NHS (Negligence Claims)

Part of the debate – in the House of Commons at 10:19 pm on 14 January 1991.

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Photo of Stephen Dorrell Stephen Dorrell Parliamentary Under-Secretary (Department of Health) 10:19, 14 January 1991

The hon. Lady will have an opportunity to deploy her argument in due time. I believe that it is common ground between us that, when a clinician is negligent, the right of a citizen to redress for that negligence should not be withdrawn. That should not be done differently from the way in which the law of tort is generally pursued in the courts. I do not think that the hon. Lady has any proposals which would change the way in which a claim for medical negligence, where that can be proved against a clinician and employing health authority, will be proceeded with.

My hon. Friend the Member for Wellingborough talked about structured payments and phased payments in the event of a medical negligence claim. Those matters were the subject of a review by the Pearson commission in 1978. It was recommended by a majority that provision should be made for damages in the form of periodic payments for future pecuniary loss caused by death or serious and lasting injury.

The Government consulted on the recommendation and found that the idea met with almost universal hostility. That was mainly on the ground that plaintiffs and defendants like a lump sum. Against the background of the consultation—there was virtually no support for the principle of setting up new machinery for dealing with phased payments—the Government decided not to proceed with the Pearson commission's recommendation. As my hon. Friend knows, however, the law allows for the possibility of phased payments. In 1987, that possibility was made somewhat easier to implement when the Inland Revenue reached agreement with the Association of British Insurers that income payments in damages awards would be tax free. Despite the fact that the tax position has improved when a phased payment is made as a result of a medical negligence claim, few such payments are made.

I heard what my hon. Friend said about phased payments and I shall take the matter away and reconsider it, but it is something that has been considered by the Government in the past. The Pearson commission recommended the same line as that which my hon. Friend has suggested, but when the Government consulted they did not find much support for it. That is not to say that we should dismiss the proposal, however, and I have said that I will reconsider it.

I am grateful to my hon. Friend for the way in which he approached the debate. My approach is to recognise the shortcomings of the existing system and then to urge that we try to make it work better. I take that view because we must accept that medical care is never risk free. It is an artificial process involving artificial interference with a patient. There will always be a residual risk, even when the doctor is entirely diligent, that medical care will not be successful and may even lead to damage to the patient.

The question that the House will ultimately have to address when the hon. Member for Greenwich introduces her Bill is who should take on the risk of cases in which the doctor is diligent. There is no dispute that when the doctor is negligent it is for the health authority and the health service to make recompense for the negligence. Should the state take on the risk if the doctor is diligent, even though any patient who goes for medical treatment must accept that there is always a risk attached to that treatment? If the doctor is diligent, it seems to me reasonable to ask the individual to take the risk on himself, especially when we bear in mind that if the state were to take upon itself the underwriting of the risk the effect would be not to eliminate all difficulty or unhappiness arising from disability but merely to move the boundary. We provide for damages in cases in which the NHS is negligent, but not where it is diligent. The effect of the proposal of the hon. Member for Greenwich would be to move—