House of Commons Hansard Debates for 1 Feb 1991

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paid compensation of £500,000, £750,000 or £1.2 million, but the haemophiliac case was a prime example of the fact that sums of that size are often not needed to alleviate distress and to rectify problems associated with restrictions on lifestyle. Often £50,000 will go a long way to helping people who have suffered through no one's fault.

I declare an interest in respect of one area of the Bill. I advise two pharmaceutical companies--Upjohn and Reckitt and Colman. I have a slight reservation about this part of the measure. These pharmaceutical products are properly researched, tested and checked under all the mechanisms that we have established in this country. They are properly marketed and used for the purposes for which they are prescribed. We are now part of Europe, not merely an independent country. The House sends me to the Council of Europe, where I sit on the health committee. About six months ago I proposed a motion, with the support of a majority of the countries in the Council of Europe, proposing that the health committee look into a no-fault compensation scheme for drugs and appliances. The motion has now gone to the health committee for consideration.

The Secretary of State rightly makes the point that it is doubtful whether the public sector should pay for problems that arise, albeit through no one's fault, in the private sector. Some hon. Members who are present this morning will remember when we brought in the air travel reserve fund. My hon. Friend the Member for Brentwood and Ongar (Sir R. McCrindle) was much involved in it. It works well because it is based on a levy paid by everyone who takes a package holiday. If someone is stranded abroad the fund is used to bring him home again. The health committee of the Council of Europe--the idea has received some support from the pharmaceutical industry--is looking into the possibility of devising a tiny levy on every scrip in order to create a fund from which payments in no-fault cases could be made.

Although I understand the Bill and broadly support its intentions, I wonder whether enough work has been done in the area that I have discussed, bearing in mind the Secretary of State's anxiety about financing this exercise. I believe that we should allow the Council of Europe to do its work alongside this Bill.

Sir Robert McCrindle : Like my hon. Friend I broadly support the hon. Lady's aims, but I have some reservations about the part of the Bill that relates to the use of drugs. Is not there a danger that, if we pass the Bill, it may become attractive to use proprietary drugs? Although that might suit the two companies with which my hon. Friend is associated, it could also lead to increased expenditure in the health service ; whereas it is generally known that generic drugs are perfectly acceptable for treating many maladies.

Mr. Morris : I am not sure whether I agree. There are slight dangers with some products that are not necessarily generic but are imported from third world countries. There have been claims in cases associated with them, too. I merely suggest that this subject needs to be dealt with and I question whether it should be dealt with in this Bill.

A new federal law has been passed in the United States covering life-saving appliances and the need to ensure that if something goes wrong with a heart valve the company involved will contact the patient through the medical

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profession and warn him that there is a problem. If the Secretary of State catches the Chair's eye later perhaps he will tell us whether the same applies here.

The Council of Europe is doing some work on drugs and appliances. It is an area which is not central to the Bill. I hope that it will be given a Second Reading, but that this area will be dropped so that the hon. Member for Greenwich can concentrate on the Bill's key element--no fault--and return to us when more work has been done on drugs and appliances.

10.38 am

Mr. Jack Ashley (Stoke-on-Trent, South) : I disagreed with a great deal of what the hon. Member for Northampton, South (Mr. Morris) said, but I begin by congratulating the hon. Member for Greenwich (Mrs. Barnes), who has produced a valuable and comprehensive piece of social legislation. If the Secretary of State opposes the Bill that will be disgraceful. This Bill will be a model for legislation that the House will pass in the future. We are not prepared to tolerate this shocking system of gross injustice to many victims. I am very sorry to hear on the grapevine that the Secretary of State intends to oppose the Bill. No sane person can defend the present lottery : fortunes for the few and nothing for the vast majority. It is a shocking and disgraceful system imposing stress, anxiety and injustice.

Under the present system, the multinationals and large organisations almost always win cases against individuals. That is also intolerable. Some of these organisations are--frankly--crooked ; they hedge, fudge and even lie in defence of their interests. I campaigned on these issues before the hon. Member for Greenwich and my hon. Friend the Member for Peckham (Ms. Harman) became Members of Parliament. I have a great deal of experience of these organisations. Some are honest and straightforward and act legitimately but others are unscrupulous. The individual suffers as a consequence of the tactics that they employ.

