Orders of the Day — Medical Accidents (Compensation)

– in the House of Commons at 9:45 pm on 8th April 1998.

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Motion made, and Question proposed, That this House do now adjourn.—[Jane Kennedy.]

Photo of Mr Nigel Beard Mr Nigel Beard Labour, Bexleyheath and Crayford 10:01 pm, 8th April 1998

Current law and practice are harsh on the victims of medical accidents, as some form of blame has to be established before compensation for injury is due. Even where blame is justified, litigation is protracted, uncertain and expensive. Where an individual suffers permanent injury and is the exception to a general expectation of successful treatment, there may be no blame. As a result, either no compensation is available, or an attempt is made to demonstrate malpractice where there was none. Such claims of malpractice engender a defensive attitude to all complaints, throughout the medical profession and the health authorities.

In some cases, injury may arise through testing or developing a new medical procedure. There are bound to be heightened risks of unexpected side-effects arising from therapeutic innovations. If doctors are to be blamed and punished for taking such risks, they will be disinclined to initiate or test new methods, and innovation will be stifled. That is particularly true of doctors in some high-risk specialisations, such as obstetrics.

Litigation on account of alleged medical negligence is now epidemic in the United States of America, and, although there are many fewer cases in the United Kingdom, the number here has been rising by about 15 per cent. a year for the past five years. A survey in 1996 showed that 37 per cent. of consultants and senior registrars had been sued at least once.

In the time available, I want, first, to demonstrate that current arrangements for compensation through litigation for medical negligence fail both patients and doctors, and risk jeopardising innovation in medicine generally. Secondly, I want to persuade the Minister that a no-fault compensation scheme for medical accidents would overcome most of the difficulties.

Accepted medical practice is the yardstick by which a doctor is measured. That means that a doctor will not be found negligent if a patient is treated in accordance with a practice accepted by a responsible body of medical opinion. A medical negligence trial will therefore focus on defining what accepted medical practice is in the circumstances of a particular case.

The result is that any trial becomes a battle of strength between opposing experts. However, the plaintiff may have great difficulty in finding experts who are willing to testify. Doctors do not like to voice public criticism of their peers. Colleagues in the same authority simply refuse to testify against one another, and witnesses have to be found from another part of the country. For the defendant doctor, however, finding witnesses is far easier. As a result, cases drag on and on for as long as eight, nine or 10 years after a writ has been issued. During that time, no special provision is available to the victim, whose family may have to cope as best it can with a dreadful tragedy.

The outcome is also uncertain. In the case of Whitehouse v. Jordan, late at night Mr. Jordan attended Mrs. Whitehouse, whom he had never seen before. He attempted five or more times to deliver her baby using forceps before deciding to deliver by caesarean section. As a result, the child was profoundly handicapped. The fact that brain damage was caused in the course of delivery was never in question, but there were huge differences among eminent experts about whether what was done was accepted medical practice.

Mr. Jordan was found not to have been negligent, and, after a process lasting eight years, Mrs. Whitehouse was left to bring up her handicapped child, then aged 11, without any compensation to ease the burden. Equally, to have found Mr. Jordan negligent would have been unjust. He came to the case late at night for the very first time and took a course of action that many medical experts agreed was the right one.

In another case, Wilsher v. Essex, the test of accepted medical practice worked against a young junior doctor, who inserted a catheter into a vein instead of an artery. He asked a senior registrar to check what had been done, who failed to notice the mistake. The judgment of the junior doctor was not by the standards of a trainee or a learner but by the standards of more experienced and qualified colleagues.

Both those cases illustrate how unfair the present system can be to both patients and doctors.

The result of this litigation lottery is that only a small percentage of those suffering from a medical accident ever obtain compensation. Figures from the Legal Aid Board show that only 17 per cent. of legally aided medical negligence actions are successful. That compares with personal injury cases, including road and work accidents, where success rates are 85 to 90 per cent.

