§ 2.58 p.m.
§ Lord Campbell of Alloway rose to call attention to the restrictions on the right to claim compensation under the Vaccine Damage Payments Act 1979, and to the state of public administrative law which precludes an action in negligence as regards the exercise of discretionary powers; and to move for Papers.
§ The noble Lord said: My Lords, at the outset, may I, with your Lordships' permission, be allowed to express a word of intense personal delight that my noble and learned friend the Lord Chancellor should have found it possible to reply to this debate, a debate in which consideration will be given to tribunals under the direct supervision of the Council on Tribunals. That, as your Lordships know, operates under the benevolent aegis of my noble and learned friend the Lord Chancellor.
§ In opening the debate, may I be permitted to make three preliminary observations. First, that it is not my intention to criticise my right honourable friend the Secretary of State, the tribunals or the Council on Tribunals, but to criticise the system of operation of this statutory régime and the inadequacies of the common law.
§ Secondly, that it is not my intention in any way to detract from the case for vaccination of very small children to raise these antibodies which neutralise infections where this is appropriate in the interests of the community, but to point out to your Lordships with the utmost respect and such power as I have at my command, that it is the very strength of the case for vaccination in these circumstances where it is in the interests of the community which gives rise to my contention that there should be absolute liability and fair compensation.
§ Thirdly, that with regard to whooping cough vaccine, where the balance of interest is more heavily weighted in favour of the community and against the interests of the child than in the case of any other vaccines such as, for example, polio or smallpox, there is a special situation. This is because the whooping cough ingredient is separable from the other two ingredients in the triple injection: that is, diphtheria and tetanus. As your Lordships will know, the three ingredients are administered on three successive occasions. It is also special because the risk of known potential to cause very serious permanent brain damage is greater in the case of this vaccine than in the case of other vaccines; that is according to the findings at paragraph 1386 of the Pearson Report. Lastly, it is special because medical opinion on this matter of which I speak is far from unanimous (paragraph 1390 of the Pearson Report).
If, in accordance with the findings of the report, vaccinations administered to small children in the interests of the community give rise to a special situation, so be it. If so, then the administration of the whooping cough vaccine, because of the waiting factor to which I have referred, must constitute the quintessence of what is properly described as "special". Indeed, I am advised by Sir Richard Doll, the Warden of Green College, Oxford, who formerly was for 10 years prior to this appointment the Regius
Professor of Medicine at Oxford, that—and here I quote from his letter to me in which he sent the relevant source reference material—
Under the age of three months children are normally protected by antibodies obtained from their mothers in utero and that children over three months are less likely to be severely damaged if they get the disease of whooping cough, although there is a slight risk that some of them could be severely affected.
§ In the debate on the Pearson Report in your Lordships' House, although many noble Lords spoke, it was only the noble Lord, Lord Winstanley, who referred to Chapter 25, which deals with the subject of this debate. His informed contribution in today's debate, and indeed other contributions from Members of your Lordships' House, are all awaited, as the French might say, "with impatience", and it is not my intention to detain your Lordships for long in opening.
§ As we all know, subsequent to the Pearson Report but not in implementation of it, the Vaccine Damage Payments Act 1979 found its way to the statute book. Why is the existing situation so unsatisfactory? I respectfully suggest that there are five main reasons. The first is that in the first place many parents have decided to have their child vaccinated in ignorance of the risk and in ignorance of the relevant contraindications after the first and second injections which render any further injection hazardous. And because of this ignorance about the risk, this ignorance about the importance of these contra-indications, these parents have not been able to exercise an informed decision as to whether or not to have the child vaccinated, and these parents are unable to take steps to prevent further serious damage by ceasing to have the subsequent injections. I say "these parents": how often is it a single unmarried girl with her child who has to take such a decision?
§ The problem in public administrative law is this: that if it could be said that the DHSS was negligent, having regard to the fact that it recommended such vaccination but failed to warn the parents and failed to tell them of the contra-indications in the manner that I have suggested, this would not give rise to any liability whatever, because if a discretionary power is exercised bona fide within the ambit of the statute, the law gives no redress. In my submission, this aspect of public administrative law operates harshly in such cases.
§ The second reason, in submission, why the situation is unsatisfactory is that as the local health authority does not employ the doctor who gives the injection, or the nurse who gives it on his instructions, there is no liability on that authority even if the doctor is negligent.
§ Thirdly, the only cause of action is that which subsists against the doctor for negligence at common law. This, with the ordinary civil burden of proof, makes it very difficult to show that a healthy child before the vaccination who becomes brain damaged after the vaccination on the balance of probabilities suffered such damage as a result of the vaccination. Even if one can establish negligence on the part of the doctor, such as ignoring the contra-indications and, secondly, vaccine damage ensuing to what was formerly an ordinary healthy child, it is this issue of causation which presents the difficulty. This must be established before compensation can be awarded, and 1243 this difficulty—in two places in Chapter 5 of the Pearson Report—was expressly adverted to.
§ Fourthly, as to why the existing situation is unsatisfactory, the restrictions in the Act, to which I seek to call your Lordships' attention, are unacceptable. The fixed compensation of £10,000 is inadequate. The two-year rule is unfair. The limit to seriously damaged children, who are by statute said to be 80 per cent. brain damaged, is arbitrary and, indeed, so arbitrary that it is strongly arguable that this particular restriction, which precludes anyone of 70 per cent. assessment from obtaining one penny piece, is, and constitutes, an unjustifiable discrimination contrary to Articles 1, 6 and 14 of the Convention of Human Rights; and this on the authority of such decisions as Merckx v. Belgian State (Application 6833 of 1974). If any of your Lordships is interested, I can give the references.
§ Having due regard to the inadequacies of the common law, the setting up of this statutory régime, to which I have adverted, is surely misconceived. It calls upon the Secretary of State to adjudicate upon delicate and intricate matters concerning the welfare of children which, by tradition, properly lie within the province of the courts of law. It sets up tribunals with restricted powers and without proper revisory machinery. The implementing regulation brings these tribunals under the direct supervision of the Council on Tribunals, under the Act of 1971, so that they should give reasoned awards (Section 12) and are subject to appellate machinery on a point of law (Section 13). Indeed, Section 4(4) of the Vaccine Damage Payments Act 1979 expressly provides that the decision of the tribunal shall be conclusive, save where the Secretary of State is willing to reconsider under Section 5 of the Act.
§ But these sections lie in conflict, and detract from the provisions of the Act of 1971; and, indeed, detract also from the obligation of the tribunal under paragraph 9(2) of Part III of the implementing regulations to give a statement of reasons for their decision. And, of course, the question of adequacy of reasoning powers gives rise to problems. Furthermore, although the Secretary of State, under Section 3(3) of the Act, is enjoined to state the grounds upon which he is not satisfied, before the matter is referred by him to the tribunal, this requirement has been construed as meaning only the conclusion—that is to say, whether 80 per cent. disabled or not, whether proof of causation or not—as distinct from the process of reasoning by which such conclusion is arrived at.
§ Although I have some tentative suggestions as to what might be done, the question is far more what your Lordships think should be done. At this stage, I would not wish to take further time with my ideas as to what should be done, but would have the advantage of hearing what your Lordships consider should be done, if anything, to seek to honour what I see as a moral duty to these children which is not as yet recognised by law. My Lords, I beg to move for Papers.
§ 3.16 p.m.
My Lords, on behalf of my noble friends on these Benches and also on behalf, and at the request, of my noble friends in the Social Democratic 1244 Party in your Lordships' House, perhaps I should make clear that, since I am speaking for both parties, that does not mean that I regard myself as entitled to 22 minutes instead of 11.I shall stick to the strict par of 11 or perhaps less. Let me say a word of thanks to the noble Lord, Lord Campbell of Alloway, for introducing once again into your Lordships' House a matter of continuing interest and concern, not only to many noble Lords but also to parents and children throughout the whole country; and of very special concern to parents who have experienced this matter of vaccine damage in a child at very close quarters indeed. Of course, we have those people represented by the Association of Parents of Vaccine Damaged Children—a body which has done so much to alert Members of both Houses of Parliament to this very serious question.
Not only is this a continuing matter of concern, but I think it is right to say that it is particularly timely that the noble Lord, Lord Campbell of Alloway, should have raised this matter at this time, because we are now on the eve of a fairly large, and rather serious, epidemic of whooping cough, as a result of which very many children have suffered and a significant number have died. We do not yet know the number that will carry further damage throughout the rest of their lives, as can occasionally happen with this disease, which can sometimes have serious consequences.
