New clause 14 - Medical records
Armed Forces (Pensions and Compensation) Bill

'The Secretary of State shall maintain complete and accurate medical records in respect of service personnel and shall not dispose of any such records until that person has died.'.—[Mr. Gerald Howarth.]

Brought up, and read the First time.

8:55 am
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Mr Gerald Howarth (Aldershot, Conservative)

I beg to move, That the clause be read a Second time.

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Mr Win Griffiths (Bridgend, Labour)

With this it will be convenient to discuss new clause 15—Access to medical records—

'It shall be the duty of the Secretary of State to ensure that any claimant to compensation arising from injury or illness attributable to military service shall have full and complete access to his medical records.'.

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Mr Gerald Howarth (Aldershot, Conservative)

Good morning, Mr. Griffiths. It is a sunny, wonderful morning with cold, crisp air outside and warm, crisp Members inside. I thank the Minister for responding to our request for a copy of the leaflet that is in circulation to the armed forces. This is the first time I have seen it. I have not had a chance to read it, but we asked him on Tuesday to provide it, he gave an undertaking that he would and he has delivered—for which we are extremely grateful.

Our debates this morning will concentrate on issues of considerable importance. I hope it will be possible to rattle through them fairly swiftly and I shall seek to secure that objective in so far as my own contribution is concerned. The new clauses relate to medical records and they would impose on the Government a requirement both to maintain accurate and complete records and not to dispose of them, and to secure the access of claimants to their medical records.

Under the Data Protection Act 1998, everyone has the right to have a copy of their medical records. Individuals also have a right to view model records if they have been amended in the past 40 days. The records should be presented in a format that the recipient can understand. Service personnel have three types of medical record: personnel medical records that follow them on their tours of duty, the equivalent of a civilian general practitioner's records; hospital records, which all hospitals keep and which remain within the hospital; and operational medical records. They are not stored centrally, and hospital and operation records in particular may not be considered in all circumstances.

The Government's framework document on the new armed forces compensation scheme states:

''Injuries incurred in the above activities will generally be admissible for compensation only if they are reported, recorded and subject to medical examination when incurred. This should generally take place within 24 hours of the event. However, the scheme will have discretion to accept attributability where under the

specific circumstances the reporting timescale is not practicable or where the injury cannot be attributed to a single incident. This will be subject to the existence of reasonable evidence, including within service medical records, to support the case for attributability.''

From the Government's proposals, it is clear that the burden of proof will rest with the individual serviceman whose medical records must support his case, yet he does not hold those records. They are not held by an independent third party, as would be the case with any one of us, whose GP would hold our medical records. The records are held by his employer, against whom he is making a claim. There will therefore need to be in place a system that commands the confidence of claimants, because the availability of the records will prove crucial to future claimants. How does the Minister propose to ensure that servicemen can be confident that, first, their records are maintained and complete and, secondly, they will be given full access to their records with an assurance that vital records will not be withheld?

In cases when records are, for whatever reason, missing or unavailable, who will enjoy the benefit of the doubt? Will claimants be afforded the benefit of the doubt if their records are unavailable as a result of Ministry of Defence failure? If claimants have to prove on the balance of probabilities that their condition is a result of service, access to the records will need to be much better than it has been because, to date, the MOD's record does not inspire confidence. The MOD claims not to destroy the records while personnel are still alive, but I am sure that most Members—including, perhaps, those in Committee—will have come across cases in which the MOD's recall of relevant documentation has been less than exemplary.

The Royal British Legion tells me that service personnel are still reporting gaps in their service medical history, especially when medical events occur when they are away from their parent unit. That is despite claims by Ministers that the maintaining of personnel medical records has been improved in the years since the first Gulf war.

