§ 7.16 p.m.
§ Viscount Hanworth rose to ask Her Majesty's Government what action they propose to take to prevent excessive damages being awarded against the medical profession and in some other cases.
§ The noble Viscount said: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. Although this question specifically mentions the medical profession I am concerned with large awards in other areas and the principles with which such awards are made. I shall deal with these broader issues later on in my speech. I am sorry that in this instance I did not try to alert speakers on those allied subjects because they feel just as strongly as do the medical profession.
§ It appears that anything done in America sooner or later crosses the Atlantic to England, sometimes after the Americans themselves have realised their mistakes or found a better solution. Despite warnings from others and myself, it would seem that damages awarded against our medical profession are rising and that we are in danger of following the American precedent of widening the meaning of negligence. In America this now seems to be simply equated with a wrong diagnosis or giving treatment which, with hindsight, was not optimal. This has meant that in order to cover their practice American doctors have to insure themselves to the extent where the insurance represents about 30 per cent. of their fees. Not only that, but in order to protect themselves cases almost routinely have to be referred to specialists, with X-rays—and the radiation that that entails—and needlessly elaborate laboratory tests are requested. It is said, I hope apocryphally, that unlike the Good Samaritan, doctors quickly pass by any accident to avoid a court action over any treatment which they might give at the time of the accident. In England the cost of insurance already represents more than a month's salary for a registrar doctor at a hospital.
§ That is not the whole story. I vividly remember our highly emotional debate on compensation for children damaged by whooping cough inoculation. Today there is no government pressure on parents to 1349 have children inoculated. If, as was thought, inoculation appears occasionally to lead to brain damage, it is still true that those children who are not inoculated and catch the disease are more likely to suffer in this way. As far as I remember, the plight of those children and their parents was not even mentioned in the debate. Even today at Question Time the problem of haemophiliacs infected with AIDS, probably through no one's fault, was raised.
§ The law of negligence is dignified by its long-respected antecedents. I suspect that originally it was intended primarily to punish the negligent rather than to compensate the injured. So much for tradition; today, it is almost a lottery. Let us take the example of a road accident. If the driver is negligent, enormous damages are awarded to a passenger; but if negligence is not proved, there is nothing.
§ Another major unfairness is that only those who are rich or can claim legal aid dare take a case to the High Court. For the middle piece of our society, it is too great a financial risk, particularly with delays of perhaps four years or more in obtaining compensation, even if one wins the case. To instance that fact, but without comment, I should like to cite the recent case against the BBC.
§ Is that justice and the rule of law or is just adherence to old-fashioned shibboleths? We should remember that the worker is almost automatically given some compensation for industrial injury, even when he has disobeyed reasonable instruction by management; for example, by removing the guards from a machine. That is still thought to be a reasonable solution.
§ What should be done? It is not sensible or practical politics to recommend drastic changes in our law, much as that might be desirable. I therefore suggest, first, that the basis of damages and their ceiling be considered; secondly, that a clear definition of negligence be given by the judiciary, as, for instance, in the Macnaghten rules; thirdly, that there should be some procedure whereby any claim for damages could be assessed by a special court, as in committal proceedings, so that if there is a prima facie case legal aid should be provided. Of course, such a hearing would have to be paid for by the applicant. I suggest a fee of perhaps £500. Fourthly, in the medical profession—for which I have great sympathy—the inevitable tendency is to close ranks and to deny those who may have a case any information. That must be looked into and some way found to obtain the necessary information, if there are good grounds.
§ Fifthly, we must move gradually towards no fault compensation. We have done that for manufactured goods at the behest of the EC. In the medical field, New Zealand and Sweden have done so.
§ I sometimes wonder whether the legal profession hides behind its reputation and avows that since it is (or rather was, probably) the best in the world, no change is needed. Time and again in the past it has indicated, wrongly, just that.
§ Finally, let me stress that the problem which I have outlined now affects nearly all professions, including architects and accountants, to mention just two others. Compensation under the law of negligence is just a gamble. If we are to move towards helping the 1350 very many who suffer and have no claim in law, or cannot afford to sue, as a first step we must limit the excessive damages now being awarded by our courts. No one wants to pay greatly increased professional charges to cover this unfair lottery. I repeat this point for emphasis: under an unfair system no one wants to accept increased professional charges to cover the present system of damages.