Of course, that epidemic resulted in a sudden revival of enthusiasm (if that is the appropriate word) for immunisation against whooping cough among parents who, perhaps, had become disinclined towards it. They were encouraged in that enthusiasm by the Government, by the Secretary of State for Health, for a variety of reasons; and I think that a new factor has been introduced here. We have often said, and many of us believe, that people who suffer very serious brain damage—or, indeed, who suffer at all—ought to be adequately compensated and provided for by society, however the damage may have happened. That was the kind of message that came through loud and clear from the Royal Commission, under the late Lord Pearson, which has often been referred to during these debates.
Once again, I should pay tribute to Lord Pearson, but I repeat that that tribute, which is so often expressed in your Lordships' House, might sound a little more genuine if Parliament itself acted a little more on the recommendations of the Pearson Commission. But the point was made rather clearly in the Pearson Report that where parents take specific action, medically, in relation to their children, on the advice of Government, not necessarily in the specific interests of the child but in the interests of the community as a whole, then one ought to accept that society has a greater responsibility than it might have towards the occurrence of serious damage in other ways. That arose in the course of this epidemic.
Noble Lords may remember that in messages given to the country—and rightly so—by the Minister of Health and by the Secretary of State, Mr. Fowler, we decided at one stage to raise the age limit. Noble Lords will recollect that whooping cough is regarded as a disease which can be quite serious in the very young but which, relatively speaking, is much less serious in older children.
My Lords, the noble Baroness asks whether that is true. It is true, otherwise I would not have said it. What always happened in the past was that immunisation for children was provided free up to a certain age. The Secretary of State for Health decided to raise that age. It was raised to the age of three or even four for older children where immunisation against pertussis whooping cough could be provided free. That was done, as the Secretary of State explained, not for the protection of those children who were being immunised—because we recognised that in their case whooping cough was less serious—but for the protection of other very young children with whom they might later come into contact. Therefore we quite clearly have a group of children who have now been immunised not for their benefit but for the benefit of others. Should it happen that it ultimately turns out that some of those children have been—and some may have been; I do not know—damaged by this vaccine, then we ought to realise that we must have a particular responsibility towards those children.
The noble Lord's Motion points very clearly, as did his speech in introducing the Motion, to the complexity of the law in this area. The noble Lord has done the House a service, because the law is very complex. I shall leave the legal matters to the lawyers who are to speak in this debate and will concentrate on the medical matters and the medical aspects of the case, which are perhaps outside the scope of the noble and learned Lord who is later to reply. However, I am quite sure that the noble and learned Lord will be able to take them on board, if he considers it necessary, and pass them to those other Ministers who may be able to act.
The complexity of the law and the complexity of the medical situation is illustrated in a timely article by Arabella Melville and Colin Johnson, which appears today in the Guardian called, "This unacceptable priceofprotection".Thisadmirablearticleillustratesthe complexity of the problem and the dilemma with which parents are faced when deciding whether or not to take action on behalf of their children. I quarrel only with one part of the article. It appears to suggest that doctors in general are not now alerting their patients to the possible risks—let me underline that they are very small risks—involved in immunisation against whooping cough. After talking to doctors up and down the country, it is my experience and belief that all doctors now underline those risks, try to balance them and try to tell the patients or the parents that the decision must be theirs. Then they do their level best to assist parents to come to a balanced judgment in the light of the particular circumstances of the particular case.
What are the medical facts with which we are particularly concerned? The first is one which we must now clearly accept: that the whooping cough vaccine, the pertussis vaccine, can do and has, in fact, sometimes done serious harm to those who receive it. That now has to be accepted. There was a time when doubt was cast upon it, but the statistical relationship of vaccine brain-damaged children following whooping cough vaccination is now so close that one cannot for a moment deny that some of those cases are undoubtedly due to the vaccine. The difficulty is 1246 knowing which, because the same kind of conditions can arise from other causes.
The report makes that point in Volume 1, Chapter 5. It says that the problem of establishing causation with certainty in any individual case may well be difficult. We can all say that again. It is desperately difficult. All I do say is that the statistical connection is now so overwhelming that nobody could dispute that the pertussis vaccine does cause, and has caused, brain damage of a very serious and distressing nature for the child, for the parents and for the whole family. The second point, which I have already made, is that whooping cough as a disease can be very serious, that it can often be fatal in the very young and that in other children it can sometimes lead to long-term consequences of a serious nature.
The third medical point I want to make—it is one which I have made before in your Lordships' House—is that when one alerts patients to the dangers of a vaccine, parents take this on board but they do not always discriminate as between different vaccines. If one vaccine can cause this damage, why not all the rest? Therefore, I have to say that there is no doubt at all that while there was a considerable fall at one time, as a result of public anxiety in this area, in the number of children immunised against whooping cough, there was also a very distressing fall in the number of children immunised against desperately serious conditions like diphtheria. In some areas, the number of children immunised against diphtheria fell to well below 40 per cent. That in part was because some parents, because they had become a little suspicious of the whooping cough vaccine, became suspicious of the immunisation programme as a whole and decided to opt out. That could be very serious indeed. May I remind your Lordships that before diphtheria immunisation was introduced into this country there were 73,000 cases a year of that very serious disease. Within a very few years that number was reduced to single figures. If ever we allowed the immunisation level of children against that serious disease to fall very low, I say that we should be on a very dangerous course.
What, then, must we do? Obviously, what ideally we should like to do is to eradicate whooping cough. We found, for example, that the smallpox vaccination was dangerous. It had many serious dangers. But we have been able, with the World Health Organisation and others, to eradicate smallpox altogether. So now we do not need to have smallpox vaccination unless an epidemic arises and there is a particular risk. But I see no hope of dealing with haemophyllus pertussis, which is the organism which causes whooping cough, in the same way. The noble Lord, Lord Hunter of Newington, knows more about these matters than do I and he will probably be able to say something about them. We should also try to pioneer and develop a safer vaccine. That is something which we have done before. When the poliomyelitis oral vaccine was first introduced, there is no doubt that there were certain dangers. Further research was carried out on a world basis. Now we have an oral vaccine against poliomyelitis which is wholly safe and never gives rise to complications.
That is the second thing which we should try to do. However, if we cannot do either of those things, then 1247 I am wondering (I say this quite seriously and with some diffidence, but as a doctor) whether we ought to consider the abandonment of whooping cough immunisation as a matter of routine public policy until further thought has been given to the matter of pioneering and developing a safer vaccine and until we have in fact discovered a safer vaccine. I say that only for this reason. I believe that the continuation of tragedies of the desperate kind which we have seen from time to time with this particular vaccine has done great damage to public health in other ways by undermining public confidence in immunisation as a whole.
In the meantime I certainly share the view of the Pearson Commission and of other noble Lords that children and their families who suffer from the harrowing and distressing experience of the consequences of this vaccine which they have had given to them in the public interest rather than in their own individual interest ought to receive wholly adequate compensation and support for as long as their lives last and for as long as they need to be cared for in the community.
§ 3.30 p.m.
§ Lord Mishcon
My Lords, I am sure that your Lordships will be grateful to the noble Lord, Lord Campbell of Alloway, for bringing this matter to your Lordships' attention. It is always pleasant to have a reference to the Pearson Report, if only because it immediately brings to his feet the noble Lord, Lord Allen of Abbeydale, who is to follow me, who was such an eminent member of the Pearson Committee, and whose voice it is always a delight to hear in this Chamber.
In the few minutes which are put at a speaker's disposal in a short debate, I will try to summarise the matters, as I see them, which your Lordships ought to consider. The first would be that vaccination is, of course, no longer compulsory in the United Kingdom, although there was a time when it was compulsory. Therefore, we are dealing with something which, although being in the community's interest, is a voluntary step to take. The second point I would like to make is that, although it is voluntary and definitely in the interests of the community, there must be a duty on those who advocate this step, with the full authority of the state behind them, to give adequate warning to parents before they make the decision in respect of their children, to have them immunised.
The next point which flows from that is that if one understates the possible advantages and overstates the minimal cases which may occur, however tragic they may be, what one does is to deter people, possibly unreasonably, from taking a step which may save their children's lives and may save other children's lives, too.
In that connection, possibly your Lordships will allow me to quote from paragraph 138.2 of the Pearson Report to show the advantages. I am sorry that I do not have any figures which are more up-to-date. The paragraph reads:Whooping cough notifications in England and Wales declined from about 85,000 in 1957, when routine immunisation was introduced, to less than 2,500 in 1973. Deaths dropped from 88 to 2".1248 As I said, I must apologise for not being able to give the House later figures, and it may be that more informed speakers who will follow me will be able to do that. But there is no doubt that immunisation is an advantageous step to take and an advantageous step to promote. What we must obviously do—and this is very much the lawyers' concern—is to ensure that the proper social duty we owe to those children who unfortunately suffer damage is carried out by us as legislators. There is no doubt that in 1979, when Parliament passed the Vaccine Damage Payments Act, it did the best that it could at that time, without very much information and research being available, and at a very critical moment (as no doubt it was), in order to deal with some kind of public outcry and anxiety. We now have an opportunity, encouraged by the noble Lord, Lord Campbell of Alloway, to look at that Act to see whether it is not right and proper that certain matters relating to the Act should be improved.
