Often £50,000 will go a long way to helping people who have suffered through no one's fault.
I declare an interest in respect of one area of the Bill. I advise two pharmaceutical companies—Upjohn and Reckitt and Colman. I have a slight reservation about this part of the measure. These pharmaceutical products are properly researched, tested and checked under all the mechanisms that we have established in this country. They are properly marketed and used for the purposes for which they are prescribed. We are now part of Europe, not merely an independent country. The House sends me to the Council of Europe, where I sit on the health committee. About six months ago I proposed a motion, with the support of a majority of the countries in the Council of Europe, proposing that the health committee look into a no-fault compensation scheme for drugs and appliances. The motion has now gone to the health committee for consideration.
The Secretary of State rightly makes the point that it is doubtful whether the public sector should pay for problems that arise, albeit through no one's fault, in the private sector. Some hon. Members who are present this morning will remember when we brought in the air travel reserve fund. My hon. Friend the Member for Brentwood and Ongar (Sir R. McCrindle) was much involved in it. It works well because it is based on a levy paid by everyone who takes a package holiday. If someone is stranded abroad the fund is used to bring him home again. The health committee of the Council of Europe—the idea has received some support from the pharmaceutical industry —is looking into the possibility of devising a tiny levy on every scrip in order to create a fund from which payments in no-fault cases could be made.
Although I understand the Bill and broadly support its intentions, I wonder whether enough work has been done in the area that I have discussed, bearing in mind the Secretary of State's anxiety about financing this exercise. I believe that we should allow the Council of Europe to do its work alongside this Bill.
§ Sir Robert McCrindle
Like my hon. Friend I broadly support the hon. Lady's aims, but I have some reservations about the part of the Bill that relates to the use of drugs. Is not there a danger that, if we pass the Bill, it may become attractive to use proprietary drugs? Although that might suit the two companies with which my hon. Friend is associated, it could also lead to increased expenditure in the health service; whereas it is generally known that generic drugs are perfectly acceptable for treating many maladies.
§ Mr. Morris
I am not sure whether I agree. There are slight dangers with some products that are not necessarily generic but are imported from third world countries. There have been claims in cases associated with them, too. I merely suggest that this subject needs to be dealt with and I question whether it should be dealt with in this Bill.
A new federal law has been passed in the United States covering life-saving appliances and the need to ensure that if something goes wrong with a heart valve the company involved will contact the patient through the medical 1237 profession and warn him that there is a problem. If the Secretary of State catches the Chair's eye later perhaps he will tell us whether the same applies here.
The Council of Europe is doing some work on drugs and appliances. It is an area which is not central to the Bill. I hope that it will be given a Second Reading, but that this area will be dropped so that the hon. Member for Greenwich can concentrate on the Bill's key element—no fault—and return to us when more work has been done on drugs and appliances.
§ Mr. Jack Ashley (Stoke-on-Trent, South)
I disagreed with a great deal of what the hon. Member for Northampton, South (Mr. Morris) said, but I begin by congratulating the hon. Member for Greenwich (Mrs. Barnes), who has produced a valuable and comprehensive piece of social legislation. If the Secretary of State opposes the Bill that will be disgraceful. This Bill will be a model for legislation that the House will pass in the future. We are not prepared to tolerate this shocking system of gross injustice to many victims. I am very sorry to hear on the grapevine that the Secretary of State intends to oppose the Bill. No sane person can defend the present lottery: fortunes for the few and nothing for the vast majority. It is a shocking and disgraceful system imposing stress, anxiety and injustice.
Under the present system, the multinationals and large organisations almost always win cases against individuals. That is also intolerable. Some of these organisations are —frankly—crooked; they hedge, fudge and even lie in defence of their interests. I campaigned on these issues before the hon. Member for Greenwich and my hon. Friend the Member for Peckham (Ms. Harman) became Members of Parliament. I have a great deal of experience of these organisations. Some are honest and straightforward and act legitimately but others are unscrupulous. The individual suffers as a consequence of the tactics that they employ.
The House of Commons cannot accept the existing system. It must be changed. The Bill provides a splendid opportunity to change it. If the Government oppose the Bill—I wait to hear what the Secretary of State has to say —it will suggest that they are in alliance with the multinationals to deny justice to individuals who are suffering.
I noted what the hon. Member for Northampton, South said about drugs, but I particularly welcome the inclusion in the Bill of a provision relating to the victims of drug disasters. The British Medical Association's opposition to the provision, on the ground that it is too complex, is nonsensical. I do not believe that the BMA understands how essential this provision is. It is vital because of the absurdity that private patients occupy a privileged position compared with national health service patients. The Bill would put an end to that. The provision is also vital because alleged drug disasters are common and widespread. I do not want to blow my own trumpet, but over the years I have been involved in many of these issues and I am glad that the hon. Member for Reading, East (Sir G. Vaughan) is here. He and I worked closely together many years ago on Thalidomide. He did wonderful work for Thalidomide children. We dealt with complex issues 1238 that cause great anguish. However, the hon. Gentleman may have reservations about the Bill, which we may hear about later in the debate. I have also worked on Opren, vaccine damage, tranquillisers and Debendox and in each case the individual suffered because of the existing system. It is the system which is at fault. I blame the multinational companies in many cases, but they say that they are the victims of the system. Therefore, it is the Government's responsibility to change that system. This Bill provides them with the opportunity to do so.
An important concomitant of the Bill is that it would change the attitude of all Secretaries of State for Health. All too often in the past Secretaries of State for Health have shown a lofty disdain for drug-damaged people. Throughout all the campaigns we have heard formal expressions of sympathy and a disclaimer of interest and involvement. The usual formula is for previous Secretaries of State to say, "It's not our fault, we are not responsible. We sympathise, but it's just too bad." The Bill will put pressure on future Secretaries of State in appropriate cases to sue the drug companies and recoup the money paid to them.
That would certainly cure complacency. The Secretary of State would be transformed into the protector of the consumer instead of being the guardian of the drugs industry, the role which he has filled far too often. It would be a long-awaited transformation. Who knows—the Secretary of State may even end up studying the vital need for tighter regulation of the drug industry's irresponsible marketing and testing practices. Those who have dealt with the subject know how poor some of those practices are. Every patient wants prevention, not compensation.
I understand that the Association of Victims of Medical Accidents does not support the Bill. I deeply regret that. The association, and Arnold Simanowitz who leads it, have done wonderful work for patients, but they fear that the Bill gives a blank cheque to the proposed board which would produce the code of guidance. However, I should prefer a blank cheque for the board—particularly as its proposals would have to be endorsed by Parliament and could be modified by Parliament—rather than expensive cheques for lawyers and frustration for victims, as now.
The association's other major objection relates to the provision of information and accountability. It is right that the association should be concerned about these matters. People are entitled to know how and why personal disasters happen, in addition to seeking compensation. However, the Bill provides a mechanism that would directly increase the provision of information. That should allay the association's anxiety. I hope that Mr. Simanowitz will change his mind.
Equally important is the need to diminish the adversarial system. The hon. Member for Greenwich explained how the Bill would lead to a diminution of the adversarial system. In the past, the medical profession has tended to close ranks to try to defend colleagues. That is fine in the army and in universities and colleges. I have done that myself. We all defend colleagues out of a common sense of loyalty. That is admirable, but doctors who attempt to defend colleagues when they know they are in the wrong are greatly to blame for their actions.
If the Bill were passed, the medical profession would no longer be encouraged to close ranks. Far fewer of their colleagues would have to be dragged before the courts, if the Bill became law. There would no longer be the need for secrecy, collusion and sometimes even distortion to defend 1239 colleagues. The medical profession would more readily appreciate its responsibility to protect patients rather than colleagues, regardless of whether they are innocent or guilty.
The General Medical Council is already rethinking its disciplinary procedures. There will be substantial pressure on the GMC to get it right. The weakness of the NHS complaints procedure will be exposed by the Bill. It must be made effective. I remember hon. Members falling about with laughter when I explained some years ago how the GMC proposed to deal with complaints. It intended to give to consultants against whom a complaint had been made the right to veto who was to examine the complaint. The GMC was defending an absurd system, but now at last it has changed its mind. I hope that the new system will be both speedy and realistic.
The Bill will not solve all the problems. If enacted, the central difficulty will shift from proving negligence to proving causation. I appreciate and understand the exchanges between the hon. Member for Greenwich and other hon. Members during her speech. We cannot shirk the issue. Causation is always difficult. In the campaigns that I fought, including those on Thalidomide and Opren, causation was at the nub of the matter.
There can be heartbreaking aspects. After we won the thalidomide campaign and were awarded millions of pounds in damages from the company, an x list and a y list was drawn up. The x list comprised people who had definitely been damaged by Thalidomide. The hon. Member for Reading, East will recall that there was also a y list, comprising the people who probably had not been damaged by the drug. I fought savagely against the Distillers company, but I accept that the people on the y list should not receive any compensation. It should be a fundamental principle that compensation is paid only if causation is proved.
§ Sir Gerard Vaughan (Reading, East)
On Thalidomide, the right hon. Gentleman may recollect that both he and I informed the House that the courts had recommended that adjudicating panels be established, to ascertain who should be compensated and who should not. The company agreed that the panels should have the final say and that there would be no argument. The membership of those panels—which I set up throughout the country—included lawyers, but when it came to allotting compensation, they went over every single detail with the families yet again, causing them great hardship and anxiety. The legal attitude adopted in those cases was disgraceful.
§ Mr. Ashley
I vividly recollect the panels of which the hon. Gentleman speaks, and he played an important role in that controversy. I accept the relevance to the Bill of that incident, but the fact remains that causation is crucial.
If there is no causation, no compensation should be paid. That is only fair and reasonable. It would be unfair and unreasonable to demand compensation for negligence when no damage has been caused.
The objections to the Bill have no validity. Of course it does not cover every contingency. No legislation can do that. But it does represent a major advance for the House. If the Minister opposes the Bill, I shall be very sad and angry. If the Secretary of State acts like King Canute and tries to turn back the tide, he will find that he is trying to turn back the tide of public opinion. More than that, there comes a time for change with everything, and when it 1240 arrives nothing can stop it happening—not even Governments. The Bill will give justice to people who are horrendously, and in some cases appallingly, denied justice under the present system. Reform is long overdue. The Bill proposes reform, and I hope that the House will support it.
§ Sir Gerard Vaughan (Reading, East)
The House congratulates the hon. Member for Greenwich (Mrs. Barnes) on the way in which she presented her Bill and on the enormous care and thought that has gone into it. None of us can be happy with the present situation, which is grossly unsatisfactory and unacceptable in a modern society. The matter needs urgent attention, for all the reasons that the hon. Member for Greenwich advanced.
I am deeply concerned about the enormous increase in defensive medicine in recent years. Few of us are aware of the extent to which it has developed and of the damage and dangers that it brings for patient care. Thousands of investigations are undertaken at great cost in terms of money and skilled time. Both would be better directed at reducing waiting lists, rather than being expended on investigations that doctors know are unnecessary but which lawyers and patients with high expectations think are needed.
I am concerned also about the number of X-rays undertaken for purely legal purposes. Every person who receives an injury to his chest thinks that he should have a chest X-ray, not realising that fractured ribs do not show up on X-rays for the first few days. The same applies in respect of suspected spinal injuries. Spine X-rays can be very dangerous in the case of pregnant women itn particular.
The present situation is, for a whole range of reasons, intolerable. The right hon. Member for Stoke-on-Trent, South (Mr. Ashley) spoke about Thalidomide cases. More recently, there were the appalling cases involving haemophiliacs. Only the sensitive awareness and action of my right hon. Friend the present Secretary of State resolved a public disgrace.
For all these reasons, I am deeply sympathetic to the Bill, but I have reservations about it. I fear that it will increase bureaucracy, litigation and the amount of defensive medicine. Few people realise that it would also lead to a reduction in the compensation paid in some cases, because of the application of overall rules. Although the Bill is of immense service in bringing the subject of medical compensation to our attention, I hope that it will not receive a Second Reading. I shall not vote for it.
§ Mr. Win Griffiths (Bridgend)
Although the hon. Gentleman has certain reservations about the Bill, would not it be better to allow them to be dealt with by amendments in Committee?
§ Sir Gerard Vaughan
That is a reasonable argument which I considered carefully, but I reluctantly dismissed it. My right hon. Friend the Secretary of State should not shelter behind a few minor alterations or changes to the present system. Instead, he should accept that it is unsatisfactory and undertake to establish a proper working party to investigate the whole area and make recommendations, which my right hon. Friend should then implement speedily. The present situation cannot be allowed to continue.
§ Rev. Martin Smyth (Belfast, South)
I appreciate the opportunity to support the Bill. Given the reservations that have been expressed, it may be difficult to persuade the Government to introduce the kind of legislation that some right hon. and hon. Members claim is really needed. It is not enough for the Government to oppose the Bill unless they have an alternative that will redress grievances. Therefore, I hope that the Bill will receive a Second Reading, so that there can be further discussion and positive improvements.
Although I am not keen on separate Northern Ireland legislation, I thank the hon. Member for Greenwich (Mrs. Barnes) for taking the precaution of including Northern Ireland in the Bill, so that by the negative order procedure, its provisions could be extended to Northern Ireland—where the problems described today have been experienced.
The organisations that support the Bill include the Spinal Injuries Association and the Royal Association for Disability and Rehabilitation. In a perceptive article that appeared in January in The Independent and was headedWhy medical negligence should be no one's faulta consultant in radiotherapy and oncology gave several examples showing why changes should be made and concluded:Such sad examples highlight not only the inefficiency of the present system, but also its immorality and its antipathy to what most of us would regard as 'natural justice'. It is also absurdly expensive. Few members of the public appreciate that lawyers and medical experts may well expect to be paid at least £100 an hour for this work—a sum that ensures a fat income for the growing army of medical negligence lawyers, yet could perhaps be better spent to benefit patients themselves.I am not criticising the medical fraternity and the professions that supplement medicine. As one who owes more than one debt to careful medical provision, I pay tribute to the bulk of the profession who are careful and seek to serve their patients.
None the less, as the hon. Lady and others have admitted, the medical profession is made up of humans, as I discovered as a young man many years ago when my mother went into hospital for an appendix operation. I admit that perhaps the attitude of the public to the profession has changed somewhat over the years. We no longer naturally think of them as demi-gods, who have all knowledge and all experience and are therefore to be obeyed. When my mother was being prepared for her operation she discovered that the doctor was preparing the wrong side. She asked, "Doctor, is that the right side?" To which she got an expletive and, "Do you think that you can do this job better than me?" As a woman of 19, her response was, "No, doctor, I just thought that the appendix was on the other side of the body" at which there was another expletive and the doctor said, "1 thought that you were in for something else." If she had not spoken out when she did God alone knows what would have been the result of that operation. Therefore, I believe that there is a case for compensation for mishaps, without going into the argument about negligence.
I shall briefly mention the poignant case of a dead constituent of mine who had a traumatic experience for five years, as she sought to have her case properly examined. On 17 September 1985 she entered hospital for a minor operation the next day, expecting to be discharged 1242 on 19 September. She was discharged a little more than three months later, on Christmas eve. A consultant, speaking to students around her bed said:This is what an anaesthetic can do to a patient.However, we recognise that doctors differ and patients can die. A consultant neurologist was called in to examine her and said:I am sure this is a depressive illness with hysterical features.He prescribed anti-depressant tablets. A senior registrar said that she waspsychologically disturbed and had a morbid personality.The first consultant did not believe any of those diagnoses, but did nothing about it and the hospital refused to let a consultant from another hospital see her files. The report took a long time to come through—until 1988. My constituent had to take early retirement through ill-health, and a dramatic change of lifestyle and a low pension.
The solicitor whom she engaged to look into the case said:It would be extremely hard to prove 'breach of duty of care for patient.—'"Negligence" and "breach of duty" have to be proved. The consultant neurologist later said to her:I'm all in favour of patients knowing what we doctors write about in their files, but I think in your case it was a mistake that you found out.There was a failure to follow through the formal procedures. There was an element of doubt, but it was not sufficient to allow her case to go to a hearing. The independent consultant, to whom she had been referred, gave an ambiguous report because he did not have the notes of her operation. That is a sort of defensive medicine, too—we do not like to have our notes revealed to other consultants.
As a result, my constituent was annoyed about the consultant's approach and wrote a letter setting out her anxieties. His response was that she had made a number of libellous statements. The big hammer of the profession came down on a patient seeking her rights.
In a letter of 7 March 1990 I was informed by the medical administrator of the hospital—to whom I had written to try to find out some information to help me when representing her, and to discover what was going on and why there were delays—that he could not reply because a writ of summons had been issued on 6 September 1989.
My constituent died in the late autumn of 1990. She was 56 years old. I knew her from my early days as an assistant minister in a congregation. I knew her family and knew what calibre of person she was. Even during her illness she spent any time that she could supporting others who were in need and on research for medical provision. She was not depressive, but was being depressed by the medical profession, as it was defending itself instead of helping a person in need. Therefore, I support the Bill.
§ 11.7 am
§ Sir Michael McNair-Wilson (Newbury)
I congratulate the hon. Member for Greenwich (Mrs. Barnes) on her success in the ballot for private Members' Bills and on bringing forward such a potentially important measure. I also thank her for asking me to be one of the supporters, even though I had not seen the Bill when I accepted. She knows of my interest in the subject and I was grateful for her acknowledgement of it.
1243 My interest in this subject dates back to a visit by a constituent soon after I became the Member of Parliament for Newbury. He told me about an operation for a cleft palate on his baby son, which went wrong. When he went to collect his son he collected a baby with only one foot. He came to see me because the lawyers representing the health authority were contesting a payment of compensation for a mistake made by the anaesthetist. The letter that they sent my constituent was unbelievably high handed and it was only due to my personal intervention on his behalf that we persuaded the health authority that if there was a case for compensation, this was it. I am glad to say that he got compensation.