§ 7.25 p.m.
§ Lord Pitt of Hampstead
My Lords, I have great pleasure in supporting the Unstarred Question asked by the noble Viscount, Lord Hanworth. I am impressed by the case that he made out, and I thank him for it. Complaints against the medical profession have increased tremendously. In 1982, there were 16,000 and by 1984 they had reached 22,000. I do not know what the figure is today. In addition, there has been a great increase in the damages awarded, although it is not as large as the increase in complaints.
Professor Sir Malcolm Macnaughton, the President of the Royal College of Obstetricians and Gynaecologists, believes that the increase in negligence claims is, paradoxically, due to better medical care. He says that improved skills and the success of modern technology have given patients a far greater expectation of medical care, and when that skill fails, they turn to litigation. I believe that there is a great deal in that belief.
Those higher damages have many consequences. Many of them have already been mentioned by the noble Viscount. I repeat them. For example, subscriptions to the medical defence organisations increased by 71 per cent. for 1987 and by 87 per cent. for 1988. That means that between 1986 and 1988 they will have increased by more than 150 per cent. That has its consequences for the profession and for medicine. One of them has been mentioned by the noble Viscount. The subscription that a junior registrar now has to pay is equivalent to one month's salary. That can have serious consequences for the service. One obvious one is that the doctor will look for some other more lucrative branch of the profession. If he does that, and moves away from hospital medicine, we may lose someone who would have been a distinguished consultant. On the other hand, the battle that may be fought by junior doctors to obtain increased salaries to enable them to pay these increased contributions may cause problems within the service. That is one side of the problem.
There is another side aspect of the matter which is probably more disturbing and alarming. Again the noble Viscount, Lord Hanworth, has mentioned it. If doctors are to face these awards of severe damages they have to make sure of their defence. You are always better off in the witness box if you can say that you have done all the tests that are considered necessary. You may not necessarily look quite so good if you did only the tests that you regarded as necessary because, when learned counsel starts to take you apart, you may find that your judgment that it was unnecessary to do a particular test will be treated with scorn. The consequence is—and this is already so in the States—that you do all the tests so that when you are asked, "Did you X-ray the 1351 ankle?", and you know that it did not need X-raying, you say, "Yes". If asked, "Did you do X or Y test?", you answer, "Yes". That means that one is wasting resources. We must therefore face the fact that if we are going to pursue the course that we are now pursuing we shall find an increase in defensive medicine with an alarming waste of resources.
That is not all. As the noble Viscount, Lord Hanworth, pointed out, the present scheme is a gamble. In addition, it never provides adequate redress. The fact that it is only when somebody has committed an error that the victim will be compensated carries certain problems and is in many respects unfair. If your disability be the result of illness you will get no compensation although you will be just as disabled as the person who, for example, was disabled by a vaccine, a traumatic birth injury, or some other failure resulting from surgical activity. While using the analogy of vaccine damage and encephalitis, in a traumatic birth injury Anaesthesia—the lack of oxygen for a short Period—may have that effect. If that happens, and it can be shown that the anaesthetist was at fault, the person will be compensated, probably quite highly. If not, he will not be so compensated, although he will be just as disabled.
On a previous occasion I argued here for a no-fault compensation scheme. I asked the Government to look into it. The case for such a scheme is becoming much clearer. At the moment the British Medical Association has been asking the Government to set up a committee to look into this problem of medical damages and compensation for medical injuries. There is also outside support for that campaign. There is a committee—I do not know what it is called, my Lords—for the support of victims of medical accidents. That committee is campaigning for just such a government inquiry. It has been asking people to write to their MPs. It sends them specimen letters which they can send to their MPs.
Moreover, in another place the Prime Minister was asked a question on whether she would consider setting up a Royal Commission to look into this. She said that she would consider it. Therefore I wish to conclude by asking the Minister when he replies to tell us what stage the Government have reached in their thinking on this matter. As I see it, that is probably the way forward at the present time. What we cannot do is to leave the matter as it is.
§ 7.35 p.m.
§ Lord Denning
My Lords, the Question asks what action the Government propose to take. I hope very much that the Government will reply positively by saying, "Some action". It would be intolerable if they were to say that they are content with the position as it is and are going to do nothing.
