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House of Commons

Friday 1 February 1991

The House met at half-past Nine o'clock

PRAYERS

[Mr. Speaker-- in the Chair ]

Orders of the Day

National Health Service (Compensation) Bill

Order for Second Reading read.

9.34 am

Mrs. Rosie Barnes (Greenwich) : I beg to move, That the Bill be now read a Second time.

I feel privileged to be able to introduce a Bill which will spare thousands of people unnecessary distress, uncertainty and, often, bitterness. My proposals are fair, just and reasonable. As a civilised society, we have a responsibility for each other. In providing the invaluable services of the national health service, we must ensure that the highest standards are observed and that the quality of care is carefully maintained and monitored. It is our national health service and it owes us a duty of care. We should not accept anything less than the best.

We place our trust in doctors in the health service. It is an ethos that has been fostered and encouraged. To shy away from the consequences of medical accidents would be to undermine and to betray that trust. Most people are thankful for and satisfied with the care that they receive from the national health service, but a few have unfortunate or even tragic experiences. The Bill is intended to help that minority.

I used the words "unfortunate or even tragic" with care, because it is important to establish straightaway that I am not proposing compensation for every minor incident, thus creating a system that would soon become bogged down under myriad trivial complaints. I felt that it was right to restrict compensation to those whose lives have been seriously adversely affected by medical accident--not, of course, excluding anyone who is currently eligible for compensation under the present legal system.

The Bill provides that people injured, distressed or subjected to unnecessary pain or suffering during care by the national health service may be awarded compensation. Injury is defined as the result of a mishap in NHS care and not as the foreseeable and reasonable result of that care or of the person's pre-existing condition. The Bill also covers patients who, as a result of injury, die, require hospital treatment for 10 days or more, are prevented from engaging in normal activities for more than 28 days, suffer significant pain, disability, harm, distress or significant loss of amenity, or suffer from a reduction in life expectancy.

I propose a medical injuries compensation board which, with the approval of the Secretary of State, will lay down a code of guidance establishing criteria by which it will determine whether a mishap has occurred during NHS


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care. The hurdles are rightly high and include death, lengthy hospitalisation, being unable to work or to pursue one's normal life for a period of a month or more and unnecessary pain and distress, which are, as I said, eligible for compensation under the present system. Amounts offered would take into account the severity and duration of the suffering. If a full recovery is made, the award would reflect that.

Some people receive compensation at present. I know that the Government believe that the current system is reasonable and, with modifications, can be made acceptable. I dispute that wholeheartedly. The current system is a lottery and it is necessary to prove negligence to be awarded compensation. There may be negligence, but proving it can be distressing, costly and time consuming--and quite often impossible. The only witness may be unconscious at the time of the incident, unaware of what is being done and why. Finding out exactly what happened, who made what decision, what might have been done instead and who took what action is often virtually impossible. Even if the patient is not unconscious, he is often far from at his best and most alert ; he may be alone, in pain and frightened, and is probably undressed. Those are hardly the best circumstances in which to be impartial and to take careful note of what is going on around one, so that the necessary evidence can subsequently be produced in a court of law.

The miseries involved in proving negligence were graphically described by a woman who discussed her plight in a number of recent television interviews. Her husband died some seven years ago, as a result of what she believed to be negligence following a fairly routine and relatively minor piece of surgery. She was left a young widow, with three children. She took the matter to court, and was eventually awarded £250,000 in compensation-- although she made it clear that it was not the money, but a proper investigation and explanation, in which she was interested.

The matter did not end there, however. The health authority chose to appeal and, seven years after her husband's death, the woman discovered that she had lost her £250,000 award ; even worse, costs of £150,000 were awarded against her. The only way in which she can meet those costs is by selling her house.

Any civilised society would recognise that what happened to that young woman and her family is a tragedy--and we have made matters not better, but considerably worse. In many ways, the most damning aspect of the incident is what those seven years have done : they have melted into a sea of bitterness and legal wrangles. A speedy and just settlement of the woman's case would perhaps have enabled her to come to terms with her loss and to start to rebuild her life and those of her children ; instead, she is embittered and obsessed by the whole experience.