The noble Lord, Lord Campbell of Alloway, talked in terms, if I may say so, of criticising any suggestion that compensation to the children about whom we are talking should be adjudged by tribunals. The noble Lord felt that these matters should go before the courts. That is a perfectly tenable point of view, and I know that the noble Lord will forgive me if I differ from him rather strongly on that matter. I believe it depends upon what sort of tribunal one has, on the remit given to the tribunal, on the tribunal's personnel, and so on. I would have thought that the great need was for informality of procedure and speed of the essence, in order to help parents and families afflicted in this way: and the expense which falls upon them, as well as the anxiety, is tremendous. I would have thought that the speed of the remedy and informality are the advantages of a tribunal. To go to the law courts, much though I myself enjoy that process and will do so until the end of my days, is not the most welcome journey for parents in this position, with the complications, no doubt, of having to apply for legal aid and going through the whole question of a court action.
I stick by tribunals, but I would make it the right sort of human tribunal—and that is not meant to be a criticism of existing tribunals, which do take up where the Secretary of State finishes his jurisdiction or where there is some appeal against him. The second point I wish to make is that this should not be a matter for the Secretary of State at all. As I haye said, it should be a matter for a tribunal as the "court", as it were, in the first instance. It is a ridiculous burden to place on the Secretary of State; an unfair one, if I may say so—and possibly unfair also to the parents.
The third point I wish to make concerns the remit of the tribunal. Pearson stated in the clearest possible terms that proof of causation was one of the great difficulties here. If I remember correctly, the evidence Pearson heard was that, from a medical point of view, it was extremely difficult if there is brain damage in a young child, to be able to say with any degree of certainty whether it arose from vaccination or from different causes. Rather than have the strict burden of proof which was put in this Act—that the Secretary of State had to be satisfied about causation—I would very much prefer, if there is another enactment, that it is 1249 sufficient for the tribunal "to have reasonable grounds for inferring", which is the language I would use, that the causation was there. That would mean, one would hope, that a medical certificate from some doctor of standing to the effect that one could reasonably infer this would be sufficient.
One argument that I would immediately try to impress upon your Lordships is, how wrong it would be to allow the onus of proof as it exists now, with the Secretary of State or a tribunal having to be satisfied. The tribunal and the Secretary of State must have it in mind that if they make an award on the basis of this Act—namely, that they are satisfied—it means that they are adding to the statistics nationally, which are deterrent statistics. What they will have done is to have said, "So many cases have occurred where we are satisfied that this was the causation". That must weigh heavily on the Secretary of State, when he has another duty to encourage vaccination and immunisation.
Quite obviously, an amount of £10,000 as compensation for this sort of thing is wholly inadequate in this day and age. I would not seek to put any figure on it. I would have thought that the proper measure of damage is the ordinary measure of damage, with absolute liability, once there is reasonable proof of causation, following upon the ordinary damages arising in tort. We have known of tribunals, such as the Criminal Injuries Board, which follow that sort of line in awarding damages based upon those damages ordinarily awarded in the courts where negligence is shown. So far, this has been a useful debate and I have no doubt at all that other speakers than I will make it more useful hereafter.
§ 3.40 p.m.
§ Lord Allen of Abbeydale
My Lords, 11 minutes is a very short time in which to do justice to a complicated and important issue like this. I am sure that the House and indeed the whole community must be grateful to the noble Lord, Lord Campbell of Alloway, for raising this question at this time. We have already heard a good deal, and no doubt will hear a good deal more, about the problems set by the restrictions imposed by this Act of 1979, the 80 per cent. test for disability and so forth, and the doubts as to whether it is really contributing to one of its main objectives—I assume it was one of its main objectives—to try and increase the proportion of children who undergo vaccination against various ills. So far as the medical tribunals are concerned, to which the noble Lord, Lord Campbell, and the noble Lord, Lord Mishcon, have referred, I do not know if it is the intention to use the regulation-making power under the Act in effect to apply the adjudication changes contemplated in Part VIII of the Health and Social Services and Social Security Adjudications Bill—dear me, I hope I got it right!
My main purpose in speaking is not to suggest tinkering with the Act or the regulations, but rather to raise the question whether it is right to continue the Act at all in its present form, because it was never presented as being a long-term solution; it was introduced as an immediate measure to meet an urgent need until a long-term solution could be worked out. At the time the report to the Royal Commission on Compensation for Personal Injury, 1250 the Pearson Commission, which had just been published, was in everyone's mind. I apologise if I go over again some of the points in the Royal Commission's report, but I am, I suppose, the only member of that Commission, alas! now in the House. I am neither a lawyer nor a doctor, and I would like to make my own shot at explaining what we were after in lay terms.
The Royal Commission, in a very wide-ranging report, had two sets of recommendations relevant in this context: first of all, they had been unanimous in concluding that some further help was called for for all severely handicapped children, however the handicap was caused. They were well aware of the help which is already available, including mobility allowance and attendance allowance, but they were persuaded on the evidence that this was not enough. The presence of a severely handicapped child completely distorts the life of a family. As well as the emotional shock and the continuing disturbance, there are various physical needs such as special clothing and equipment. The Royal Commission were convinced that the state ought to provide extra help for the 100,000 or so children involved, whether the handicap arose from congenital disability, or from post-natal illness or injury, including vaccine damage. The Royal Commission recommended, at 1977 prices, an allowance of £4 a week, coming out at a total of £17 million a year—not, my Lords, a vast amount. So far, the Government have done nothing about this recommendation.
Secondly, the Royal Commission made the specific and additional recommendation about vaccine damage to which reference has already been made. They thought that there should be a new remedy in the field of tort or delict; in other words, they went down the road towards the court rather than towards the tribunal. Under the present law, where negligence has to be established, if a vaccination goes wrong there is very little chance of a successful action against a doctor, but, as has been said already and I am sure will be said again, the circumstances here are that the vaccination is being undertaken at the behest of Government and in the interests of the community, in the full knowledge by Government that there is some element of risk. The Royal Commission thought that the basis of liability of the authorities should be changed from one of fault to one of strict liability.
This would be a change of much greater significance than is perhaps always appreciated outside legal circles. It would mean that if the plaintiff could show, on a balance of probabilities, or however the provision was worded, that the injury was attributable to the administration of a vaccine on the recommendation of Government or local authority, he or she should be entitled to compensation. Subject to these matters of fact and causation—and there is no denying that they could raise problems of their own—there would be no defence.
There has been no decision from Government of either complexion on this recommendation. When the Labour Government introduced the Bill which became the 1979 Act they said that they were still thinking about the Royal Commission's proposals and that this was a measure to give some immediate help. I am sure the noble and learned Lord, Lord Elwyn- 1251 Jones, will be able to enlighten us further about the motivation for this legislation, but from what I recall at the time and from the written record it seems to me that it was all done on the basis that this was a pretty broad brush approach until the complicated issues raised by the commission's report could be thought out.
The Conservative Opposition welcomed the Bill as far as it went. The debates on the Bill do now make very interesting reading. I will content myself with one quotation from a speech for the Opposition by the noble Earl, Lord Avon, on 8th March 1979, at column 310. He said:We understand that this is a sum given as an interim payment; that this is an immediate and, I may say, very welcome, gesture to ease the suffering of families. Can the Minister assure the House that this will not in any way prejudice either the acceptance of the Pearson recommendations, on the whole, or the timing of putting these recommendations into effect? It is so easy to shelve a report on the grounds that something has already been done".I could not have put it better. We have had no word so far of what conclusions this Government have reached since they took office.
I certainly do not want to widen the debate or take up time, but I cannot resist the temptation of saying very briefly that the Government's handling of the Royal Commission's recommendations in general has not been such as to gain unalloyed approval. Much has never been discussed at all. Some useful administrative changes have been made, but on "no fault" for road traffic accidents we were met with what I can only describe, in my kindly way, as a marked lack of sympathy; and on products liability, notably drugs, we were eventually met by the most unhappy conclusion that the Government were set on allowing the defence of development risks and that the private citizen was to be left to be the guinea pig for experiment.