I reinforce this by the need, which the judges for the last nine years have been pressing upon the Government, for the law on this matter to be reappraised and reformed. As my noble friend Lord Pitt has said, it is in part the result of the success of the medical profession in keeping people alive. I shall tell your Lordships of two cases where in the ordinary 1352 way, before modern advances, the patients would have died and there would have been no claim for negligence or anything of that kind. However, in consequence of the improvements in medical science they have been kept alive for 20, 25 years or more, not being able to think or know anything, but mere vegetables. Then, because of those advances in medical science, they receive colossal damages—£1 million is the latest.
Perhaps I may draw your Lordships' special attention to what the judges, and the judges of this House, have said on the matter. The first case was that of Miss Lim Poh Chou, a lady doctor, of 36 years of age who went into hospital for a minor gynaecological operation, a curettage. Unfortunately during the anaesthetic there was a failure of some kind. She suffered a cardiac arrest for five minutes or so. As a result her brain was destroyed beyond question. She could know nothing; she could do nothing; her mind had gone. However, she would live as a body bereft of mind for 25 or 30 years.
That case came before the Court of Appeal when I was sitting. I pleaded for a reappraisal of the law on the matter. On the question of damages which she received—and I agree that this would be right—fair compensation should be that she be kept with every care and comfort that science could afford for all her days with the best nursing care and housing that money could provide. That would be fair compensation. Then the law went on to say that she must also be given the loss of all her future earnings over those 25 years, although she would never have earned them or done anything for them. She therefore not only receives all the cost of the care but she receives compensation for those future earnings which she never earned, and never would be able to earn, as though she had been a fully able person. I suggested that that was wrong in principle and that the law should be reformed so that the loss of future earnings, rather as Lord Pearson suggested, should be considerably reduced.
I wish to refer to what the House of Lords said in the case of Lim Poh Chou. Lord Scarman—there is one judgment only—speaking for all his noble and learned colleagues in this House, said:The question therefore arises whether the state of the law which gives rise to such complexities is sound. Lord Denning in the Court of Appeal declared that a radical reappraisal of the law is needed. I agree. But I part company in ways and means. The Master of the Rolls believes that it can be done by the judges whereas I would suggest to your Lordships that such a reappraisal calls for social, financial, economic and administrative decisions which only the legislature can take. The perplexities of the present case, following the Pearson Commission report, emphasised the need for reform of the law".It was eight years ago in 1979 that the House was declaring unanimously the need for reform and reappraisal of the law. Nothing has been done.
I bring the point home by reference to a case early this year in which record damages of £1 million were given to Mr. Samer Aboul-Hosn. This is how the sum was made up by the judge. He would get £500,000 for care and expenditure and future care and expenditure; and for future loss of earnings another £350,000. I suggest that that is a duplication. He ought to have the £500,000, but ought he to have the £350,000? I wish to stress this point: future care and expenses, all very good, but what does the extra 1353 money do for him? He cannot handle it and he cannot make a will about it because his mind has gone; it will go to his relatives when he dies. The judge in that case said:This case therefore only serves to highlight once again the crying need for a review of this branch of the law which judges have so frequently urged but which only Parliament can undertake".This year the judges are appealing to Parliament—that is, to government—to do something to reappraise and reform the law. How is it to be done? Medical negligence in a way is a special case. The British Medical Association suggests that no fault compensation is the answer. I am not so sure. No fault compensation may be good for motor accidents and so forth but I am not sure that it would be right for medical cases. However, I do not urge that matter today.
I want an inquiry about it. The noble Lord, Lord Pitt, said that there is a special association for the victims of such accidents which is urging a government inquiry. This has wider implications for society as a whole. Premiums for doctors go up, which they can ill afford. If the National Health Service has to pay out millions of pounds in this way, that detracts from its ability to improve medical services, hospitals and so on. One million pounds will not do the man in question any good, but it may do his relatives some good.
Why should a system of law award millions of pounds in this way which could be better used in other ways? Why should the premiums be increased? The evils of it have been well shown in the American system. Medical malpractice cases have been the curse of the American medical and legal professions. They do not know how to solve this. Any solution here may help the professions that increasingly are being sued—architects, accountants and solicitors. The problem is largely due to the extension of the law and the tremendous damages that the individual cannot himself afford. He can only meet this be insurance. He then has to pay large premiums. This is a social, philosophical and legal question. I hope that the Government will do something positive about it and not just dream.