I have noticed that, in the many cases that have been brought to my attention, the misery caused by prolonged and uncertain court proceedings often matches, and in some instances even outweighs, the effect of the original tragedy. A study of claims made against one English district health authority between 1984 and 1987 found that, on average, abandoned- claim cases lasted between one and three years, settled cases two years and defended cases four to seven years. We are talking about years of prolonging the agony.

We should bear it in mind that the worst cases are always settled out of court. Those who say that the current


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legal system brings important matters to light, introduces an element of human justice and brings negligence to the forefront of the public's attention are misleading themselves. Only the more controversial cases reach the court ; severe cases of reprehensible behaviour and negligence are settled quickly and quietly and we, the public, hear nothing. I dispute the adequacy of the legal system in cases of medical negligence, because the die is loaded so heavily against the patient. Right may not always be done ; in fact, I believe that it is rarely done.

Let me go a stage further. My second reason for challenging the legal system is that--apart from the delay and the cost involved in proving negligence where it exists--there will inevitably be genuine accidents in an organisation as large as the national health service. Things go wrong as a result of a variety of decisions made by many people and may culminate in a tragic outcome which is no one person's fault.

The philosophy behind my Bill accepts that a degree of human error and human frailty is inevitable and understandable. We all make mistakes, but most of those mistakes will not adversely affect the rest of someone's life so dramatically. We are asking our doctors and nurses--our medical practitioners--to shoulder that burden and we should recognise it.

I do not intend the Bill to be in any way punitive towards practitioners or staff. In a humane and civilised society, however, we should be prepared to make amends when something goes wrong that is no one's fault, or no fault can be proved, or we do not wish to pin the fault on a respected and trusted practitioner. Let me give an example. Three young brothers are admitted to an emergency and casualty department. The doctor in charge must make immediate decisions. He perceives that two of the young men are critically injured, while the third appears not to be so badly hurt. He attends immediately to the first two and saves their lives. But he has omitted to notice that what he put down to a whiplash injury in the case of the third brother is, in fact, a broken neck. As a result of his failure to stabilise the neck, the third brother's spinal cord is severed and he becomes paraplegic.

What are the family to do? Are they to take to court, on grounds of negligence, the doctor who has saved two of their sons and whose judgments and actions no one could have challenged? The relationship between doctor and patient has sometimes been carefully fostered and a patient who has been on the receiving end of one mistake may not wish to bring the doctor to his knees. A confrontational and adversarial approach does nothing to sustain the vital doctor-patient relationship.

My Bill provides for what I judge to be appropriate levels of accountability. While I emphasise again that I have no intention of instigating a witch hunt, when reprehensible behaviour or repeated mistakes by one practitioner come to the attention of the compensation board, it will surely be inappropriate for the board simply to pay up, say nothing and wait for the next case. I suggest that the board be empowered to refer the matter to the appropriate authority--be it the professional body to which the practitioner belongs, the health authority or, in the most extreme cases, the Director of Public


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Prosecutions. Let me stress that I would expect that power to be used only in the event of reprehensible behaviour or repeated acts of negligence.

The Bill allows for compensation to be paid without evidence of negligence, although there must, of course, be evidence that the injury was caused by national health service treatment--or lack of it--and was not a result of inevitable progression of a disease, a known and disclosed side-effect of a drug or treatment, an agreed risk or some other cause.

I find it extraordinary that my Bill has been attacked for allowing the problem of causation to remain. In what circumstances does the state provide money without demanding evidence that the appropriate criteria have been met? The Criminal Injuries Compensation Board must establish that a criminal injury has occurred and that someone did not simply fall down stairs. When unemployment benefit is paid, the authorities go to great lengths to ensure that the recipient is genuinely available for work and is not simply sponging. All social security benefits are carefully vetted. It is quite within the medical injury compensation board's ability and remit to take sensible decisions about mistakes that were caused by NHS treatment and to differentiate between those and mishaps that have nothing to do with the service.

