NHS: Medical Negligence Provision (Hansard, 7 February 1995)

§ The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)
My Lords, employers in the National Health Service are responsible for the negligent acts and omissions of their employees.

Lord Campbell of Croy
My Lords, I thank my noble friend for her reply. It does seem that such provision is now prudent. Is it correct that claims are increasing in number, not because there is more negligence but because more of the public are now inclined to enter into litigation following a trend in the United States? Does my noble friend agree that it is unfortunate that in the United States instead of negligence the word "malpractice" is used which has a different meaning in British English implying deliberate misdeeds rather than accidental errors?

§ Baroness Cumberlege
My Lords, my noble friend is correct. We are seeing an increase in the number of cases brought to court and the amounts of money that are now awarded through court action. We do not believe that there is an increase in clinical accidents. It is simply that the public are more litigious than they used to be. Certainly we believe that the American term "malpractice" is unfortunate and we prefer the term "clinical accident".

§ Lord Molloy
My Lords, there are reports that each year millions of pounds are being paid to people who claim for negligence in the NHS. Would it not perhaps be wise for the department to consider examining this situation in detail to prevent negligence and thereby save the money that is paid to litigants? The savings can then be used to help the NHS and people generally?

§ Baroness Cumberlege
My Lords, we scrutinise carefully the cases that are brought, but I should perhaps tell your Lordships that 96 per cent. are settled out of court. Nevertheless, the sums are increasing alarmingly. In the last three years they have risen from £60 million to £125 million.

§ Lord Skelmersdale
My Lords, my noble friend remarked on the litigiousness—if that is a word—of the 98 public. Does she believe that this is encouraged by newspaper advertisements by solicitors and, if so, what is she going to do about it?

§ Baroness Cumberlege
My Lords, I personally have not seen those advertisements; if they are around I would deplore it. From my experience, when I have dealt with complaints people want three things: they want a speedy response; they want a sincere apology from the person most responsible, and they want an assurance that the same mistake will not happen to somebody else.

§ Lord Cocks of Hartcliffe
My Lords, I reinforce what the noble Lord said about the advertisements from solicitors. Will the Minister consider approaching the Law Society to see whether it can assist in ameliorating this matter?

§ Baroness Cumberlege
My Lords, I think I would want to see the evidence first and then make a judgment.

§ Lord Ackner
My Lords, does the Minister accept that the position will be exacerbated when the Government allow the practice which has hitherto been prohibited—the contingency fee system—which will exacerbate the enthusiasm of lawyers to take up cases and bring them forward, particularly in the field of personal injuries?

§ Baroness Cumberlege
My Lords, again, that is something that the Government need to consider.

§ Lord Campbell of Alloway
My Lords, is there a case for the Government to reconsider their attitude to the no-fault compensation scheme referred to in great detail in the Pearson Report?

§ Baroness Cumberlege
My Lords, we have considered very carefully the no-fault compensation scheme. We have rejected it at this time because it means that those who wish to go to court but will settle for a compensation scheme still have to prove causation. It is that which causes the problem.

§ Lord Kilmarnock
My Lords, can the Minister say whether the health service ombudsman has intervened in any of these cases and what effect he has had?

§ Baroness Cumberlege
No, my Lords, I do not believe that that is part of his remit.

§ Baroness Jay of Paddington
My Lords, will the Minister accept that none of us wants to see a growth in malpractice litigation in the American manner? However, is it the case that it is now the responsibility of individual trusts to insure their own employees, and is that not creating great difficulties for them on a purely financial basis?

§ Baroness Cumberlege
My Lords, we have considered that problem. We are setting up a mutual fund to which trusts can contribute and from which they can also benefit.

§ Lord Annan
My Lords, has the noble Baroness any evidence that the courts are interpreting the law of 99 negligence in a rather different fashion from what was the case some years ago; namely, that there is a great distinction between human error and negligence?

§ Baroness Cumberlege
My Lords, we do not have evidence that that is the case. However, claims and settlements are now much larger. One of the areas that we are examining is structured settlements, which we think would benefit not only the National Health Service but also those who deserve and have won compensation.

§ Lord Ennals
My Lords, I do not complain at the inevitable fact that the Minister does not know the answer to many of these questions, but is it not the case that the issue is so important that there should be a study, which should be published and available for consideration by the public?

§ Baroness Cumberlege
My Lords, I am sorry that I seem to have lost the confidence of the noble Lord opposite. I shall try and win it back. We are studying this matter very carefully. It is true in all walks of life that litigation is much more common than it used to be. But we are looking to a number of other schemes. As I said, we have ruled out no-fault compensation but are looking at mediation schemes. Indeed, we have six pilot schemes starting in two regions from 1st April.

Lord Campbell of Croy
My Lords, did my noble friend see a cartoon in a newspaper yesterday in which a nurse is telling a patient in a hospital bed that the lawyers will be doing their rounds shortly?

§ Baroness Cumberlege
My Lords, I am sorry I missed it.

§ Lord Walton of Detchant
My Lords, does the Minister agree that it would be reassuring if the medical profession were able to feel that the so-called Bolam test relating to medical negligence was still the principle that was followed in claims for negligence in our courts? Does the Minister feel that at some stage it would be appropriate to reconsider the whole issue of no-fault compensation, which is so much better in many respects than the present confrontational tort system in these cases?

§ Baroness Cumberlege
My Lords, we have just considered it and we do not believe that it is the way forward, for the reasons that I have given. You have to prove causation, and that is a great problem. We also think that doctors who are called to account in the courts are possibly more careful as to their practice. Of course, the amount of money that is given out through no-fault compensation is denied the National Health Service.