New clause 14 - Medical records

Part of Armed Forces (Pensions and Compensation) Bill – in a Public Bill Committee at 8:55 am on 26th February 2004.

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Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence) 8:55 am, 26th February 2004

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.