§ 7.46 p.m.
§ Lord Allen of Abbeydale
My Lords, I apologise for not having put down my name to speak. Having raised the question of medical accidents more than once on previous occasions, I should like to contribute a few words on that aspect.
I have spoken before, perhaps rather too often, about the Pearson Royal Commission. It seems to me that it is still the starting point for this issue as it is for a number of others, including the assessment of damages and the possibility of periodic payments instead of lump sum awards. The Pearson Commission recommended either strict liability or a no fault system for a number of activities but not for medical accidents. We recognised a special difficulty over the question of causation and the problem of applying any such system to treatment outside the National Health Service. We certainly did not slam the door on any such solution for all time, and we urged the Government to watch what went on in the countries where no fault schemes are in operation.
1354 Since that report it is plain that the disadvantages have grown no less: the increasing number of claims, the enormous delays, the staggering increase in premiums for doctors' insurance, the proportion of court awards swallowed up in fees and the development of defensive medicine, which, as the noble Lord, Lord Pitt, pointed out, involves a waste of resources. To that I add the atmosphere of confrontation, which increases the problems of the aggrieved patient seeking information. In all those respects the position seems steadily to have become worse. We may be some way still from the American predicament but we are too far down the slippery path for any complacency. One is bound to wonder where we shall get to if the Government do nothing. So far that is precisely what the Government have done.
When I asked a Question on 11th May at col. 418 of Hansard about experience elsewhere, the noble Lord, Lord Hesketh, said that there were problems in the New Zealand and Sweden schemes. As I volunteered in an earlier debate on a Motion of the noble Lord, Lord Hacking, on 18th March (at col. 1689), of course there are problems. It is a difficult area. I do not propose that the Government think that Sweden, Finland or New Zealand will abandon their schemes. When I had another shot on 7th July at col. 599 the noble Earl, Lord Arran, took refuge in the civil justice review. However, as that review was specifically precluded from considering the Pearson findings, it did not seem to me that that progressed us very much further.
There is just one other point of some considerable substance. In the areas where the Pearson Committee recommended a no fault scheme there was no question of ruling out recourse to the courts altogether. Nor, incidentally, is there in Sweden. However, we recommended that the whole of social security benefits should be deducted from any court award, and this in itself would be bound to cut down the number of applications going to the courts. The Government can hardly be averse to such a proposal because that is precisely what they are doing in the current Criminal Justice Bill regarding awards by the Criminal Injuries Compensation Board.
I share the hope of other speakers that we shall hear something a little more constructive this evening about medical accidents than we have heard so far. I have to confess that having served on two Royal Commissions and a tribunal of inquiry—the reports on all of which were almost totally ignored by the Government—I feel some diffidence about going along with the proposal for yet another Royal Commission or committee of inquiry or what-have-you. However that is an excessively complicated and difficult area.
I end by going along with the noble Lord, Lord Pitt, in urging that some form of inquiry should be set up; for, unless something is done, the prospects are pretty bleak.
§ 7.52 p.m.
§ Lord Ackner
My Lords, I have considerable sympathy with the points raised by the noble Viscount, but the form of his Question indicates that 1355 he accepts that this is not a problem limited to the medical profession, because the final words are:and in some other cases".It seems to me that this problem applies to all the professions. When it comes to quantum of damages, the figures are very much higher when actions for negligence are brought against accountants or against barristers who have advised on tax matters or on banking matters, or architects or surveyors in regard to their specialist work. There is no doubt that the inability to limit liability among the professions is causing very great hardship in relation to the premiums that have to be paid. It is not only the hardship of finding the money for the premiums, but the situation is being reached—not in the medical profession yet—where insurance cannot be obtained to cover the size of the risks involved. That means that the members of the partnership (or, as with the Bar, where partnerships are not permitted, the individual practitioners) are daily putting at risk the whole of their assets; their home, their ability to educate their children and all the requirements of any professional man.
I urge that this problem be not limited to the medical profession, although the drama of the matter arises particularly with them, because in relation to personal injuries the damages which they often have to pay are particularly high because the injuries so often involve brain damage. Once there is brain damage the major item in the bill for compensation, as my noble and learned friend Lord Denning has pointed out, is the cost of the care for the victim—the day in, day out costs of nursing, special attendance, special housing and the like. I therefore urge that a broad view be taken of this problem. At the same time there is a need to look again at our basis for assessment of damages.