The House of Commons cannot accept the existing system. It must be changed. The Bill provides a splendid opportunity to change it. If the Government oppose the Bill--I wait to hear what the Secretary of State has to say--it will suggest that they are in alliance with the multinationals to deny justice to individuals who are suffering. I noted what the hon. Member for Northampton, South said about drugs, but I particularly welcome the inclusion in the Bill of a provision relating to the victims of drug disasters. The British Medical Association's opposition to the provision, on the ground that it is too complex, is nonsensical. I do not believe that the BMA understands how essential this provision is. It is vital because of the absurdity that private patients occupy a privileged position compared with national health service patients. The Bill would put an end to that. The provision is also vital because alleged drug disasters are common and widespread. I do not want to blow my own trumpet, but over the years I have been involved in many of these issues and I am glad that the hon. Member for Reading, East (Sir G. Vaughan) is here. He and I worked closely together many years ago on Thalidomide. He did wonderful work for Thalidomide children. We dealt with complex issues

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that cause great anguish. However, the hon. Gentleman may have reservations about the Bill, which we may hear about later in the debate. I have also worked on Opren, vaccine damage, tranquillisers and Debendox and in each case the individual suffered because of the existing system. It is the system which is at fault. I blame the multinational companies in many cases, but they say that they are the victims of the system. Therefore, it is the Government's responsibility to change that system. This Bill provides them with the opportunity to do so.

An important concomitant of the Bill is that it would change the attitude of all Secretaries of State for Health. All too often in the past Secretaries of State for Health have shown a lofty disdain for drug-damaged people. Throughout all the campaigns we have heard formal expressions of sympathy and a disclaimer of interest and involvement. The usual formula is for previous Secretaries of State to say, "It's not our fault, we are not responsible. We sympathise, but it's just too bad." The Bill will put pressure on future Secretaries of State in appropriate cases to sue the drug companies and recoup the money paid to them.

That would certainly cure complacency. The Secretary of State would be transformed into the protector of the consumer instead of being the guardian of the drugs industry, the role which he has filled far too often. It would be a long-awaited transformation. Who knows--the Secretary of State may even end up studying the vital need for tighter regulation of the drug industry's irresponsible marketing and testing practices. Those who have dealt with the subject know how poor some of those practices are. Every patient wants prevention, not compensation.

I understand that the Association of Victims of Medical Accidents does not support the Bill. I deeply regret that. The association, and Arnold Simanowitz who leads it, have done wonderful work for patients, but they fear that the Bill gives a blank cheque to the proposed board which would produce the code of guidance. However, I should prefer a blank cheque for the board--particularly as its proposals would have to be endorsed by Parliament and could be modified by Parliament--rather than expensive cheques for lawyers and frustration for victims, as now.

The association's other major objection relates to the provision of information and accountability. It is right that the association should be concerned about these matters. People are entitled to know how and why personal disasters happen, in addition to seeking compensation. However, the Bill provides a mechanism that would directly increase the provision of information. That should allay the association's anxiety. I hope that Mr. Simanowitz will change his mind.

Equally important is the need to diminish the adversarial system. The hon. Member for Greenwich explained how the Bill would lead to a diminution of the adversarial system. In the past, the medical profession has tended to close ranks to try to defend colleagues. That is fine in the army and in universities and colleges. I have done that myself. We all defend colleagues out of a common sense of loyalty. That is admirable, but doctors who attempt to defend colleagues when they know they are in the wrong are greatly to blame for their actions.

If the Bill were passed, the medical profession would no longer be encouraged to close ranks. Far fewer of their colleagues would have to be dragged before the courts, if the Bill became law. There would no longer be the need for secrecy, collusion and sometimes even distortion to defend

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colleagues. The medical profession would more readily appreciate its responsibility to protect patients rather than colleagues, regardless of whether they are innocent or guilty.

The General Medical Council is already rethinking its disciplinary procedures. There will be substantial pressure on the GMC to get it right. The weakness of the NHS complaints procedure will be exposed by the Bill. It must be made effective. I remember hon. Members falling about with laughter when I explained some years ago how the GMC proposed to deal with complaints. It intended to give to consultants against whom a complaint had been made the right to veto who was to examine the complaint.The GMC was defending an absurd system, but now at last it has changed its mind. I hope that the new system will be both speedy and realistic.

The Bill will not solve all the problems. If enacted, the central difficulty will shift from proving negligence to proving causation. I appreciate and understand the exchanges between the hon. Member for Greenwich and other hon. Members during her speech. We cannot shirk the issue. Causation is always difficult. In the campaigns that I fought, including those on Thalidomide and Opren, causation was at the nub of the matter.