That case left a mark on me and subsequently, during long spells in hospital, I had some personal experience of medical mishaps, which perhaps merely served to strengthen my view that all is not well with the present system of compensating for negligence.
I have referred to the measure before us as a potentially important Bill because, as it is drafted, I am not sure that it could be a proper alternative to the present system, where proof of medical negligence produces compensation. Certainly the victims of a medical accident should receive compensation speedily.
I am afraid that I do not agree with the hon. Member for Greenwich that the no-fault route is the right one to take. There has to be accountability. One cannot talk about accidents in which no one is to blame. That is not the real world. The hon. Lady told us that she envisaged safeguards in respect of what she described as reprehensible behaviour. I wish that she would spell that out. I must tell her that I shall have some difficulty in supporting the Bill today if she pursues the concept of no fault. The medical profession has no more right than any other profession to expect to be exempted from explaining its actions.
§ Mrs. Rosie Barnes
Let me make it absolutely clear that I feel that accountability is vital. It is true that I maintain that there may be genuine accidents in which there has been no fault but in respect of which someone may be compensated; I am sure that the haemophiliacs who have been compensated fall into that category. But wherever there is evidence of behaviour that is inappropriate, careless, reprehensible or whatever, I would certainly intend the appropriate measures and follow-up to be undertaken.
I have given a great deal of thought to accountability. I am sure that the hon. Gentleman knows that it is a difficult area, because there is a debate about whether the matter should fall within the ambit of the compensation board or should be handled separately. I felt it necessary to include the no-fault provision because it is not properly addressed anywhere else, but I assure the hon. Gentleman that I take the matter very seriously.
§ Sir Michael McNair-Wilson
I am grateful to the hon. Lady.
Clause 1 is so widely drafted as apparently to provide compensation for any injury suffered due to mishaps during national health service treatment, although I admit that clause 2 qualifies clause 1 in its definitions of a mishap and of an injury. However, I am not easy with either. I am not a lawyer, so I do not know the legal significance of the words in clause 2:a person suffers 'injury', where as a result of a mishap in National Health Service care and not as a foreseeable and 1244 reasonable result of that care or the person's pre-existing condition, he … requires in-patient hospital treatment for 10 or more days; or … is prevented from engaging in normal activities—whatever they may be—for 28 or more days; …or suffers a reduction in his life expectancy.Perhaps each of those reasons for claiming compensation would not be a matter for considerable legal argument, but it does not strike me that way. For example, can anybody say with any certainty how long any of us is likely to live?
If the Bill reaches its Committee stage, clauses I and 2 will need to be discussed and, in my view, heavily amended if we are to have in legislative form a real alternative to what is currently in place.
§ Mr. James Couchman (Gillingham)
Did my hon. Friend make a Freudian slip in omitting to mention clause 2(5)(d), which refers to a person who suffers "significant pain, disability, harm" and so on? That is the provision which worries me most becausesignificant pain, disability, harm, or distress or significant loss of amenityare perhaps the "injuries" that are most ill-defined and most difficult to define.
§ Sir Michael McNair-Wilson
I was trying to use shorthand for the various reasons, but I entirely accept my hon. Friend's point and could talk about it from personal experience.
I wish that the hon. Member for Greenwich had gone for a tighter definition than the one that she has chosen. I commend to her the Finnish Patient Injury Act 1986, which set out three grounds on which compensation would be paid:
The clearer that we make the possible grounds for compensation, the less disappointment there will be for those seeking it, and the simpler will be the task of those charged with deciding whether compensation should be paid. The fact that approximately 60 per cent. of those hoping for compensation under the Swedish and Finnish patient injury legislation actually get it shows how easy it is for people to assume that a compensation scheme covers every mishap. It cannot and it will not because being an in-patient in hospital is a hazardous business: hospitals are inevitably repositories of infection and disease and their hygiene and services are not always what they should be. I am not sure that I would want to be treated by a junior doctor at the end of his 90-hour shift. A recent survey carried out by Liverpool university showed that one person in 10 admitted to NHS hospitals acquired an infection unrelated to the reason for admission. As someone who has had to have three ribs removed as a result of septicaemia contracted in hospital, I am aware of the risk, although at present neither I nor any of the patients who pick up infections are eligible for compensation.
- "1. that an injury probably has arisen as a consequence of examination, treatment or any similar action, or neglect of the same.
- 2. has been caused by infection or circumstances connected with inflammation which probably has originated in the examination, treatment, or similar action.
- 3. has been caused by an accident (a) connected with examination, treatment or similar action, (b) occurred during ambulance transportation or in connection with fire or other damage to treatment premises or treatment equipment, or (c) resulting from a defect in medical equipment or in a medical care device."
1245 Another report, this time by specialists, pointed out that about 2,000 people injured in road crashes and other accidents die every year because of mistakes, misjudgments and inadequacies in hospitals. That is an appalling number and shows that medical accidents are rather more commonplace than most of us care to admit.
Perhaps this is the point at which I should explain what I mean by a medical accident rather than negligence. I choose two definitions. The first, given in the House of Lords in 1904, defines an accident as an unlooked for mishap or untoward event which is not expected or designed. The second says that an error of judgment is not necessarily negligence. Negligence occurs when a professional person falls below the standard that can reasonably be expected of him. Thus, if we rely on negligence as the sole reason for providing compensation, many people who have suffered medical accidents will lose out. That must call into question the Government's attitude to compensation as we know it.
As I said, I commend the hon. Member for Greenwich, because, like a number of us on both sides of the House, she has recognised that the present system for compensating the victims of medical accidents is unfair, discriminatory, unreasonably expensive and unconscionably long winded. What is more, far from guaranteeing that every NHS patient can pursue a claim for compensation if he or she feels that he or she has been a victim of a medical accident, we have constructed a system for the use of the very rich, who can afford legal fees, and the very poor, who can get legal aid, but which is too expensive for the majority of us to pursue through the courts. That is the first and overriding reason why we need a change.
The second need is to speed up a process that may suit lawyers, because of its protracted and expensive nature, but which does nothing to enhance the idea that, under the national health service, compensation should be available speedily for those who have suffered medical injury as a result of inadequate treatment.
The hon. Member for Greenwich has encapsulated her solution to the problem in the Bill. I support the spirit of what she is trying to do, even if I do not support everything in the Bill. A new compensation scheme would need a compensation body to decide who gets what. For some time, however, I have held the view that, before a claim goes before a medical injury compensation board, it should be passed by some clearing house, such as the national health service ombudsman, as being a prima facie case for compensation. I know that at present the ombudsman is not allowed to investigate clinical complaints. I have always thought of that as a restriction which has made his job much less valuable than it should be. I would give the ombudsman a larger staff and the task of being the clearing house for the board.
Can we seriously contemplate a compensation scheme under which no attempt is made to discover whether that for which we are providing compensation was the result of negligence or simple human error? As I have said, I do not think so. By all means, let us pay the victim of a medical accident whatever compensation the board judges to be fair—and let us compensate quickly, not five to seven years after the event, as happens at present. But let us not walk away from the need to discover what went wrong and 1246 whether anybody was to blame. To allow that to happen would be to place the medical profession in a favoured and unreal position in which it was in no sense accountable for what it did.
That would do nothing to improve standards. After all, as well as speeding up compensation, any new scheme should seek to make doctors and hospitals more willing to be open about the way in which they work. If compensation is to be paid as of right, the question of accountability will no longer embrace the question of liability. That would be a considerable gain and it could end the wall of silence that currently prevents hospitals from offering an explanation of what has happened to a patient or commenting on a case, for fear of admitting liability. As the hon. Member for Greenwich said, an explanation would be much appreciated by so many people who just want to know what happened.
I ask my right hon. Friend the Secretary of State whether, if the Government are as opposed to the Bill as they appear to be, they agree that the present system has serious shortcomings—they were graphically illustrated in a number of programmes on BBC 2 last autumn which were aptly entitled "Raw Deal"—which must be remedied. Are they aware of the increasingly vocal worries that are being expressed not only by those who cannot afford to seek compensation, but by professional medical bodies such as the Royal College of Physicians and the BMA, that the accountability of the NHS and those who work in it to those whom they look after is governed by the cost of lawyers' fees, despite the fact that the NHS is a service free to everyone at point of delivery?
In the light of that concern and the concern expressed in letters to hon. Members from bodies such as the National Spinal Association, the National Cancer Council, Mencap and the Haemophilia Society, what proposals do the Government have to improve matters? I know that they argue that in 1978 the Pearson report came out against a full-blown compensation scheme, but that was 12 years ago, when such schemes were in their infancy. Is not it time that the subject was recognised in the light of experience? Is not it time for a fresh inquiry to consider the subject of medical negligence and accidents and whether, if the present system stays in place, it will be able to meet the needs of those who may be victims of mishaps?
Quite apart from the intention of the Bill, which has all-party support, is not there a new EC directive that will become effective in 1993 and will place the onus on the doctor to prove that he has not been negligent, so upsetting the present approach? That could lead to defensive medicine and increased cost.
I know that the Government are worried that a new compensation scheme would be enormously expensive, and much more so than the present system. I can understand their worry and I find the King's Fund estimated that it might cost about £235 million a year more convincing than the BMA's £100 million. It will depend on the cost of setting up the scheme and on the size and number of awards that the compensation board makes.
I would not envisage compensation being given as huge lump sum payments, as at present, but as annual payments where a chronic condition is being compensated and modest lump sum payments for one-off accidents. Surely what matters is that we have a demonstrably fair and workable compensation scheme for the statistically small number of people who are the victims of medical accidents 1247 within the national health service and who currently miss out because we rely on the outmoded civil law of tort to provide compensation.
I recently heard my right hon. Friend the Secretary of State talking of his child's treatment by the national health service and of his attitude to that treatment. He agreed that when it is one's own child, the NHS does not lend itself to becoming a health service that should be constrained solely within business disciplines. I agree with him. I add only that when one has been the victim of a massive drug rash, septacoemia or some other mishap that has forced an unwanted and unexpected hospital stay, imposed problems on one's family and possibly jeopardised one's employment, one is inclined to expect a measure of compensation by right as well as statutory sick pay and sickness and invalidity benefits.
I have referred to the statistically small number of people who are victims of medical accidents. I think that I am correct in that statement, but one of the more curious features of the subject is that the Department of Health does not collect figures centrally, so none of us can be certain how many claims there may be. When I wrote to the chief medical officer asking for guidance, he replied:The only relevant figures which we collect centrally for the hospital and community health services provided by health authorities are the numbers of formal written complaints whether or not they are wholly or partly clinical.That is a strange admission and it makes the Government's hostility to the Bill even harder to understand, unless there is a principle involved that has not yet been stated. It certainly makes it impossible to know the statistical basis for their estimated cost of setting up a compensation scheme. I hope that they will give proper consideration to the Bill's suggestion for a national database so that those figures can be made available.
We hear that the Government intend to have an approved list of solicitors who specialise in negligence, who it is hoped will speed up the present legal process. We know that the Lord Chancellor has brought forward proposals for a no-win, no-payment approach to these cases. That has merit if one wins, but if one loses who pays the defence costs if the case is not fought on legal aid?
I do not deny that reducing the time within which compensation cases come to court would be helpful, but what of their cost? Under NHS indemnity, there seems to have been a saving in medical protection insurance premiums because the health authority bears the whole cost of any litigation and if it loses it pays out of its annual regional budget. That system must make the life of a regional chairman even more difficult than it has always been, because a big award may mean that he has to cut expenditure on new drugs—I am thinking particularly of Erythropoetin for kidney patients—or even close wards to balance the books. Surely that should not be the price that every other patient must pay for the negligent behaviour of a small number of his medical staff.
Is not it time that consideration was given to the make-up of compensation awards? If a lump sum is being provided, should it contain a figure for loss of earnings as well as a theoretical multiplier? These are matters for a fresh inquiry.
I must repeat that NHS indemnity does not sound like a satisfactory long-term approach to the problem, and I shall give just one illustration. Recently, I heard of a case in Oxford where the authority settled out of court because it was advised that it might not win and that, if it did not, 1248 costs would be awarded against it, which would have made the case far more expensive than settling out of court in the first place. That is not a good precedent. All these measures seem to be tinkering with a system that is less and less able to meet the needs of patients for whom the NHS has been a personal tragedy. The haemophiliacs illustrate that.
That is why I believe that a new approach is needed and why I support the principle behind the Bill, even if I have reservations about its detail. If the Government will not allow it to go further, at least let them recognise that it represents a genuine concern that patient rights have not been given proper attention in the past and that in a reformed national health service the clamour for more consideration to be given to the users of the service will not go away.
§ Mr. Tom Clarke (Monklands, West)
The whole House will have welcomed the return to our proceedings of the hon. Member for Newbury (Sir M. McNair-Wilson) and the particularly robust speech that he made.
I should like to think that the whole House would welcome what I regard as a splendid Bill, presented by the hon. Member for Greenwich (Mrs. Barnes) in an excellent speech. I cannot recall a speech—the House will understand that I have followed private Member's Bills carefully in recent years—that had been more methodically researched. The hon. Lady was able to reassure hon. Members who wanted to be reassured about points that they raised.
The hon. Lady said that the Bill's aims are modest, but none the less it will be a major step forward for people who should benefit from it. I thought that the House would welcome her response to the hon. Member for Newbury, when she made it quite clear that the issue of compensation did not remove the need for accountability. If, for example, criminal acts take place within the health service, the law takes its course. If there are other procedures responding to other matters within the health service, issues will still be dealt with as they are now even if we introduce the issue of compensation.
Some of the arguments so far, either in interventions or in speeches from some Conservative Members, disappoint me in the extreme. Hon. Members may have some criticisms of the Bill. I have one or two very mild criticisms, as the hon. Member for Greenwich will appreciate. However, the procedures in this House and in another place should mean that if we accept the principle—and there seems to be overwhelming support for the principles in the country—in due course we can, in Standing Committee and elsewhere, address ourselves to some of the issues. If that is not the intention of some hon. Members, they are nit picking, which is most unworthy in terms of some of the injustices in the national health service today.
§ Mr. Gale
No speech this morning suggested that the present system is entirely or in any way satisfactory. I doubt whether any hon. Member here does not agree that the hon. Member for Greenwich (Mrs. Barnes) has done a tremendous service in promoting the Bill. However, some of us believe that the long and short titles of the Bill do not permit the necessary changes and that is why we look to 1249 our right hon. Friend the Secretary of State to tell us later this morning that the Government will examine the matter and will bring forward the right legislation.
§ Mr. Clarke
The short and long titles of the Bill give considerable scope to the House. I have heard no interventions with which we could not deal in a reasonable debate in Committee. The hon. Gentleman's argument for voting against a Second Reading is bogus, unacceptable and unconvincing to the British people.
One argument that is produced time after time when we attempt to make progress in the House is that bureaucracy may take over. My heavens, the present system is riddled with bureaucracy, but it is not a bureaucracy that helps us to remove injustice or to make patients, their families and friends feel that if something goes wrong, which may be the result of a mistake, it will be put right or that reasonable compensation will be considered.
The issue of no fault is important. If we continue to relate disability benefits to whether the disability arises from birth or from an accident at home or at work, and if we have different systems for responding to individual needs, causation must be identified. I cannot think of a better way to do that than to have the board that the hon. Member for Greenwich proposes in her admirable Bill. The suggestion that such a scheme would cost a great deal of money and would be so expensive that the Government could not deal with it assumes that the Government are far more naive than their record suggests. They did not let the social fund run riot. They had cash limits and regulations, and they knew exactly what they were doing. I cannot imagine for a second that if the hon. Member for Greenwich manages to get the Bill through, as she deserves, the Government will act nonchalantly in seeking to deal with problems that may arise.
I said earlier that I have some very mild—and I emphasise that—criticisms of the Bill. They can, of course, be corrected in due course. If I have a criticism at all, it is simply that the Bill does not go far enough. However, I wish the hon. Member for Greenwich well and I know how difficult it is to get a Bill through the House. In many ways, it is the Government who should have accepted the responsibility that the hon. Lady has nobly accepted after being given her opportunity in the ballot.
One of my criticisms is that the Bill does not have an element of retrospection. That is rather sad especially in the light of the two constituency cases that I want to mention. I mention them because all of us are influenced by what people tell us in constituency correspondence and at our surgeries. We learn a great deal from people who present themselves on cold Saturday mornings to tell us of individual cases that relate to them, and which are relevant to existing legislation and to legislation that should exist.
I do not want to weary the House and I know that several hon. Members still wish to speak. The first case was featured recently in the Glasgow Evening Times. My constituent, Mr. Brian Smith, came to see me at my surgery in the mining village of Moodiesburn, but for greater ease of reference, I will simply report what the Glasgow Evening Times said. The article stated:A heartbroken husband pleaded today: 'Tell me why my wife died'. Amy Smith (35)"—this happened last October—was admitted to hospital 16 days ago suffering from depression.1250Husband Brian (35) said he made continuous anxious complaints to medical staff about her deteriorating condition.But on Sunday the mother-of-three died …Amy was admitted to Gartnavel General Hospital at the end of September. Brian, of Bridgeburn Drive, Moodiesburn, Lanarkshire, watched in horror as Amy deteriorated rapidly. He claimed doctors had doubled the dose of her medication.And on Sunday he sat outside her room as medical staff called for ventilators and rushed consultants to her bedside.'All week I tried to see someone and it was impossible. No one was ever available and no one listened to me. Then two hours before she died, there were crowds of people around her bed. But they told me nothing. I don't know whether she died peacefully, whether she was frightened or conscious or whether she even asked for me.'Even today, Brian and the three children do not know the cause of Amy's death. Her father died last February and she suffered from depression. Her family understood that she was being admitted to hospital for that reason. If we do not have a mechanism for dealing with such complaints, we have a great cause for worry. All of us have enormous faith in the national health service, but, if things go wrong, we want people to know exactly what happened and we want a mechanism for putting it right.