Frankly, I do not think that in the majority of cases damages are excessive, because the nursing care has to be provided. But there are some items where it may be said that there is possible duplication and, since many wiser heads than I shall ever achieve have urged that it be looked at, I support that aspect as well.
§ 7.55 p.m.
§ Lord Ennals
My Lords, I am sure that the whole House is grateful to the noble Viscount, Lord Hanworth, for having raised this issue, which, as has been recognised by all noble Lords who have spoken, is of growing importance. I have no doubt equally from the very pungent words of the noble and learned Lord, Lord Denning, and the noble Lord, Lord Allen of Abbeydale, that we hope for a very positive response from the Minister. The noble and learned Lord, Lord Denning, referred to what happened nine years ago. I suppose it was about nine years ago that the Pearson Commission reported.
§ Lord Ennals
My Lords, more than nine years ago the Pearson Commission reported. I go back only to 18th March this year when there was a debate in your 1356 Lordships' House on civil liability and the professions that dealt with all the professions. The noble Lord, Lord Allen, as he said, took part and at the end of the debate the noble and learned Lord, Lord Cameron of Lochbroom, winding up for the Government said:There are many aspects to be taken into account before we reach … view … We shall want … to consider the points that noble Lords have so eloquently put forward today".—[official Report, 18/3/87, col. 1497.]That is quite right. We want today to know what conclusions have now been reached, not only from the eloquence that was put forward on 18th March, but over the years and today. What conclusions have been reached in relation particularly to the medical profession? That is the profession we have been concentrating upon. I am concerned not only for the medical profession, but for the patients. I am as concerned for the welfare of the patients as I am for the medical profession.
The problems which were identified by the Pearson Commission—which sat, as 1 well remember, for five years—were underlined in the House in the debate on 18th March and are becoming, as we have been reminded, more acute. There is a form of vicious circle. As the noble Lord, Lord Hacking (who opened the debate on 18th March) said, the spiral has gone on: more claims more insurance, more insurance more claims. As my noble friend Lord Pitt said, the increase for next year of medical defence subscriptions will be 87 per cent. This is in addition to a 71 per cent. increase this year.
Even more disturbing is the fact that there is a strong likelihood to be a further move in the direction of defensive medicine. We have seen this happen in the United States and the tragedy of it. My noble friend Lord Pitt dealt with this when he said: "We try anything and everything, but we will not take risks." Part of the task of the medical profession is in fact to take risks. There always are risks to be taken. If we have a situation in which the profession does not take risks, this can often be very unfair to the patients whom they are seeking to treat.
I am not saying that patients who have suffered greatly and been disabled for life have been over compensated. I did not altogether agree with the conclusions of the noble and learned Lord, Lord Denning. What I feel very strongly is that an adversarial situation is created between doctor and patient. After all, there is no form of special reward for a doctor who achieves a near miracle. There is no doubt that many near-miracles are achieved by doctors today. There is no special money for that, but there is certainly a great risk if something goes wrong.
In the March debate, to which I have previously referred, my noble friend Lord Morton of Shuna said:we should be moving towards a case of impersonal injury compensation for disability rather than compensation for fault".—(official Report, 18/3/87; col. 1491.]The BMA suggests that there should be some non-statutory scheme and others have proposed that there should be a statutory basis for no fault liability. I strongly agree that the essence of compensation should be for the disability, for the harm and damage 1357 that is done to the patient, rather than seeking to find exactly who, if anyone, was at fault.
The BMA is now recommending that the Government support the proposal for a Select Committee. Presumably that would be a Select Committee of another place, although I am not quite clear what it has in mind. The BMA refers to a very much greater number of medical accidents where nobody is at fault. What is not satisfactory is for the Government to continue to do nothing. I warmly applaud the fact that the noble Lord, Lord Allen, who I was glad to see added his name to the list, has year after year campaigned to see that something is done by the Government. We have heard no satisfactory responses. I should like to hear what they have learnt from the experience of the schemes in New Zealand and Sweden.
