NHS: Grant to Patient of Legal Aid (Hansard, 25 July 1996)

§ The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)
None, my Lords. The Government remain fully confident that the National Health Service will continue to provide the highest quality treatment, including offering realistic prognoses based on the best evidence available.

§ Baroness Gardner of Parkes
My Lords, I thank my noble friend for that Answer. Does she share my concern about the growing burden placed on the NHS by the fact that treatments are no longer determined just by clinicians but retrospectively by the courts? With the increasing litigation, can she tell us what is the cost of defensive medicine in the NHS?

§ Baroness Cumberlege
My Lords, yes, I share my noble friend's concerns. The burden on the NHS is increasing. Defensive medicine is an element that has grown increasingly. It is not always in the interests of the patient. Although I do not know the costs of defensive medicine, I know that the cost of clinical negligence settlements has increased in three years from £117.9 million to £149 million.

§ Baroness Hayman
My Lords, does the Minister accept that recourse to litigation is seldom the most satisfactory way of resolving complex medical negligence disputes? Does she agree that it involves large sums of public money, both in legal aid and the cost to NHS authorities—here I declare the interest of which the House is aware—usually resulting in protracted misery and dissatisfaction for all the litigants involved? Will she look carefully at proposals for alternative methods of resolving disputes in those areas, such as mediation? Can she tell the House anything of the pilot schemes that I believe are being undertaken in Oxford, Anglia and York?

§ Baroness Cumberlege
My Lords, I agree with a great deal of what the noble Baroness said. In my experience, when people come with a complaint they want three things. First, they want a full explanation of what happened to them; secondly, they want an apology; and, thirdly, they want an assurance not only that it will 1520 not happen to themselves again but that it will not happen to anyone else. Litigation seldom meets people's requirements. As she said, it is a painful and costly process to go through. As a government, we are looking at mediation. Three schemes are running in three different regions. They were set up in 1995. We expect the results of the pilots in 1997. We will look closely at them, but initial progress seems to be good. Through the Health Service Commissioners (Amendment) Act, we have made it more possible to ensure that complaints are resolved locally through mediation processes.

§ Lord Ironside
My Lords, is my noble friend aware that the Legal Aid Board has funded a multi-party action for alleged victims of radiotherapy treatment for breast cancer, which is unlikely to reach the High Court until at least the middle of next year? Can she now say what is the total current expenditure on the aid which has been provided for those, I believe, 120 cases?

§ Baroness Cumberlege
My Lords, I am aware of that court case. I imagine that it is sub judice and therefore it would be inappropriate for me to go into the detail of it. As to the expenditure granted by the Legal Aid Board, that is a matter for the board.

§ Lord Ashley of Stoke
My Lords, does the Minister agree that, while I concur with her general view about trying to avoid litigation, and agree with the points my noble friend made, nevertheless there are cases in which there has been negligence by doctors and the necessary compensation has not been agreed, and that people should take legal action in order to get their rights, and that that should not be discouraged if mediation is inadequate?

§ Baroness Cumberlege
My Lords, of course I accept that mistakes are made. When the NHS employs 1 million people some mistakes are likely to be made. We have reviewed the whole complaints procedure through the Health Service Commissioners (Amendment) Act. We are trying to resolve issues before people take them to court. When I was a health authority chairman I remember the chief executive telling me that a bunch of flowers was worth £40,000.

§ Lord Burnham
My Lords, does my noble friend accept that it is fairly rare for the NHS to be accused of negligence when it cures the patient?

§ Baroness Cumberlege
My Lords, my noble friend is referring to a case which, I understand, is not sub judice at the moment. It is a complicated case. The media coverage of it has not been accurate. In fact, the Legal Aid Board was so concerned about the coverage that, unusually, it issued a press release. There is a difference of opinion concerning the original diagnosis and what the patient was told as to the likely prognosis.

§ Lord Rea
My Lords, does the Minister agree that as regards this particular case there may have been a genuine clinical mistake? The patient appeared to be and was diagnosed as suffering from lung cancer, which is 1521 almost universally fatal whatever treatment is given for the common severe kind. In fact, the patient was not suffering from that condition and the apparent success of the treatment may have been because the original diagnosis was not correct. The patient was, in effect, condemned to death. Does the Minister agree that genuine clinical mistakes are often made even by those at the top of the profession, and that the National Health Service should make proper amends to patients who, unfortunately, are victims of that situation?

§ Baroness Cumberlege
My Lords, the noble Lord has outlined the case and has put only one side. It is a matter for contention, which is why limited legal aid is being granted to commence the initial investigations which need to be taken. Of course I accept that there are cases which should be resolved in court. All I am saying, as was said by the noble Baroness, Lady Hayman, is that where that can be avoided it is much better. It is possible for the National Health Service trusts to settle out of court matters involving sums less than £ 1 million.

§ Lord Ackner
My Lords, is not the short answer to the Question that the providers of the services should, if proceedings have been issued, apply to the court for them to be struck out as disclosing no cause of action? The facts which are put in the Question, that treatment had enabled a prognosis to be outlived, do not in any way comply with the facts as this particular misreported case has indicated. Is not the position in regard to that case, subject to whether the facts are right, that a person who was relatively fit was diagnosed as having a terminal illness which would bring about his death within a very limited space of time, that as a result he spent money on holidays, gifts and the like and ended up destitute by the time he should have died if the diagnosis had not been a negligent one?

§ Baroness Cumberlege
My Lords, the noble and learned Lord referred to the facts and, of course, the facts are in contention. Therefore, it would be inappropriate for me to comment on the case at the moment.