A second constituency case has caused me great concern. Michael Starrs is now 53. In 1958, Michael was given a grade A1 as a result of the examination for entering the forces. He appeared to be a healthy young man and he served in Northern Ireland in the King's Royal Hussars. He completed an apprenticeship as a moulder, left the Army in 1960 and married in 1961. In 1964, he developed a duodenal ulcer and on 25 March 1965, a crucial day in his life as he has explained several times, most recently last Sunday, he entered Hairmyres hospital in East Kilbride and was presented for an operation. As Micheal told me on Sunday:That was the day I lost my two most precious possessions, my health and my ability to earn the shilling.I would, of course, have preferred a full inquiry to have taken place; my requests for one, however, have met with no success. The hon. Member for Greenwich has cited the problems of recollection experienced by someone who, at the time of the incident concerned, who under medication and preparing for an operation. Michael remembers being given a pre-med, but does not remember an anaesthetic being administered. He recalls being aware of being surrounded by people wearing masks who held him down forcibly; and he recalls part of his stomach hanging out.
Many years have passed since Michael's operation, during which I have engaged in a good deal of correspondence and a good many ministerial meetings. When I asked the Scottish Office health Minister, the hon. Member for Stirling (Mr. Forsyth) to instigate an inquiry, he told me that the only person in that operating theatre who is now still alive is Michael Starrs himself.
Surely that is an argument not for necessarily trying to apportion blame, but for accepting that something went badly wrong and that there is a valid case for compensation. Michael Starrs has suffered agony over the years, undergoing operation after operation—the most recent being major surgery to remove his gall bladder in 1988. He is unable to walk properly; he is very weak, and his digestive system has been almost totally ruined.
At present, the NHS has no mechanism to deal with cases such as those of Michael Starrs and Amy Smith. I am sure that other hon. Members can give examples from their constituencies. It is clearly time that something was done; so far the Government have not come up with any proposals, and I hope that, despite all the rumours that we 1251 have heard, the Secretary of State will at least allow the House to consider the merits or otherwise of what I consider an admirable Bill.
It cannot be without significance that organisations such as the British Medical Association and other professional bodies, as well as consumers, have welcomed the Bill. As a Labour Member, I consider the role of the consumer very important. I see no inconsistency with the principles in which my hon. Friends and I believe; Robert Owen and the co-operative movement had a considerable influence on Labour thinking.
I have no wish to stigmatise the medical profession or to cause its members years of worry, but why should not those who use the NHS, and their family and friends, have recourse to help when things go wrong? I visited America recently and I know that the medical profession dislikes the thought of litigation hanging over it for years. The Bill would prevent many such instances. The Secretary of State indicates dissent; I hope that, when he winds up the debate, he will give us his reasons, but he must know that his views run counter to those of the professional organisations mentioned by the hon. Member for Greenwich.
Magnificent though I believe the NHS to be, in recent years the very strains and stresses experienced by the service have given us all the more reason to exercise vigilance in defending the rights of patients and their families. It would be positively uncaring for the Government not to allow us even to consider the Bill. It will be deplorable if the payroll vote turns up to oppose even its Second Reading. I consider the Bill laudable and worthy of debate and support. I wish the hon. Lady well, and hope that the Bill receives the backing that it deserves.
§ Mrs. Edwina Currie (Derbyshire, South)
Let me join other hon. Members in congratulating the hon. Member for Greenwich (Mrs. Barnes) both on winning the ballot and on the excellent way in which she presented the Bill.
As I am sure the hon. Lady will agree, under a no-fault compensation scheme there would be no need to prove negligence. There is no doubt that, as several hon. Members have pointed out, considerable problems are involved in proving negligence. Given the legal costs and the uncertainty, the present system is open only to the very poor and the very rich. There is also the difficulty of obtaining evidence, especially from medical records and from a profession that still tends to protect its own. The delay can be extraordinary: on average, three and a half years pass before action is even started in obstetric cases. The average duration of such cases is 6.7 years, and it frequently takes 10 or 11 years to bring them to a conclusion. Such delays are contrary to natural justice. People die before cases are concluded, witnesses are not available, records prove to be lost and, very often, witnesses simply cannot remember what happened.
One result of all that is that there are relatively few cases of medical compensation in this country—about 4,500 new cases a year, at a cost of about £75 million. Only about one case in three succeeds and it is widely considered unfair that only the most persistent litigant does so.
There are also the public-health and public-interest considerations, outlined by such people as the chief medical officer, Sir Raymond Hoffenberg, the Royal College of Physicians and the British Medical Association. 1252 They would say that the existing system destroys the patient-doctor relationship. Writing in The Independent on 8 January, Dr. Tobias, one of the consultants at University College hospital, makes the interesting observation that it is all awretched business, with patients and doctors forced into confrontation by the adversarial methods of the British courts.There are increasing worries about litigation, with the top awards now amounting to more than £1 million a case; there are also worries about defensive medicine and the system is widely regarded as unfair to doctors, who are seen as being on trial in court cases, even when they have taken reasonable risks.
Let me say to my right hon. Friend the Secretary of State that many of those problems are genuine, as I think every hon. Member who has spoken—and many who have yet to speak—would agree. One or two problems are not genuine or are already being addressed, and some have better solutions; but most will need my right hon. Friend's active and vigorous intervention if improvements are to be made to the current system.
I say to the hon. Member for Greenwich, with the best will in the world, that I do not think that her Bill will solve the problems—and, indeed, it could make life considerably more difficult for some of those whom she is trying to assist.
Some of the problems that have been outlined are either in the process of being eased or likely to be eased shortly. Legal costs are an example. The most tragic cases involve brain-damaged babies, but, as from 1 April last year, it is now possible for a minor to apply to the courts for legal aid on the basis of its own income. Most children, of course, have no income and, as a result, far more such cases can be brought to court with the full protection of legal aid. In the first six months after that change in the rule, the number of such cases brought to the notification of the authorities trebled. It therefore follows that those children will be able to obtain justice much more easily in future.
The hon. Lady mentioned that the Access to Health Records Act 1990, the result of a private Member's Bill presented by the hon. Member for Newcastle upon Tyne, North (Mr. Henderson) with the support of the Department of Health, provides for patients to have access to medical records from November this year. The hon. Lady cited that as a reason for our needing the Bill; I cite it as a reason for our not needing it. One of the key problems, that of obtaining access to medical records, will diminish and, one hopes, disappear. Given the effort to which I went to improve access when I was at the Department, the change in attitude in both the Department and the BMA is most commendable.
My right hon. Friend should address the important issue of delay. In Sweden 60 per cent. of all claims are settled within two months, and 93 per cent. within six months; here, as I have said, it can take many years. A quarter of obstetric claims do not come to the attention of the hospitals until more than seven years after the births. The system in Britain is very different. The Bill refers to a timespan of six months. That would be very tight particularly in many of the most tragic cases. Mr. Brian Capstick, a lawyer writing in the British Medical Journal on 26 January, suggested a period of 18 months. The 1253 Limitation Act 1980 refers to three years in the case of a death. It should be possible to make an effective time limit on some cases.
Much of the delay in payment is due not to the way in which the law works, but to the way in which health authorities work. I stood at the Dispatch Box in 1988 and admitted liability for cases in Exeter in which patients had been excessively irradiated by equipment that had been faultily calibrated. It took another year before the health authority admitted liability. Two years on, many of those cases have not been settled. That is absolutely scandalous. The cases involving the largest pay-outs, the most spectacular cases about which the public hear, are often those in which health authorities offer a financial settlement perhaps three days before the cases go to court. That might be years after the event. That could be corrected easily through the assistance and at the insistence of the Secretary of State.
§ Mr. Nicholls
My hon. Friend has made a valuable point. Does she agree that, in practice, when the defendant is effectively an insurance company which knows that it is being opposed by someone who does not have legal aid, it will keep the case going to the last minute to try to grind that person down? As a lawyer, I have acted for both plaintiffs and defendants and have used that tactic. The way out of that problem is to have particular classes of action, such as actions in respect of medical negligence, in which the case is assessed only on its merit with regard to legal aid. It is not assessed on account of means. At a stroke, that would take care of the kind of case that my hon. Friend has rightly put to the House.
§ Mrs. Currie
I suspect that my hon. Friend's profession will do well whether or not this Bill receives a Second Reading today. Although insurance cases are not covered by the Bill, it is worth pointing out that nine out of 10 insurance claims for motor accidents are paid out eventually one way or another. The certainty that people will receive a payment is a big help. With regard to compensation for compulsory purchase cases in which there may be a dispute about the value of a property, the local authority is obliged to pay out very quickly 90 per cent. of the expected amount. The relatively minor amount can then be disputed. However, the individual in such a case benefits.
The Bill could create difficulties and if we were to follow the path proposed today, we would live to regret it. The Bill does not avoid people having to go to court. The compensation board proposed in clause 4(9) would be able to initiate legal cases. As a result, there would be many more cases.
§ Mrs. Rosie Barnes
Does the hon. Lady agree that it would be inappropriate for the board to make large settlements on the part of third parties with no attempt to recoup them? One of the intentions of the Bill is to remove patients from the on-going proceedings, but not for the state to pick up the Bill that should naturally be the responsibility of the appropriate company or authority.
§ Mrs. Currie
I can see why that provision is included in the Bill. It is an improvement on the proposal in the Bill presented by the hon. Member for Peckham (Ms. Harman) last year which would have removed people's 1254 rights and, in that sense, was, I believe, iniquitous. Most people who are interested in this matter believe that a no-fault compensation scheme will avoid the need for all those terrible court cases. However, it will not. There will be just as many terrible court cases. Indeed, there will be a lot more of them.
§ Mrs. Rosie Barnes
Does not the hon. Lady accept that in cases such as Thalidomide or Opren there would be one court case between the board and the company instead of the hundreds or thousands that are going on at the moment? That would be a great improvement for everyone involved.
§ Mrs. Currie
It is worth pointing out that well over 2,000 of the Opren claimants have been paid. It was shown yesterday that some of those claimants had failed to make a claim within the reasonable time limit, which is six times the limit suggested in the Bill.
We should not abrogate people's legal rights. However, the introduction of a no-fault compensation scheme in which the board could initiate action may well result—in fact, I am certain that it would result—in more such cases and not fewer.
The Bill also does not avoid people having to prove fault. To make a successful case under the no-fault compensation scheme suggested in the Bill a patient would need three things: a problem; a medical event; and a proven link between the two. Without those requirements, spurious claims would be paid. Even in New Zealand where the pay-out is based on accidents, people still have to show that the problem was caused by an accident and did not have a natural cause.
§ Mr. Jim Lester (Broxtowe)
Surely it is one thing to prove fault, but another to prove negligence. So many of us feel strongly about the need to prove negligence, not fault.
§ Mrs. Currie
The process of proving fault is similar to the process of proving that someone caused that fault. In practice the evidence must still be obtained.
§ Ms. Harriet Harman (Peckham)
The difference in the Bill is not the difference between proving fault and proving negligence—this is a no-fault Bill. The difference in the Bill is that instead of having to produce causal links and negligence, one need only prove the causal links. The hon. Member for Derbyshire, South (Mrs. Currie) has not understood that. She certainly is not addressing that point.
§ Mrs. Currie
It is very difficult to prove fault. For example, 1,500 babies a year are born with cerebral palsy —[Interruption.] The hon. Member for Peckham is not listening so she will not understand what I am saying.
It is extremely difficult in most of the cases involving those babies born with cerebral palsy to prove that that condition is anyone's fault. It is in the nature of medical events that most of what happens is caused by the nature of the disease or the risk associated with the treatment or by some natural process. Most cerebral palsy is caused by congenital problems. The tragedy is that when people try to prove fault, they must still go through a similar process. Although it may not be so complete as pinning it on an individual, they must still show fault.
§ Mrs. Currie
If my hon. Friend will forgive me, I will not give way. I have already given way more than any other speaker and it might be helpful if I make progress.
If the Bill or something like it is enacted, there will be a serious danger that if we do not try to prove negligence, bad doctors might get off. What is so terrible about proving fault and negligence? I can understand that the British Medical Association and our doctors might think that it was terrible, but we must bear in mind the confidential enquiry into peri-operative deaths—CEPOD —which showed that 21 per cent. of deaths within 30 days of surgery were caused by anaesthetists and surgeons. There are obviously a lot of serious medical faults around. That confidential inquiry was produced only after a battle was waged; many doctors refused to co-operate with it. Of course, doctors want a no-fault compensation scheme because some of them do not want their fault to be identified.
Doctor Tobias at University College hospital has stated:in cases of minor head injury, it is increasingly felt unwise for a clinician to discharge a patient from hospital after clinical examination has revealed no apparent damage. Instead there is a growing reliance on skull X-rays and even brain scans, since these provide 'hard evidence' should the patient later become unwell, sue the hospital and the case be brought to court.If I had had a bang on the head, I would want the brain scan and the X-rays not because I might sue, but because I might die or suffer brain damage otherwise. If defensive medicine leads to better medicine, I am all in favour of it.
My right hon. Friend the Secretary of State should consider research in Florida that Was reported in the British Medical Journal on 29 September 1990. It was found that, in the medical group, 85 per cent. of pay-outs on medical negligence cases were sustained on behalf of only 3 per cent. of doctors. When those doctors' history was checked, it was found that the high payment group had had a large number of complaints against them, particularly in the period four to five years previously. We put up with bad practice far too much. Bad doctors should be tackled. That job is partly for my right hon. Friend the Secretary of State and the General Medical Council, and it is a jolly good job that the British Medical Association may like to take it on board.
I now refer to the point about patient-doctor relationships suffering in the existing system. I am not sure about that. A patient who thinks the world of his doctor does not sue. The patient-doctor relationship has broken down before anybody starts to make a complaint, and the usual problem is precisely that. All the cases that were described so movingly this morning have evolved not from there being a need for no-fault compensation but from the need for better communication between patients and their doctors. In that sense, the new consent form, which was brought in recently and which is so bitterly resented by some doctors, is a step in the right direction towards getting informed consent.
The main problem is costs. The hon. Member for Greenwich has suggested a figure, the BMA has suggested a figure—everyone has suggested a figure. Again, the British Medical Journal, on 29 September 1990 made an effort. One in 25 patients in this country admitted to hospital experiences harm as a result of their stay in hospital. A fifth of all deaths in hospitals may be caused by something going wrong. We know that that is true of surgery. About 300,000 patients in the United Kingdom a 1256 year therefore might experience harm, and 45,000 deaths may be caused by that harm, and that would give rise to 75,000 potential cases of negligence from hospital admissions alone. That does not count out-patients attending for surgery—it would be many times that number—and it does not count attendances for general practice.
If we had 75,000 cases at the current average pay-out rate, which is about £17,000, we would be talking not about a couple of hundred million, but about £1.2 billion. That is not far-fetched. The New Zealand scheme costs more than £300 million a year, and that is 1.4 per cent. of their gross national product. In this country we would be talking about several billion pounds for an equivalent figure. If hon. Members think that £1 billion might be far-fetched, let me remind them that, in 1979, we thought that it would be a wonderful idea to give substantial social security payments to old people living in private residential care. The cost in 1979 was 10 million quid. The cost last year was £1.1 billion. We are talking about a potentially enormous amount of money. An effective scheme would cost the earth, and the money would be better spent on improving health care.
Therefore, I do not feel that we should be aiming to introduce no-fault compensation. We should be aiming at fewer faults. We should be aiming at having fewer cases that might lead to such complaints, and we should be indulging in a vigorous pursuit of those at fault and of improvements to reduce the damage that potentially they can do. That would be a lot easier if we were not spending enormous sums of money on thousands of relatively modest claims.
§ 12.3 pm
§ Mr. Frank Doran (Aberdeen, South)
I listened carefully to the hon. Member for Derbyshire, South (Mrs. Currie). She seemed to have some difficulty in appreciating the difference between fault and negligence. That is at the root of the system of tort in England and Wales and delict in Scotland—the requirement to prove negligence and the causal link between the incident and the harm.
As a practising solicitor, I have come across many cases in which fault has been alleged, but it has been impossible to prove negligence. There is a real sense of grievance and injustice on the part of an individual in that situation, particularly when he or she has had to go through the hoops and hurdles of the legal system before a case can get into court. Most people find it necessary to apply for legal aid. There is difficulty in receiving legal aid. Also, a prior test is required and, thereafter, there are long delays before cases come to court.
The biggest problem for people who must go through that process after an injury has been caused to them and the change that inevitably occurs to their lives is the complete uncertainty in the system and what it means to them. They can be recovering from the trauma of physical damage but be left with the stress and strain of uncertainty for many years while cases work through our legal system. It is not uncommon for cases to take seven, eight or more years to be heard before the original incident is dealt with. For that and many other reasons, I have long been a supporter of a no-fault liability scheme, not just in cases of medical evidence but for other matters covered by, for example, the New Zealand scheme or the Canadian and Saskatchewan schemes, which were pioneers.
1257 The hon. Member for Derbyshire, South made much of the cost of the New Zealand scheme. She omitted to mention that it covers not only medical negligence but a range of insurance matters, including road traffic liability and third-party liability under their traffic legislation. Of course it is expensive—so would ours be if all those matters were lumped together.