There can be heartbreaking aspects. After we won the thalidomide campaign and were awarded millions of pounds in damages from the company, an x list and a y list was drawn up. The x list comprised people who had definitely been damaged by Thalidomide. The hon. Member for Reading, East will recall that there was also a y list, comprising the people who probably had not been damaged by the drug. I fought savagely against the Distillers company, but I accept that the people on the y list should not receive any compensation. It should be a fundamental principle that compensation is paid only if causation is proved.

Sir Gerard Vaughan (Reading, East) : On Thalidomide, the right hon. Gentleman may recollect that both he and I informed the House that the courts had recommended that adjudicating panels be established, to ascertain who should be compensated and who should not. The company agreed that the panels should have the final say and that there would be no argument. The membership of those panels--which I set up throughout the country--included lawyers, but when it came to allotting compensation, they went over every single detail with the families yet again, causing them great hardship and anxiety. The legal attitude adopted in those cases was disgraceful.

Mr. Ashley : I vividly recollect the panels of which the hon. Gentleman speaks, and he played an important role in that controversy. I accept the relevance to the Bill of that incident, but the fact remains that causation is crucial.

If there is no causation, no compensation should be paid. That is only fair and reasonable. It would be unfair and unreasonable to demand compensation for negligence when no damage has been caused. The objections to the Bill have no validity. Of course it does not cover every contingency. No legislation can do that. But it does represent a major advance for the House. If the Minister opposes the Bill, I shall be very sad and angry. If the Secretary of State acts like King Canute and tries to turn back the tide, he will find that he is trying to turn back the tide of public opinion. More than that, there comes a time for change with everything, and when it

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arrives nothing can stop it happening--not even Governments. The Bill will give justice to people who are horrendously, and in some cases appallingly, denied justice under the present system. Reform is long overdue. The Bill proposes reform, and I hope that the House will support it.

10.54 am

Sir Gerard Vaughan (Reading, East) : The House congratulates the hon. Member for Greenwich (Mrs. Barnes) on the way in which she presented her Bill and on the enormous care and thought that has gone into it. None of us can be happy with the present situation, which is grossly unsatisfactory and unacceptable in a modern society. The matter needs urgent attention, for all the reasons that the hon. Member for Greenwich advanced.

I am deeply concerned about the enormous increase in defensive medicine in recent years. Few of us are aware of the extent to which it has developed and of the damage and dangers that it brings for patient care. Thousands of investigations are undertaken at great cost in terms of money and skilled time. Both would be better directed at reducing waiting lists, rather than being expended on investigations that doctors know are unnecessary but which lawyers and patients with high expectations think are needed.

I am concerned also about the number of X-rays undertaken for purely legal purposes. Every person who receives an injury to his chest thinks that he should have a chest X-ray, not realising that fractured ribs do not show up on X-rays for the first few days. The same applies in respect of suspected spinal injuries. Spine X-rays can be very dangerous in the case of pregnant women in particular. The present situation is, for a whole range of reasons, intolerable. The right hon. Member for Stoke-on-Trent, South (Mr. Ashley) spoke about Thalidomide cases. More recently, there were the appalling cases involving haemophiliacs. Only the sensitive awareness and action of my right hon. Friend the present Secretary of State resolved a public disgrace.

For all these reasons, I am deeply sympathetic to the Bill, but I have reservations about it. I fear that it will increase bureaucracy, litigation and the amount of defensive medicine. Few people realise that it would also lead to a reduction in the compensation paid in some cases, because of the application of overall rules. Although the Bill is of immense service in bringing the subject of medical compensation to our attention, I hope that it will not receive a Second Reading. I shall not vote for it.

Mr. Win Griffiths (Bridgend) : Although the hon. Gentleman has certain reservations about the Bill, would not it be better to allow them to be dealt with by amendments in Committee?

Sir Gerard Vaughan : That is a reasonable argument which I considered carefully, but I reluctantly dismissed it. My right hon. Friend the Secretary of State should not shelter behind a few minor alterations or changes to the present system. Instead, he should accept that it is unsatisfactory and undertake to establish a proper working party to investigate the whole area and make recommendations, which my right hon. Friend should then implement speedily. The present situation cannot be allowed to continue.

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10.57 am

Rev. Martin Smyth (Belfast, South) : I appreciate the opportunity to support the Bill. Given the reservations that have been expressed, it may be difficult to persuade the Government to introduce the kind of legislation that some right hon. and hon. Members claim is really needed. It is not enough for the Government to oppose the Bill unless they have an alternative that will redress grievances. Therefore, I hope that the Bill will receive a Second Reading, so that there can be further discussion and positive improvements.