Today we come to the recommendation on vaccine damage. It is quite clear that the 1979 Act cannot continue to hold the field indefinitely. If £10,000 was right in 1979 it must already be out of date, and even with a Conservative Government it must become increasingly out of date as the years go by. In the serious case, it is inadequate. What is £10,000 for a child whose whole life has been blighted and a family whose happiness has been destroyed?
I shall not complicate matters by reminding the House this afternoon of the recommendations made by the Royal Commission about calculating damages and deducting social security benefits, although this is all part of the whole picture. I simply end by saying that Parliament has already decided, with the unqualified approval of the Conservative Party, that, because vaccination is carried out in the interests of the community and at the urging of Government, notwithstanding a known element of risk, there is a special responsibility on the Government to do something about those few cases where the procedure goes badly wrong. This debate is showing beyond a peradventure that the 1979 Act is imperfect in its operation. But it was not, and was never intended to be, the final answer. Like other noble Lords, I wait with great interest to hear what the Government propose to do next to meet a need on which they have been silent for too long.
§ 3.52 p.m.
§ Baroness Faithfull
My Lords, I join others in thanking the noble Lord, Lord Campbell of Alloway, for introducing this subject today. With time so short I confine myself to social factors. As the noble Lord, Lord Winstanley, said, nothing is outside the scope of the noble and learned Lord who is to reply.
I wish to make three points. One is to consider first the parents of the children who have suffered as a result of vaccination or immunisation. They have been disappointed for too long. They were given hope that their cases would be dealt with and understood. The noble Lord, Lord Allen of Abbeydale, referred to this. Their cases were accepted, but temporarily, under the Vaccine Damage Payments Act 1979. They were given to understand by the Government then in power that they would be assisted, supported and helped. They were also given to understand by Members of the then Opposition, the Conservative Party, that they, too, sympathised with the parents' plight; and yet they still wait.
My second point covers the question of society as a whole. If the climate of opinion is against immunisation then more children will sustain illnesses, particularly whooping cough, measles and diphtheria. It is Her Majesty's Government's responsibility to create an atmosphere of trust and confidence which will establish parents' willingness to accept vaccination for their children. Nothing could help such parents more than to know that should something go wrong they will be assisted and helped.
My third point covers the wider field of disabled and impaired children. The noble Lord, Lord Allen of Abbeydale, referred to this group, and I know that the noble Baroness, Lady Lane-Fox, will be talking about them as well. My plea is for two things. The first is that children who are to be vaccinated—I stand to be corrected by the noble Lord, Lord Hunter of Newington, here—should be better screened with regard to their history and background, and that parents should understand exactly what is expected of them. My second plea is that there should be a rationalisation of the whole system of help to the handicapped and the impaired. If one is a social worker in either a voluntary organisation or one of the statutory services it is extraordinarily difficult to know exactly what help can be given to the handicapped and the impaired, how it can be given and through what channels it should be given. There needs to be a whole re-think of help to all handicapped and impaired children. But in the light of the present situation with regard to children who suffer from vaccination, if the finances of the country are such that we cannot help all children at this time there should be an overall policy, perhaps implemented in part to one group and later on to another.
It would be of enormous value and help to all parents of handicapped children, and particularly to the parents of those who have suffered from vaccination damage, if, as I said earlier, the Government could rationalise the whole situation so that there is one Act of Parliament, or one section of an Act of Parliament, dealing in total with all the help and support that can be given to the parents of these children.
§ 3.57 p.m.
§ Lord Hunter of Newington
My Lords, may I add my thanks to the noble Lord, Lord Campbell of Alloway, for introducing this debate. As has been said, in the last decade the number of infants vaccinated against whooping cough has dropped. In 1972–73, 79 percent. of children were vaccinated. In 1980–81 that had fallen to 39 per cent. However, the evidence published by the Department of Health and Social Security in May 1981 showed that benefits far outweighed the risks of damage caused by vaccination. But suspicion and anxiety remain, and the Vaccine Damage Payments Act 1979 is part of the background. Does it contribute to anxiety? Is it a good Act? Should the unfortunates who suffer from the adverse effects of innoculation and treatment be compensated in this way? That is something, as has already been said, that will have to be reviewed.
The United States are moving steadily towards a declared policy of the eradication of measles. In England and Wales we are now achieving a vaccination rate of about only 50 per cent. and it should be noted that there are about 100,000 notifications of measles each year. In 1981 in the United States of America there were 2,961 cases out of a population that is four times our size. Yet the belief that the public acceptance of vaccinations has dropped as a result of whooping cough is not so. Diphtheria, tetanus and poliomyelitis innoculations have not fallen. The reputation of the measles vaccine may still be suffering from the problems caused by side effects and the efficacy of the early vaccines.
The present excellent vaccine has a poor reputation. Why? Part of the success in the United States in eliminating measles has been the enforcement of laws requiring immunisation before school entry. Is a national policy of measles eradication warranted in the United Kingdom? Mumps eradication is also being seriously considered in the United States. It is urgent that we begin to understand our problems in the United Kingdom—and that is highly relevant to the Bill that your Lordships are discussing and to any of its successors.
Vaccines have two purposes, as has been said by the noble Lord, Lord Winstanley—one is to protect the vaccinated person and the other is to reduce the transmission in the community. For example, vaccine efficacy in poliomyelitis refers to the patient, but there is a great deal of debate about the effect on transmission. Therefore, vaccination of the individual in that case is all important. In smallpox there is a difference: the disease is controlled in the individual and in the community by the vaccine and smallpox, as has been said, has gone a further stage. Control of transmission has been so effective that it is now wrong to risk any reaction to vaccination for all except those specially exposed to smallpox. But when smallpox was rife, in spite of the risks there was no question about vaccination. The danger to the individual and the danger of spread throughout the country made all this very necessary.
Therefore, in what way is whooping cough different? The incidence of damage may be almost as great as with smallpox, but whooping cough has a low mortality. It occurs in cycles every two years or so and it usually affects young children. The size of recent 1254 epidemics has been such because of the increase in the number of "susceptibles" in the population. But all the evidence suggests that the vaccine protects only against the clinical disease—the dynamics of transmission have not changed, only the size of the outbreak.
Fifty years ago, the young mother was fearful that her child might die. The enormous improvements in maternity and child welfare services have resulted in a situation where the mother's main concern now is not that her child might die but that it might be deformed or suffer some disability. If we combine this already present concern with partial protection only, low mortality, and no danger of a widespread epidemic like smallpox, are we not beginning to see the reasons for the lack of enthusiasm? But attempts to improve this vaccine must continue and we could easily finish with a situation similar to that with regard to measles, where there is an excellent vaccine.
The other important part of our debate concerns compensation. Industrial and other compensation Acts are all related to disease, and the proof is first concerned with identifying the disease and its effects and then the extent of the disability—the proof of pneumoconiosis rather than of chronic bronchitis, even though the symptoms and the disability may be the same. It seems to me that future legislation in a welfare state should be concerned with the degree of disability or the kind of disability rather than the cause, unless that cause affects the prognosis—the future. The patient is a human being who requires care if he is disabled. I feel sure that, as matters develop, the present Act will not prove satisfactory for such a new purpose. What we need is improved provision for all disabled.
§ 4.4 p.m.
§ Lord Auckland
My Lords, my noble friend Lord Campbell of Alloway, who asked me to take part, has the whole House in his debt for initiating such a very important and timely debate. The speech which we have just heard from the noble Lord, Lord Hunter of Newington, has covered some very interesting medical aspects of the subject.
There is no doubt that protection against such distressing complaints as variola and whooping cough are essential, certainly as regards the latter. I would ask Her Majesty's Government whether there is any indication that vaccine today is any safer than it was, for example, a decade or two ago, when so many tragic incidents took place. It must be stressed that there are a very small number of such cases, but one handicapped child is as tragic for one set of parents as 500 handicapped children are to 500 sets of parents. As I understand it, at the time when the admirable Pearson Report was published there were 240 child victims as a result of vaccination for whooping cough. I wonder, can my noble and learned friend on the Woolsack confirm whether that number has increased?
One of the problems arising on this particular matter is that we perhaps do not know whether there is any vestige of a chance of a partial recovery from the symptoms of vaccinations that go wrong. I and other Members of your Lordships' House have seen vaccine damaged children. If there is such a chance then 1255 nobody would be happier than Members of your Lordships' House.
The whole question of compensation is extremely difficult. I am the last person to delve into the law. However, one thing is quite certain: anybody who has seen or worked with handicapped children will know the special attention that they need, especially as regards keeping warm. As has been said by other Members of your Lordships' House, £10,000 as arbitrary compensation is totally inadequate, and indeed would have been totally inadequate 50 years ago. I do not wish to pursue that point, but there is one matter that I would like to pursue. My understanding is that not every parent has yet received the full £10,000 compensation. If I am wrong as regards that matter, then I shall, of course, stand to be corrected, and I very much hope that I am wrong.