The legion also advises that an individual's ease of access to their medical records is still patchy and reports that it is regularly contacted for advice by service personnel following refusal of access to their medical records, other than if formally requested by a solicitor. Non-commissioned ranks usually experience the most difficulty, and that is the case for the Army more so than the other services. The Royal British Legion also states that, even in cases where service personnel manage to gain access to their records, the process remains slow and cumbersome, and it can be time-consuming and frustrating for the individuals involved. Of course, I hardly need remind the Committee that the Royal British Legion, through charitable donations from members of the public, provides the funds in this respect.

Let me cite the case of one of my constituents, Mr. Wallace. His case hinges on certain documentation not being considered by the Veterans Agency in making its assessment and not being made available to him during his appeal. Although his assessment was eventually uprated from 20 to 60 per cent., certain documents, which could have resulted in his

assessment being uprated much earlier, were unavailable.

In response to representations, I received a wonderfully Alice in Wonderland remark from the hon. Member for Kirkcaldy (Dr. Moonie), the Minister's predecessor. In a letter dated 30 September 2002, he wrote:

''The fact that the Ministry of Defence does not hold records of incidents that Mr. Wallace refers to does not mean documents have been destroyed.''

That means that certain records were not available, whether they still existed or not. For whatever reason, the Ministry of Defence could not produce them to enable my constituent to support his claim.

Supporting documents used to assess Mr. Wallace's claim excluded doctor's evidence. At key stages of the assessment and appeals process, certain documentation was unaccounted for and therefore unavailable to Mr. Wallace. What will be done to ensure that all relevant documentation is made available to those claiming under the new scheme, when they will be expected to make their case under the balance of probabilities, which already disadvantages claimants? Under such circumstances, such documentation may prove even more vital than under the existing arrangements.

How do the Government intend to deal with access to records after service has ceased and access to records by interested parties—perhaps the wife or husband—once the individual is dead? How long after the death of service personnel should such records be kept? For example, I understand from Combat Stress that it is required to keep medical records for a further seven years. We say in our proposals that records ought to be maintained until a serviceman's death. I may have got that wrong; I think the period should be seven years, in line with practice at Combat Stress.

If the Ministry of Defence does not destroy records while an individual is alive, what will be done to ensure that records are made more readily available? Even if a record still exists but is unavailable—either to the claimant or the Veterans Agency—it is not much more use in the assessment of a case than a record that has been destroyed.

Let me cite the case of Ritchie Turnbull, an ex-serviceman who, like many others, found himself up against an overly bureaucratic and unhelpful system and was forced to turn to the Royal British Legion before he could get that to which he was entitled. When Mr. Turnbull first took his case to the War Pensions Agency and requested his medical records, quite remarkably he was told that he would be required to pay 10p a sheet for administrative charges, that his file was quite large and that it would cost him. He was effectively encouraged not to seek his file. That obstructionism by Ministry of Defence agencies meant that Mr. Turnbull was deprived of crucial evidence that would ultimately prove vital to his claim.

Originally, Mr. Turnbull's disability was assessed at 15 per cent., but with the assistance of the Royal

British Legion he appealed against the decision of the War Pensions Agency on no less than five occasions. On each of those, his disability was uprated—eventually to 90 per cent. on the most recent appeal. On each of those occasions, the findings of doctors in a prior assessment were found to be wrong. A change in assessment from 15 to 90 per cent. and a charge of 10p a sheet for a file are not acceptable.

If Mr. Turnbull had been given access to his medical records, he might have avoided going through six separate stages before receiving that to which he was entitled. That is a shabby way to treat a person who served his country in the Army when he is seeking compensation for injuries sustained during that service.

Mr. Turnbull told my office that he thought of the Ministry of Defence as

''being like a mean insurance company which will do all it can to get you to take the least possible.''

The MOD was quite prepared to send him away with a 15 per cent. rating, without properly checking his case or giving him free and uncomplicated access to the records that could have helped him to prove it.

Organisations such as the Royal British Legion have dealt with hundreds of these cases, and that was under the old standard of proof involving reasonable doubt. The balance of probabilities test will make the need for adequate access to such records even more acute.

