Compensation Claims (Hansard, 30 March 2004)

§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)
My Lords, the Better Regulation Task Force is currently conducting an independent study of litigation and compensation, and has been gathering evidence from a wide range of stakeholders. The task force hopes to publish its report in May; the Government will give the report detailed consideration. The Department for Constitutional Affairs will be co-ordinating the Government's response, which will be published in the usual way, within 60 working days of the report's publication.

§ Lord Hunt of Kings Heath
My Lords, I am grateful to my noble friend and glad to hear about the action of the Better Regulation Task Force, but does he not accept that the Government really need to do more in this area? Does he not accept that, because of this blame culture, personal responsibility is being undermined, and doctors and teachers are constantly having to look over their shoulder? In the end, the effect of this blame culture will be to detract from the actual provision of public services to the public.

§ Lord Filkin
My Lords, I think we should wait and see what the Better Regulation Task Force advises. I say that advisedly, because the evidence on this issue is quite complex and, in some respects, contradictory. The evidence is that there is not an increase overall in claims and there is a reduction in claims coming to court. One should not immediately assume that the issue is in any sense out of control. Of course, we want to ensure that when a public body has failed and has caused significant harm to someone as a consequence of its actions or inactions, there is speedy redress. We do not want to encourage vexatious, frivolous or fraudulent claims.

§ Lord Hurd of Westwell
My Lords—

§ Baroness Gardner of Parkes
My Lords, does the Minister agree that compensation of multi-millions is almost in the form of a lottery because it is allocated to someone over their lifetime and paid as a lump sum? In some other countries, it is paid out per annum for the lifetime of the person in a smaller amount. Doing so here would save the public purse a considerable amount of money.

§ Lord Filkin
My Lords, that is an interesting issue. Compensation sums in this country are settled by judges rather than by juries as in the States. Clearly, 1169 that is for good reason. When a court and a judge are making a decision on the amount of compensation needed over someone's lifetime, that is extremely complex. They have to forecast not only the future cost of care and welfare but also life. Therefore, it is worth reflecting on that point.
The other point is that many people wish to have control over their own affairs rather than having an ongoing flow of payments. They would like to be in a position to make decisions about how to arrange for their care in the future, which a lump sum allows them to do.

§ Lord Hurd of Westwell
My Lords—

§ Lord Clement-Jones
My Lords, the Minister referred to the report of the Better Regulation Task Force. But there is another side of the coin from compensation and litigation—that is, the communication by public bodies faced with complaints by members of the public. It is very important to offer apology, explanation and redress at the appropriate time, as that avoids compensation and litigation continuing for too long. Will that be addressed by the Better Regulation Task Force?
Secondly, what has happened to the Chief Medical Officer's report, Making Amends, on medical negligence in the NHS? That seems to have gone below the surface since the consultation period ended in October.

§ Lord Filkin
My Lords, the noble Lord, Lord Clement-Jones, is quite right to highlight the issues of investigation, communication with someone who feels aggrieved, and, where a failure has occurred, an apology. That goes to the heart of good public service. Those principles were very strongly set out in the Chief Medical Officer's report Making Amends, which, as the noble Lord signals, received a good response in the consultation period. In the light of that consultation, the Department of Health is considering when to bring forward proposals.

§ Lord Hurd of Westwell
My Lords—

§ Lord Campbell of Alloway
My Lords—

§ Lord Hughes of Woodside
My Lords—

§ The Lord President of the Council (Baroness Amos)
My Lords, we have enough time to hear from these Benches and then from the Benches opposite.

§ Lord Hughes of Woodside
My Lords—

§ Lord Hurd of Westwell
My Lords—

§ Lord Campbell of Alloway
My Lords—

Noble Lords
Oh!

§ Lord Hughes of Woodside
My Lords, do your Lordships agree that while it is important to address the issue of a compensation culture for apparently trivial matters, does it not allow your Lordships or, 1170 indeed, Ministers, to obscure the fact that there are many distressing cases in which there is no doubt that the health service has been responsible for severe damage to children, yet 10 years later compensation still has not been paid? That is a disgrace, and we do not hear enough about it.

§ Lord Filkin
My Lords, I am not exactly certain to which cases my noble friend is referring. Even if I were, I would of course be debarred from commenting on individual cases as a consequence of my role. Nevertheless, I would be interested to hear where he feels injustice is being caused. If there were clear-cut breaches by the NHS, I should have expected such claimants to have pursued their claims vigorously against the department and the NHS.

§ Lord Taverne
My Lords—

§ Lord Hurd of Westwell
My Lords—

§ Lord Campbell of Alloway
My Lords—

Noble Lords
Hurd!

§ Baroness Amos
My Lords, shall we hear from the noble Lord, Lord Hurd?

§ Lord Hurd of Westwell
My Lords, what are the Government doing to urge forward the use of mediation by the NHS and in other parts of the public sector? Mediation can often provide quicker, better relief than expensive and sometimes distressing litigation. I declare an interest as chairman of the mediation charity CEDR.

§ Lord Filkin
My Lords, I look forward to having the opportunity for discussion with the noble Lord, Lord Hurd, in his role in that respect at some stage. The Chief Medical Officer's report, Making Amends, made it quite clear that mediation should be part of a process of bringing to settlement claims over medical negligence when they should be settled. Certainly, the issue of mediation is one that the Department for Constitutional Affairs treats very seriously indeed—that is, how to find earlier and more effective resolution in certain disputes. I would welcome a discussion.

§ Lord Taverne
My Lords, is not one of the most extraordinary penalties that the National Health Service has had to suffer the very large sums that were paid or agreed to be paid in connection with the events at Alder Hey? While the parents were justifiably upset at the very insensitive treatment that they received, is not the endorsement of that kind of payment an endorsement of the view that bodies must be buried and that burial is not complete until they have all their parts, which is a form of animism that predates classical times?

§ Lord Filkin
My Lords, there are occasions during Questions in the House when one wants pause to reflect on exactly what was the thrust of the question. 1171 Of course, Hansard allows me that opportunity. I shall reflect on the matter and correspond with the noble Lord.

§ Lord Mackenzie of Framwellgate
My Lords, does my noble friend agree that part of the increase in "compensation culture", as it has been called, is probably caused by the no-win-no-fee lawyers who, unfortunately, quite often tout for business? The Times today mentioned the fact that something like 60 per cent in some areas are false claims. Does my noble friend agree that people should be challenged and prosecuted as a punishment to deter others from making such false claims?

§ Lord Filkin
My Lords, undoubtedly fraud should be prosecuted, and people who make fraudulent claims should be aware of the risks to which they expose themselves. Having said that, it would be wrong to perceive that conditional fee agreements, which were I believe introduced in 1995 and developed in 2000, have been other than a considerable success in broad terms in allowing people to bring to justice cases which they otherwise would not have done. That has also deterred frivolous claims by increasing the risk of making frivolous claims.