Paragraph 1396 of the Pearson Report says that virtually all the medical bodies—the Royal College of Physicians and Surgeons of Glasgow; the British Medical Association; the Standing Medical Advisory Committee of the DHSS and others—have stated quite categorically that there was a reasonable case for paying compensation where vaccination was proved as the cause of the damage, and in those circumstances it should be paid without reservation. That is an important point to bear in mind.
The argument has been put forward that the parents of children who are born with inherent conditions such as Down's syndrome are not subjects for compensation. There may well be allowances under the various National Insurance Acts; but here, as has been pointed out by other noble Lords, we are dealing with a situation where the present Government and previous Governments have, quite rightly and quite properly, spent public money on urging parents to have children vaccinated.
Those of us who are parents and, indeed, grandparents, are only too happy and too concerned to see that this is done. Anyone who has had whooping cough, or has seen whooping cough, knows what a very unpleasant condition it is, to say the least. At the same time where a Government give, if not a directive, then a persuasive aspect to a matter, and where obviously, through no fault of any Government or indeed necessarily of the medical profession, there is an accident whereby a certain amount of vaccine may in some way be contaminated so that its use produces terrible tragedies, such as are referred to in this debate, I believe that central Government are very seriously committed to paying adequate compensation.
In the time at my disposal in this debate, and not being a lawyer, I would be the last person to try to adjudicate on adequate compensation. Anyone who has a brain-damaged child, or who has seen braindamaged children, knows full well that no amount of compensation whatever can help in the sense of enabling that child to lead a normal life. Therefore, I would conclude by asking Her Majesty's Government to give very sympathetic consideration to the very important Motion which my noble friend has moved, because although these damaged children are small in number, the effects upon them and their parents are too grievous to mention.
§ 4.12 p.m.
§ Baroness Lane-Fox
My Lords, I should like to add my tribute to my noble friend Lord Campbell of Alloway for initiating this debate and for bringing to it the depth of his legal knowledge. The reason for my short intervention is to express certain views forged through observation and experience, to some degree views that differ from those put forward so far. I would make it clear at once that in no way do I seek to belittle the huge burden placed on parents, families and the community, and perhaps most of all on the patients concerned, as the result of the kind of damage that is under discussion. I believe that we are all of the same mind in thinking that it is virtually impossible to equate such disasters in terms of cash; but, as with other horrific happenings, it is all too easy to turn on the taps of emotion in powerful doses and so largely submerge logic and reality. That course is far from the one that I wish to pursue today.
Disasters and tragedies strike and they have to be dealt with as they occur. For 10 years I worked very closely with the Disablement Income Group—known as "DIG" for short—and for another six years I have been associated with them. Not surprisingly, I uphold the principles of their campaign for a "national disability income". This is based on the belief that it is not the cause of disability but the degree of disablement and handicap that should be concerned in calculating the amount of financial help to be given. We believe that this is the right way forward to break out of the escalating and enduring unfairness caused by the different levels of financial assistance awarded for the same degree of handicap—the same degree of potential loss of earnings suffered and of extra expenses incurred.
Let me suggest to your Lordships that there are three chaps who meet in a centre and who are all disabled to the same extent. One was industrially disabled, so he receives about £120 per week; the next is equally immobilised through multiple sclerosis, so he is only eligible for the standard rate of invalidity pension at about £28 per week; the third, similarly disabled, was in a road traffic accident and had received over, say, £100,000 in compensation. Is this the kind of justice we want for disabled people in the future? The more complicated the settlements for such compensation, arranged by tribunals or courts, or on the lines of the Pearson Report or through vaccine damage provisions, the further we slip back down the road of favouring groups of victims at the expense of others who still rank financially as second and third-class citizens.
To compare with the vaccine-damaged, there are the autistic, the cerebrally-damaged or the Down's syndrome children to measure against those we are discussing, for theirs is a similar handicap. All of us who are old polios are well aware of the great benefit to humanity endowed by immunisation, an endowment which, because of its efficiency in ridding this country of the scourge of poliomyelitis, is not always properly appreciated, especially by the young. Parents of children brain-damaged by an attack of whooping cough, parents of children who have died of it, must feel this way about the whooping cough vaccine. The great fear is that debates such as these, and even more so those on television, which refer only 1257 to the damage done by vaccine, can discourage immunisation among harassed parents, despite what the noble Lord, Lord Hunter, said in his otherwise very wise words.
Perhaps it is as well that some of us who succumbed to polio survive as ugly reminders of the effects of an attack of polio. In my case the attack was in 1930. I was a lucky one, for so many victims died in other epidemics. We survivors were thrilled in the 1950s to hear that an effective form of combating this dire disease was about to surface. Our optimistic hopes that this meant a cure were soon shattered, but the bitter disappointment was somewhat ameliorated by news that the Salk vaccine could render children and people of all ages safe from its threats.
Polio attacks the nerves of the spinal column, damaging and paralysing muscles, killing many people and maiming more. It is those of us who have experienced the real horror of its effects who cannot remind people too often that immunisation is the only—I repeat, the only—protection against this virus. So far it has done wonders in freeing the United Kingdom of all but occasional cases. But poliomyelitis is still rife overseas, and unless we keep our advantage, the virus can too easily take hold again here. Once it has damaged a victim, there is precious little that medical science can do to repair the damage.
I should fail in my duty as an "old polio lag" if I did not remind your Lordships that to alarm the public of the effects of vaccination is a very dangerous step. Those of us who really know are most deeply grateful for this protection, and others should not be frightened out of accepting it. On the other hand, we look to the medical profession to get the screening of children right and the vaccine perfected for whooping cough, as in other cases. If matters of compensation demand to be disentangled, could they not be dealt with quietly and discreetly, with the least possible publicity—in fact, with the minimum of publicity and causing the minimum of panic? These health hazards caused by spreading alarm could then be eliminated.
§ 4.20 p.m.
My Lords, I too should like to thank the noble Lord, Lord Campbell of Alloway, for raising this distressing subject this afternoon. While we know that if they have been warned to look for them there are signs by which a mother can tell if a baby is reacting adversely to the whooping cough vaccine, such as rolling of the eyes and raised temperature, et cetera, there are a great many mothers who, even if warned, would not notice these signs: the young inexperienced mother of a first baby, for example; those who leave their babies with baby minders; the mentally deficient; the drunkards; the drug addicts; and even those who are just rather vague and unobservant. Many mothers do not have a thermometer in the house, nor could they read it if they had. Therefore, I do not think that the onus can be put on the mother in all cases.
I suppose that the Government could make immunisation compulsory, as it is in France, and then take complete financial responsibility for any cases which went wrong. But I dislike compulsion in these things and I would rather see the Government accept complete financial responsibility for those few cases as the carrot with which to encourage all mothers to take 1258 the very small risk involved in having their babies vaccinated rather than the much greater risk to them and others of not having them vaccinated. As the noble Baroness, Lady Lane-Fox, said, no money can compensate the victims, but it can enable them to suffer in more tolerable conditions.
§ 4.22 p.m.
§ Lord Renton
My Lords, if this debate were limited to a conflict between doctors, parents and mentally handicapped children with lawyers intervening I would, if I may say so with due humility, be the personal embodiment of that conflict because I am a lawyer, the son of a doctor, and a parent of a severely mentally handicapped daughter. But of course the issue in the debate is not simply about that conflict, because, as the Pearson Commission argued in chapter 25 of their report, to which my noble friend Lord Campbell of Alloway referred, it is where the Government and local authorities have, for reasons of public policy, either attempted to make vaccination of one kind or another virtually compulsory, or encouraged it so much, that their responsibility is engaged.
But if we are looking at the benefits of vaccination from the point of view of the general public interest, we should also bear in mind that every time a mentally handicapped child is born, or a person receives brain damage for whatever cause, if it is severe damage then the burden on the public is very considerable indeed. Some people say that it should be even greater than it generally is; and that is really the foundation of what my noble friend Lord Campbell of Alloway invited your Lordships to consider when, having posed the problem, he asked your Lordships to suggest what should be done. In a moment I shall come to a suggestion which very much follows what the noble Lord, Lord Allen of Abbeydale, said.