Paragraph 10.6 of the framework document states:

''Service medical evidence is key to the new arrangements and emphasis will be on the importance of detailed, accurate service records fully documenting incidents, events and health information. This will be supported by the work done since the 1991 Gulf crisis to improve the medical records of Service personnel including the introduction of the Operation Medical Record . . . In the longer term it is proposed to link electronic and paper records for both peace-time and operations.''

I see another Government IT system looming. The document goes on:

''The system will be compatible with NHS systems''—

gosh, this is getting even more exciting—

''and in line with the Government information strategy on electronic medical records. The Compensation Scheme will be introduced at a time when there have been significant improvements in the management of medical records. The resultant Service medical records will allow administrative staff broadly to establish the presence and nature of disablement and eligibility. Analysis of inservice data and war pensions claims confirms that the majority of claims will be for musculoskeletal injuries and conditions which are well suited to a tariff approach.''

I think the Committee will accept that, judging by the number of cases that tell similar tales to those that I have drawn on today, a great deal of further improvement will be needed to give confidence in what has been set out in the framework document. I do not disagree with the document itself, and I do not believe that the Minister has anything other than the strongest possible aspiration to meet the objectives set out in it, but I must ask him some questions. What progress has been made on achieving those improvements? How long does he estimate it will be before all those records are stored electronically? What progress has been made in developing and implementing such a system? Will such a system be

up and running for those recruits who join after April 2005? Is it envisaged that this electronic records system will be only for those on the new scheme or is it intended that all service personnel will be included?

If those covered by the new scheme are to have confidence in the system, the Government will need to give some of those assurances. In the past, individuals have often been denied what they are entitled to or made to wait years before they receive it, due to bureaucratic inertia and inadequate record systems.

I received a letter from a constituent. I hope the Minister will forgive me for quoting this, but my constituent wrote:

''The only reason that my accepted conditions were increased to 50 per cent. after two years of rejection is because your office raised my case with the minister. It is as simple as that. The VA''—

the Veterans Agency—

''consistently rejected my claim for two years until you became involved.''

I am sure that other Members are in the same boat—they too will have constituents who are grateful for them intervening to secure an improvement in compensation entitlement. That system cannot be allowed to continue, which is why we have tabled the new clauses. Given such experience, it is insufficient to rely on the framework document and we must have those provisions in the Bill.

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Mr Colin Breed (Shadow Minister, Defence; South East Cornwall, Liberal Democrat)

I, too, thank the Minister for responding so positively to the request to provide the leaflet, which I have been able to look through briefly. Bearing in mind the importance of the whole scheme, there is not what in financial services would normally be called a health warning on the front—there is no indication of the importance of seeking professional advice before making a decision. The leaflet suggests that more detailed material will be made available to assist with the decision, but, somewhere on the form, the importance of that decision should be made much clearer. I suggest that we should make it clear that people are recommended to take professional advice before making that decision.

On medical records, many of us have had cases in which we were aware of perhaps less than full co-operation in getting the available information. I preface these remarks by saying that I am assuming that medical personnel in the armed forces are subject to the same regulations in respect of the General Medical Council. The GMC, in giving its registration to all qualified medical professionals, has recently laid down not guidelines, but clear requirements.

I do not know whether the Minister or his officials can confirm whether all qualified medical personnel in the armed forces are required to follow the GMC's regulations as part of their registration. If they are, those regulations, which have recently been tightened significantly, would provide even more reinforcement than has been suggested is needed, both on patient access to records and the clarifying—indeed, the ownership—of those records. The regulations go on to such things as the completeness of records and whether they are comprehensible.

I do not know whether many hon. Members have tried to read any medical records other than their own, but they have a language and style all of their own. The GMC has made it clear that that has to stop and that medical records must be comprehensible to patients, who now have access to them. The use of a significant amount of shorthand—a number of initials, which are almost a code—is unacceptable.