Mr. Patrick Nicholls (Teignbridge) : The hon. Lady is making an important point and it would be wrong to attack her Bill on the causation issue in that way. However, what troubles some of us, and particularly legal practitioners in the area, is that, because the hon. Lady has sensibly restricted the kind of cases that can qualify for compensation, there are bound to be matters of causation that will concern the board. In other words, the board will have to decide whether particular cases fit in with its criteria. There will be quasi-litigation around the margins to decide whether people qualify for compensation. The problem of proving negligence will be removed, but causation problems will then arise in respect of whether a particular case fits the criteria. The only way in which the hon. Lady can solve that problem is to have compensation across the board without any criteria, and that would be prohibitively expensive.

Mrs. Barnes : I do not accept that argument. It has never been my intention to have an across-the-board compensation scheme, on the lines of the scheme in New Zealand, for all accidents. My Bill is about accidents and mishaps in the NHS. If the hon. Gentleman will allow me, I want to make progress because I intend to cover in more detail the point that he has raised, which I believe is very important.

No one can challenge the fact that I have reduced the hurdles that must be crossed. Instead of having to prove negligence and causation, there is simply an obligation to establish causation. That is perfectly within the powers of the board.

Of course, there are inherent problems in establishing causation. Many cases will be quite straightforward, but none will perhaps cause quite so much heartache and soul searching as those caused by cerebral palsy. In a recent address to the Royal College of Midwives, the chief medical officer said that the upward trend of lawsuits against obstetricians for cases of cerebral palsy is both unjustifiable in the face of present medical evidence and unacceptable in terms of its potential consequence to the


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quality of care available for pregnant women. In 1983, 50 legal cases were brought claiming medical negligence in cases of cerebral palsy. By 1989 there were 200 and it seems that the final figure for 1990 will be nearly 600--and that out of approximately 1,500 cases of cerebral palsy a year. It may not be long before all those cases come to court. With or without my Bill, that matter must be addressed seriously.

The levels of award are also soaring.

Mr. Peter Thurnham (Bolton, North-East) : How would the Bill treat the victims of cerebral palsy? There may be 1,500 such cases every year, but it is uncertain how many of those result from NHS treatment and how many occur during pregnancy. How would that be resolved? Would they all receive compensation under the terms of the Bill?

Mrs. Barnes : I shall deal with that in a moment.

There is growing evidence and consensus in medical opinion and research that very few cases of cerebral palsy are caused by the birth process. There seems to be a conviction stemming from papers that were written during the last century that asphyxiation during the birth process is the cause of cerebral palsy. However, that view is now widely and legitimately challenged.

The needs of those tragic children in many cases would not be met by my Bill. Some of the aspects of the problems created by decisions taken by midwives and obstetricians while attending to the births of some children when they may have an eye as to what might happen in a future court of law rather than be considering what is best for the mother and child would certainly be addressed by the Bill. The Bill would allow the board to decide that cerebral palsy was caused by the birth process if that could be demonstrated, but it would not have to attribute negligence or fault to the practitioner. That is what must happen at the moment.

At present is is not just a matter of establishing that cerebral palsy occurred at birth. It is a matter of establishing that someone was at fault. Even if it occurred at birth, that birth might have been properly handled by the midwife or obstetrician in charge. The Bill would remove one major anxiety--defensive medicine--which particularly threatens our maternity services.

Mr. Tony Favell (Stockport) : The hon. Lady is referring to children who suffer from cerebral palsy or other kinds of brain damage. I am president of my local Mencap organisation. Enormous problems would be caused for parents of mentally handicapped children, especially those who are profoundly mentally handicapped, if some were to scoop the pool because they could establish that their children suffered because of a mishap within the definition of the Bill while other parents could not prove that. How will the hon. Lady overcome that problem? The hon. Lady's proposal seems almost to replace one lottery with another.

Mrs. Barnes : Mencap firmly and completely supports my Bill. It accepts that there are instances when mental handicap may be caused by the birth process or as a result of other medical injury for which compensation should be paid. Mencap is also aware that in other cases that might not apply.