There is a view expressed that medical negligence cases are no different from any other negligence cases. The figures show clearly that that is not so. Establishing fault in medical cases is far more difficult than in others.

The litigation system is not cheap. In 1997, Lord Woolf, after his review of ways of streamlining civil litigation, observed that enough money to run a large health service trust was being spent annually on legal costs to deal with medical negligence claims. At the end of his survey, there were found to be 20,000 claims outstanding against the national health service, with over 90 per cent. of those litigants on legal aid. That adds to the overall problem because when a claimant is legally aided and loses, the NHS cannot apply for costs. In 1995–96, the NHS paid out £150 million in medical negligence settlements, with a disproportionate £56 million coming from London regions.

In summary, we have an expensive system to deal with medical accidents, which is not working. It is not compensating victims of medical accidents fairly, and it is subjecting doctors and health trusts to pressures with which they are ill equipped to cope.

Of the cases examined by the Legal Aid Board in 1996–97, 32 received £500,000 or more in compensation. However, the average damages awarded stood at about £4,107. It is disturbing that the cost of those cases was, on average, marginally greater than the compensation awarded, at £4,122.

All this is not just my judgment. The British Medical Association has said: For many years the medical profession have been concerned about the social injustices of the present tort based system and established a working party to look into instituting a no fault compensation system. Such a scheme, we believe, would relieve the patient of the necessity of lengthy and expensive legal cases, and base compensation principally on the injured person's need. It is not our intention that such a scheme should protect professional staff if errors were made. That last point—that the present system, for all its faults, may ensure the accountability of the medical profession—is worth dwelling on. Even today, there is a separate medical disciplinary procedure to ensure professional standards. That system would have to be adapted, but there is every reason why such a revised disciplinary system should continue to operate alongside a reformed compensation scheme. Indeed, it is likely that the absence of prolonged legal proceedings would better ensure that a doctor who is truly blameworthy could be brought to account quickly. Discipline and compensation do not need to be linked.

No-fault compensation schemes already operate in New Zealand and Sweden. Neither system is perfect, but they demonstrate that a no-fault compensation scheme is workable, and appears to deliver benefits to many claimants that the present UK adversarial system does not.

In 1978, the royal commission on civil liability and compensation for personal injury—the Pearson report—looked into a scheme for no-fault compensation in the United Kingdom. Although it decided not to recommend such a scheme, it called for progress on the New Zealand and Swedish schemes to be monitored. Several members of the commission found the arguments finely balanced.

The cost of a no-fault scheme is another question. In 1988, the King's Fund and the centre for socio-legal studies, Oxford, estimated that, in addition to continuing costs of the Department of Social Security, the present litigation scheme, based on 10 claims per 100,000 of the population per year, would cost £75 million per year, whereas a no-fault scheme may cost £120 million per year. Set against that are the delay and individual misery that might be saved by the no-fault scheme.

In addition, a far higher proportion of compensation goes to the victim under a no-fault scheme. In New Zealand, 93p of every £1 spent goes to the victims, and only 7p goes to administration. In Britain, the National Consumer Council claims that for every £1 awarded as compensation, 85p is taken up in costs.

In the time available, the issues cannot be dealt with in the detail that would make the case conclusive, but the lengthening list of individuals and inquiries that have considered a no-fault scheme as the right way to tackle the present inadequacy of litigation lends substantial support to the argument. Both the BMA and the Royal College of Physicians support the proposal. Sir Peter Middleton, in his "Review of Civil Justice and Legal Aid", suggested that the Government should investigate the alternatives to the current system of compensation, with specific reference to medical negligence.

In 1990, the present Secretary of State for Social Security and Minister for Women, and in 1991 Ms Rosie Barnes, the then Social Democratic party Member for Greenwich, brought Bills before the House to introduce no-fault compensation schemes, but they did not have the support of the Government and so did not progress. I do not believe that any of the criticism made of those Bills was insurmountable. There is nothing from existing schemes abroad or from previous objections to indicate that a no-fault compensation scheme for medical accidents is impractical or exorbitantly expensive.