When I read the Bill, I was struck by the compromises that would have to be made if we set up a no-fault scheme. Clearly, many aspects are left out of the Bill, but they should be an essential part of any scheme. One point that worries me is protection for patients. Legal assistance for patients who have to present cases should be provided. Other hon. Members have mentioned the problem of full access to medical records and assistance in understanding and interpreting them. We should also consider how to deal with the problem of assessing the damages required to be paid. The board that would be set up by the Bill would be a self-perpetuating body which would require some outside influence in determining what damages should be paid. If it had a monopoly, how would it make such an assessment? What comparisons would it make? There are gaps in the Bill. Again, that is part of the inevitable compromise.
There is opposition across a broad range of the establishment, not just on Conservative Benches—I know that it exists on my side of the House also—to the principle of no-fault compensation. One thing that strikes me most is that the Bill focuses on the national health service. In many respects, that service is in a unique position because it is a public body and is directly answerable to the Secretary of State for Health. There are many advantages of the scheme, particularly for the national health service.
We have heard about the potential cost of the scheme. The hon. Member for Derbyshire, South gave grossly inflated figures concerning the likely consequences. Not every incident will result in a claim and not every incident that results in a claim will result in a claim worth the average figure of £17,000. That is certainly not the experience of the Criminal Injuries Compensation Board.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
According to a parliamentary question that was answered by the Scottish Minister with responsibility for health, the sum paid out last year in Scotland in cases of compensation amounted to £1.364 million. That was based on an average claim, including claimant's costs, of £17,000. For our country we are not talking about a great deal of money, are we?
§ Mr. Doran
My hon. Friend makes his point very well, and I shall develop it. What is not included in the costing of the scheme is the court time involved, legal aid costs, which are all costs to the state, the problems within the health service that are created by any litigation, and the cost of running legal services. I have already mentioned the legal costs across the board.
The distraction of the staff is also important. The involvement of any member of staff in a legal claim is a fairly major event for that individual. A whole department may be involved in a claim. I was involved in a complaint brought by one of my constituents recently. It will not result in a claim against the health service, but there appeared to have been negligence. For many months the 1258 staff of one department in my local hospital were caught up and distracted. Many of them were worried and stressed by the implications of that complaint. The cost of such stress is never assessed and taken into account when we examine the cost of the present system.
The present system results in several costs both within and outside the system. One is the worry and stress on individuals who are the subject of the fault or negligence claim. That in itself can create costs for the state such as extra industrial injuries benefit or social security benefits for someone who cannot return to work quickly or may suffer illness brought about by the stress and strain of the legal process which they must pursue.
As I said, the NHS is in a unique position because it is a public body through and through. Opposition Members, who support the NHS, want to see it continue to be a public body through and through. The Government are worried about the cost of insurance against negligence and brought in the system of Crown indemnity. That is a step in the right direction because it has taken central control, at least through the various health boards, of health service insurance. The service is becoming self-insured. I have some experience of that because I worked in public bodies—one nationalised industry and a local authority—which made exactly the same decision in respect of their insurance claims. They discovered that they were paying an enormous amount in insurance premiums and that the return from them did not make economic sense. So they decided to become self-insured. They spent the £50,000 premium on setting up their own insurance.
It is common practice now throughout the public sector to pay the equivalent of the insurance premium into a fund that slowly builds up and allows bodies to meet all their insurance claims. I am not sure whether there is a similar practice in the health service. The practice means that bodies can carry their own insurance and keep control of it. They are not in the hands of an insurance company when deciding whether a claim should be settled. They can meet claims or fight them if they decide that they want to do so. They can make decisions on a case-by-case basis.
Administrative costs were cut dramatically by adopting that practice. With on-going payments into the fund, bodies have control of a substantial fund to meet all their liabilities. There is no reason why something similar should not be introduced into the health service. As we heard earlier, the health service spends about £75 million on direct payments of costs. My hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) gave us the example from Scotland. That is an enormous amount of money and I am sure that there is scope for making savings.
The Health Secretary could examine how the system of Crown indemnity might be extended. It would not necessarily require legislation. It could be done administratively. Why not consider the possibility of an experiment in one health board and see what could be done?
The Criminal Injuries Compensation Board was introduced administratively and has operated for 20-odd years. It is subject to delays and there are real criticisms about the way in which it operates, but at least it provides compensation in an area where no compensation was previously available in practice although technically it was always available. There is no reason why the same could not be done in the health service.
1259 The Secretary of State could introduce a scheme whereby an area board did away with the concept of legal challenges and assessed claims on their merits, not necessarily, in the first instance, on the basis of fault, but on the usual legal basis of legal liability for damage caused by negligence. The Secretary of State could experiment and see what effect that scheme had on the area. I am convinced that there would be practical savings which would be extended to the patients making the claims. It would remove from them the uncertainty and fear of the legal process, which I mentioned earlier. Such an experiment would be a valuable test of whether such a scheme could be extended beyond the area of the experiment.
No matter what hon. Members on both sides of the House say about the Bill—we know that the Government have called in the troops to vote against the Bill, so we know their position—there is great anxiety about the way in which compensation claims are dealt with in the health service. It is not good enough to bat down the measure and say that it is inappropriate. Clearly, such measures will be introduced regularly in the House. We want to hear something from the Government about what they propose and how they see the way forward. Shall we be stuck with the rigidities, inequities and inconsistencies of the present system, or does the Secretary of State have some practical proposals to put to the House to show us the way ahead and give us something against which we can test the present system? I do not expect an immediate answer on my idea of an experiment, but I should like the Secretary of State to consider whether it is possible to introduce a scheme administratively as an experiment somewhere in the country.
§ The Secretary of State for Health (Mr. William Waldegrave)
I found the speech of the hon. Member for Aberdeen, South (Mr. Doran) interesting. I shall come back to some of his suggestions for improving the present position by administrative means. There are some ways of doing that and I have one suggestion which I hope will interest the House later. However, we should be a little careful about analogies with the Criminal Injuries Compensation Board because it has the advantage of having settled beyond peradventure all questions of fault. Criminal liability has been established. It settles the causation in pretty well all cases. It establishes only a small amount of damages. Although it is a useful board, one must be careful with the analogy the health service. It is certainly not analogous with the type of board proposed by the hon. Member for Greenwich (Mrs. Barnes).
§ Dr. Kim Howells (Pontypridd)
I remind the Secretary of State that some industries have similar boards which have dealt well with complicated cases where bitterness may arise out of the board's decision. For example, in the coal industry a large number of cases is dealt with. The greatest hardship is taken out of the compensation case before the case comes to court. In certain cases the company is taken to court, but not in all cases, and therefore the courts are not clogged up.
§ Mr. Waldegrave
There may be arrangements to deal with certain categories of cases in comparable ways, but I shall come back to the matter.
1260 I thank the hon. Member for Greenwich for bringing the House back to an important, interesting and difficult subject. It is not a party subject as such. I have no doubt that the hon. Member for Peckham (Ms. Harman), with her usual skill, will attempt to make it so. The begetter of the no-fault compensation lobby, which goes back to the 1950s, was the late lamented Member and great friend of mine, Sir John Foster, who badgered me when I was in the civil service long ago in the 1970s on no-fault compensation schemes. He found a Government more susceptible than ours to his arguments in New Zealand. I am not sure that the New Zealand Government are universally pleased that they allowed themselves to be so badgered by Sir John.
There are supporters and opponents on both sides of the House of the principle of a no-fault compensation scheme. So far in the debate few people have been willing to say that the operation of the law is satisfactory in respect of medical negligence cases and the definition of who is responsible for what at present. I count myself among that consensus, and therefore I shall try to meet some of the points made by my hon. Friends and by the hon. Member for Greenwich.
I repeat that although this is not a party matter, it is a matter on which no Government can stand back and simply allow things to fall out where they may. Immensely important issues are involved. We are being asked to change the relationship between the victim of harm and the person who caused it. That relationship has developed over many years in common law. I believe that the first claims against doctors go back 600 years.
There is nothing to say that the House should not, from time to time, have a go at overturning long-established principles, and we do. However, we must have a strong case to prove that our actions are right.
If we were to overturn the present relationship between someone whose damage is caused by the fault of a doctor in the NHS—it is important to remember that we are talking about only one sector of the medical profession—there would be major implications for such relationships in many other sectors. I must warn the House about that. However much it is legitimate for the hon. Member for Greenwich to say that she cannot solve all the problems at once in one Bill, it is also the duty of the House, and certainly the Government, to consider the implications of the Bill across the board.
§ Dr. Godman
I know that it is no answer to the problems suffered by someone who experiences massive negligence at the hands of a consultant during an operation, but would not it put the mind of the public at ease slightly if the Government introduced a more efficient disciplinary procedure for the conduct of consultants?
§ Mr. Waldegrave
Some important comments have been made on that matter today. My hon. Friend the Member for Derbyshire, South (Mrs. Currie), in her characteristically robust style, drew the attention of the General Medical Council to the unease that still exists, although I accept it has addressed some of the problems. We all share that feeling. I remind the hon. Member for Greenock and Port Glasgow (Dr. Godman) that, with the support of the House and the leaders of the medical profession, various things have been done in terms of a peer-group review of the skills of doctors—a medical audit. In common with all self-governing professions, the GMC has a tremendous 1261 duty to relieve public unease by ensuring that the inevitable solidarity that exists in the profession does not overpower the need for justice and accountability. Accountability is an important theme and I am not sure that we heard enough about it in the lead-up to the Bill, although important comments have been made about it today.
We should make such a fundamental change in an important area of our public life only if we have before us a most compelling and coherent case. Preferably we should be able to study exemplars from abroad to see how to do it. We should make that change only when there has been a clear and practical exposition of not just the principle in the broadest sense, but of how it will work. That is what a Second Reading debate is for. Some hon. Members have suggested that we can push the Bill into Committee to sort out the details, but we need to know whether the majority of the House has agreed on a clear principle on which the Committee and experts in my Department can work to make practical.
People have gathered round the no-fault compensation banner for many years, but it is a banner with many different emblems. I read the accounts of the press conference of the hon. Member for Greenwich and I have read the letters from organisations expressing support for the Bill's principle. It is noticeable how differently they render that principle and how few of those organisations are willing to say that they are in favour of a Bill—be it the one introduced today by the hon. Member for Greenwich or that introduced by the hon. Member for Peckham. At that point the House has the right to ask whether those differences exist because it is not easy to produce a Bill embodying that principle which works. I do not believe that the Bill's ability to embody that principle has been demonstrated today and I shall try to explain why.
§ Mr. Chris Mullin (Sunderland, South)
No one is suggesting that it is easy, but we believe that what is proposed is better than what has gone before. Unless the Minister has any better suggestions—we should have heard them before this debate and they should not be tagged on to the end of his speech—he should allow the Bill its Second Reading.
§ Mr. Waldegrave
Although it was put in the hon. Gentleman's characteristically emollient way, his point is fair. I believe that I shall be able to demonstrate that the desire for change would not be met by the Bill and that, in a number of crucial respects, the Bill would make things worse. That also goes for all the other Bills that have attempted to embody the principle of no-fault compensation. Perhaps the principle is easy to state in the highest level of generality, but not so easy to carry into law. As a result of the Second Reading the House must know that it is submitting to the Committee something that can be made into reasonable law that will improve matters.
The hon. Member for Greenwich listed the criteria that the Bill is designed to meet and we are all agreed on those criteria. The hon. Lady is seeking to improve on the unfairness of the present system and I agree that, in many respects, the present arrangements are perceived as unfair. There is a basic perception that such compensation claims are a lottery. The family of one baby who has suffered may receive £1 million, but another baby with a similar injury 1262 may get nothing or only social security support. The new system will involve major changes to principles that have existed in law for many years and we must be certain that it will produce a better system with less unfairness.
We all respect the concern that the right hon. Member for Stoke-on-Trent, South (Mr. Ashley) has expressed on this matter, and on other similar matters, but it is no good saying that it is disgraceful of me to oppose something if the origin of my opposition is my belief that the Bill will make matters worse. I must try to persuade the right hon. Gentleman of that.
Would we have less unfairness as a result of the Bill? Clearly not. We would still have negligence claims—I plead with hon. Members to remember that. The hon. Lady played down the fact that people may not like the compensation offered by the board—the hon. Lady and the hon. Member for Peckham have rightly said that such compensation must be cash limited and the hon. Member for Peckham has reiterated that the Labour party is committed to cash-limiting the health service—because the awards will not be very big. Comparison has been made with the Criminal Injuries Compensation Board—we should not follow that comparison too far—but it deals only in awards of between £2,000 and £3,000.
Under the most analogous foreign systems—although none of them approximates closely to the system that we would obtain under the Bill—the sums awarded would be between £10,000 and £20,000. On the advice of their lawyers many people will refuse such awards, thinking that they will get more by suing for negligence and damages through the courts. So many of the most heart-rending cases will continue. The hon. Member for Greenwich offered a most moving example in her speech today and at her press conference—of a woman who took her case through all the courts and finally lost, on the issue of causation I believe. Costs were awarded against her and the whole episode was a terrible disaster. Her solicitor, who was also present at the press conference, said, as I understand it, that this Bill would make no difference to such cases: the woman would have been likely to pursue her case in any event. So this is one category of unfairness that would persist under the Bill—
§ Mrs. Rosie Barnes
The lady in question has made her case well known and she has made it clear that she pursued the case through the courts in the first place to get to the bottom of what happened and to be given a proper explanation. She is, of course, devastated by the £150,000 costs awarded against her, but she is less worried about having lost her award. It must be forcibly stated that the courts are sometimes used to get explanations that are otherwise unobtainable.
§ Mr. Waldegrave
That is a fair point, but the solicitor, Mr. Body, said that since the woman ultimately lost on causation she would not have got compensation from the board either—so her case would not have been helped at all.
§ Miss Emma Nicholson
Does my right hon. Friend agree that the Access to Health Records Act 1990 was drafted a little more narrowly than it should have been and that the way to get increased access to medical information for patients might lie in re-examining that Act and perhaps other measures of that nature, instead of following the proposal of the hon. Member for Greenwich (Mrs. Barnes)?
§ Mr. Waldegrave
The hon. Member for Newscastle upon Tyne, North (Mr. Henderson) greatly assisted the progress that we have made on medical records, although the Act has not yet come into force and we must see how it works when it does.
There would be new unfairnesses under the Bill. In the past few days large compensation claims have been paid to children involved in tragic car accidents. Clear fault was established and I expect that the insurance companies ultimately paid the people involved. Such cases will also persist. Similar cases involving brain-damaged children and damage done by other public services will be settled with no change from the present system. No one could claim that that would be fairer than what happens now. If a person is hit by a British Rail train and full negligence is not shown, that person will receive no compensation; but people who are the subject of accidents in the health service will have an automatic right to some compensation. Of course, the hon. Member for Greenwich says that she cannot deal with everything at once, but she is pushing us in the direction of what happens in New Zealand, although everyone, including the hon. Members for Peckham and for Greenwich, now agrees that the New Zealand system is cracking up. It does not work and New Zealanders are backing away from it. The hon. Member for Peckham may say that the Labour party is committed to introducing such a Bill; if so, she is committing her party to another £300 million or £400 million of expenditure. She should talk to some of the lawyers in her party—they may not be as keen as she is. We do not want to land ourselves in a frightful muddle.
§ Mr. Terence L. Higgins (Worthing)
Does my right hon. Friend agree that in all the cases that have been mentioned it is probably possible to obtain redress through the courts, but that the group who have been really unfairly treated are the nuclear test veterans who cannot take action through the courts?
§ Mr. Waldegrave
That runs well outside my departmental responsibilities, but I agree with the first part of my right hon. Friend's intervention.
Yet another extraordinary unfairness would arise under the Bill. Let us imagine that the board pays compensation in a case but then comes to the conclusion that it should take the case forward for negligence, even though the person involved has not, possibly because he is satisfied by the quicker process. The board might win its case for compensation and, having awarded the victim £50,000, win £1 million. In that case the person concerned would get no more money; other claimants with less good cases would get it, because it would spread among other cases under the regime of the Bill. That would not be right. People would claim strongly that the money that had been won was theirs. Perhaps that anomaly could be removed in Committee, but there are signs that the problem has not been thought through.
§ Mr. Waldegrave
If the board fought a negligence case, it would gain what the individual would have received if the case had been fought by that individual. The individual would have won, just as the board had won. The 1264 individual would then receive compensation on the usual basis. The hon. Gentleman cannot escape from that conclusion.
The procedure involves acute unfairness to doctors. There is a double jeopardy. The doctor is asked to co-operate with the board. He is asked to apologise. Dubious causation is established. Then a negligence claim is made by the board against him. I do not believe that a doctor should be put in that position.
§ Mrs. Rosie Barnes
It is not intended that the boa rd should enter into negligence actions against NHS employees, including doctors. The intention is to take action against third parties—NHS suppliers whose products may have caused a problem through being faulty. The intention is to recoup that money. We do not intend to pursue the doctors through the courts. We want to refer to the appropiate authority only matters that are not being dealt with.
§ Mr. Waldegrave
This is a new and fundamental principle—that only one category of negligence claims is to be pursued by the board. Such a new idea would be difficult to uphold. There would be cases under the criteria set out by the hon. Lady where it would be right for the board to sue a doctor for negligence. If the intention is to sue only Eli Lilly, which, rather to my astonishment, is in alliance with the right hon. Member for Stoke-on-Trent, South because it is in favour of the Bill, I am told by one of my hon. Friends—it must be the first time in history that that particular alliance has been forged—that would be a new source of unfairness. Only one form of negligence case would be pursued, not others. That is why I am willing to debate with the right hon. Member for Stoke-on-Trent, South my view that my opposition is not inhuman; I am just trying to find out whether the Bill would improve the position. I believe that it does not do away with unfairness. It introduces much more unfairness.