I hope that the medical records that are being completed and compiled in the armed forces comply with the GMC's requirements. Legibility is another issue. Doctors and medical people are notorious for having illegible handwriting, but that is now not acceptable. There have already been a number of cases in which doctors have been reprimanded because of the state of the records that were made available to the GMC so that it could reach conclusions.

I am sure that the Minister and other Members will be aware that doctors are in the process of computerising their records generally. I hope that that computerisation takes place in the armed forces, too, and that the system will be compatible with that in the outside world. Notwithstanding those acknowledged members of the armed forces who require those records to take up cases, there is also the matter of all those who will go on to live a life after leaving the services. They will not necessarily be taking up cases, but they will nevertheless require those medical records to be complete and understandable so that they can be passed to their GP after their service. I do not know whether people will be given the records or certified copies, but in any case there needs to be a clear and timely system to ensure a smooth transition of armed forces records to the GP, or indeed any other doctor to whom the person involved might wish to pass them.

This is an important aspect of how medical records are dealt with, not least because they may be required for compensation cases and pensions. If a person comes out of the forces in his 40s, there may be a significant period over which he would want his records to be maintained external to the forces. I hope that the Minister can explain exactly how the scheme works currently and how it will work in future. I hope he can also confirm that the medical personnel in the armed forces will comply with GMC requirements.

9:15 am
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Mr Ivor Caplin (Parliamentary Under-Secretary, Ministry of Defence; Hove, Labour)

I welcome you to the Chair, Mr. Griffiths, on what I hope will be our last sitting—we can but hope.

First, I thank the hon. Members for Aldershot (Mr. Howarth) and for South-East Cornwall (Mr. Breed) for their thanks for the leaflet that I provided. I should say to the latter that it was an information leaflet, and so did not come under the Financial Services and Markets Act 2000; if it had, it would have required legal writing on it. That Act will apply when we provide more detailed information.

On Tuesday, I described the pack that was sent out, ''Pension Choices for the Civil Service''. Unfortunately, the two packs that I have with me

are owned by the two civil servants present this morning, so I am afraid the Committee will have to rely on a copy. I shall ensure that, before the matter returns to the Floor of the House, members of this Committee and of the Select Committee have copies of the information.

On the question asked by the hon. Member for South-East Cornwall, the answer is yes, our Defence Medical Services doctors accord with the regulations of the General Medical Council.

I am surprised to see new clauses on medical records. New clause 15 states:

''It shall be the duty of the Secretary of State to ensure that any claimant to compensation arising from injury or illness attributable to military service shall have full and complete access to his medical records.''

The hon. Member for Aldershot made it clear in his opening remarks that claimants already have that right. There is no need for the new clause because the Data Protection Act 1998 makes it clear that individual service personnel already have a right of access to their complete medical records. That will remain the case, and is not changed in any way by the pension and compensation arrangements that we propose in the Bill.

I draw hon. Members' attention to paragraph 72 of the Select Committee's report and paragraph 17 of the Government's response in Cm 6109. I made it clear during the oral evidence session that if there was any failure in record keeping the responsibility would lie with the Ministry of Defence. I gave that commitment to the House at the Select Committee session on 5 November, and it still stands.

The hon. Member for Aldershot asked about record keeping. Our record keeping was poor in the early 1990s, but it has been improving ever since. We now have accurate records to deal with the medical issues that are raised, and we will have a new computerised system by the end of 2005. We will update our medical record keeping system over the next 18 months. The new system will undoubtedly help and support claims under the compensation scheme arrangements.

We retain medical records for 100 years. The Cabinet recommendation is 72 years, but the MOD retains them for 100 years where necessary. That recognises the importance of medical records and answers questions about whether they should be retained. Looking around the Room at those who have been in our armed forces, I think that 100 years is more than enough.

I am not sure that new clause 14 would add anything to the Bill. I hope that during this short debate on medical records I have made our commitments clear to hon. Members. I cannot deal with the individual cases that the hon. Member for Aldershot has raised; I did not know that I was coming to a constituency advice surgery this morning. If he wants us to examine those cases, we would be more than happy to do so as part of the usual routine of dealing with Members' correspondence.