My Bill will redress the difference in some respects. I will consider those points in a moment. However, my Bill


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is not intended to compensate according to need all those with an inherited or congenital disease. I am honest about that, but I am also sad about it.

I should like a system of generous benefit based on need and everyone in the House would favour that if it were possible. However, I have not tried to change the world with one Bill. I have tried to tackle the problem of NHS accidents that cause harm to patients and I do not apologise for those limitations. I had to set the boundaries and I knew that there would be tragedies. I considered the possibility because, as a human being I was tempted, as I am sure many judges are, to say, "What if we told the board nod and a wink, let all the cerebral palsy cases have compensation'?" However, only 8 or 13 per cent. of those cases may have been caused at birth. And what about the deaf children? What about the blind children? What about the spina bifida children?

The Bill is about accidents and mishaps caused by the NHS. While I regret that it does not allay every kind of human misery, I make no apologies for sticking to the main thrust of the principle.

Mr. Roger Gale (Thanet, North) : This is a crucial issue. A young friend of mine suffers from cerebral palsy and I do not know, and the hon. Lady does not know, whether it is congenital or it happened at birth. The Royal School for Deaf Children is in my constituency and it deals with kids who suffer from deafness and other unfortunate multiple handicaps. In many cases no one knows why or how those children came to suffer as they do. Will not the hon. Lady's process simply create a desperate scramble after birth to jump on to a bandwagon? Will she really solve the problem?

Mrs. Barnes : Perhaps one of the main disservices done to children with cerebral palsy is the conviction that has pertained for many years that the condition is due to asphyxiation during the birth process. If the medical experts are right and that is not the case, the current legal scramble has inhibited what is really needed, which is research into the cause of cerebral palsy, establishing much earlier in a pregnancy when it is present and addressing that issue in the same way as many others have been addressed.

Miss Emma Nicholson (Torridge and Devon, West) : The present system has not inhibited research into the causes of cerebral palsy. I am glad to tell the hon. Lady about the Little Foundation, which was launched last November and of which I have the honour to be a trustee, whose whole basis of existence is to examine the formation of the brain pre-conceptually and post-conceptually, because it is thought that that will be the way forward to understanding the causes of cerebral palsy.

I am enormously concerned. I deal a lot with handicapped children. As I shall say later, if I am fortunate enough to catch Mr. Deputy Speaker's eye, the Bill will create extraordinary misery for somebody who falls on one side of the Bill and a handicapped child who falls on the other side. As the hon. Lady correctly said, medical knowledge is not perfect. One minute we know one thing, and another minute research shows that a medical matter is due to something else.

Mrs. Barnes : I do not wish to trade credentials for the care of and concern about handicapped children. The Bill is not about handicapped children. That is not a


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shortcoming in the Bill. It is a shortcoming in our society, perhaps, that we are not sufficiently generous to some of those unfortunate people. The Bill is about mishaps or accidents that are caused by the NHS when a patient who puts himself into the hands of the NHS, rightly expecting and, let us remember, having paid for the best, does not get it. Something goes dreadfully wrong and we leave them worse off. That is what the Bill is about.

I accept--indeed, it is my intention--that more people will be allowed through the net. In addition to those who experience and can prove negligence, my Bill will cover people who experienced negligence but could not prove it and people who experienced a genuine accident that was nobody's fault.

However, I challenge the assertion that the proposals will attract infinitely more cases than would be just. With or without the Bill, the number of claims will rise. It is widely acknowledged that the frequency and number of medical negligence claims has risen markedly over recent years. The Medical Protection Society and the Medical Defence Union have produced figures showing that claims have at least doubled. However, a major further boost to claims is about to happen. As from 1 November, patients will have access to all their medical records, the handwritten ones as well as the computerised ones to which they already have access. We all know that gaining access to medical records has been a major barrier to initiating a claim in the past. That will change.

We have only to examine what has happened in the United States to know that, for a variety of reasons, people are demanding more and expecting better and that the consumer society and consumer associations are fostering expectations. I challenge the Government to commit themselves, in deeds as well as words, to the rights and demands of consumers.