The second criticism of the present system relates to accountability. The hon. Member for Greenwich made the point at her press conference that if the case is settled out of court there will be little accountability. The Bill does nothing about that. The best negligence cases that the hon. Lady's Bill will not exclude—although the Bill introduced by the hon. Member for Peckham would have excluded them—will continue to be settled out of court, just as they are now. Therefore, the Bill provides no help in that direction. However, together with the presidents of the royal colleges, we should try to draw explicit lessons from court cases. I shall return to the point made by my hon. Friend the Member for Newbury (Sir. M. McNair-Wilson) about gathering information centrally to draw lessons that can be fed into our growing means of improving medical standards, audits and so on, based on existing cases.
Difficulty over access to the ordinary court system often prevents an explanation of and the disentangling of tragic events. Above all, in my constituency experience, people want to know whether negligence could have been avoided. We want people to be able to gain quicker arid better access to the courts.
Unusually for a Secretary of State standing at the Dispatch Box, I have to say that I am alarmed by the degree of power that is given to me and my successors by the Bill. At two crucial points in it, important matters are left to the Secretary of State for his guidance. Causation, 1265 which could often be proved before the board only with great difficulty, will not accord with the usual legal definition, because I am to make my definitionhaving regard to the difficulties in establishing causation in law.My new definition, which will be more intelligent and sensitive than that developed over hundreds of years by lawyers, will be compared with the definition used by the courts when dealing with the same case. That would be extremely odd. The board may pursue a case in the High Court and a verdict may be reached according to the normal definitions of law, but that will be compared with a wholly different definition used by me. If there is no difference, what is the point of a new definition? If I establish a new definition, it will create a fresh set of problems and conflict with the existing legal system.
The Bill would also allow me, under schedule 2, to do all sorts of unnamed things in relation to disciplinary bodies. That is not something that should be sorted out later in Committee. If I were to come to the House and ask for such powers, I would be met with a good deal of uproar from the Opposition, and certainly my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) would find such a proposal intolerable.
The pig in the poke that we are being asked to buy will, by its very nature, diminish accountability. That is the nature of no-fault schemes—and part of their merits in the eyes of their proponents. They do not seek to lay blame. If one wants to do that, there is no escape from the much-maligned adversarial court system. If one wants to put the blame on someone, that individual must be allowed to defend himself—and will therefore place himself in an adversarial position, of the sort that I find myself adopting towards the hon. Gentleman to whom I give way.
§ Mr. Tom Clarke
The Secretary of State introduces a new dimension that runs counter to an argument that the Minister for Health, who is seated next to the right hon. Gentleman, will recall from the Committee debates in 1989 on the National Health Service and Community Care Bill. Then, the right hon. Gentleman's predecessor took upon himself power upon power, without as much as an apology or a blush. Is the Secretary of State announcing a policy change? If he is worried about the time taken by courts to deal with cases, do his calculations about bureaucracy and costs take into account the abuse of the existing system? Will not the Bill give the right hon. Gentleman an opportunity to do something about that?
§ Mr. Waldegrave
A private Member's Bill comes to the House with the major and difficult issues left for the Secretary of State to address. On Second Reading, we should be debating matters such as the nature of causation and the sort of no-fault concept that we have in mind.
I refer to the point about double jeopardy made by the hon. Member for Peckham. Schedule 2(6) states:Where the Board pursues any legal claim which it has passed to it, the value of that claim shall not be restricted to the level of compensation that the Board has paid to the claimant, but shall be assessed by reference to the damages that would have been awarded to the claimant had he pursued the legal claim himself.I thought that my earlier remarks were correct, so it seems that the hon. Member for Peckham has not read to the end 1266 of the Bill. I only argue with the hon. Lady because she has been making inflammatory remarks from a sedentary position and occasionally I must be allowed to strike back.
There is a consensus in the House that cases should be dealt with by the courts more quickly and in a fairer way. However, there is the danger of litigiousness and a horror of the sort of cases that arise in America. The hon. Member for Sunderland, South (Mr. Mullin) is bound to be in favour of this revolutionary change, on principle. [HON. MEMBERS: "He is a reformer."] Yes, he is a genuine reformer. However, would the dramatic reform that we are being asked to consider limit litigiousness? That is a prefectly reasonable question for the hon. Member for Greenwich, as it is one of the reforms which she claims for her Bill. It will not do so, for the following reasons. There would be bound to be more cases against the NHS under this proposal, because a lower level of proof would be required to get compensation, as no fault is involved. If I am allowed the powers granted in the Bill there will be a lower test of causation than the reasonable test that the courts use at present which will result in many more cases. There would be more claims against the national health service than against any other service, because claims against other services would still be dealt with using the recognised legal concept of causation.
With all respect to my hon. Friends and to Opposition Members who are lawyers, the legal profession will not turn down the chance of a whole new industry of bringing cases against the NHS. One sees advertisements for solicitors in newspapers now. I saw such an advert in a Hampshire paper last week which said, "Do you feel you have a negligence claim against the NHS?" I suppose that that is fair enough, and that solicitors should be able to publicise, but the Bill would result in a great deal of pressure to bring cases because of the lower criteria required.
American litigiousness has produced a new phenomenon called defensive medicine, although there is more anecdote than proof of it. As a result of this Bill there will be a new form of defensive medicine. The present form —if it exists and whether or not it is a bad thing—would remain and ordinary negligence cases would continue as at present. The Bill does not exclude that. However, a new form of defensive medicine would emerge.
All medicine has risks attached to it. As a result of the Bill, doctors would not only take steps to avoid pressure from negligence claims—although sometimes those steps are a good thing and we should take more of them—but would move away from any medical practice which has risk attached. All medicine involves some risk, but doctors would not wish to go before the board or to be constantly involved in inquiries, and so would decide to move away from any medicine with a slightly higher risk factor. That would be wrong, partly because no medical practice is entirely without risk, and partly because medical decisions should be made as a result of proper clinical judgments and should not be influenced by other considerations such as boards.
§ Mr. Couchman
Does my right hon. Friend agree that the Bill will also militate against innovative procedures and treatment?
§ Mr. Waldegrave
That is probably so. If a doctor followed that route he would probably end up before the board.
1267 Defensive medicine is a serious matter, which must be considered. There is a lot of loose talk on the subject and as I said earlier, some defensive medicine can be a good thing. For example, the King's Fund report of 1988 showed that much defensive medicine in the United States was concerned with closer monitoring of patients and better record-keeping. I believe that one of the midwives at the press conference given by the hon. Member for Greenwich gave an example of unsatisfactory defensive medicine—the electronic foetal monitor. I was jolly pleased that there was electronic foetal monitoring for all four of my children and I would not wish to do anything to diminish that modern good practice.
I am trying to persuade the hon. Member for Stoke-on-Trent, South that the Bill will not make things better. It might do away with existing defensive medicine —whether that is good or bad—and it would introduce a new type.
§ Mr. Ashley
I appreciate what the Secretary of State is saying and although I do not agree with his objections to the Bill, I know that he puts them forward in good faith. What are his alternatives to the present scandalous situation?
§ Mr. Waldegrave
Hon. Members will be united in pressing me on that. First, let me finish my explanation of why I think the Bill does not help and why we must therefore look to some other proposals.
My last objection is on grounds of cost. At present, most cases—about 95 per cent—are settled below £100,000, although some headline cases, usually involving children, result in much higher settlements. Surely it is naive to think that if the Bill is enacted, there will not be a very large increase in the number of claims. Unless the awards are extremely small—at the level of criminal injuries compensation type awards of £2,000 or £3,000—most people are bound to go for negligence and, if they are not, the cost will be very great. The BMA says £100 million; the King's Fund used to say £300 million to £400 million and is now saying about £230 million. At any rate, considerable sums will be involved. Nobody really knows, but there would be rapid expansion.
§ Sir Michael McNair-Wilson
Is not it the case that although people in Sweden and Finland have the right to use the courts, an extremely small percentage exercise that right, and that most are satisfied with what the compensation board offers?
§ Mr. Waldegrave
I know more about Sweden than about Finland, although I suspect that the arrangements are rather similar. The trouble with an analogy with Sweden is that the scheme represents a small top-up to a very generous disability system, which would be the delight of many hon. Members on both sides of the House if we could afford it. I fear that that is the answer to my hon. Friend's question and we looked into the matter to see why that was so.
§ Sir Barney Hayhoe (Brentford and Isleworth)
The Secretary of State is about to explain what he thinks could be put in place of the proposals in the Bill. Many of us who have studied the subject carefully do not accept that just because the present situation is bad—we all accept that it is—we should necessarily adopt the proposals of the hon. Member for Greenwich (Mrs. Barnes). Many of us agree with my right hon. Friend's case, which is that those 1268 proposals would make matters worse. I want to make that absolutely clear before we reach what I hope will be my right hon. Friend's constructive proposals for improving the present arrangements.
§ Mr. Waldegrave
That is the structure of my argument and I am grateful for my right hon. Friend's endorsement of it.
We have problems with each of the matters that the Member for Greenwich and the supporters of the Bill, have, honestly and straightforwardly, sought to address, but which I argue are not addressed effectively in her approach. First, we have a problem with access to health records—a point to which hon. Members have referred. The Access to Health Records Act 1990, introduced by the hon. Member for Newcastle upon Tyne, North, comes into action on 1 November and will be of considerable help in terms of enabling justified cases to be brought.
A whole battery of matters—described by the hon. Member for Peckham as a smokescreen, which they are not—arise from the civil justice review started by Lord Hailsham in 1985. Some of the most distinguished experts in the field—for example, Roger Pannone and Lord Griffiths—took part in that review and a large number of the 91 recommendations are either in train or about to be set in train. I shall mention them because, if we are criticising the tort system, we should know what is being done to make it better.
The review looked into three main areas—matching cases to judges, what the lawyers call the cards-on-thetable approach, and changes to reduce delay. New arrangements for the allocation of business between the High Court and the county court will ensure that cases are heard by the appropriate level of judge. Smaller value cases will be heard, for the most part, in the county courts, thereby reserving the High Court for the cases in which it should properly be involved. To achieve that, county courts will be given unlimited jurisdiction and all personal injury claims involving amounts below £50,000 will be required to start in the county court. All cases set down to trial will be scrutinised and decisions will be made on the appropriate forum for trial based on the criteria of substance—the value of the claim and the importance and the complexity of the case. District judges' trial jurisdiction will be increased to £5,000 in line with that of circuit judges and the limit for the automatic reference to arbitration will be increased from £500 to £1,000.
Then there is the so-called cards-on-the-table approach. The aim is for parties to provide each other with information at an early stage of the proceedings to clarify the issues, encourage settlements and shorten trials.
Since last June, a plaintiff with a personal injury claim has been required to provide a medical report and statement quantifying the losses he has suffered, or continues to suffer as a result of his injuries, with his particulars of claim. A further rule change requires the defendant to inform the plaintiff of any facts on which he intends to rely to contest the damages claim. Those rules give each party important information at the outset of proceedings rather than closer to the trial.
From July—this has not been introduced in the debate —parties in defended actions will be required to exchange the statements of witnesses on whose evidence they intend to rely. That will lead to better-informed settlement at an earlier stage of the action. Where a case goes to trial, the 1269 length of the hearing should be shortened as issues will have been identified and the need for oral evidence reduced.
Changes to reduce delay have been introduced. A period for serving a writ or any other originating process has been reduced from 12 to four months. A defendant will therefore have speedier notice of an action being taken against him and the overall period between issue and trial should be reduced accordingly.
Courts now have more power to split trials—to say that a question of liability be heard in advance of an assessment of damages. Previously, an order for split trials could be made only on application by one of the parties. A further change is the introduction of automatic directions in the county court which provides parties with a timetable of standard directions leading to trial. That means that the parties need not go to the High Court for such a direction.
A county court can now order provisional damages in similar circumstances to the High Court. That allows a plaintiff to receive damages while maintaining his right to claim further damages if his injuries deteriorate.
Since 1985, a number of county court trial centres have been established that can offer continuous hearings. There are 74 such centres and a further four are planned. The Lord Chancellor will next consider steps to allow courts to adopt an interventionist role in ensuring that cases progress.
The House will be aware that, as I have shifted to a legal brief, I am, in a sense, speaking with the permission of the Lord Chancellor. This important battery of changes and reforms are aimed exactly at the target that we should be aiming at.
§ Mrs. Currie
Is my right hon. Friend aware that, following my visit to Sweden in 1987, my right hon. Friend the Member for Braintree (Mr. Newton) and I, who were then serving at the Department, instead of accepting a no-fault compensation scheme decided to recommend certain changes to the Lord Chancellor's criminal law review committee? I must place it on record that I am delighted to hear the changes that he has announced, particularly the improvement in the county court procedure, which will help all the claims of which he has spoken today.
§ Mr. Waldegrave
I am delighted that my hon. Friend was involved in the conception of these matters with the Lord Chancellor.
§ Mr. Lester
Surely all these improvements, which are welcome and which we appreciate, do not help where negligence must be proved but where, as a result of advice that it cannot be proved, the person is not given legal aid. All these improvements will not bring the cases that concern many of us to fruition.
§ Mr. Waldegrave
My hon. Friend makes the point that if one has no case in law one will not get legal aid. That is, indeed, the truth. I have attempted to argue that the no-fault scheme does not solve that, but causes the range of separate problems that I have tried to describe.
§ Mr. Waldegrave
I must press on. The hon. Member for Greenock and Port Glasgow is rightly pointing at the clock.
I have something new to put before the House which may be of some interest. The Pearson commission discussed arbitration procedures. More recently, Lord Griffiths proposed that we should offer an arbitration procedure for cases in which negligence must be proven. He suggested a panel of two doctors and a lawyer agreeable to either side. They would work entirely on paper and would have full access to case notes and hospital records. There would be no appeal. The panel would apply the normal principle of negligence under common law.
I am aware that there may be many cases—I am trying to meet a point made by the hon. Member for Greenwich —in which speed and simplicity of solution may be acceptable to the claimant in exchange for losing the ultimate right to bigger damages. I am willing to examine that, although I am not committing the Government today. However, we should have discussions with those who are interested.
One benefit of the debate started by the hon. Member for Greenwich is that attention is now focused on the issues and people are now thinking about them. I should be willing to discuss with groups who are concerned whether such an arbitration prodecure, which we could offer administratively in the national health service and which would not need primary legislation, could provide a second string to the general court bow. The key objective would be to provide quicker, cheaper and simpler avenues for the informal resolution of disputes. I put that suggestion to the House in good faith, but without final commitment. The suggestion needs to be discussed, costed—
§ Mr. Peter Griffiths
If I heard my right hon. Friend correctly, he was foreshadowing the composition of an arbitration tribunal as being one lawyer and two doctors. Is not it rather difficult to conceive of a decision having to be reached on the legal concept of what constitutes negligence when the majority representation on the panel would not consist of lawyers?
§ Mr. Waldegrave
I do not think that we should now debate that point, suggested by Lord Griffiths. If it is thought to be acceptable by those who are interested, we should consult on it.
We need to know a little more about defensive medicine. We have heard anecdotes and we have seen the study by the King's Fund which seemed to suggest that, in one sense, defensive medicine may be good. We have also seen the evidence published in a recent edition of the British Medical Journal which shows that the number of American claims is falling. When we talk about America in the House, we are often out of date about what is happening. There is now a distinct downward turn about which we need to know.
1271 I agree with my hon. Friend the Member for Newbury that it is odd that we do not have proper central information about the matter. We should review the incidence of medical accidents and carry out a proper analysis of claims so that we know what we are talking about. Two research projects are needed before we launch ourselves into uncharted territory. What do we mean by defensive medicine? Is it a good or a bad thing? We must investigate that, as I propose to do with the help of the presidents of the royal colleges. We should have proper evidence about the extent of existing cases.
The hon. Member for Greenwich said—and I have some sympathy with this—that there is something odd about enormous lump sums claims that are based on the principle that the person in question will have the most expensive Harley street treatment. The Bill simply reverses that and says that damages should be awarded on the basis that people have to have NHS treatment. That is not right either. The reason why Aneurin Bevan put such a provision in the original legislation was that he accepted the civil liberties case that one cannot compel someone to have national health service treatment. People must have the option to go elsewhere, especially if they have been damaged by NHS treatment. However, it seems wrong that a person can be given damages on the basis that he will use extensive private medicine, but may not actually do so.
We have discussed the level of damages in relation to the lifetime of the patient concerned. The damages may be too low because, as the hon. Member for Greenwich said, there has been medical progress, or they may be too high. I have had discussions with my noble friend the Lord Chancellor. He has authorised me to tell the House that he has been discussing with the Law Commission the possibility of instituting a new inquiry into personal injury damages which would consider, among other matters, the issue of so-called "structured payments". That is right.
I must advise the House that, even with such measures, the Bill would involve considerable costs for the national health service. The most charitable and positive way to put the matter is to say that the argument that the new principles that we are being asked to endorse are either practical or would improve the position is not proven. I must ask the House to vote against the Bill on Second Reading.
§ 1.4 pm
§ Ms. Harriet Harman (Peckham)
I welcome the Bill. The hon. Member for Greenwich (Mrs. Barnes) has taken up the cudgel in a worthy cause, which has long been the subject of campaigns by my right hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) and numerous others on both sides of the House. The Labour party supports no-fault compensation and I will certainly vote for the Bill's Second Reading.
I agree with everything that was said by the hon. Member for Greenwich, who set out the arguments extremely well. A service must be judged by what happens when things go wrong as well as what happens when they go well. Although the Government pay lip service to patients' rights, patients are treated shamefully when problems arise. The current compensation system adds insult to injury: it is a cruel lottery, in which a very few people receive large sums and most receive nothing—not even an explanation or an apology.