I hope that, as we have had this short debate on medical records, and as some of the commitments have been made clear to him, the hon. Gentleman will not insist on the two new clauses, as they are unnecessary.

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Mr Gerald Howarth (Aldershot, Conservative)

The purpose of drawing the Minister's and the Committee's attention to the two cases was not to raise constituency surgery matters. The case of my constituent, Mr. Wallace, has been resolved by my intervention.

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Mr Gerald Howarth (Aldershot, Conservative)

Thank you, Mr. Griffiths. I noted your, ''Hear, hear.'' In case the people from Hansard had not observed it, it was most kind of you to pay me that small tribute.

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Mr Ivor Caplin (Parliamentary Under-Secretary, Ministry of Defence; Hove, Labour)

I join you, Mr. Griffiths, and congratulate the hon. Member for Aldershot on achieving that notorious success for one of his constituents.

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Mr Andrew Robathan (Blaby, Conservative)

I can see a headline in the Aldershot News coming up.

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Mr Gerald Howarth (Aldershot, Conservative)

I do not so much see a headline in the Aldershot News as a useful quotation in the forthcoming manifesto at the next general electionMinister praises Member of Parliament. However I am not sure that would wholly achieve the desired effect.

The purpose of my contribution was not to argue a constituency case or to prove how successful I am at winning cases for my constituents. It was to make the point that there is a contrast between what the Government have rightly asserted in the framework document—which we would all subscriber to as a noble aspiration—and the practical experience that I have brought, and that hon. Members from all parties could bring, to the Committee. It is the volume of evidence that the practice does not square with the Minister's aspirations that has caused us concern.

The Minister says that the Select Committee raised those concerns and that an assurance was given—and that this was confirmed in his oral evidence and in the Government's response to the report, to which he referred—that where there is

''a demonstrable failure of the Service record-keeping system affecting a claim, account will be taken of the individual's own testimony and any other evidence related to the claim. If it appears likely that the claim is reasonable, then an award will be made.''

Good man though the Minister is—he might be able to use that in his party's manifesto—it is not going to inspire confidence in our armed forces, who might be involved in those claims, that they must simply rely on a Minister's assurance given in Committee. That is why our suggestion ought to be in the Bill.

I note that the 100 years is probably an improvement on the wording that I proposed. However I have always been pragmatic about such matters and have accepted that my draftsmanship, and that of my advisers, might not necessarily have been up to the standard of parliamentary counsel. Nevertheless, the principle applies and I am sure that the Government could amend my proposal in a suitable way.

The issue of access is addressed in new clause 15. The Minister sought to assure us by saying that he would have a new system up and running by the end of 2005. However, on Tuesday he was unwilling—wisely, as I said at the time—to give an assurance that other new systems would be up and running by a certain time; in this case he is offering a hostage to fortune. Again, I am not sure that such an assurance, given the Government's record on IT systems generally, will inspire the confidence that it is our duty to instil in our armed forces.

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Mr Ivor Caplin (Parliamentary Under-Secretary, Ministry of Defence; Hove, Labour)

I will be clear—as far as I can see, new clause 15 provides nothing that is not already available to members of our armed forces under the Data Protection Act 1998. That is the most important point in considering the new clause. The information that they want to receive is already available.

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Mr Gerald Howarth (Aldershot, Conservative)

I believe that this is a question of belt and braces. That is why I want to insist that the new clause should be included in the Bill. It is one of the core points that I have tried to bring before the Committee.

We should have more in the Bill. The Government have offered nothing concrete in the Bill: it is entirely an enabling piece of legislation. The issue is so critical. Adopting the new clause would send the clearest possible message to the armed forces that Parliament has every intention of ensuring that it understands their desire to have certainty and confidence in the system. I therefore ask Committee members to vote in favour of the motion on both new clauses.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived. New clause 15Access to medical records