Again, I emphasise that I am not offering a soft option for anyone wishing to exploit the system. My attention has been drawn to some ludicrous examples of what happens in New Zealand. For instance, when a prisoner tries to escape, falls and breaks his leg, he is entitled to compensation. Theirs is a general scheme including car crashes and sports injuries. Indeed, there is evidence that the New Zealand system has worked poorly for the victims of medical negligence. My scheme is confined to the national health service. After all, the national health service accounts for a huge proportion of our national expenditure--nearly 15 per cent., or £27 billion this year if yesterday's Library figures are accepted. We have a duty to ensure that that money is properly spent and that standards are safeguarded.

Also, if serious mistakes are made or if accidents occur, we cannot simply wash our hands of the matter and say, "Tough luck. You put yourelves in the hands of the NHS. The staff did their best, but they inadvertently made matters much worse. It was nobody's fault. You are on your own ; there is nothing that we can do about it." That is what the debate about the haemophiliacs was about. It is now academic whether there was negligence by the NHS. We all know that imported blood products were used some time after the possible dangers of those products were known. There is no question that anyone intended haemophiliacs to be infected with the HIV virus with all its horrific consequences. A blood-clotting agent, which for


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many years made their lives infinitely more tolerable, was found to be the carrier of an even more virulent disease. Something went terribly wrong.

Those who were greatly disadvantaged by the miseries of haemophilia were dealt a cruel blow. We as a society sat wringing our hands watching the tortuous legal proceedings while they died. It is to the Government's credit and to that of the new leadership that they brought that appalling situation to an end with a financial offer. What was that if not no-fault compensation? It was a recognition of intolerable circumstances that were brought about by the well-intentioned actions of our national health service. It was a response to the public clamour for justice and recompense. It was a long-overdue gesture to put an end to the obscene sight of those hapless victims struggling on through the courts knowing that, before verdicts, appeals and counter-appeals were reached, many of them would be dead. They would have died, as many did, not knowing what provision, if any, was made for their families.

I was invited to appear on a Channel 4 "Comment" programme some months ago and I chose the subject of the haemophiliacs. While I was researching that subject, one thing struck me very forcefully. We all hear of the haemophiliacs, the Thalidomide victims and the Opren victims. It is hard to say that anyone has an advantage if they have been on the receiving end of such a tragedy, but one benefit that they have is that there are enough of them to form pressure groups to maintain media attention and to keep in the newspaper headlines until the public clamour for action is heeded. However, what about all the one-off cases about which we never hear anything? They are perhaps reported once in a local newspaper and then they are forgotten- -they are on their own.

Sir Robert McCrindle (Brentwood and Ongar) : Is not there also the further point, which the hon. Lady might deploy in defence of her Bill, that if, as at the moment, one or two cases occur in a certain health authority area, with considerable necessary outlay by that health authority, it could be to the disadvantage of patients who are served in that area, whereas another area that may be fortunate enough not to have had such a series of claims is able to direct its finances to where they were intended to be spent--on patient care?

Mrs. Barnes : That is a fair point and I shall refer to it in a few moments.

When the next tragedy strikes--and strike it will ; the House will have to deal with it and may regret the decision not to support my Bill--on behalf of the haemophiliacs and the Thalidomide and Opren victims and, perhaps, more important, all those cases that we will never know about, we must effect a fairer, speedier and more suitably generous system than the courts. Hence my proposal to establish a medical injury compensation board to define eligibility for compensation, make the necessary assessments and make payments speedily and fairly, ending the bitterness and uncertainty of the current system.

I have not suggested that people should be denied access to the courts. That would impinge on their constitutional rights. The Bill proposes that all claims for compensation should be directed to the board first and should be made within six months of the claimant's becoming aware of the relationship between his or her injury and NHS care. The Bill says that the board should


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notify the claimant of the result of its investigation within three months of receiving the claim or, where that is not practicable, at the earliest opportunity. The reason why I have kept the timing tight is that, in order to find out what happened, it is important that the investigation is carried out as soon as possible after the injury occurs. Of course, that will not always be possible, but we hear too often of investigations that could have been made much earlier being carried out after doctors and nurses have dispersed to various parts of the world and no one can get to the bottom of the matter. The board would have a variety of options open to it, including giving an explanation and, where appropriate, an apology, as well as compensation, of course. It could refer any serious matters on to other bodies for further consideration.