May I just put this issue into the perspective of mental handicap, because I think it is right that we should do so. About one child in a hundred is either born mentally handicapped or becomes so through brain damage at birth or later. One in a hundred. A remarkably constant figure which I believe is constant throughout the Western world. Many of the causes of mental handicap—and nobody knows how many different causes there are—are unknown. Even when causes are occasionally discovered—as in the case of whooping cough one has clearly been discovered, as the noble Lord, Lord Winstanley, pointed out—it is not the fact that a cure is discovered with it, because, broadly speaking, there is no cure for severe brain damage. This is why this is such a serious issue.
My noble friend Lord Campbell of Alloway said that we owe a moral duty towards the children who suffer brain damage. I would point out that it is a twofold moral duty. It is first and foremost a moral duty to prevent the damage, and then if the damage is not prevented it becomes a further moral duty to compensate, and compensate fully. No nonsense about £10,000, or 80 per cent. I suggest that those two duties are mutually dependent in this way, if I can describe it. I am not sure that I am capable of doing so, but I shall try.
If full compensation is not payable, may it not be that Governments and local authorities will be less careful to prevent the damage? The public purse will 1259 be less at stake. If full compensation is payable then Governments, local authorities, doctors and parents will surely think twice before running the risk of causing brain damage. Because one must observe—and a lawyer would agree with this—that if some way was found of having somebody other than the parents as the litigating next friend on behalf of the child, who may never understand what has happened, then the parents could indeed in certain circumstances be sued successfully for having agreed to the cause of the brain damage.
However, that may be a bit hypothetical, and so let me conclude by saying this. I agreed with the analysis of my noble friend Lord Allen of Abbeydale—if I may presume to call him that as he succeeded me as chairman of the Royal Society for the Mentally Handicapped, of which I was then so kindly made president—and I should like to say that, although I am not in favour of all the proposals put forward by the Pearson Commission, I support the recommendation, at the end of Chapter 25, that where vaccination has been done in the interests of the community, the Government or local authority, as the case may be, should be strictly liable in tort for severe damage suffered by anyone as a result. "Strictly" liable is a word which has become a term of art among lawyers and carries liability beyond the present common law liability. It follows from that recommendation, if it is accepted, that the 1979 Act should be repealed and replaced.
§ 4.29 p.m.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble Lord, Lord Campbell of Alloway, for raising the important questions of public policy which arise from vaccination against whooping cough. It has enabled us to have not only a wide-ranging but an exceptionaly well-informed debate in which great expertise medical and, dare I say legal, up until now has been brought to bear.
Our failure in regard to whooping cough to catch up with the great achievements in the protection of the population against diphtheria—to coin a phrase of the noble Baroness, Lady Lane-Fox, I am an old diphtheria lag myself; fortunately a disease more amenable to treatment—and then add to that polio and tetanus is clearly a matter of concern. Whooping cough, as we all know and have seen with children is a distressing and dangerous disease, and it is indeed worrying to learn that apart from the cyclical element of which the noble Lord, Lord Hunter, told us, there has been something of an epidemic this year.
I think the message that has emerged from this debate is that the disease is far more dangerous than the vaccine and that the higher the proportion of children vaccinated, the greater are the prospects of controlling whooping cough. Indeed, it is excellent that the Prince and Princess of Wales gave the lead to the country by the vaccination of Prince William. I am glad to say that all my nine grandchildren have been vaccinated, too.
The need to inspire confidence about vaccination is paramount, and it requires a climate of trust and confidence. A valuable study produced by the association of parents of vaccine-damaged children—to which the noble Baroness, Lady Faithfull, referred me 1260 timeously this morning—in relation to its question, "What is wrong with vaccination?" suggests three ways in which improvement could be made: first, by promoting vaccines which are safe and can be shown to be safe; secondly, by educating parents about vaccination; and thirdly, by acceptig responsibility in cases where damage results from vaccination.
With regard to the first—promoting vaccines which are safe and can be shown to be safe—I confess that I was a little troubled by the intimation of the noble Lord, Lord Winstanley, that perhaps it is better to abandon the vaccination campaign at this stage, because of the lack of confidence in the vaccine. I do not think the noble Lord actually meant to say that, but it sounded dangerously like it, if I may dare to criticise him in those terms, as he so powerfully turned on my noble friend Lady Gaitskell earlier, and I think I have interpreted him correctly. There is, as the noble Lord, Lord Hunter, said, room for improvement in the quality of the vaccine, and that leads me to ask a question of the noble and learned Lord the Lord Chancellor of which, I am sorrry to say, I have not had time to give him advance notice. There was a report in The Times of 19th March of this year which read:The development of a safer whooping cough vaccine could be delayed because of cuts in the budget of the government-funded research laboratories at Porton Down, Wiltshire. Britain's lead in the field of biotechnology and genetic engineering was threatened by a cut of 4 per cent. in the laboratories' revenue, Dr. Peter Sutton, the laboratories' director, said yesterday".It went on:Programmes involving the development of anti-cancer drugs, the production of synthetic human growth hormone"—and the following I emphasise—and safer vaccines, were all threatened".Perhaps the noble and learned Lord can reassure the House about that. It is a disturbing state of affairs if those are the facts. If we cannot be told now, perhaps we can be at some appropriate time.
The second theme of the parents of vaccine-damaged children was the importance of educating parents about vaccination. I understand that the Government have embarked on a substantial propaganda campaign of information, but I do not know whether the Lord Chancellor can tell us to what extent that has got home. One hears of areas, certainly in the East End of London, where, I am afraid, people are ignorant about the availability of vaccination and where its value is still not fully learned, particularly in the centres where many of the immigrant population reside, and perhaps that can be looked at.
The third issue, the need to accept responsibility in cases where damage results from vaccination, has given rise to most of the difference—which has been more of a difference of emphasis than conclusion—in this debate. State provision in other countries has long been regarded as a necessary element of immunisation policy. As we have been told, in France it is compulsory, and provision in Germany is most generous and elaborate.
When we faced the problem in 1978—when there was one of the recurring phases of an epidemic—I confess that we had to tackle the problem with not really full information as to all the implications of immunisation and vaccination. It was a time when the economic problems of depression and recession were beginning to hit the country at the end of 197 8, and we 1261 laboured long and anxiously as to what should be done in the situation that had arisen. No British Government had done anything about the problem until we moved in 1978. I am not making a political point of that, at any rate not deliberately, but that was the situation we faced; the need for action to help the parents of children was emerging more and more clearly and impressively.
It was in that emergency situation that we decided to act as quickly as we could to give at any rate some immediate emergency help to the parents of those children. It was in those circumstances that the machinery of the 1979 Act was devised, and we gave effect to the payments made in 1978. It was certainly not intended as a permanent piece of legislation—the reading of it makes that painfully clear—but it was intended to give immediate first-aid, and the 750 families who have benefited from the £10,000 will, no doubt, think it was something good to have done.
We are now more than four years later, and I agree with the general view that the whole of the handling of this matter, and the operation of the Act, needs to be reviewed. I should have thought that the Act itself needs to be reconstituted from top to bottom as to definition of answerability and liability, as to the areas of damages which ought reasonably to flow and as to the machinery for determining whether it should be the courts or a tribunal which should be used to deal with the situation. Before I elaborate that further, I suggest that in the meantime there is an immediate case for raising the figure of £10,000 bearing in mind what has happened with inflation since that time. The £10,000 of 1978 is in purchasing value now about £6,500. Therefore if accepted, the suggestion that there should be a review and an inquiry, which could last for a substantial time, would mean that the present unsatisfactory provisions would continue for an unacceptable period of time.
We find that it is not so easy when we come to answer the Question of the noble Lord, Lord Campbell of Alloway, who modestly put it, and who, equally modestly, did not seek to answer it, but sought guidance. My own view moves towards that which has been expressed in the debate, I think almost generally; namely, the conclusion that was arrived at by the Royal Commission itself. It was good that we had the noble Lord, Lord Allen of Abbeydale, once more to clarify the report for us. I think that the noble Lord has explained the relevant paragraph, but since time is favourable and I shall not be eating into the time of the noble and learned Lord the Lord Chancellor, thanks to the wonderful economy exercised by those who have preceded me, I should like to read the passage. Paragraph 1409 states:We think that the basis of liability should not be fault, but should be strict; that is to say, that where a plaintiff can show on the balance of probabilities that the injury suffered was attributable to the administration of a vaccine on the recommendation of the Government or a local authority, he should be entitled to compensation. Subject to these matters of causation and fact there should be no defences".There follows the important sentence:We reach these conclusions because vaccination is recommended by the state for the benefit of the community, and where it causes injury the state ought to provide compensation as part of the cost of providing protection for the community as a whole".That is an admirably stated principle, which I venture to think will be universally accepted in the House. 1262 I think that there was also some attraction in the choice of words of my noble friend Lord Mishcon: where there are reasonable grounds for inferring that the damage or injury was caused by the vaccination. Perhaps consideration might be given to that form of words.
