Medical Accidents: No Fault Compensation (Hansard, 7 July 1987)

§ Lord Allen of Abbeydale
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

§ The Earl of Arran
My Lords, may I first say that I am very aware of the deep interest of the noble Lord in this subject which dates back to his participation in the Pearson Commission. We have no specific plans in respect of medical accidents, but the civil justice review has put forward proposals which aim to improve the machinery of civil justice by means of reforms in jurisdiction, procedure and court administration and in particular to reduce delay, cost and complexity. The review has examined arrangements for five classes of civil business including personal injuries. A consultation paper on personal injuries was issued in February 1986. The question of an insurance-based compensation scheme was raised by those responding to the paper, and will be considered along with the other responses.

§ Lord Allen of Abbeydale
My Lords, I thank the noble Earl for the Answer and congratulate the Government on having discovered the existence of the civil justice review of which they were evidently unaware when I asked a supplementary question on 11th May. While the review may result in simplifying and speeding up procedures in the civil courts, it was specifically precluded from examining proposals made by the Pearson Commission. Is the noble Earl suggesting that there is anything in the review that would affect the size of awards in the kind of case dealt with by my Question; namely, the increased premiums which doctors have to pay; the increasing use of defensive medicine involving valuable resources in case there should be an action for negligence; and the prospect of confrontation which means that patients have difficulty getting information from the authorities in the first instance? Or are the Government content that we should drift steadily towards the situation that now prevails in California and New York?

§ The Earl of Arran
My Lords, it would be entirely wrong and improper to prejudge any of the recommendations of the review until it is completed at the end of the year.

§ Lord Denning
My Lords, is the Minister aware that the civil justice review will have nothing to do with the substantive law on these matters; namely, the enormous sums of damages in medical action 600 cases? Is the noble Earl also aware that eight years ago, in one of the most important cases concerning medical accidents, Lim Poh Choo (1980 Appeal Cases), this House sitting judicially declared that a radical reappraisal of the law was needed and that such a reappraisal called for social, financial, economic and administrative decisions that only the legislature could take? Is the noble Earl further aware that such reappraisal advocated eight years ago has never taken place and that it ought to take place at once because the civil justice review will not touch the substantive law at all?

§ The Earl of Arran
My Lords, I can only repeat to the noble and learned Lord that it would be wrong and out of place to prejudge the results of the civil justice review.

§ Lord Kilmarnock
My Lords, will the noble Earl say whether or not the Government have been approached by the British Medical Association suggesting a pilot scheme for adequate compensation on a no fault basis? If so, what has been the Government's reaction?

§ The Earl of Arran
My Lords, a working party established by the British Medical Association has produced a report on no fault compensation. I understand that it was submitted to the association's annual representative meeting at Bristol only last week. Any representations from the British Medical Association on this subject will be given very careful consideration.

§ Lord Elwyn-Jones
My Lords, will the noble Earl give attention to the observations of the noble and learned Lord, Lord Denning, in regard to the legal aspects of the situation? Concern about costs which far exceed the likelihood of an award appropriate to damages in the totality of cases is becoming a scandalous feature of the administration of justice.

§ The Earl of Arran
My Lords, I thank the noble and learned Lord for the points he makes. They are indeed taken to heart.

§ Lord Allen of Abbeydale
My Lords, my noble and learned friend said that this review has nothing to do with the main Question which I raised. I ask the Minister this simple question. Do the Government recognise that this is a special case requiring special treatment?

§ The Earl of Arran
My Lords, wth respect, I can only repeat my original Answer to the Question on the Order Paper. The Government currently have no specific plans in respect of medical accidents, but they are of course at all times keeping a very careful watch on what is happening in this and in other countries.

§ Lord Nugent of Guildford
My Lords, is my noble friend aware that the example of what is happening in the United States is so alarming that we should take a lesson from it? In that country not only are astronomical damages running into millions being awarded, but also the premiums paid for insurance 601 policies by doctors are approaching half the fees that they receive. Doctors are now refusing to take cases where they think there may be an element of danger. Every kind of damage can flow from this situation unless it is adequately dealt with here. Will my noble friend take on board the great gravity of this question? It needs looking at in depth.

§ The Earl of Arran
My Lords, I thank the noble Lord for the point that he makes. I repeat that the Government are very much aware of the problems in other countries, both in the United States and again the additional example of Sweden. That country has a patient insurance scheme negotiated between the county councils and the main insurance companies which provides no-fault compensation for medical accidents. The basic rule in Sweden is that compensation is payable if injury could have been avoided. There arc, I understand, problems already arising in Sweden with the scheme.

§ Viscount Hanworth
My Lords, the noble Lord, Lord Nugent, has made almost precisely the point that I was going to make. Does not the Minister agree that if we do not do something about this we are in grave danger of slipping down that road here, and that also applies to other practices that America has followed? There you receive vast compensation if you win but if you have the same suffering and you cannot prove negligence you get nothing. Will the Government come to terms with this major problem?

§ The Earl of Arran
My Lords, once again I can only take note of the noble Viscount's comments.

§ Lord Hailsham of Saint Marylebone
My Lords, whatever else may be relevant to this important discussion, is not the experience of the United States wholly misleading? It operates on two principles which are quite absent from our jurisprudence. One is the contingent fee for plaintiffs to counsel and the other is the civil jury, which, happily, we have abolished in these cases.

§ The Earl of Arran
My Lords, I thank my noble and learned friend for the point which he has so clearly illustrated.

§ Lord Ennals
My Lords, let me say how much I agree with the point made by the noble and learned Lord, Lord Hailsham. Will the Minister accept that so far no reference has been made to the patient in all these exchanges? Will he accept that perhaps it is the patient whose needs are most to be considered in the review that is to be conducted?

§ The Earl of Arran
My Lords, of course I accept that the patient is of extreme and dire importance in these circumstances. Patients pursuing negligence claims need to obtain independent legal and medical advice. Action for Victims of Medical Accidents is an independent organisation run by a lawyer. It helps people to contact suitable lawyers and holds a list of medical experts willing to advise in litigation cases. The organisation is independent and it is not funded by the department.

§ Lord Kilmarnock
My Lords, is the noble Earl aware that the organisation to which he has just referred has on its books only 50 doctors who are prepared to give independent advice in these cases? There is extraordinary difficulty in piloting claimants through the courts in cases where costs sometimes rise to £20,000 or £30,000. In addition, cases can take five to seven years to reach a conclusion. Will the Government take this seriously into consideration and look into the matter? Will they also receive evidence from this small but devoted charity?

§ The Earl of Arran
My Lords, I stress once again that the Government take this matter seriously, have always taken it seriously and will continue to take it very seriously. The Government will also keep abreast of what is happening in other countries as well as this country.

Lord Taylor
My Lords, every time a doctor gives an injection for any cause whatever there may be disastrous results. Is there not, therefore, a universal human risk for which every patient should pay an insurance fee? A small fee should be paid automatically and thereby cover the whole risk.

§ The Earl of Arran
My Lords, I thank the noble Lord for his comments.