Mr. Favell : I had better confess that I am a lawyer. Clearly, an enormous number of cases will be referred to the board. Any right hon. and hon. Members will know from their surgeries that people regularly come and say, "Auntie Flo has died in odd circumstances. Would you have a look at it?" When people lose a loved one, they look around to find a reason for the person's death. I have experienced that myself. How will the supposed victim or the family be sure that the board will go through the procedures properly? It is a great tragedy when anyone dies. In the law courts at least people can see what is going on. Will the board operate behind closed doors? Will lawyers be involved? If so, shall not we return to the position that we are now in?

Mrs. Barnes : There are possibilities for appeals and judicial reviews. Once established, the board, like many other similar bodies, will achieve a proper professional code of conduct and will be respected. It will complete the necessary investigations properly. It is important to stress that many organisations to which I have spoken who represent the patients' or consumers' view feel strongly that explanations and, where appropriate, apologies are as important as, if not more important than, financial compensation. If a child's life is lost as a result of a medical mishap, it is virtually impossible to put a price on that loss. In monetary terms, nothing will alleviate the misery. The only constructive outcome is a proper explanation of what went wrong and some reassurance that lessons have been learnt and that, as a result of that tradegy, it is less likely that someone else will experience the same misery. Therefore, it is important to ensure that explanations are given and people have the answers to the questions that so often drive them to the courts. So many people say --it is not a cynical statement--"I did not take this matter to the courts for the money but to get to the bottom of it."

Mr. Nicholls : Will the hon. Lady give way?

Mrs. Barnes : No, I must press on.

After the loss of a loved one, finding out exactly what happened is not only a dominant force within a person but becomes a right. With a proper answer at an early stage, much of the bitterness and the punitive approach that we see in the courts will evaporate. Patients will have two months to decide whether to accept the offer. If they accept, any legal claim that they may have will fall and become the property of the board.


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If they reject the offer, they will, of course, be free to pursue the matter through the courts independently, with all the risks and uncertainty that that involves.

I believe that if the scheme is properly funded it will satisfy all but the most litigious. If it is not adequately funded there will be obvious and inherent problems. The fundamental problem will be that all the claims that did not have a chance in the courts will take the board route and the others will go via the courts as usual. I recognise that that will be an inherent problem unless the funding is right. I shall address the matter of funding in a little more detail in a moment.

I have included measures to help to control the level of the board's income and expenditure. I am all too aware of the genuine fear of escalating and uncontrollable costs. I sincerely believe that that is a misplaced fear. I have included the power for the Secretary of State to control the level of the board's expenditure. If he feels it appropriate to fix the amount at the current level of expenditure on administering, litigating and compensating current claims, he has that right. Some would argue that the Bill gives the Secretary of State too many powers, but I judged it necessary to allay his and the Government's fears that the system could run amok and out of control.

It is important to remind ourselves of how the money is currently spent. It is conservatively estimated that under the current system almost half the money spent on compensating, administering and paying legal costs goes on legal and administrative costs. More recent evidence shows that the breakdown may be even less favourably inclined towards the patient and that perhaps as much as two thirds of the costs go on lawyers and administrators. My Bill would enable that money to be directed, at a stroke, to patients, which is where it should be spent.

Another financial aspect that my Bill addresses is the provision in the Law Reform (Personal Injuries) Act 1948 that the availability of national health service care shall be ignored when awarding compensation for personal injuries. In practice that means that when a judge is calculating an appropriate level of compensation, he or she cannot take into account any provision made by the NHS for on-going medical needs, even though NHS care may be the best available and what the patient wants. For example, a patient with a spinal injury caused as a result of a medical mishap may feel that the best place for him is in Stoke Mandeville where he will receive national health service treatment and he will go there, but a judge making an award is not allowed to include that in his calculation. He must calculate all medical costs at private levels and there is no obligation on the patient to avail himself of private care. Indeed, many do not.