I gave notice to the Minister that it was my intention to raise a specific issue that comes well within the terms of this Unstarred Question. It has been touched upon by a number of noble Lords and was referred to by the noble Lord, Lord Campbell of Croy, during Question Time today. It relates to AIDS and in particular to those 1,200 people born with severe haemophilia who have been infected with the AIDS virus. Their interests are very well represented by the Haemophilia Society.
They are a limited number. Their need for blood products—injections with Factor 8 or 9—is absolutely essential. Now HIV has infected the majority of these people—children and adults—all of them with severe haemophilia. To date 60 have AIDS and 45 have already died of AIDS. In May 1987 the Third Report of the House of Commons Select Committee on Social Services reported that,Only 20 per cent. of the existing need for Factor VIII was being supplied from our volunteer Blood Transfusion Service. It has been supplemented by the extensive importation of commercially produced products from overseas".Unhappily, these products were already infected and in this way the haemophiliacs became twice cursed through no conceivable fault of their own. Happily, the success of heat treatment of the product has stemmed the AIDS epidemic among the United Kingdom haemophiliac population, so the number of victims is clearly circumscribed. At most the number is 1,200 because of infected blood supplied to them. A letter I recently received from the Haemophilia Society said:The implication of AIDS on top of haemophilia has had devastating repercussions. Primarily the burden has been financial, with extra expenses coinciding with loss of earnings. Unfortunately there is also the stigma that all people with AIDS have to suffer resulting in both children and adults being ridiculed, shunned and maltreated in the community.The Government suggests that we explore the question of redress through the legal system. However, most of our members do not have the financial resources to take on the law courts and fight for compensation. There is also every reason to believe that they do not have the time left to do so".My proposal, which has in a sense been touched upon by others during the course of the debate, is that the Government should introduce a Bill similar to the Vaccine Damage Payments Bill, which I as Secretary of State introduced in 1978 with the support of the then Conservative Opposition. The present Government have increased the payments under the 1358 legislation from £10,000 to £20,000. If this cannot be done I think it would be right to have a Private Member's Bill. There is a real urgency and I believe that the full backing of the Government is essential.
When I introduced the Vaccine Damage Payments Bill I received the full support of the Opposition and I know I can guarantee opposition support for a move such as I have proposed. On the broad and general question I hope that we shall have a positive response from the Government. They know the size and nature of the problem and the recommendations that have been made. On the specific question of haemophiliacs with AIDS, I hope that we shall have a sympathetic reply from the Government. I do not expect a total response today but I hope it is something to which they will give urgent and serious consideration and that we may have an opportunity to debate such a scheme later in your Lordships' House.
§ 8.6 p.m.
§ Lord Skelmersdale
My Lords, in asking this Unstarred Question this evening the noble Viscount, Lord Hanworth, continues a debate which I understand has been going since the war. Certainly it has been given greater impetus recently in the light of the high level of awards for damages given by the courts in some cases in recent years. The noble Viscount covered a wide range of topics in his speech and as a newcomer to this subject I am particularly grateful to him and to the noble Lord, Lord Ennals, for giving me notice of the matters with which they were especially concerned. Because matters raised by other noble Lords, and indeed noble and learned Lords, have ranged somewhat beyond the subjects with which I normally deal I hope that they will permit me to write to them on any point I am not able to deal with satisfactorily today.
The noble Viscount started his speech by referring to the level of damages in the United States. This it would appear is the main level of concern: not our legal system but the actual and possible level of awards made under it. While I certainly accept that awards of damages in cases of medical negligence in Britain have increased in recent years, there is no evidence to suggest that we are going the way of the United States. The relatively high level of damages in America has undoubtedly resulted in significant increases in the cost of indemnity coupled with "defensive" medical practice on the other side of the Atlantic, but its significance in this country is limited.
There are several reasons for this, and I am sure that the noble and learned Lord, Lord Ackner, will correct me if I am wrong. Unlike the position in the United States' courts, in this country we are unwilling to stretch the traditional concepts of duty, breach and damage which constitute the tort of negligence. The pre-trial discovery procedure in this country encourages more openness before trial than is the case in the United States, thus containing costs and reducing opportunities for delay. However, I have noted the points made by some noble Lords, especially the noble Lord, Lord Pitt, that there appears to be a kind of professional cabal. I shall have to consider carefully my response to that. In 1359 comparison with the United States it is extremely rare in this country to have juries assessing awards of damages. The scope for an award of punitive damages in English law is very restricted. Finally, and to my mind most importantly, we do not have payment by results for lawyers. Nevertheless it is the case that subscriptions paid by doctors to the defence societies in this country have risen sharply in the past two or three years. The noble Lord, Lord Pitt, told us of this. These increases mirror the increases in the instances of litigation and the average cost of settlement. Most cases involve hospital doctors; and unlike most groups of National Health Service staff, hospital doctors are not indemnified by their employing authorities.