There is a mountain of evidence that present arrangements for determining compensation for medical accidents are harsh, capricious and unjust. The arguments for a no-fault scheme are powerful, persuasive and supported by those who know the issues at first hand.

I hope that I may have persuaded the Minister that there is a strong case for examining such a scheme in depth, with a view to a no-fault scheme of compensation for medical accidents becoming a new dimension of our modernised welfare service.

Photo of Mr Paul Boateng Mr Paul Boateng Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 10:14 pm, 8th April 1998

My hon. Friend the Member for Bexleyheath and Crayford (Mr. Beard) brings considerable knowledge of medical research and the NHS to bear on this topic. He is to be congratulated on having used the Adjournment debate to raise the issue of compensation for victims of medical accidents. It is a subject of obvious importance.

There can be few things more distressing for the victim and for friends and family than that someone should seek medical help and be harmed as a result. We well understand, therefore, what has caused my hon. Friend to bring the matter before the House—although I am afraid that I will not be able to satisfy him this evening.

There is a significant difference between harm caused by a negligent act and harm caused by a set of circumstances that could not reasonably have been foreseen. Much as we may wish to, we cannot give absolute guarantees—no one ever can—of a successful outcome to a medical treatment. No matter how careful we are, in all walks of life accidents can happen from time to time.

Sometimes, the actions or omissions of an individual are responsible for the harm that occurs. At other times, it is simply a set of circumstances that could not have been foreseen, or the result of a foreseeable risk that was nevertheless justified in the circumstances. The person who suffers the harm may have contributed to or caused the accident himself. Medicine is no different in that respect from any other activity.

We no longer live in times—we are glad of it—when it was presumed that the doctor knew best, and when everyone blindly accepted treatment without explanation or consideration of all the options. Generally, before any medical treatment is given today, the patient's consent must be obtained. To be valid, that consent must be freely given, and obtained only after sufficient information has been provided about the proposed treatment—its nature, its consequences, possible alternatives and any substantial risks. In that way, a balanced judgment can be made. If that does not happen, a patient may have the right to take legal action, or grounds for a legitimate complaint.

When an adverse effect is the result of third party misconduct or negligence, it is right that the harmed person should be able to seek some recompense. The underlying principles are clear cut and established under the common law. They apply to personal injury cases in general, not just those arising from health care. We are not persuaded that health care should be singled out for different treatment.

In the case of compensation for medical treatment, it is necessary to prove that a duty of care is owed by the NHS body; and that there has been negligence through an act or omission; that there has been harm; and that the harm was caused by negligence. NHS bodies may already, in exceptional circumstances and within delegated limits relating to public expenditure, make ex gratia payments on the merits of individual cases. My hon. Friend will know that when clinical negligence is involved and a settlement has been negotiated following legal advice, upper limit is £1 million.

The Government recognise that pursuing a claim for medical negligence can be a lengthy and traumatic process. My experience in practice as a solicitor and barrister taught me how difficult such litigation is for those involved. Several years may elapse before a case finally comes to trial, making investigations more difficult and time-consuming.

Sometimes, NHS bodies seek to defend claims where liability should be admitted early on. My hon. Friend will be glad to know that we are seeking actively to discourage such practice, because it only prolongs the anguish of patients and clinicians alike, and leads to unnecessary increases in legal expenses. We want the valuable resources of the NHS to be used for patient care, not to line the pockets of lawyers. I have sympathy with the points made by my hon. Friend, but we are unable to take the road along which he invites us to travel.

Some argue that as it takes a long time for medical negligence cases to be heard, it is unfair on the litigant, and that a supposedly quicker no-fault scheme is the answer. The Government cannot agree with that. To pay compensation when no fault has been established would, to some extent, belittle the harm caused to others through a negligent act. It would also treat medical accidents in a different way from other personal injuries, and it may often be just as difficult to establish that the medical treatment had caused the injury as to prove that someone had been negligent.