Often, compensation is a windfall for relatives. That clause of an Act passed when the NHS was in its infancy and many remained suspicious of it has caused some of the headline-grabbing figures that we see in the newspapers nowadays. The measure is inappropriate in this day and age. High -quality NHS care should be included as an in-kind element of compensation. To return briefly to the argument about cerebral palsy children, such a measure would reduce at a stroke a great deal of the disparity between children who receive awards and those who do not. A large part of the awards made at present is based on on-going medical care for the rest of the patient's life at private levels, when many do not need private care because the state makes adequate provision.


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The board will also be in a position to settle any claims involving a third-party supplier of goods to the health service. That will particularly affect suppliers of drugs. Again, that frees the claimant from lengthy and uncertain court proceedings. Only yesterday we heard that some Opren victims are to be denied compensation because the time for claims has run out. However, the board would be able to pursue any legal claim that has arisen from a case, so if there is another Thalidomide or Opren tragedy the board could, where appropriate, award compensation and then take the pharmaceutical company to the courts itself. That will take away the misery caused to individuals in the present unacceptable situation.

For that reason a number of pharmaceutical companies and the Royal Pharmaceutical Society have expressed enthusiasm for my Bill. They are only too aware of the adverse effects of the publicity that some cases have brougnt to their door. They recongise that the current situation is, not to put too fine a point on it, a mess. They also recognise the advantages of dealing with one board rather than tens, hundreds or thousands of individual cases.

The Bill will also allow for periodic payment of compensation. At present, a judge is in the impossible position of having to decide how long someone will live. In the event that someone dies much earlier than expected the compensation is simply a windfall to relatives. Conversely, as a result of medical development, a child who is not expected to live beyond its teens may live to 40 or 50. The parents of that child must continue to cope long after the money has run out.

Mr. Michael Shersby (Uxbridge) : The hon. Lady has said that her Bill is supported by the Royal Pharmaceutical Society and by some pharmaceutical companies. Would she care to name one or two of those companies, as that may be helpful?

Mrs. Barnes : Eli Lilly has written to express support for the Bill, as have a number of others. I should be happy to give the hon. Gentleman a list of them.

The Bill will seek to ensure that NHS patients have the same benefits as private patients by applying the terms of the Sale of Goods Act 1979 to all goods supplied through the NHS. I have examined the specific financial aspects connected with the Bill and I am of the firmest opinion that, in the long run, the scheme will be virtually self-financing.

We must remember that medical error does not have a cost implication only for the victim. The NHS is already having to bear the cost of mistakes that have been made. Those mistakes can be extremely costly in terms of the emergency treatment that may be necessary following avoidable complications as well as in terms of additional surgery and the occupation of a bed, which will mean the postponement of other patient admissions. In some cases such mistakes require the facilities of intensive-care units. The cost of such mistakes is, at present, unidentified, but it should be brought to the attention of NHS managers, along with the current total cost of negligence litigation, which possibly amounts to £100 million. At present there are no reliable figures on the aggregate expenditure on compensation and related legal, administrative and professional costs. Careful research


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undertaken in 1988 suggested that that cost was about £75 million. Given the increased number of cases and the level of awards since then, it is not unreasonable to suggest that that cost is now £100 million.

I have researched the issue of costs thoroughly, but reliable information is scarce. I suspect, however, that the hidden cost of subsequent NHS care following negligence, including those cases that never come to light, combined with the direct costs of compensating, may put a new perspective on the desirability of a medical injury compensation board.

The BMA has suggested that the likely cost of establishing that board would be £100 million--the Secretary of State has suggested that the cost might be slightly higher--but that cost would account for only 0.37 per cent. of the £27 billion that we spend on the NHS. We should also remember that in 1986-87 the cost of the privatisation of British Gas was £162 million--those costs were incurred in just one year.

We should regard the board as a quality-control measure, rather than as a charter for incompetence, as some have suggested. If the board were able to publish reports and research programmes it could make an additional contribution to cost effectiveness in the NHS. Such information would certainly help to raise standards of care and management that would benefit the victims of negligence, other patients and the nation.