The profession, because of its independence in clinical matters, has chosen to pay for its own insurance cover. The profession are naturally concerned about escalating premiums, and especially the effect on junior doctors. So far as concerns consultants and junior hospital doctors, their independent pay review body is aware of these increases in subscriptions and has stated that it has taken these into account in making its recommendations.
Several noble Lords referred to no fault compensation so far as medicine is concerned, and indeed we seem to have a pretty evenly-balanced opinion on this matter. I find it difficult, 1 must confess, to be persuaded by the merits of such a no fault compensation scheme. This was, as the noble Lord, Lord Allen, will know well, considered by the Pearson Commission who decided against its introduction.
One major problem is that giving compensation to those who have suffered adverse results of their medical treatment— where no negligence has been proved—puts them in an unfair position compared with those whose disabilities are not the result of treatment but merely the inevitable progression of their disease. For example, the man who suffers brain damage—through no one's fault—on the operating table is compensated. The man who suffers equivalent injuries by a stroke would get none. Surely what all those who suffer ill health or injury need is the availability of appropriate care and income support. This is what our health and personal social services and the social security system seek to provide.
The noble Lord, Lord Ennals, having advised me of this point, spoke eloquently concerning the plight of the 1,200 or so unfortunate haemophiliacs whose condition we touched on at Question Time today. For the purposes of this debate all I want to say is that it would be misleading to think of their problems in terms of compensation. I do not know whether the noble Lord was here at Question Time today, but events have moved on even faster than I expected. My right honourable friend the Prime Minister in another place said that a Statement would be made shortly.
I must take issue with the noble Viscount, Lord Hanworth. I was confused concerning the noble Viscount's suggestion that only those who are rich or 1360 who can claim legal aid must take a case to the High Court. He suggests that—and I think I have his words correctly—for the middle piece of our society it is too great a financial risk.
The financial conditions and limits for legal aid are set down in regulations approved by Parliament and are designed to ensure that legal aid is available for persons of small or moderate means. These limits, which apply to both disposable income and disposable capital, are revised regularly to ensure not only that they are set at a fair and reasonable level but also that the objectives of the scheme are maintained.
It is estimated that the current financial limits for legal aid eligibility ensure that about 70 per cent. of the population are eligible for legal aid. I do not think I had better go into it now, but it should be noted that the Law Society has recently introduced another scheme on, as it were, their own behalf.
Many noble Lords have suggested a particular procedural reform in the handling of claims for damages. It has been widely recognised that this is a difficult area. As the noble Lord, Lord Allen, said—I think somewhat dismissively—a consultation paper on personal injuries was issued in February 1986. Any recommendations for reform will be contained in a report on the civil justice review as a whole, which is due to be put before my noble and learned friend the Lord Chancellor in early 1988.
I am sorry that the noble and learned Lord, Lord Denning, should feel that this is not—what was his word?—a positive step. Having regard to the review's terms of reference, I am advised that their recommendations are likely to include recommendations aimed at reducing costs and delays and making improvements in procedure in civil legislation. My noble and learned friend the Lord Chancellor considers that it would be premature to consider setting up a Royal Commission or any further study until this body has reported.
On an allied question I see from the Official Report of another place that what my right honourable friend the Prime Minister said was that she would consider the questions that were put to her; namely, had she had a chance to study the judge's comments following the award of more than £1 million to Mr. Samin Aboul-Hosn who suffered brain damage. Did she think that this country was in danger of entering into an era of defensive medicine. Did she think that this was the time for a Royal Commission on medical negligence and how it is treated?