Now, who should assess the damages? Two suggestions are made. The Commission favoured the courts. My noble friend Lord Mishcon favours tribunals; not of course the limited kind of medical tribunal referred to in the Act, but a tribunal of a more substantial character, with greater powers. I feel open-minded about that. In the tribunal proceedings there is advantage in the way of speed, to some extent in the informality, and in cheapness; and I know that the noble and learned Lord the Lord Chancellor is not over-enthusiastic about adding to the burden of the courts which, as I think we are all fully aware, are already very heavily burdened.
Therefore, I should think that there is much to be said for considering the possibility of the tribunal being the adjudicating body, but in saying that I must add that, as we are constantly told, the defect of tribunals is the unavailability of legal aid. However, the House struck a blow in regard to mental health tribunals and, I think, ensured that legal aid was available for such tribunals. That is a good precedent in regard to which in due course we received the assistance of the noble and learned Lord the Lord Chancellor.
I must not abuse the patience of the House, but I should like to mention one other, minor matter; namely, that in addition to raising the £10,000 in the interim period, so as to keep in line with inflation, something should be done in regard to the capital sum received under the Vaccine Damage Payments Act when assessing supplementary benefits. I understand that in another place in July 1981 an assurance was given by the right honourable member for Norwich, North, to the effect that the Government had in mind that the capital sum should be disregarded in respect of assessment of supplementary benefits. I think that such an arrangement would be well received in the House, and certainly by the victims.
Again, I return to the great responsibility that lies upon us in the debate to see that help is given to both the children and their parents who may have been injured in the pursuit of the health of the country as a whole.
§ 4.45 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, before I embark upon a wider range of topics, perhaps I can deal with two matters of fact about which I was asked by two of the participants in the debate. First, my noble friend Lord Auckland thought that nobody had been paid the £10,000; at least, that is what I understood him to say. All the successful awards have been of £10,000, and where they have been allowed, they have been paid, subject of course to a very few pending cases.
The second question was asked by the noble and learned Lord who has just resumed his seat. I can tell him that research into alternative whooping cough vaccine at Porton Down is continuing undisturbed by any financial stringencies. Results so far are promising. 1263 I am not quite sure what that last sentence means. But I can also say—I think again in reply to my noble friend Lord Auckland; but certainly one noble Lord asked me—that since 1968 whooping cough vaccine has improved. It has been made to World Health Organisation standards, and has an additive to reduce side effects.
Those are the questions of fact which arose, and I now address myself to the series of speeches, so admirably brief, of the participants in the debate, which was very well introduced by my noble friend Lord Campbell of Alloway. To some extent I feel that I should like to express my own thoughts. Of course in the main I reply on behalf of the Government, but I have thoughts of my own and I think that just as occasionally one declares one's own interest in a subject, on a matter such as this it is rather difficult not to give vent to one's own convictions.
I start with the question that was certainly raised by my noble friend Lord Campbell of Alloway, and I think reverted to again during the course of the debate. I think that it lies at the bottom of one's whole analysis of the problem. The question is: what should a doctor tell a parent? Of course if he is an honest man, he must tell the parent that he cannot guarantee the child whose vaccination is proposed against damage of any kind, or even against damage of the severe kind that we have been discussing. There is no absolute certainty, and that is true just as much of other types of vaccination as it is of whooping cough vaccination, on which much of the discussion has centred. It is as true of polio vaccination as it is of whooping cough vaccination, and it is true in regard to any one of the nine varieties of disease that are covered by the 1979 Act.
However, reverting to whooping cough in particular, I think that I agree with what I understood the noble and learned Lord to be saying: that the doctor's duty is to compare, so that the parent understands it, the danger of having one's child vaccinated against the danger of not having one's child vaccinated; and that if—I was going to say "my instructions"—my departmental brief, is correct (and I have done my best to verify it by cross-examining the experts behind me) he would be saying something like this. He would be saying that there has been this year an epidemic of whooping cough; that there have been, I think, between 58,000 and 60,000 cases; and that that resulted in the deaths of 13 children.
Of course one cannot treat this absolutely mathematically, but it means that there is a chance of 1 in 6,000, if a child catches whooping cough, that he may die. I was also told, although this cannot be reduced to a statistic, that the after-effects of catching whooping cough and not dying can be at least as serious as the after-effects that we have been discussing as the consequence of vaccination.
Of those who are vaccinated, 1 in 300,000 injections—and, as there are three injections, 1 in 100,000 cases—is liable to suffer severe damage as the result of the vaccination. What I think the doctor ought to tell the notional parent, the parent who has to make up his mind, is that, to the very startling extent that I have been seeking to describe, it is much more dangerous not to have your child vaccinated than to 1264 have it vaccinated. I think that that really ought to be said, and I am sure that there has been a failure either on the part of the doctors or of the Government or of the parents to understand that very simple fact—to explain the drop in the take-up rate of whooping cough vaccination. That I think is a moral problem. That leads me on to say that I think that there has been too facile an assumption by the Pearson Commission—and, may I say, I mean no disrespect to the commission, for I was partly its putative father some years ago—that the reason why we want children to be vaccinated is one of public policy. I do not wholly accept that.
I will tell a very short anecdote, if I may, to illustrate why I say that. About 30 years ago, about 1957, I was Minister for Education. In the early part of that year (I think it was) the Lord President of the Council of the day (and I think it was the then Earl of Home) went away from the country and I was left holding the brief of the Lord President of the Council. I had then to decide—and, obviously, if I had made a mistake, I should have had both deaths and disaster on my hands—whether to import a thing called the Salk vaccine. That was because the medical advice was that there was going to be a polio epidemic that summer and that, if there was a polio epidemic there would be deaths and there would be permanent disability—as the noble Baroness, Lady Lane-Fox, explained.
The argument for importing the vaccine was that there was only a very small quantity available of a British vaccine which was safe; and, therefore, if I did not import it, there would be a large number of children who would not have any vaccine at all. The argument against importing it was that there had recently occurred a thing called the Cutter incident, as a result of which, in the United States (which is where the Salk vaccine came from) a number of children had not only caught polio from the vaccine but had died from it or had suffered permanent injury.
I knew very well that if I imported it, and that happened, I should have this on my conscience for the rest of my life, and I also knew that it would be something which must lead inevitably to my own resignation; so naturally I took the problem very seriously. I took it, perhaps, a little more seriously, because my own two young children, as they then were, were among those likely to be vaccinated if vaccination took place. I asked the Secretary of the Medical Research Council, who was advising me, one very simple question: "Was it safer for a child to be vaccinated, bearing in mind the danger of another Cutter incident; or was it safer for him not to be vaccinated?" Like a good professional he gave me a positive answer. He said: "It is much safer to run the risk of vaccination than not to run the risk".
I then applied to my own children exactly the same standards that I applied to the children, viewed as a group, of every citizen of this country. And I applied to the group of the citizens of this country the same standards as I applied to my own children. You can call that (if you like) a decision of public policy; but I do not think it was. I think that it was a perfectly straightforward decision about where the interests of children lay, each child individually viewed as an individual.
Therefore, I challenge the view which has been put forward—and accepted, I think, with too great a 1265 facility by nearly every speaker in this debate—that the mere fact that the Government are on the side of vaccination gives the disabled child who suffers from the vaccination a better chance than the child who suffers and who has not been vaccinated—and, as he is only about three years old, he has no responsibility at all—who has caught the disease and who suffers permanent disability from it.
That brings me back to a point which has been adumbrated time and time again in the course of this debate; that is, that what this country really lacks is a coherent policy towards disabled people. It has never pursued it. I remember that at the time of the Attlee Government I had a tremendous row across the House with a Member of Parliament, Dr. Hyacinth Morgan. The policy of the country has always been to select particular groups of disabled people and to give them favoured treatment—industrial injuries over non-industrial injuries, people who have had accidents as a result of negligence over people who have had accidents in the home, caused, perhaps, by their own negligence, or inevitable accident.
If you are to carry out public policy, you will never come to terms with conscience, in my mind, until you have a coherent policy relating to all groups of disabled people and their means. I would rather not use the word "compensation" in this connection because compensation raises a number of very difficult philosophical problems. Having said that—and I have said it off my own bat—we are a million miles away from having got such a policy. But I, myself, am glad that the noble Baroness, Lady Lane-Fox, referred to this, as did a number of others who have taken part in this debate. I think that my noble friend Lady Faithfull, did so, as did the noble Lord, Lord Hunter of Newington, and the noble Lord, Lord Allen of Abbeydale.