1272 The Secretary of State spoke of a "perception" of unfairness. Patients do not "perceive" that the system is unfair; it is indeed monstrously unfair and the right hon. Gentleman's response completely failed to recognise the scale of the injustice that we shall continue to allow unless we make changes. Even those who win compensation must fight in the courts for up to eight years before they are given their entitlement, and justice delayed is justice denied. That is certainly true for the parents of a child who, having gone into hospital for a routine operation, comes out brain-damaged: those parents must spend eight years of their child's life struggling on the bread line. They need the money at the time when they must give up their jobs and move house, not eight years later, after experiencing all the risks and stress of a legal struggle to prove negligence.
When things go wrong, the odds are stacked against the victim. There will be no compensation at all unless the victim can show that someone was at fault. That is the key point of the Bill, which removes the need to prove negligence and fault. It is very hard to prove that a doctor was negligent. The hon. Member for Northampton, South (Mr. Morris) was right in saying that medicine was an inexact science. It is not just a question of the difficulty of proving fault; it is also difficult to know whether someone was at fault. But we can all tell when something has gone badly wrong. We want a system that compensates people when things have gone badly wrong, without the need to prove negligence.
§ Mr. Michael Stern (Bristol, North-West)
I am listening to the hon. Lady with interest. Does she believe that, if the need to prove negligence were removed, the result would be more or fewer cases in which negligence was identified for the protection of other patients of a practitioner who might be negligent again? I accept that the Bill would remove the delay involved in proving negligence, but what about those other patients?
§ Ms. Harman
I intend to deal with questions of accountability and discipline later.
No one would deny that something went badly wrong for the AIDS haemophiliacs who were victims of a terrible mishap. The Secretary of State, who has come here to defend the current legal system, says that it would give them no compensation. That is one of the best arguments for changing the current system of compensation. If the Government's legal advice is right—if, had there been no publicity campaign and if the Government had not used their discretion, those haemophiliacs would have been left with nothing—the system is clearly all wrong.
§ Mr. Waldegrave
It is rather difficult to show how this Bill would make a difference. The haemophiliacs were offered sums equivalent to the amounts likely to come from the proposed compensation board. They were offered about £28,000 and they refused it as they were free to, just as they would have refused an offer made by the compensation board. They then pursued their case in the courts and they would have a similar right to do that under the Bill. The Bill would make no difference to the haemophiliacs.
§ Ms. Harman
That is not the case [HON. MEMBERS: "Why?"] The Government had to make a special discretionary award in response to public pressure. That shows why the system must be changed. Although the 1273 haemophiliacs were able to mobilise public pressure to bear on the Government, there are thousands of individuals who, because they are alone in suffering the consequences of a particular accident, receive nothing, despite the fact that their personal tragedies may be as grave as that of the haemophiliacs.
What about people who contracted HIV as a result of infected blood transfusions, but who are not haemophiliacs? The haemophiliacs have organised themselves and have been offered compensation because of their pressure on the Government. However, women who contracted HIV when they were given a blood transfusion after child birth do not get compensation. How can we possibly defend a system that allows that to happen?
§ Ms. Harman
Yes it would. As that woman had entered hospital expecting to have a baby, but came out HIV positive, the Bill would ensure that she was entitled to compensation. At the moment she cannot receive that compensation unless she can go to court, live long enough to see the case come to court and finally prove negligence.
Somone cannot begin the battle for compensation through that court unless he or she is poor enough to qualify for legal aid. The Secretary of State did not consider the fact that only 55 per cent. of the population qualifies for legal aid. People cannot begin to go to court and take advantage of the so-called speeded-up procedures, which, by the way, have yet to materialise, unless they are poor enough to qualify for legal aid or rich enough to risk the thousands of pounds involved in legal costs in order to prove negligence.
§ Ms. Harman
No, I will not give way. My experience of the interventions that I have allowed is that I was about to reach the point raised in the intervention and to demolish it. It is not worth giving way.
No system of compensation can be fair when it rules out from the outset most people who should be entitled to compensation and prevents them from even making a claim. How can we justify a system under which more than half the population cannot even begin to make a claim? The Bill's opponents who support the current system should tell us how they can justify that. They have not justified such a system so far.
Most people who claim against the NHS for negligence receive legal aid. However, that does not mean that the only people who suffer accidents in the NHS are those who fall below the legal aid eligibility limit. It simply shows that hardly anyone else can afford to sue. The only people who benefit from the current system are the lawyers. How can we tolerate a system in which for every £100 awarded by the court, £50 to £70 is swallowed up in legal fees? The Secretary of State referred to speeding up the process. I welcome those proposals, but we should bear it in mind that speeding up the process will not change the enormous amount of resources that are diverted away from compensation and into lawyers' pockets. The money will simply end up in their pockets sooner.
§ Mr. Nicholls
The hon. Lady is making a better point than she realises. As one lawyer to another, I assure her that if the Bill is enacted, we will still do okay, if not better. What the hon. Lady says about legal aid is absolutely right. It must have been her experience, as it has been mine, that once an insurance company backing a defendant realises that the plaintiff does not have legal aid, it simply uses its superior financial position to launch a war of attrition against that plaintiff. The Government may not accept it, but the way of dealing with that within the context of the present system is to do something about legal aid. That would be an intelligent point to put to my right hon. Friend the Secretary of State, though he might not agree to it. However, we do not need this edifice of a Bill which does not begin to identify the real problems.
§ Ms. Harman
Obviously, I should welcome an announcement by the Secretary of State for Health that we are to have a comprehensive legal aid system, but, even if we had one, and there is no whisper of a suggestion, we would still have the problem of proving negligence.
The Secretary of State argued against the Bill on the ground of cost, but he does not know the cost of the current system. I have repeatedly tabled parliamentary questions to successive Secretaries of State, asking how much is paid in court orders and out-of-court settlements, how much legal fees cost health authorities and how much it costs in legal aid and court time. The Government have not begun to add up the different items of expenditure that lead our present system to be not only terribly unfair but terribly expensive. The Secretary of State says, "Let us not have this scheme because it is more expensive than the current scheme," when he does not know the cost of the current scheme and has not proposed a tariff on the future no-fault scheme. That is pathetic. He should come up with a few answers. He knows that, for years, we have been asking about the cost of the current scheme. He has not done his homework, but he asks us to reject the Bill. We know that the current system is expensive and unfair. Arguments about cost are spurious.
§ Mr. Higgins
The hon. Lady has announced that the Bill is official Labour party policy. She has, therefore, presumably discussed with the shadow Chancellor an estimate of the cost of the Bill. Will she confirm that he has agreed to her undertaking?
§ Ms. Harman
We should like a system that takes the resources that are currently wasted in court time and lawyers' fees and devotes them to the victims. That is the whole point of a no-fault scheme. Before we even start talking about whether the scheme is based on no change in resources or whether resources will be added, the current system is monstrously structurally unfair.
§ Mr. Waldegrave
The hon. Lady is making an important new commitment. She is saying that the present money, which I suspect is about £70 million, is now to be spread among no-fault compensation claimants. Of course, the hon. Lady will end up with tiny claims for each one.
§ Ms. Harman
It is a bit much for the Secretary of State to say that, when he has not provided information that his own Department should be able to obtain. We should have 1275 information about how much the current system is costing. It is no good the Secretary of State saying that the problem is that the money would be spread too thinly. He does not even know how much is in the pot. However, we know the percentage in the lawyers' pot and how much is wasted on court time.
Some opponents of the Bill argue that it does not address disciplining the medical profession. The Secretary of State mentioned accountability of the medical profession and giving the patient an explanation or apology. Those issues must be considered. However, the Bill is principally about compensation. For heaven's sake, compensation is also important. It is not fair to say, "Let's not talk about money—people want somebody to say sorry." They want both. Let us not undermine the case for compensation by saying that we can smooth matters with an explanation and by everybody being sorry. Both compensation and an explanation are important.
To reject the Bill because it does not include other measures that we also want would be to cut off our noses to spite our faces. Those who argue in that way do not understand that the adversarial system does not provide accountability, contrary to the Secretary of State's suggestion. The adversarial system is one of the main reasons why everyone clams up and the patient cannot get an explanation or apology.
§ Ms. Harman
The Secretary of State says that the system proposed in the Bill is still adversarial. It is not; it is a no-fault scheme.
§ Ms. Harman
I shall not be distracted by the Secretary of State's sedentary interventions. If we remove the need to prove negligence, we shall go a long way to removing the need for a cover-up.
Let us quickly run through the Secretary of State's arguments against the Bill. First, he said that the current system has operated for 600 years, although he acknowledged that that is not a terribly good argument. Secondly, he said that it would be the thin end of the wedge and that we would end up in the same position as New Zealand. That is an odd argument. We are dealing with whether we should have no-fault compensation in the NHS. To say that the system will get out of control and that we shall end up covering other matters such as road traffic accidents and goodness knows what else is not a creditable argument.
Thirdly, the Secretary of State said that we need to have a coherent case set before us. We have a coherent case set before us and, what is more, the public support the change. There is no public support for the current system. The case is made outside, even if the Government cannot recognise it.
Fourthly, the Secretary of State said that we needed exemplars and we could not take a leap in the dark. But why did he not offer, as my hon. Friend the Member for Aberdeen, South (Mr. Doran) suggested, to set up a no-fault compensation scheme in one regional health authority? People who claim that there has been a mishap could choose whether they wish to go to the board or to court. They could make a contractual agreement to choose the path of no-fault compensation or go to the courts. If 1276 the Secretary of State believes that the scheme would not work, why did he not offer to set up an example? We have had no such suggestions. All we have had is, "No, let us chuck the whole thing out."
The Secretary of State said as a criticism—[Interruption.] I wish that the hon. Member for Harrow, West (Mr. Hughes) would listen to this point.
§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. The Secretary of State was given a fair hearing. I hope that hon. Members will give an equally fair hearing to the Opposition Front Bench speaker.
§ Ms. Harman
The hon. Member for Harrow, West might care to note that I have avoided the cheap party political points which, unfortunately, the Secretary of State directed at my hon. Friend the Member for Sunderland, South (Mr. Mullin). I intend to continue to do so.
The Secretary of State said that the problem with the Bill was that it would not exclude negligence claims. But that is not the point of the Bill. It does not seek as its principal objective to exclude negligence claims. We seek not to exclude people who cannot prove negligence. The evil is not the negligence claim itself. The evil and the injustice is that people who cannot prove negligence cannot go to court.
The Secretary of State also said that the board would get more money than the victim and that that would be unfair. That is a Committee point on clause 4(8). It is not a point of substance. He also talked about double jeopardy, but all the professions are well used to the idea of civil jeopardy running alongside professional disciplinary action.
The Secretary of State also said that doctors would avoid high-risk areas. It is exactly the other way round.
§ Mr. Nicholls
On a point of order, Mr. Deputy Speaker. I have been in the House only seven years but in that time I have never witnessed the Opposition Front-Bench spokesman refuse to give way to the Government Front-Bench spokesman. Is it in order to do that?
§ Mr. Deputy Speaker
It is one of the conventions of the House, but to whom the hon. Member who has the Floor gives way is entirely a matter for that Member.
§ Ms. Harman
The Secretary of State spoke for more than half an hour. He has had his opportunity to make his case. I am trying to put my case as quickly as possible.
The Secretary of State said that doctors would avoid high-risk medicine if we introduced a no-fault compensation scheme, but the opposite is true. If one has a fuelled-up, litigation-based system, doctors will get out of high-risk medicine. The same goes for the right hon. Gentleman's argument that such a scheme would militate against innovative medicine. The lesson from the United States and Sweden is that it is the adversarial system which militates against innovative medicine.
The right hon. Gentleman made the interesting suggestion that he should offer some sort of administrative procedure, but that procedure must be on a no-fault basis. If it is not, it hardly takes us any further forward than the 1277 current system, which requires proof of negligence. The right hon. Gentleman also went through the proposals of his right hon. and learned Friends the Lord Chancellor and the Attorney-General to speed up civil litigation. Such a change would be welcomed for civil claims, but that does not deal with those who do not qualify for legal aid or who cannot prove negligence.
The beneficial effects of more litigation need to be questioned. The assumption is that, to right the wrong, we should simply have more litigation and cases of patients suing doctors. Consider what has happened in the United States where access to the courts is easier. The Secretary of State said that we should not consider the example of America too hard because things have changed. His assumption was based on anecdotal evidence from friends and such who have been there. We do not need to base our judgment on such evidence, as there is good evidence to prove that the litigious climate under which the doctor in America operates undermines the quality of the medical care available in the United States.
§ Mr. Waldegrave
The hon. Lady has given a rather poor performance and she has misrepresented virtually everything I have said. My comments on America were based on evidence produced in the British Medical Journal that suggests that the type of practice she has described is declining. We should find out about that.
§ Ms. Harman
It is absolutely clear—there is no evidence to contradict it—that a high rate of litigation leads to defensive medicine; defensive of the doctor not the patient.
The best way for a doctor to defend himself is to do everything imaginable, tests and treatment, even if that is not in the patient's interest. If he does that, he can say in court that he tried everything. Why risk a normal delivery of a baby when one can perform a caesarean and say that one did everything possible? Why risk a lumpectomy, when one can do a mastectomy and thus tell the court that one at least performed radical surgery? Why wait to see how a problem develops when one can open up a patient to see inside?
The hon. Member for Derbyshire, South (Mrs. Currie) is completely wrong—defensive medicine is bad medicine. She is wrong to argue that it leads to better medicine. The hon. Member for Reading, East (Sir G. Vaughan) is right to argue that defensive medicine is bad medicine.
When a doctor decides on a course of treatment we want that decision to be based on medical grounds, not legal ones and not in terms of what courts he or she might face in future. Medicine is a sophisticated and yet inexact science—we do not want a doctor's judgment clouded by thoughts of future litigation.
There is no evidence from America to suggest that doctors are now any more open with their patients, accountable to them or ready with explanations or apologies. They are just as ready to send out a battery of legal letters and to batten down the hatches. If we followed the American example we would encourage a flurry of litigation, which would be disastrous.
Today is a watershed in terms of compensation of the victims of medical negligence. Three choices are available to us. We could keep going with the current system, which is monstrously and cruelly unfair and should not continue. We could encourage more litigation, which would put 1278 patients at risk from defensive medicine and pour money into lawyers' pockets. The final option is to change to a no-fault scheme. No-fault compensation is an idea whose time has come. We can sort out the details in Committee; but for the sake of all who are made worse, not better, by the NHS, I hope that the Bill will be given a Second Reading today.
§ Mrs. Ann Winterton (Congleton)
I am grateful for this opportunity to contribute briefly to the debate as a co-sponsor of the Bill. I congratulate the hon. Member for Greenwich (Mrs. Barnes) on introducing it so well. Extremely courageously, she has introduced a measure which touches on complex and sensitive issues, and she should be flattered to note that her speech attracted the presence of the Secretary of State and of the Minister for Health.
As the debate has unfolded, a certain amount of common ground has emerged between those who support the principle behind the Bill and those who do not. The consensus is that our present system, in which negligence must be proved, is expensive, risky and full of unacceptable delays. The victim of a medical accident takes on a considerable financial burden when pursuing his case through the courts if he does not qualify for legal aid. There is no certainty about the outcome and the fear always haunts the litigant that he may end up far worse off than if he had not begun the action in the first place.
I believe that many victims would be prepared to settle for far less money if their cases could be settled within a reasonable time and if they could be assured that they did not have to face the trauma of our present tort-based system. Accidents and mishaps will occur even in good health care systems such as the one that we enjoy. Patients who are injured in some way may well settle in some instances for a full explanation of what went wrong if they are satisfied that their cases have been fully investigated.
Legal action has been taken when many patients have been affected. Numbers bring strength and raise public awareness. Pressure mounts in support and eventually common sense prevails, as it did in the case of HIV-infected haemophiliacs. By settling out of court the Government have implicitly accepted the principle of no-fault compensation. What is just for one large group of people is surely just for individuals.
We are fortunate to live at a time when the pharmaceutical industry has produced drugs and medication that have successfully treated many conditions and dramatically improved the length and quality of life of patients. However, we must also recognise that the more straightforward health problems have already been tackled, leaving those which are more complex and difficult to solve—I refer, among others, to various forms of cancer, to arthritis and to Alzheimer's disease. It is obvious to me that, in spite of the best endeavours to develop safe therapeutic treatments and cures, there will be patients who will react adversely and who will suffer as a result of such treatments. There may be a few hard cases who merit compensation even when the risks of possible side effects have been fully explained before treatment. The medical injuries compensation board, recommended as a possible vehicle for such cases, could be used. If the board's decision were rejected, litigation, with all its warts, could still go ahead—people would still have that option.
1279 The two most tricky issues in the context of a no-fault scheme to have emerged during the debate are causation and cost. Although, under the Bill, it would not be necessary to prove that a negligent act or omission was the cause of an injury, it would be necessary to prove a link and that would be extremely difficult in some cases. However, just because it is difficult does not mean that it should not be attempted. At present, the only way forward for the injured party is through the courts. The Bill at least proposes an alternative, which is to be welcomed.
The thorny problem of cost, or possible cost, is no doubt the driving motive behind the Government's positive reaction against the introduction of the Bill. Its provisions do not necessitate any new public money, but, rather, that some of what is already spent on administration and litigation costs should be diverted more constructively to those who have suffered while undergoing NHS treatment. One result that may ensue is that the level of compensation offered by the board will be far too low. The Secretary of State picked up that point. In that case, public pressure will build up once again to improve funding.
We recognise also that growing expectations of what can be achieved will lead to further pressure for additional funding. That should come from the taxpayer who funds the national health service. Other ways, however, could be introduced. For example, the pharmaceutical industry might be encouraged to play a part and to enter into a partnership scheme with the Government. That opportunity should be explored.
