NHS (Negligence Claims)

Part of the debate – in the House of Commons at 10:06 pm on 14 January 1991.

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Photo of Mr Peter Fry Mr Peter Fry , Wellingborough 10:06, 14 January 1991

Perhaps I should explain to my hon. Friend the Minister the reasons for raising this particular subject on the Adjournment. First, for some years now I have been concerned about the way in which health authorities have to fund the payments that they make after successful claims for compensation. Secondly, unfortunately, last year, one of my constituents, Donna Horne, suffered a grievous blow to her health after treatment at Leicester hospital. Her case is sub judice and I must be careful in what I say, but the tragic case of Donna Horne brought home to me the need for more to be done to assist those who are the unfortunate victims of negligence of national health service treatment.

It was only when I was discussing Donna's case with her legal adviser that I became even more aware of the deficiencies in the common law of tort. I discovered that, even though the majority of such cases—more than 90 per cent.—are settled out of court, a settlement can still take up to 10 years or more. The idea that there should be a regular payment or a periodic or structured payment can be agreed only if the judge finds out that the defendant and plaintiff have agreed to such a decision. Unfortunately, what happens now is that, often, there seems to be some unseemly wrangle about the amount of the lump sum to be paid based on the life expectancy of the unfortunate victim. Because of that, many years of negotiation take place even when the case is settled out of court.

Because of my concern about that, I put down a question on 3 December to my right hon. and learned Friend the Attorney-General to ask him if he would consider producing guidelines which could be used by Her Majesty's judges to make orders for such structured payments. My right hon. and learned Friend replied that that was a matter for the judiciary. I am sure that my right hon. and learned Friend did not want to mislead me, but his reply was misleading. As the organisation Action for Victims of Medical Accidents has said, periodical payments such as a yearly payment, perhaps uprated by the retail prices index each year, can be awarded by a judge only if both sides to the dispute consent.

In the case of Burke v. Tower Hamlets health authority on 10 August 1989, Mr. Justice Drake held: in determining quantum of damages for the costs of future care in a case of personal injury, the court has no power to order periodical payments instead of a lump sum except when both parties to the action consent to such an award. Therefore, it is hardly surprising that Action for Victims of Medical Accidents wrote to me saying: It is only the Government that can change this by changing the law so that periodical payment orders can be made whether the Defendant consents or not. In the circumstances, there seems to be a need for the law to be changed.

I understand that there are some in Government quarters who believe that there can be reform of civil procedures in order to accelerate the progress of such cases through the legal system. But those cases are often medically complex and sometimes the prognosis is uncertain. Therefore, delay could well occur even if other steps were taken to speed up the process, particularly as it seems that the arguments about the size of the cash award could be protracted.

It is interesting that a full report drawn up by the Royal College of Physicians on the subject states on page 14: The problems associated with one-off, lump-sum payments in negligence cases might be reduced by measures to encourage the use of provisional damages and structured payments. The former would allow cases to be concluded, either by means of a lump sum or a regular payment, on the basis of an assessment of the plaintiff's present condition while reserving his or her right to seek a revision if this condition changed adversely. The latter would provide for the payment of an agreed regular sum (without the prospect of subsequent revision) to the plaintiff for the duration of his or her natural life, thereby eliminating the problem of the 'pools win' type dissipation of a large single payment. It goes on to say—this is of special interest to health authorities— Periodic payments would seem a particularly appropriate form of settlement for public bodies like health authorities to adopt since they can be assumed to have an indefinite life and need not become involved in the problems of arranging capital provision annuities which have arisen with private insurers … It is possible that courts could by primary legislation be empowered to impose structured settlements, rather than depending purely on the plaintiff's consent as at present. Therefore, I ask my hon. Friend the Minister to give my proposal serious and urgent attention. Victims of such terrible cases and their relatives would like to know that the Government are urgently addressing a problem that is increasing as more and more claims are made. I should like my hon. Friend to do what he can to convince the victims and their relatives that the Government are anxious to ensure that no unnecessary additional suffering is caused by prolonged litigation and that, by contrast, litigation should be kept to an absolute minimum.

I know that from 1 January 1990 the national health service has accepted that it will be responsible for claims against doctors and health authorities where it is said that negligence has occurred. My hon. Friend will correct me if I am wrong, but I believe that such sums still have to come from health authorities' budgets. The first £200,000 of a claim must be met by the district health authority—a matter of considerable anxiety to many health authorities. First, the timing of an award being made against them is uncertain, as is the amount, because of the present legal process. Many district health authorities suddenly confronted by a bill for £200,000 for which they have not budgeted would be in great difficulty finding the money without taking drastic action—even perhaps closing wards. If, by any chance, they are faced with two such claims in one financial year, it is almost certain that health services in their areas would have to be cut.

The regions are not in a much better position. Few have adequate sinking or reserve funds to meet such claims. Even when they have such funds, as does my region—Oxford RHA—they will soon be depleted because of the claims on them.

I have discussed the matter with the chairmen of two RHAs and both agreed that some better method of funding is badly needed. One reason why is that there is a sharp growth in the frequency and severity of medical liability claims, and the problem for many health authorities is how to meet the cost of those claims. The Government have accepted that they have overall responsibility for negligence claims, but they must also make clear provision for fulfilling that responsibility, and in such a way as not to impose a handicap on the day-to-day funding of the NHS.

I do not suggest for a moment that health authorities that are negligent should be allowed to be less vigilant. Any cases of negligence must be fully investigated and the necessary steps taken to prevent their recurrence. But, just as the Government have decided that doctors should not be expected to be financially responsible for claims against them, they should also ensure that health authority patients do not suffer because of these payments.

The timing of this debate is apposite in view of the introduction of a private Member's Bill by the hon. Member for Greenwich (Mrs. Barnes), who I am delighted to see in her place. She intends to introduce a Bill for no-fault compensation. The Government have considerable reservations about it, but I sympathise with the hon. Lady's Bill as well as understanding those reservations. If the Government do not like her Bill, they are obliged not only to show why they cannot accept it but to put forward a coherent and realistic policy to deal with cases of compensation such as the one that I have discussed tonight. When such a tragedy takes place, people want every sympathy and the knowledge that their difficult situation can be remedied as soon as possible. The health authority should feel that it can make reasonable and fair payments without having to consider their effect on the day-to-day running of their services.

The two measures that I have suggested can apply whether or not the hon. Lady's Bill comes into force. She will argue that patients will still have the right to go to law if they are not satisfied with the compensation awarded to them. If the Minister accepts that, I wonder whether he will accept my final point: that these two measures will apply whether the hon. Lady's Bill is accepted or not, but that if the Government do not accept it, these measures will become even more essential as a sign that the Government are concerned about this matter and are aware that it is a cause of growing anxiety throughout the country. They must have a realistic policy to deal with this difficulty.