Having said that, I come to the problems surrounding the 1979 Act. May I start with this? Irrespective of the Act, a child disabled through vaccine damage or a disabled child for any other reason has a chance, such as it is, of an action of negligence either against the state, in some cases, or against the doctor or a driver in other cases. A doctor is likely to be insured and the driver must be insured by law and that is the first option—and he gets a much higher rate of compensation in that way than in any other way. He will, in addition, and in any event, be entitled to an array of social benefits from the Welfare State. These will include—and these are important from the point of view of what we are discussing—mobility allowance and attendance allowance, which together can amount to £45 a week. Those are not affected by anything that we have been discussing today.
The Pearson Commission was set up I think during the period of office of the Conservative Government and reported during that of the Labour Government. Its report on this subject was known in advance of the actual publication in about 1977. It recommended at that time, so far as I remember, that a severely handicapped child should get a weekly allowance of £4–00 a week. That was costed by the Commission at something like £15 million. The comparable figures today would I suppose be about £30 million and £7–50 a week. No Government so far, neither the Labour 1266 Government nor ourselves, have at the moment felt able to implement that.
Of course, in evaluating what one gives to any group within the field of social benefits one must bear in mind that all groups must be considered, and to give it to one group in preference to another is a difficult matter of priorities as well as a question of expense. If you give it to one favoured group you will probably reduce the chance of a general increase in benefit. This is a difficult question of policy. The House will not expect me to develop this today, but of course that is true. Equally, mathematically it is obviously true that if you raise the maximum limit of £10,000 to its equivalent today you will be spending money on that rather than on something else. I am sure that my right honourable friend who is responsible for these things will take on board the various points which have been made by speakers on this point.
The House may have gathered from what I have already said that I share a good deal of the scepticism about the nature of the 1979 Act, which was a lump sum payment of £10,000 for 80 per cent. disabled children over the age of two years at the time when the claim was made or, if the child died, at the time the child died. These are obviously arbitrary figures. The conception of the Act is an arbitrary one. I can see why some noble Lords have said, "We must think of something a little more logical than that". I must say to the House that if an Act has been running only three years, unless you are going to replace it totally, which is an option which has been mentioned by more than one speaker, you cannot expect to be tinkering about with it much except on the figure of, say, £ 10,000. You cannot alter its whole basis.
This is where I fall a little into doubt about some of the things which came from more than one speaker, notably from my noble friend Lord Campbell of Alloway. He challenged the principle of causation. I do not see how that can be done within the ambit of the Act. The Act is an Act for the benefit of vaccine damaged children. Therefore, it cannot be for the benefit of non-vaccine damaged children; that is to say, children who suffer from a defect after vaccination but not because of it, or without having been vaccinated at all.
May I say to the noble Lord, Lord Mishcon, that the standard of proof which is required of the Secretary of State and of the tribunal is that of a balance of probabilities. It is no higher than that. I do not know that one can improve upon it. It is true—and I have statistics which, if pressed, I would be compelled to admit would bear it out—that among the seven tribunals in different parts of the country there are striking differences in the proportion of claims which are allowed. But, nonetheless, I doubt whether we can improve on the situation.
As regards the dispute about tribunals versus courts, I must say that I have no doubt whatever in coming down in favour of tribunals and against courts in this particular field. Each tribunal consists of a legally qualified chairman and two medical experts of consultant status. They have a greater expertise in deciding the only question that they have to decide, which is causation, than any other body I can think of. With respect to my noble friend Lord Campbell of Alloway, when it gets to the tribunal stage reasons have to be 1267 given. That follows from the general law. The work of the tribunal is subject to review, although I think it has not been challenged in the courts as yet. It is subject to review under Order 53 of the Rules of the Supreme Court if the tribunal acts on the wrong principles, or there is an error of law appearing from its reasons. I think that the machinery is probably as good as one can get if one is going on with the present system.
I do not think I ought to speak any longer. The House has been very generous to me, and I may have taken more time than I ought to have taken in a short debate. I apologise if I have in fact done so, because this is the first short debate to which I have ever replied. I should like to conclude by saying that the debate has been of great interest. I shall make quite sure that the remarks of each of the speakers who has participated are conveyed to my right honourable friend. If there is anything I have said which is not strictly accurate, I shall write and correct it. If there is anything that my right honourable friend would wish me to add, either he or I shall write to the speaker concerned. I share the gratitude of every speaker to my noble friend Lord Campbell of Alloway for having raised the matter in this short debate.
§ 5.7 p.m.
§ Lord Campbell of Alloway
My Lords, I am very grateful to all noble Lords who have spoken in this debate and for the very kind things said about me. I realise how difficult the subject is. I beg leave to disagree fundmentally, but of course respectfully, with my noble and learned friend the Lord Chancellor in what he has just said; not the last matter but the one before it where, joining hands with my noble friend Lady Lane-Fox, he elevated this debate to another plane, a plane to which this debate in truth was not intended to go. Here was the way in which—I hope it was legitimate to do so—I sought to limit this debate to a situation where brain damage was occasioned by a certain type of injection with the weighted factor.
My noble and learned friend the Lord Chancellor takes the same point, as I understand it, which was taken by my noble friend Lady Lane-Fox, that you simply cannot differentiate. It is morally wrong. It is a moral approach between different causes of disability which relate to the same category. Surely it cannot be right to approach this problem—which is a serious one, and this is acknowledged on all sides—in this way. If we are not going to have a national disability income—and. with the utmost respect, it does not ! look as if we are—and if the present system is unsatisfactory, as many of your Lordships manifestly appear to think, then it must be wrong to say. "We shall do nothing because we cannot have a national disability income".
With the utmost respect, although I totally accept that I am looking at it from a lower moral plane than is my noble and learned friend, at the lower plane at which one may look at it something should be done. The other point made by my noble friend Lady Lane-Fox was that it was wrong to discuss the subject as it might put people off having vaccinations. I sought to make it clear beyond peradventure—I think it was the second point I made, but I cannot quite remember ! because my notes have gone to the transcribers—and 1268 to make it totally plain that it was not the intention to do any such thing, or indeed to spread alarm, but to provide fair and adequate compensation in the circumstances, for the reasons that I gave.
May I, as there is a moment left, with your Lordships' permission, explain the sort of idea I had in the back of my mind and which I did not put before your Lordships earlier because I considered that your views should certainly come first and were of far more importance. I agree unreservedly that there is no object in tinkering with this Act. It is a rotten Act; it is unacceptable, for the reasons which I sought to submit; and it was never intended to last for as long as it has. I remember my noble friend Lord Renton saying, "We should repeal it". I say with my noble friend and also with other noble Lords, "Repeal it".
What should we do? In submission, we should introduce a statute which imposes a duty upon the department to warn of the risk, to inform parents of the relevant contra-indications, and to provide that on proof of breach of duty and on proof of brain damage subsequent to vaccination, then without proof of causation in any form there shall be entitlement to compensation to be assessed by the High Court. Why the High Court?—because it is the only place where you get true, reflective and totally fair and adequate compensation, with full revisory machinery. I would also suggest that we should impose such strict liability on the department in cases where it is shown that vaccinations were given by the doctor contrary to the contra-indications—again, with damages to be assessed by the High Court. Apart from that, I would respectfully suggest leaving the law alone and considering relevant implementing machinery.
If I may take a further two minutes of your Lordships' time, I would suggest that trial by tribunal may be convenient for those who on an administrative plane have to see what type of contest goes before a court and which goes before the tribunals. But from the point of view of the subject, Order 53 the judicial review machinery, is, in submission, wholly unsatisfactory. Again, with the utmost respect, it is not going to be effective, especially where the Secretary of State maintains that he need not give reasons and need only state conclusions.
In this case the machinery is that it first goes to the Secretary of State, then to this tribunal if the Secretary of State rejects it and then, in very limited circumstances, the Secretary of State is enjoined to reconsider under Section 5 of the Act. If we do away with all that and reinstate another type of tribunal it would again be open to serious criticism because applications for discovery against the Secretary of State tend to be resisted. There are no notes of evidence and, on many occasions, no sufficiently reasoned awards. There is no means of knowing the whole of the material before the tribunal so as to enable you to attack it in the Divisional Court.
No, my Lords, let us do away with tribunals. Let us have matters decided in the courts, where there is full discovery and the possibility of a full and total revisory procedure by way of appeal, without any restriction. Those were the views which, with the utmost respect, I would have put forward earlier. I am grateful to your Lordships for having allowed me to put them before 1269 you now, and I beg leave to withdraw my Motion for papers.
Motion for Papers, by leave, withdrawn.