I have discussed no-fault compensation with the pharmaceutical companies, in particular with ICI whose pharmaceutical research base is located at Alderley Park in the constituency of my hon. Friend the Member for Macclesfield (Mr. Winterton). I received a letter from ICI yesterday in which it said:The pharmaceutical industry recognises the inadequacies of the present system and welcomes moves to make it possible for claimants to seek compensation without incurring considerable expense or financial risks. The need to improve the speed at which claims are dealt with is also accepted. We welcome moves to increase the speed of the court process and to assist in the funding of 'class actions' and other initiatives to facilitate greater access to the courts. The Bill highlights most of the concerns expressed by actual or would-be claimants and presents an excellent opportunity for debating this important matter. However, deeper consideration of all the aspects is required.Many hon. Members will agree with those conclusions.
The problem of a just solution to the really thorny problem of compensation for accidents in the NHS will not disappear in these days of consumerism, when society is more sophisticated and people are more aware of their rights and, I believe, have strong feelings about natural justice.
The Government will eventually have to take action further than that which has been announced this morning. I hope that they do so before they are backed into a corner and forced to act. The Bill has provided an important opportunity for a full debate of this important issue, a debate which I welcome and which will undoubtedly result in instigating progress.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
I agree with everything that the hon. Member for Congleton (Mrs. Winterton) said in her closing remarks. 1280 She is absolutely right. At the very least, this fine Bill has provided us with the opportunity to debate at considerable length important and deeply worrying matters.
I have a great deal of sympathy for the Bill and its objectives. I am a little diffident about criticising surgeons, given the fact that I face surgery in the very near future. However, I am assured by my wife and friends that Mr. Imrie and his team at Glasgow royal infirmary are pretty good. I can only hope that that is the case. I should not want to inflict a by-election on right hon. and hon. Members.
The quality and nature of the doctor-patient relationship is in many respects utterly unlike any other client-practitioner relationship. It is very different from that which exists, for example, between a lawyer and his or her client. The uniqueness of the doctor-patient relationship was brilliantly illustrated in Dr. TalcottParson's essay, written fully 45 years ago. Given the degree of trust that a patient must place in his or her doctor's competence and commitment—be he a general practitioner, consultant surgeon or consultant psychiatrist —the doctor must be subject to a strong degree of accountablility. In all instances, the patient is in a peculiarly vulnerable position, but the same cannot be said of the client of an architect or lawyer.
Despite my remarks about my own future, the accountability of doctors and surgeons is masked by the high degree of conservatism that pervades the medical profession and numerous defence mechanisms. Whereas some claim that lawyers are the most conservative profession in the United Kingdom, at least an equal case could be made for the innate conservatism of the medical profession.
My hon. Friend the Member for Monklands, West (Mr. Clarke) mentioned a number of distressing cases that had been brought to his attention. I want to cite the experience of a lady in my constituency who underwent a bilateral mastectomy. Because of the trust she placed in her surgeon, she agreed to undergo an operation that is viewed by others in the medical profession as being quite unneeded. That lady's husband wrote to me:The effects that this has had on my family could never be explained in a letter. The result of this terrible ordeal was that my wife has never left the house again, and she has got so bad with nerves and depression that I was forced to give up my employment, which was a very good staff position.He was compelled to take that action so that he could look after his clinically distressed wife. His letter continues:The reason that I set out to try to gain compensation for my wife was through a chance conversation that my wife's sister had with a surgeon in Canada. On hearing what had been done to my wife, he was absolutely shocked. He said that the statement regarding the high cancer risk was wrong, and also that the manner in which she was treated at Conniesburn hospital was a disgrace.He goes on to say that his wife's lawyerhas been trying to establish a case for her, for a period of two years now, and all we have to show for our effort is the medical report from a Professor who is recognised as an expert in that field, in which he states that there was no medical reason why Bylateral Mastectomy should have taken place.Finally he says:My wife has been a prisoner in her own home for ten years now, it would make you cry to hear her say that she would love to walk in the rain … No amount of compensation could replace what they have destroyed, but it would at least improve the quality of her life.1281 When people seek compensation they are not out for vengeance but for the means to improve the quality of a life that has been damaged.
I do not necessarily blame the surgeon in my constituent's case, but I blame the obduracy and stubbornness of officials of the Argyll and Clyde health board in prolonging the distress of this couple and of their family. I have been told that in such cases the doctors' medical insurance representatives and health board officials—in the Scottish experience—engage in discussions about areas of responsibility, which prolongs matters to a needless and distressing degree. That is totally unacceptable.
I listened closely to what the Secretary of State said earlier when he promised that such cases would be speeded up in England and Wales. Presumably identical procedures will be introduced in Scotland.
As the hon. Member for Congleton stressed a few moments ago, when people have suffered terrible injuries whether physical or psychological, as in the case of my constituent, we need to distinguish between the sad but unintended consequences of justifiable risk-taking by surgeons, and injuries which are inflicted by careless, incompetent surgeons.
I have had a number of conversations with my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith), who was perhaps one of the foremost neurosurgeons in western Europe before he came to the House. He told me that, especially in the field of neurosurgery, one is engaged in risk-taking when undertaking certain operations. He referred to the case of a young motor cyclist who had suffered brain damage in a traffic accident, and he told me that neurosurgeons have to take risks. I suggest that surgeons who work in such an incredibly complicated field must be allowed to take justifiable risks.
These days some people talk about "just" wars and in the context of this debate—which I welcome, as did the hon. Member for Congleton—we can talk about "just" operations and justifiable risks which surgeons must be encouraged to take. I do not want our surgery to be affected by the litigiousness that now affects American surgery. Last Christmas my wife met a Scot who now works in New York as a geriatrician. His insurance for working with the elderly in a geriatric hospital there is $2.5 million. Neurosurgeons and other doctors working in delicate fields have to be allowed to take justifiable risks. Having said that, we need a system under which the careless and incompetent surgeon can be disciplined.
§ Mr. Couchman
The hon. Gentleman is on the wrong track if he regards the Bill as a way of protecting patients against the careless and the incompetent. Whatever happens, the Bill must not become a charlatans' charter.
§ Dr. Godman
I hope that the hon. Gentleman knows me well enough to know that I would not in any way—directly or indirectly—support a charlatans' charter. In his usual courteous way, the hon. Gentleman has been listening intently to what I have said. He will remember that I said earlier that if nothing else, the fine Bill introduced by the hon. Member for Greenwich (Mrs. Barnes) has enabled us to debate these matters, although I hope that the Bill goes further and I shall be voting for it this afternoon.
1282 I have some reservations, however, We must somehow distinguish between the unintended but sad consequences of justifiable risk-taking and the sloppy theatre behaviour of the careless or incompetent surgeon. Careless or incompetent surgeons who have inflicted injury on people should be disciplined. The Argyll and Clyde health board recently dismissed a surgeon for alleged incompetence, which had led, in the view of the sheriff conducting the fatal accident inquiry, to the death of a constituent of mine.
The Secretary of State may challenge me on this, but in my view the United Kingdom has sloppy disciplinary procedures for dealing with such cases of incompetence. I am not a medical man; I have an authentic doctorate. But it seems to me that consultants who are suspended from the national health service can continue to practise privately. Is not that the case? Moreover, such consultants may be suspended on full salary for what may seem to be many months.
To ensure accountability, we must have a fair and humane disciplinary procedure which at the same time protects the decent surgeon, as opposed to the one who is guilty—or is found guilty by his peers—of incompetence or careless surgery. If we can do that, the trust that is the cornerstone of the unique client-practitioner relationship will be enhanced to a considerable extent.
The Government have a responsibility. It is right that we should leave the establishment of disciplinary procedures to the professions. In Scotland, we have a Law Society—presumably there is one south of the border—which can discipline its members by way of its disciplinary committees. Nevertheless, the Government have a role to play in ensuring that such effective disciplinary procedures are established in the near future.
As I said, I have some reservations about the Bill itself. I am worried that it may persuade some surgeons to go in for safe surgery—some have used the term "defensive surgery". Surgeons may be unwilling to take risks and that would be a great shame. It is certainly worth giving the Bill its Second Reading. Some of the problems in its structure can then be eliminated in Committee. I suspect that that is a forlorn hope, but we ought, now and again, to debate these important matters in the House.
§ Mr. James Couchman (Gillingham)
I am pleased to have caught your eye, Mr. Deputy Speaker, in this important debate.
I should declare an interest. The Register of Members' Interests shows that I advise a pharmaceutical company in Kent. I have not spoken to it about the Bill, and it may be one of the companies that the hon. Member for Greenwich (Mrs. Barnes) said support her Bill, or at least the concept of it.
I congratulate the hon. Member on introducing the Bill. It has given us a good opportunity to discuss a highly controversial subject. There seems to be a growing swell of opinion in favour of no-fault compensation schemes, probably principally because of the haemophiliacs and the contaminated blood products, about which we all know and which I congratulate my right hon. Friend the Secretary of State on settling so honourably.
Whenever there is clinical treatment that involves invasion of the body by surgery or by medication, there is a risk. Inevitably, there are risks that are not always 1283 foreseeable. The risk of post-operative problems from surgery or adverse side-effects from medication is brought to the attention of the patient by a responsible doctor prior to commencing the treatment. Generally, the patient will accept that risk.
Not all side-effects are known or predictable. The hon. Member for Greenwich was less than forthcoming about the fact that novel procedures can have quite unexpected side-effects. One patient's side-effect is another patient's mishap. The more serious the disease, the more heroic the intervention is likely to be and the more unpredictable the outcome.
I am worried about clause 2(5)(d), which refers to the suffering of significant pain, disability, harm or distress. I do not believe that that is drawn tightly enough. My wife suffered two episodes of cancer, one of which resulted in unpleasant surgery, from which she has been left in significant pain. The alternatives to undergoing that surgery are known to all of us. The pain would undoubtedly fall within the definition in clause 2, but I would not think of pursuing that, because everything was done to help my wife recover from the condition from which she was suffering.
My primary concern is that the Bill will militate against medical advance. We have seen enormous progress in recent years. The hon. Member for Greenock and Port Glasgow (Dr. Godman) rightly instanced neurosurgery, and I would add the magic of microsurgery, laser treatment and the chemotherapy treatment of leukaemia. Not all patients survived or benefited from the development of those novel treatments, but the alternatives were usually grave or fatal. One need only review the transplant programme, from which my hon. Friend the Member for Newbury (Sir M. McNair-Wilson) benefited so recently, to appreciate that the prognosis for early transplantees was poor indeed, partly due to their grave condition when they underwent their operation and partly due to the as yet imperfect techniques that were used to treat them. Many of those people or their relatives might have had a case under the Bill. The Bill would lead to safe surgery, safe medicine and safe treatment.
A further worry is that the Bill could act as a substantial block to the research and development programmes of pharmaceutical companies. I am sure that no hon. Member would wish to see them cease to probe the frontiers of their science and to try to develop treatments for the more intractable diseases that are left untreated, as my hon. Friend the Member for Congleton (Mrs. Winterton) suggested.
One of the weaknesses of the Bill is that the board might pursue a claim—having compensated the patient whose treatment has been adjudged to be unsatisfactory—against a pharmaceutical company or against another supplier to the national health service. The hon. Member for Greenwich was incorrect to suggest that the Bill was not intended to enable the board to pursue a claim against those working in the national health service. Part II of schedule 2 refers topursuing any legal claim which has passed to the Board (whether that claim is against the National Health Service or any part of it, or against a supplier to or for the National Health Service or to or for any part of it)".The Bill allows for the possibility of the board following up a negligence case against an employee of the NHS.
My principal objection to the Bill and the reason why I will vote against it is that it would be detrimental to 1284 patients because it would lead to a diminution in innovation and in the techniques and procedures that are at the frontiers of the skills of the people treating us.
§ 2 pm
§ Mr. Chris Mullin (Sunderland, South)
I congratulate the hon. Member for Greenwich (Mrs. Barnes) on the Bill, which contains an idea whose time has come. The correct principle is that one must first help the victims and then argue at leisure about who is to blame.
The present position cannot be allowed to continue. I have heard the reservations of many Conservative Members and of the Secretary of State. I agree that the medical profession must be accountable, like any other profession, for its mistakes. However, it is not accountable under the existing system in most cases. The person who is responsible may be dead, may have retired or may have moved before he has been called to account. In the case that I am about to relate, he had moved to Saudi Arabia. With all due respect to the Secretary of State, who comes from the merciful wing of his party, as I come from the reforming wing of mine, I heard nothing in his speech that would cause me to change my mind about the Bill.
The case that came to my surgery some years ago and caused me to feel strongly on the issue involved a gentleman called Kenneth Stanness. In May 1983, he went into hospital for a minor operation on his back and emerged seriously brain damaged. That had a devastating effect on his wife and family who have been caring for him since.
In November 1987, four years after the event, I wrote to the chief executive of the health authority. I said:I am shocked to learn that 4 years after the event the Health Authority is stoutly refusing to admit liability or to make any offer that would help to relieve the burden … for this unfortunate woman.I received a wholly unsatisfactory reply. The district general manager said:I have reviewed the file and discussed the situation with the Authority's Solicitors, and I regret that it is not possible at this stage to add very much .… The legal process is taking its course.Indeed, it was—at a snail's pace.
A year later, another case within the same health authority came to my attention. It involved a gentleman called Mr. Blackburn who, after a long and tortuous legal process which lasted for 12 years, received damages of £491,000, despite the fact that his original solicitors—he had to change his solicitors three times, solicitors' incompetence being a common feature of such cases—had initially advised him to accept £2,000. That case seemed relevant to the case of Mr. Stanness because the award of the damages from the same health authority was accompanied by expressions of regret about how terrible it was that 12 years had elapsed before jusice had been done and how we must find some way—which was unspecified —of avoiding that happening again.
Stimulated by that response and thinking that it might cause the health authority to get a move on in the case of Mr. Stanness, I wrote to the district general manager of the health authority on 8 August 1988:I am prompted to write to you again following reports in last week's newspapers of an award made to Mr. Keith Blackburn who suffered a similar accident to that of Mr. Stanness, 12 years ago in Newcastle General Hospital. You will also have seen in last week's newspapers expressions of surprise and regret that it took 12 years before the Health Authority was obliged to face up to its responsibilities.1285My purpose in again raising with you the case of Mr. Stanness is to suggest that you ought to review his case in the light of the award to Mr. Blackburn. The alternative seems to be that the Stanness case will be allowed to drift on at the cost of continuing distress to Mrs. Stanness and the spending of large sums of public money on lawyers' fees, which would be better directed towards alleviating the catastrophe that has overtaken Mr. and Mrs. Stanness. If you thought it would be worthwhile I would be glad to meet and discuss the matter".After a bit of prompting, I received another bland letter:Whilst I appreciate your concern about this case, I am afraid that in view of the legal position, I am not in a position to provide any information beyond that already forwarded to you, and I would find myself unable to discuss the case with you either, for reasons which I am sure you will understand … I am sorry that I cannot be more helpful".Another year or so went by; there was another change of lawyers—the third, I believe—and, five years after the event, the health authority finally admitted liability. As it was obvious to everyone concerned that it was liable, it might as well have done so many years earlier. A further six or seven months elapsed before, some time last year, the first preliminary offer of damages was made. Believe it or not, the case is still being contested: I believe that it will go to court in March 1991, eight years after the event. During those eight years that woman has been through hell, while no regret has been expressed or assistance offered by those who, for whatever reason and regardless of whether negligence occurred, brought disaster on her husband.
That is the case that set the issue so forcefully at the forefront of my mind. I shall support the Second Reading because I have heard nothing from those who object to the Bill that suggests that there is a better way of dealing with the problem. I accept that the way suggested in the Bill may be imperfect, but I have heard no serious alternative that might have brought relief to Mrs. Stanness.
§ 2.6 pm
§ Mr. Anthony Coombs (Wyre Forest)
We are coming to the end of a long and interesting debate. I join other hon. Members in expressing my appreciation to the hon. Member for Greenwich (Mrs. Barnes), who has raised an important subject and dealt with it with great sensitivity. It is, in fact, a very sensitive issue. About four of my constituents have been involved in medical accidents and I have noticed the blight cast on not only their lives but those of their relatives, especially when fatalities have been involved.
I think that everyone agrees that the present position is unsatisfactory. I agree with the hon. Member for Greenock and Port Glasgow (Dr. Godman), who argued that, because of the patient-doctor relationship, many patients would find a confrontation extremely difficult to deal with, even if it was a possibility. It is also entirely wrong that legal costs should amount to between 50 and 70 per cent. of claims.
The position is not assisted by the medical profession's unique unwillingness to accept the modern demands of accountability imposed on them by patients. The Daily Telegraph told us yesterday:The Medical Profession has been defensive to the point of obstructiveness.The Association of Victims of Medical Accidents, for which I have considerable regard, says that members of the 1286 profession try to surround themselves with an aura of inviolability, and we have heard what the Pearson commission had to say about the current methods of redressing wrongs in such instances.
I was pleased to hear from the Secretary of State about the reforms that the Government have introduced in regard to access to medical records, specialist solicitors' lists, medical audit, inquiry on structural costs and, perhaps most important, a survey of the incidence of medical accidents: the AVMA has been asking for such a survey for a long time.
It is not entirely satisfactory to rely on the courts for the resolution of those disputes. As has been said, some people are not eligible for legal aid and they miss out on the opportunity to go to court. I dislike the idea of having the legal aid board as the effective arbiter in many medical disputes which, in effect, is the position.
However, I believe that there is a semi-contractual relationship between the taxpayer and the medical profession. The taxpayer seems to be saying more and more that the medical profession should be responsible for its actions. That lack of accountability in no-fault compensation causes me problems with regard to the Bill.
There is little doubt that the present system of accountability is completely inadequate. Professor Margaret Stacey, emeritus professor of sociology at Warwick university and author of "The Patient Voice and the GMC" has said:The profession's leaders operate and support a system of regulation which neither ensures the continuing competence of practitioners nor adequately disciplines the incompetent.It is obvious that the statutory procedures for taking action against incompetent doctors, whether through the General Medical Council, the family health services authorities or the general practitioner complaints procedures are not sufficient.