The hon. Member for Brentwood and Ongar (Sir R. McCrindle) drew attention to the anxiety now felt by health authorities as a result of the introduction of the Crown indemnity scheme. There is little in the current system to deter negligence, which, according to its proponents, is one of its main advantages. The Crown indemnity scheme means that all direct financial liability is met by the health authority and is not passed on, either in part or whole, to the individual concerned.

We should not ignore the dilemma that will be faced by health authorities in the coming years. South Western regional health authority, for example, has estimated that medical negligence cases now in the pipeline could cost £20 million in the next four years. There are major doubts about regional health authorities' ability to cope with that. Patient care will inevitably be affected. The unpredictable nature of such costs make planning almost impossible.

Sir Robert McCrindle : It might help the hon. Lady to know that the BMA has suggested that, by 1996, under the present scheme it is estimated that no less than 13 per cent. of total resources available to the average health authority may go towards paying compensation for negligence claims.

Mrs. Barnes : That is a valuable point.

I am aware that many other hon. Members want to participate and I know that I have gone on longer than I intended, partly because of the number of interventions I have taken.

I pay tribute to the many individuals and organisations that have provided support and help towards the Bill. I put on record my thanks to the hon. Member for Peckham (Ms. Harman) for her earlier work on the subject and her support throughout the Bill's development. I also thank its sponsors from both sides of the House. I could not let this opportunity go by, however, without paying particular


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tribute to the hon. Member for Newbury (Sir M. McNair-Wilson), whom we are so pleased to see in the Chamber today.

I also pay tribute to the contributions made by the National Consumer Council, the Law Society and the BMA. I am grateful for the detailed work that was undertaken by the Royal College of Physicians--many of my proposals arise from, or are supported by, its work. I am also grateful for the research provided by the Institute of Socio-Legal Studies at Oxford university and the King's Fund. I remind the House that the Bill has had the overwhelming support of a vast number of professional and voluntary organisations. I have received support from the General Council of the Bar, the Royal Colleges of Physicians, of Midwives, of Obstetricians and Gynaecologists, of Psychiatrists and of Nursing. I have received support from the Patients Association, the Haemaophilia Society, Mencap, the National Confederation of Consumer Groups and the Thalidomide Society, to name but a few.

I commend the Bill to the House for further serious consideration. Several Hon. Members rose --

Mr. Deputy Speaker (Sir Paul Dean) : Order. More than 20 hon. Members want to speak, so I hope that those who are fortunate enough to be called will make brief speeches.

10.28 am

Mr. Michael Morris (Northampton, South) : I thank the hon. Member for Greenwich (Mrs. Barnes) for the depth of her work on the Bill. It is not often that we get a private Member's Bill that is backed by such research.

I also thank my right hon. Friend the Secretary of State for Health. I recognise that he is unlikely to support the Bill, but the way in which he has deployed the argument about the problems connected with it have made those of us interested in the Bill think long and hard about it and, therefore, to make a conscious decision on its merits.

We all know that there are patients who are adversely affected by negligence, and through no fault of any party. I shall concentrate my remarks on no-fault cases. I recognise that the negligence dimension is essentially a category for the law and for tort. I therefore welcome the proposals that I hear are to be brought forward to speed up negligence claims and I shall listen with interest to what my right hon. Friend the Secretary of State has to say about them. Such changes, if they take place, will be greatly welcomed.

I suspect that most of us have reread the Pearson commission report, in particular that rather damning paragraph which describes the tort system as

"too costly, too cumbersome, too prone to delay, too capricious in its operation to be defensible."

I also suspect that no hon. Member would like to copy the American system under which lawyers go trailing behind the ambulance. No fault arises because medicine is an inexact science and the human body is one of the most complex of organisms. Medicine often operates on the frontiers and we do not exactly know what its results will be. And occasionally, as the hon. Member for Greenwich said, accidents just happen.

One reason why the Bill has attracted support is that it is all very well for those who take their cases to court to be


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