Medical Negligence: Compensation (Hansard, 18 February 1991)

§ The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper)
My Lords, the Government fully accept that when a person has suffered harm as the result of negligent actions he or she is entitled to claim, and be awarded, compensation from the person or body responsible for that action. The Government are not taking any action to restrict such claims.

§ Viscount Hanworth
My Lords, I thank the Minister for that reply. However, I should like to ask her two further questions. First, does she appreciate that the tabling of my Question, just two days before a major debate on the subject is due to take place, was entirely fortuitous and that it was not a planned action? Secondly, do not the Government agree that we must at all costs avoid travelling down the same road as the Americans where negligence is merely a wrong diagnosis and where doctors' fees are probably 40 per cent. more than they would otherwise be to cover the necessary insurance?

§ Baroness Hooper
My Lords, yes, to the first question. I am aware of, and look forward to, the debate in two days' time on the wider aspects of the subject. We do not expect to see the American experience replicated in the United Kingdom because in this country an award of damages is the result of a careful computation by the presiding judge. That assessment by an experienced professional is based on the needs of a claimant to overcome the precise damage paused and alleviate its financial implications. In the United States, awards are made by juries and may include amounts designed to be punitive rather than restorative. The two systems are vastly different.

§ Lord Nugent of Guildford
My Lords, is my noble friend aware that there is a genuine danger that consultants' and surgeons' fees generally will escalate unless something serious is done to check the trend? Is 306 she aware that in the United States about one-third of surgeons' fees now goes towards their insurance policies to protect them against those punitive damages? Is she further aware that there is a tendency in our courts for such damages to escalate and that it is necessary to take effective action to check that trend?

§ Baroness Hooper
My Lords, we are aware of the need to take effective action. My right honourable friend the Secretary of State for Health has offered to take steps, in addition to the measures already under way to provide access to health records and improvements to court procedures, which will move forward our practice and understanding in that area; for example, discussions with interested parties to see whether an arbitration procedure could be established within the NHS.

§ Lord Irvine of Lairg
My Lords, is it not extremely difficult in practice in this country for a patient who has been injured by a mishap in the NHS to establish liability? Does that not suggest to the Minister the need for no-fault compensation for patients and their families who can suffer severely from mishaps in the NHS?

§ Baroness Hooper
My Lords, as I have already said, the Government fully accept that where negligence is involved no-fault compensation should follow. Where medical treatment has been given with the best will and skill in the world, but has still not produced the expected benefits to the patient or, even worse, has resulted in deterioration, I question whether it is appropriate to divert money into compensation. After all, the first duty of the NHS must be to give treatment to patients in need.

§ Lord Campbell of Alloway
My Lords, is my noble friend aware that the problem identified by the noble Lord, Lord Irvine of Lairg, has a much wider dimension? Does she agree that it is not limited to the NHS, but is of general application and spills over into defensive medicine, as was pointed out by another noble Lord?

§ Baroness Hooper
My Lords, recently a variety of anxieties have been expressed about the general effectiveness of damages for personal injuries. That point was the subject of reviews by the Law Commission in 1973 and the Royal Commission chaired by Lord Pearson in 1978. I understand that my noble and learned friend the Lord Chancellor has been discussing with the Law Commission the possibility of instituting a new inquiry into personal injury damages.

§ Lord Molloy
My Lords, is the Minister aware that her most important reply was that which confirmed that no patients will be restricted from taking action when they think that they have a case. That is a vital right which must be protected. I hope that the Minister will take appropriate action should that right be interfered with in any way.

§ Baroness Hooper
My Lords, I am grateful to the noble Lord because his supplementary question gives 307 me the opportunity to say that in any event we estimate that 95 per cent. of all medical negligence claims are settled before a court hearing.

§ Baroness Masham of Ilton
My Lords, does the Minister agree that there have been some large claims by severely disabled people but that they have been necessary? For instance, some young women who were paralysed by epidural injections have to raise young children and they may need a new house and a car. Life can be exceedingly expensive if one is seriously disabled.

§ Baroness Hooper
My Lords, yes. As I hope I explained when responding to the comparison with the United States, the aim of our system is that where negligence is proved the claimants should as far as possible be put in the same position as if they had not been injured.

§ Lord Ennals
My Lords, does not the Minister agree that the present situation is unsatisfactory? It is a sort of lottery for patients. If they can afford to bring a case and succeed they may sometimes receive a large sum. In most cases they cannot even afford to go to court. Does that not argue the case, as my noble friend said, for some type of no-fault compensation system which is fair to all and does not discriminate?

§ Baroness Hooper
My Lords, no-fault compensation is not a straightforward or easy option. Serious problems would remain. For example, claimants under a no-fault scheme, although relieved of having to prove negligence, would still have to establish causation, and that could be just as difficult. That scheme could also be seen as being unfair to those who suffer equal disabilities but who fall outside its provisions; for example, the congenitally disabled and those suffering as a result of a progressive illness. A new bureaucracy would be created as a result of many more claims being received. That would lead to an increase in the amount of time spent investigating cases, with skills and resources being diverted from patient care which I am sure the noble Lord does not wish to see.

§ Lord Irvine of Lairg
My Lords, does the Minister believe that a system of no-fault liability would remove the risk of defensive medicine, to which she referred?

§ Baroness Hooper
My Lords, there is a difficulty on the subject of defensive medicine. Anxiety about its increase is to some extent misplaced. As recently as December of last year the Royal College of Physicians reported, there is as yet little hard evidence to support the view that defensive practices are increasing". We therefore still base our case on proof of negligence.

§ Lord Annan
My Lords, is there not a difference between the case of a doctor who in all good faith makes a mistake in the diagnosis or treatment of patients and one where a doctor is negligent in the way that he handles the materials at his disposal? Does the Minister agree that it would be wrong for the doctor in the first case to be made liable in damages?

§ Baroness Hooper
My Lords, yes. The noble Lord has given an excellent reason for supporting the negligence system.