I asked the FHSA in my county how it had dealt with cases involving death since 1988. I discovered that there had been 13 cases dealing with death since 1988, only two of which were withdrawn by the complainants. In all those cases only one doctor was severely reprimanded. No action was taken in the other cases. It is clear that the present system of accountability is unacceptable.
Unfortunately I believe that the no-fault compensation scheme leaves effectively unanswered all the questions about the accountability of the medical profession. I am not saying that the patients are not interested in compensation. Rather, they want to know why things have gone wrong and who is responsible. They want an apology and an explanation. The code of practice, which the proposed board will draw up, will take an enormous amount on trust. A cast-iron case has not been made that that code of practice will ensure that investigations are sufficiently rigorous to ensure that proper investigations are carried out under the Bill.
Clause 3 does not define mishap and causation is too vague. Both those issues are vital in distinguishing between legitimate clinical judgment and negligence and incompetence.
For some time the BMA has been calling for a compensation fund to be accompanied by some form of independent medical inspectorate. It is curious that we have a health and safety inspectorate for our factories and an independent education inspectorate to monitor the way in which our children are taught. We have a social services inspectorate to deal with many of the life-and-death issues 1287 in which the social services departments are involved. We also have a police inspectorate, but we do not have a similar body to maintain standards of competence in what is possibly the most delicate area—the national health service.
A national health inspectorate would be one way of ensuring that many of the complaints that are presently ignored or have to proceed through an exceptionally expensive, long and perhaps ultimately unsuccessful legal procedure are adequately dealt with. If the Government can move their thinking towards an independent inspectorate that will absorb many of the existing methods of redressing complaints within the national health service, we would do the cause of the victims of medical accidents a great deal of good.
§ Mrs. Barnes
All hon. Members will agree that this has been a stimulating and sensitively handled debate. It is an issue to which there are no easy answers and I did not think that I had solved every problem. I am reassured by the genuine and deep-rooted acceptance that the current position is seriously flawed and that something radical must be done about it. I am reassured also by the consensus that, in an ideal world, all those with needs or disabilities of any kind would be adequately compensated without having to demonstrate cause of negligence. However, as I made abundantly clear, my Bill restricts itself to the national health service and does not tackle other issues that may cause similar problems in other aspects of our community. That is quite deliberate. That national health service, as I said, accounts for 15 per cent. of public sector expenditure—£27 billion. It is our duty to make sure that that money is properly spent and that those who receive the benefits of the national health service are receiving the right protections and safeguards.
§ Mr. Thurnham
The hon. Lady mentioned the amount that is spent on the national health service. Perhaps she will draw attention to the amount that is spent through social security on the disabled, which is currently about £8.3 billion. If we are not to have some of the measures that she is advocating the alternative is more money for social security so that the safety net for those who get nothing will be raised.
§ Mrs. Barnes
I accept that point, but I shall not be led down that path at the moment.
I listened with care to what the Secretary of State said as he poured scorn on several aspects of my Bill. I waited with growing interest to see whether his alternative proposals would offer a much more radical, long-lasting and, perhaps, better solution to the problems than my Bill can. I was disappointed. I welcomed the measures that he made known to the House—they can only help. However, I am confident that in one, two or three years' time, the House will have to face this issue again. The Secretary of State's measures will not address the severity of the problems that we are facing and they will do nothing to 1288 address some of the major cases, such as that of the haemophiliacs, which have brought the attention of hon. Members and others to this matter.
Several hon. Members have said that, under my proposals, the haemophiliacs would not have received such a settlement. That is entirely due to the Secretary of State. If he considered it appropriate, in such exceptional circumstances he could make additional moneys available to the board because a terrible wrong had been done to innocent people. That would be entirely within his power. The same public clamour that forced the Government to make that settlement without a no-fault scheme would force a Government with a no-fault scheme to consider such a case.
I was concerned to hear the Secretary of State say that many of the credible and creditable organisations and bodies that have put forward the principle of no-fault compensation have not been able to agree on any one scheme—that perhaps it is inherently flawed, perhaps there is no right scheme and perhaps there is something wrong. I take serious issue with that. In recent weeks, I have listened with great care to all the bodies that expressed an interest in this matter and I have been convinced of their sincerity. Many of them have worked in this area for several years and have become committed to a particular type of no-fault compensation scheme that they believe is right for their side of the argument. The Association for Victims of Medical Accidents sees the matter entirely from the patients' view. It has a degree of what I describe as the punitive approach to the medical profession. In some of its documents it implies that compensation is less important than obtaining explanations and, perhaps, making retribution.
I have not dodged the issue of accountability, but I have also listened to people on the other side of the argument such as the doctors, represented by the British Medical Association and the Royal College of Physicians, and the obstetricians and gynaecologists who are at the sharp end of the argument. They have difficult decisions to make. They should not have to do so constantly looking over their shoulders at what may happen in a court of law. They wish to build a trusting relationship and most of them are entirely honourable. It would be inappropriate to introduce a measure that could bring a medllcal practitioner to his knees through one error in an exemplary career.
My Bill is an attempt to walk the tightrope between the various interested bodies that have rightly addressed the matter for many more years that I have. I sincerely hoped that if I did not get the Bill quite right and improvements could have been made, the House, with its long experience and many hon. Members who have been involved in the matter for many years, would be given the opportunity to improve the Bill in Committee. I was asking for the opportunity to take a stage further the principle of no-fault compensation. All the various bodies involved tend to agree that that should be done. Some have been of that opinion for many years, while others have come to that conclusion only recently in the face of the changing pattern and level of litigation in this country.
There is a growing consensus among almost all the royal colleges, many patients' and consumers' groups and many legal bodies that the current position is becoming almost unworkable. I was no less surprised than other hon. Members that my proposals drew less hostility than 1289 expected from the drug companies, which recognise that the current procedure is not working well and perhaps does them more harm than good.
I ask the House seriously to consider its decision today. We are talking about a system which involves miserable lengths of time, large sums of money for those who are able to obtain compensation—because they are either entitled to legal aid or are wealthy—and confrontation. Although I accept that the Secretary of State made a genuine attempt to address some of those issues within the legal system, I believe that he will do little to make matters substantially better. There may be some trimming here and there, but the increased number of cases entering the system will overtake any such measures.
When I drew up the Bill I had regard to the Bill previously presented to the House by the hon. Member for Peckham (Ms. Harman). I discussed with her some of the pitfalls in her Bill and deliberately avoided them. In her Bill many of the details on which the House could have argued long and hard were spelt out, such as whether someone who had a catheter in place for two years should be eligible for compensation and how infections should be treated. In the limited time available to me to draw up a Bill that would give the House an opportunity to take the debate further, I felt that I should concentrate on the basic principles. I thought that it was appropriate to allow the board, to which we would give great power and in which we would put great trust, to lay down some of the detailed regulations that would come back to the Secretary of State and the House for approval. After all, the board would include experts. I see this Bill as an enabling one. I did not intend to dot every "i" and to cross every "t". Obviously such matters can be finalised and decided on in Committee.
If we turn our back on this issue today and say no to the possibility of no-fault compensation, we shall persist with the court-based approach. Therefore, the misery of many individuals, about whom we shall never know except as individual constituents, will continue. The next scandal that rocks the House will leave us answering our constituents' question, "Why did you not do something about it last time?"
We have seen the misery caused by Thalidomide and Opren and the problems of the haemophiliacs. There will be similar cases and whatever improvements may result from the Secretary of State's proposals, they will not tackle that. We will be back to the public clamour and the media campaign and people will be forced to take action after deaths have occurred and widespread misery has been caused.
A no-fault compensation scheme may be forced on the House in the future following European legislation. The Secretary of State argued that there are no foreign examples on which we can base our scheme, but if we cannot be innovators and lead the world on this vital issue, it is deplorable.
There are compensation schemes in Sweden, although admittedly they are built upon much more generous social security benefits as it is a wealthier country than the United Kingdom. There are also schemes in some American states —for example, Virginia, where schemes specifically relate to maternity claims. There must be a solution for this 1290 country. It is not enough to say that no one else has got it right or that no one body has the right formula, so we should set it to one side.
I strongly urge the House not to turn its back on this opportunity to tackle medical negligence in an entirely different, non-confrontational, fair and affordable way.
§ Question put, That the Bill be now read a Second time:—
§ The House divided: Ayes 81, Noes 193.1292
|Division No. 56]||[2.27 pm|
|Allen, Graham||McCrindle, Sir Robert|
|Archer, Rt Hon Peter||McKay, Allen (Barnsley West)|
|Ashley, Rt Hon Jack||McKelvey, William|
|Barnes, Harry (Derbyshire NE)||McNamara, Kevin|
|Barnes, Mrs Rosie (Greenwich)||Madden, Max|
|Barron, Kevin||Marek, Dr John|
|Battle, John||Michael, Alun|
|Beggs, Roy||Mitchell, Austin (G't Grimsby)|
|Bermingham, Gerald||Morris, Rt Hon A. (W'shawe)|
|Blair, Tony||Morris, M (N'hampton S)|
|Body, Sir Richard||Mullin, Chris|
|Brown, Ron (Edinburgh Leith)||Murphy, Paul|
|Campbell-Savours, D. N.||Owen, Rt Hon Dr David|
|Canavan, Dennis||Page, Richard|
|Cartwright, John||Richardson, Jo|
|Clwyd, Mrs Ann||Rogers, Allan|
|Cohen, Harry||Ross, Ernie (Dundee W)|
|Cook, Robin (Livingston)||Ruddock, Joan|
|Corbett, Robin||Sedgemore, Brian|
|Corbyn, Jeremy||Shore, Rt Hon Peter|
|Cousins, Jim||Short, Clare|
|Cox, Tom||Sillars, Jim|
|Cryer, Bob||Skinner, Dennis|
|Davis, Terry (B'ham Hodge H'I)||Smith, C. (Isl'ton & F'bury)|
|Dobson, Frank||Smyth, Rev Martin (Belfast S)|
|Doran, Frank||Soley, Clive|
|Dunwoody, Hon Mrs Gwyneth||Spearing, Nigel|
|Field, Frank (Birkenhead)||Steel, Rt Hon Sir David|
|Foster, Derek||Thomas, Dr Datydd Elis|
|Fraser, John||Watson, Mike (Glasgow, C)|
|Godman, Dr Norman A.||Welsh, Andrew (Angus E)|
|Griffiths, Win (Bridgend)||Williams, Rt Hon Alan|
|Grocott, Bruce||Williams, Alan W. (Carm'then)|
|Harman, Ms Harriet||Wilson, Brian|
|Hoey, Ms Kate (Vauxhall)||Winnick, David|
|Howells, Dr. Kim (Pontypridd)||Winterton, Nicholas|
|Hoyle, Doug||Wise, Mrs Audrey|
|Hughes, Simon (Southwark)||Worthington, Tony|
|Lester, Jim (Broxtowe)||Tellers for the Ayes:|
|Lestor, Joan (Eccles)||Mrs. Ann Winterton and|
|Livingstone, Ken||Mr. Tom Clarke.|
|McCrea, Rev William|
|Alexander, Richard||Bowis, John|
|Alison, Rt Hon Michael||Brazier, Julian|
|Amess, David||Bright, Graham|
|Arbuthnot, James||Brown, Michael (Brigg & Cl't's)|
|Arnold, Jacques (Gravesham)||Buck, Sir Antony|
|Arnold, Sir Thomas||Burns, Simon|
|Ashby, David||Carlisle, John, (Luton N)|
|Baker, Rt Hon K. (Mole Valley)||Carlisle, Kenneth (Lincoln)|
|Baker, Nicholas (Dorset N)||Carrington, Matthew|
|Baldry, Tony||Carttiss, Michael|
|Banks, Robert (Harrogate)||Cash, William|
|Batiste, Spencer||Chapman, Sydney|
|Bendall, Vivian||Chope, Christopher|
|Bennett, Nicholas (Pembroke)||Clark, Rt Hon Sir William|
|Biffen, Rt Hon John||Clarke, Rt Hon K. (Rushcliffe)|
|Blaker, Rt Hon Sir Peter||Colvin, Michael|
|Bonsor, Sir Nicholas||Conway, Derek|
|Boscawen, Hon Robert||Coombs, Anthony (Wyre F'rest)|
|Boswell, Tim||Coombs, Simon (Swindon)|
|Bottomley, Peter||Couchman, James|
|Bottomley, Mrs Virginia||Cran, James|
|Bowden, Gerald (Dulwich)||Currie, Mrs Edwina|
|Curry, David||Lyell, Rt Hon Sir Nicholas|
|Davies, Q. (Stamf'd & Spald'g)||Macfarlane, Sir Neil|
|Davis, David (Boothferry)||MacGregor, Rt Hon John|
|Day, Stephen||MacKay, Andrew (E Berkshire)|
|Dorrell, Stephen||McLoughlin, Patrick|
|Durant, Sir Anthony||Mans, Keith|
|Dykes, Hugh||Maples, John|
|Eggar, Tim||Marland, Paul|
|Evans, David (Welwyn Hatf'd)||Marshall, John (Hendon S)|
|Fallon, Michael||Martin, David (Portsmouth S)|
|Favell, Tony||Mates, Michael|
|Forman, Nigel||Maude, Hon Francis|
|Forsyth, Michael (Stirling)||May hew, Rt Hon Sir Patrick|
|Forth, Eric||Mellor, Rt Hon David|
|Fox, Sir Marcus||Meyer, Sir Anthony|
|Freeman, Roger||Montgomery, Sir Fergus|
|Fry, Peter||Moore, Rt Hon John|
|Gale, Roger||Morrison, Sir Charles|
|Garel-Jones, Tristan||Moss, Malcolm|
|Goodhart, Sir Philip||Moynihan, Hon Colin|
|Goodlad, Alastair||Needham, Richard|
|Gorst, John||Neubert, Sir Michael|
|Greenway, Harry (Ealing N)||Newton, Rt Hon Tony|
|Gregory, Conal||Nicholls, Patrick|
|Ground, Patrick||Nicholson, David (Taunton)|
|Gummer, Rt Hon John Selwyn||Norris, Steve|
|Hamilton, Neil (Tatton)||Onslow, Rt Hon Cranley|
|Hampson, Dr Keith||Paice, James|
|Hanley, Jeremy||Patnick, Irvine|
|Hargreaves, Ken (Hyndburn)||Patten, Rt Hon Chris (Bath)|
|Hayhoe, Rt Hon Sir Barney||Pattie, Rt Hon Sir Geoffrey|
|Hayward, Robert||Powell, William (Corby)|
|Heathcoat-Amory, David||Raison, Rt Hon Sir Timothy|
|Higgins, Rt Hon Terence L.||Redwood, John|
|Hind, Kenneth||Rhodes James, Robert|
|Hogg, Hon Douglas (Gr'th'm)||Riddick, Graham|
|Holt, Richard||Ridsdale, Sir Julian|
|Howard, Rt Hon Michael||Roberts, Sir Wyn (Conwy)|
|Howarth, Alan (Strat'd-on-A)||Roe, Mrs Marion|
|Howarth, G. (Cannock & B'wd)||Rumbold, Rt Hon Mrs Angela|
|Hunt, Rt Hon David (Wirral W)||Ryder, Rt Hon Richard|
|Hunter, Andrew||Sackville, Hon Tom|
|Irvine, Michael||Sainsbury, Hon Tim|
|Jack, Michael||Sayeed, Jonathan|
|Jackson, Robert||Scott, Rt Hon Nicholas|
|Janman, Tim||Shaw, David (Dover)|
|Jones, Robert B (Herts W)||Shaw, Sir Giles (Pudsey)|
|Key, Robert||Shephard, Mrs G. (Norfolk SW)|
|King, Roger (B'ham N'thfield)||Shepherd, Colin (Hereford)|
|King, Rt Hon Tom (Bridgwater)||Shersby, Michael|
|Kirkhope, Timothy||Sims, Roger|
|Knapman, Roger||Skeet, Sir Trevor|
|Knight, Greg (Derby North)||Smith, Tim (Beaconsfield)|
|Knowles, Michael||Soames, Hon Nicholas|
|Knox, David||Spicer, Sir Jim (Dorset W)|
|Lamont, Rt Hon Norman||Spicer, Michael (S Worcs]|
|Lang, Rt Hon Ian||Squire, Robin|
|Latham, Michael||Stanbrook, Ivor|
|Lennox-Boyd, Hon Mark||Stern, Michael|
|Lloyd, Peter (Fareham)||Stevens, Lewis|
|Stewart, Andy (Sherwood)||Waldegrave, Rt Hon William|
|Stewart, Rt Hon Ian (Herts N)||Walker, Bill (T'side North)|
|Summerson, Hugo||Walker, Rt Hon P. (W'cester)|
|Taylor, Ian (Esher)||Waller, Gary|
|Taylor, John M (Solihull)||Wardle, Charles (Bexhill)|
|Tebbit, Rt Hon Norman||Watts, John|
|Temple-Morris, Peter||Wheeler, Sir John|
|Thompson, Patrick (Norwich N)||Widdecombe, Ann|
|Thurnham, Peter||Wilshire, David|
|Townsend, Cyril D. (B'heath)||Wood, Timothy|
|Tracey, Richard||Yeo, Tim|
|Tredinnick, David||Young, Sir George (Acton)|
|Twinn, Dr Ian||Tellers for the Noes:|
|Vaughan, Sir Gerard||Mr. Robert G. Hughes and|
|Viggers, Peter||Mr. Andrew Mitchell.|
|Wakeham, Rt Hon John|
§ Question accordingly negatived.