I think the press made rather more of this than in fact was contained in my right honourable friend's reply. What she said was:We have not considered a Royal Commission on medical negligence".—[Official Report, Commons, 14/7/78, col. 996.]A little later in the same answer she said:I will consider further what my honourable friend has said"—[col. 966.]Looking at the global awards of damages, I am advised that the court must ensure that the award is fair. As the noble and learned Lord, Lord Scarman—and one noble Lord referred to this this evening—emphasised judicially:this means no more than that there must be a proper compensation for the unjuries suffered and the loss sustained".1361 In each case the question of computation is a matter of fact turning on the particular circumstances of the case. No two cases are the same. If the judge errs in his assessment, the Court of Appeal, and the Court of Session in Scotland, are available to review the decision, applying established guidelines including the approximate range for awards in comparable cases.
I am not sure whether or not I should say this. I hope that it means more to noble Lords than it does to me. I am advised further that it is highly improbable that exemplary damages would be awarded in a medical negligence or any personal injury claim. General damages are awarded for losses, such as pain and suffering and loss of amenities of life.
The Pearson Commission, like the Law Commission before them, rejected the idea of a legislative tariff providing a scale of general damages. They concluded that such damages should continue to be assessed on broadly the present basis. I agree of course with the noble Lord, Lord Allen of Abbeydale, that the Pearson Commission were divided as to whether there should be a ceiling on such damages. Against the proposal, they noted that excessive awards could be reduced on appeal.
I return now briefly to what the noble Lord, Lord Pitt, almost referred to as the "medical cabal" point. The noble Viscount also said that some way should be found to enable patients to get the necessary information when things have gone wrong in the course of medical treatment. He mentioned a tendency on the part of the medical profession to close ranks and deny information to those who may have a case.
If there is such a tendency it is certainly not encouraged by the medical defence organisations which are responsible for defending doctors in the courts. I suggest that it is they who have the key role in influencing a doctor's actions in these circumstances. Clearly it would be unreasonable to expect a practitioner to incriminate himself by admitting legal liability for a mistake but, at the same time, there is absolutely no place for secrecy. When something has gone wrong in the course of medical treatment doctors are positively encouraged by the defence organisations to explain the facts to the patient or relative.
Not surprisingly, I have concentrated on the medical aspects of this debate. Nonetheless, I am aware of the concern of professions other than medicine in regard to actions for negligence. In answer to a point raised by the noble Lord, Lord Ennals, the remarks made in March by my noble and learned friend the Lord Advocate at the end of the short debate on civil liability and the professions had not quite the instantaneous results to which I referred earlier, but they were still pretty quick ones.
1362 My noble friend the Secretary of State for Trade and Industry gave a Written Answer to my noble friend Lord Morris on 28th October. It announced that, in the light of representations of noble Lords and others, the Government have decided to commission a series of fact-finding studies into selective professions, including accountants and architects, to establish the nature, scope, extent and implications of the liability problems that they face. We hope to be in a position to announce the membership of the study teams within the next few weeks and to get the studies under way soon thereafter. The medical profession is excluded from this. I am told that there is no problem for doctors in obtaining liability insurance without an upper limit, but I take the warnings that have been expressed this evening.
In answer to the noble and learned Lord, Lord Denning, despite well-publicised cases the level of damages paid by the National Health Service is still modest. In 1986–87 the total amount of compensation paid under legal liability—and not all to accident victims—was £9 million. That is less than 0.1 per cent. of the hospital service budget. However, I agree that that is something we must watch carefully, as is the whole subject.
I should like to thank all noble Lords, whether learned or not, for their contributions to this important short debate. It is a subject which, I readily accept, will not go away. The present system leaves many with a sense of unease, which has been communicated to me this evening. I shall pass that on to my noble and learned friends. However, I should like to consider the matter further with them but, so far, I do not think that anyone has made out a convincing case for root and branch reform. I undertake that my noble and learned friends will keep the matter under review.
§ Viscount Hanworth
My Lords, before the noble Lord sits down, will he agree that the points I raised this evening go beyond one department? Will he consider what might be done to bring in other ministries to consider the problem? Perhaps that will mean that a wide-ranging committee ought to be set up, possibly within the Civil Service, because the issues go far wider than merely medical issues.
§ Lord Skelmersdale
My Lords, I certainly recognise that. In preparation for the debate I had the advice, so far as I was able to obtain it, of my noble and learned friend's department. However, I hope that during the course of my speech I recognised the fact that this is a wide area and I take the noble Viscount's point.
§ The House adjourned at twenty-five minutes past eight o'clock.