Even under a no-fault liability scheme, causation would still have to be established. That is not always easy, and can be as difficult as establishing negligence. The amount of compensation would still have to be determined, and possibly disputed. Some of the most prolonged and bitter disputes are over the quantum. Legal action and legal fees would not necessarily be avoided, and the process could still be lengthy. The full extent of the injury would still need to be established, taking into account the longer-term prognosis. Within delegated limits, NHS bodies may already award compensation on an ex gratia basis up to a maximum of £50,000 where no fault has been established.

Money for a no-fault compensation scheme—which would not be cheap; we should be under no illusions about that—would have to be found from NHS resources, and would inevitably result in reducing the money available for direct patient care. It also seems to us that the cost of meeting injury claims would be shifted from those who were negligent to the community as a whole, and, by extension, to injured people themselves, because they are part of that community. There is also a risk that a no-fault culture could, over time, diminish clinical accountability, and we could no longer reassure patients that what had happened to them would not subsequently happen to somebody else.

Even under a no-fault scheme, professional bodies and the NHS would still have the responsibility to ensure that standards were maintained. Clinicians will always want to do the best by their patients, and that is just one of a number of considerations that would have to be addressed if such a scheme were ever to come before the House for consideration.

My hon. Friend referred to compensation for those who may have experienced harm while participating in innovative medical procedures. Research ethics committees, which offer independent, objective advice to NHS bodies on the ethics of research proposals to be carried out within the NHS, have an important role. They ensure, among other things, that those who agree to participate in such research—which may involve a risk—are told at the outset not only of the nature of any risk, but of the compensation arrangements that will obtain in the event of the research subject's being harmed.

Mention has been made—and it has been the way for as long as I have studied or practised law—of the existence of no-fault compensation schemes in New Zealand and Sweden. I recall the considerable interest, and indeed controversy, that surrounded the establishment of the scheme in New Zealand. It would, however, be dangerous to make a direct comparison between those two countries and ours. There are many differences between the jurisidictions, and it is important to recognise the way in which no-fault compensation schemes have developed to reflect the broader context of the countries in which they were established.

In Australia and Canada, consideration was given to a no-fault compensation scheme, but, ultimately, the idea was rejected. There are few such schemes in the European Union.

Clinical negligence costs the national health service £200 million a year. That is not good enough, and my hon. Friend is right to draw attention to it. My right hon. Friend the Secretary of State has expressed our fear that the figure will continue to rise. The best way to ensure that it does not is to raise standards, and that is what we have promised to do. Our proposals for a national institute for clinical negligence and a commission for health improvement will help to raise standards of performance, and reduce the risk of adverse incidents occurring in the first place.

Our White Paper "The New NHS" puts quality organisation, evidence-based practice in day-to-day delivery of NHS services and the infrastructure to support that at the heart of what we seek to achieve. We want clinicians to be involved in quality improvement programmes, disseminating good practice, using high-standard clinical risk reduction programmes, identifying adverse incidents, and learning the lessons that need to be learned from them. All that can contribute to a reduction in the number of costly negligence claims.

I commend the use of mediation, which presents a real alternative to long and costly court cases. A pilot project in two English regions, Anglia and Oxford, and Northern and Yorkshire, is making an important contribution to our body of knowledge. It will establish whether mediation is a viable option for the NHS as a whole. We also look forward to the Lord Chancellor's work in reforming the civil justice system. All in all, we believe that that package of measures is the best way forward, that it will ensure that the victims of medical negligence and medical accidents are properly compensated, and that the public will receive the reassurance that is their due.

My right hon. Friend the Secretary of State has said that what is wanted is explanation, not litigation. Apologies, not accusations. Excellence, not excuses. In the new NHS, that is just what we seek to achieve.

Question put and agreed to.

Adjourned accordingly at twenty-eight minutes past Ten o'clock.