Part of the debate – in the House of Commons at 10:19 pm on 14 January 1991.
I congratulate my hon. Friend the Member for Wellingborough (Mr. Fry) on securing the first Adjournment debate of the new year and on raising an issue of such obvious current concern to the House, not least as a result of the Bill promoted by the hon. Member for Greenwich (Mrs. Barnes). My hon. Friend deployed his argument in measured tones, and it was a seductive one due to the position in which the Government find themselves. I shall respond first to his closing comments.
It is clearly true that the two specific arguments that my hon. Friend advances are independent of any consideration of no-fault liability and must therefore be considered regardless of the Government's attitude to the proposals advanced by the hon. Member for Greenwich.
I entirely understand the position in which my hon. Friend found himself when he represented a constituency interest as a result of a case of medical negligence. There are difficult issues to be addressed when dealing with individual cases of such a nature, and I shall respond in some detail to both of my hon. Friend's specific proposals. I shall deal first with the argument that the health authorities are primarily responsible for compensation for proved medical negligence.
When health authority resources are scarce—and was there ever a time when they were not—health authority managers argue that responsibility for funding such an award should fall elsewhere in the national health service. I am sure that my hon. Friend recognises that, however that is presented in bureaucratic terms, the reality is that any cash paid to meet a medical negligence claim or a no-fault claim by a patient must come from the limited resources available to the NHS. It is purely a bureaucratic decision whether such sums come from the budget of a specific health authority or from some back pocket in the Department. The only way to fund such a back pocket is to top slice the total NHS budget, thereby reducing the amount committed at the beginning of the year to health authorities.
My hon. Friend will accept that there is a degree of kidology about his proposal because whatever part of the NHS the claims were met from they would still be deducted from the NHS budget, and that would reduce the amount of resources available for patient treatment either in the health authority responsible for the payment or elsewhere.
Secondly, one of the reasons for keeping the principle of allowing a claim for negligence is to ensure that the clinician and the health authority as the clinician's employer are held to account if a case of negligence can be proved. I think that that is accepted by the hon. Member for Greenwich. That is a major reason for keeping the principle of negligence, even if we accept the principle of no-fault liability. We must retain the principle that damages should be payable if negligence can be proved, but that argument is powerful only if the responsibility for meeting a negligence claim rests reasonably directly either on the clinician or on the employing authority. If a concentration of negligence claims came to a health authority, it could cause financial difficulty. No one but a blind man could fail to recognise that.
Nevertheless, it is important that the primary responsibility for funding the payment of negligence claims should rest with the body which can properly be held accountable for the fact that negligence took place. After all, in the case of claims for proven negligence, we are talking about the individual's right to redress when he suffers as a result of somebody not properly discharging his professional responsibility. All those interested in the subject agree that, in those circumstances, proper redress should be available to the individual citizen, and the person responsible for the negligence should be held to account through the agency of the health authority. I understand the force of what my hon. Friend said, but I should not want to see liability for payment of negligence claims divorced from the circumstances which gave rise to the negligence.
My hon. Friend spoke at some length about what he, his constituent and her legal advisers understandably see as the inadequacies of the law of tort in dealing with claims of medical negligence. It is common ground that the law in this sector is inadequate in some respects. That is why Lord Hailsham, when he was Lord Chancellor, established a civil justice review to improve the machinery of civil justice in England and Wales by means of reforms in jurisdiction, procedure and court administration, and in particular to reduce delay, cost and complexity. That review reported in June 1988 and many of its proposals found their way into legislation through the Courts and Legal Services Act 1989. The Government are committed to doing everything in their power to make the operation of the civil justice system, and in this context the law on medical negligence, effective.
I do not accept the argument advanced by the hon. Member for Greenwich that because the law is inadequate in some respects that is sufficient reason to overturn the principle underlying the law. The principle is right, although I accept my hon. Friend's point that in practice the operation of the law is not as good as it should be and therefore should be improved. The Government are firmly committed to doing that.