Although I am not keen on separate Northern Ireland legislation, I thank the hon. Member for Greenwich (Mrs. Barnes) for taking the precaution of including Northern Ireland in the Bill, so that by the negative order procedure, its provisions could be extended to Northern Ireland--where the problems described today have been experienced.

The organisations that support the Bill include the Spinal Injuries Association and the Royal Association for Disability and Rehabilitation. In a perceptive article that appeared in January in The Independent and was headed

"Why medical negligence should be no one's fault"

a consultant in radiotherapy and oncology gave several examples showing why changes should be made and concluded :

"Such sad examples highlight not only the inefficiency of the present system, but also its immorality and its antipathy to what most of us would regard as natural justice'. It is also absurdly expensive. Few members of the public appreciate that lawyers and medical experts may well expect to be paid at least £100 an hour for this work--a sum that ensures a fat income for the growing army of medical negligence lawyers, yet could perhaps be better spent to benefit patients themselves."

I am not criticising the medical fraternity and the professions that supplement medicine. As one who owes more than one debt to careful medical provision, I pay tribute to the bulk of the profession who are careful and seek to serve their patients. None the less, as the hon. Lady and others have admitted, the medical profession is made up of humans, as I discovered as a young man many years ago when my mother went into hospital for an appendix operation. I admit that perhaps the attitude of the public to the profession has changed somewhat over the years. We no longer naturally think of them as demi-gods, who have all knowledge and all experience and are therefore to be obeyed. When my mother was being prepared for her operation she discovered that the doctor was preparing the wrong side. She asked, "Doctor, is that the right side?" To which she got an expletive and, "Do you think that you can do this job better than me?" As a woman of 19, her response was, "No, doctor, I just thought that the appendix was on the other side of the body" at which there was another expletive and the doctor said, "I thought that you were in for something else." If she had not spoken out when she did God alone knows what would have been the result of that operation. Therefore, I believe that there is a case for compensation for mishaps, without going into the argument about negligence.

I shall briefly mention the poignant case of a dead constituent of mine who had a traumatic experience for five years, as she sought to have her case properly examined. On 17 September 1985 she entered hospital for a minor operation the next day, expecting to be discharged

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on 19 September. She was discharged a little more than three months later, on Christmas eve. A consultant, speaking to students around her bed said :

"This is what an anaesthetic can do to a patient."

However, we recognise that doctors differ and patients can die. A consultant neurologist was called in to examine her and said : "I am sure this is a depressive illness with hysterical features." He prescribed anti- depressant tablets. A senior registrar said that she was

"psychologically disturbed and had a morbid personality." The first consultant did not believe any of those diagnoses, but did nothing about it and the hospital refused to let a consultant from another hospital see her files. The report took a long time to come through--until 1988. My constituent had to take early retirement through ill-health, and a dramatic change of lifestyle and a low pension.

The solicitor whom she engaged to look into the case said : "It would be extremely hard to prove breach of duty of care for patient.' "

"Negligence" and "breach of duty" have to be proved. The consultant neurologist later said to her :

"I'm all in favour of patients knowing what we doctors write about in their files, but I think in your case it was a mistake that you found out."

There was a failure to follow through the formal procedures. There was an element of doubt, but it was not sufficient to allow her case to go to a hearing. The independent consultant, to whom she had been referred, gave an ambiguous report because he did not have the notes of her operation. That is a sort of defensive medicine, too--we do not like to have our notes revealed to other consultants.

As a result, my constituent was annoyed about the consultant's approach and wrote a letter setting out her anxieties. His response was that she had made a number of libellous statements. The big hammer of the profession came down on a patient seeking her rights. In a letter of 7 March 1990 I was informed by the medical administrator of the hospital--to whom I had written to try to find out some information to help me when representing her, and to discover what was going on and why there were delays--that he could not reply because a writ of summons had been issued on 6 September 1989.

My constituent died in the late autumn of 1990. She was 56 years old. I knew her from my early days as an assistant minister in a congregation. I knew her family and knew what calibre of person she was. Even during her illness she spent any time that she could supporting others who were in need and on research for medical provision. She was not depressive, but was being depressed by the medical profession, as it was defending itself instead of helping a person in need. Therefore, I support the Bill.

11.7 am

Sir Michael McNair-Wilson (Newbury) : I congratulate the hon. Member for Greenwich (Mrs. Barnes) on her success in the ballot for private Members' Bills and on bringing forward such a potentially important measure. I also thank her for asking me to be one of the supporters, even though I had not seen the Bill when I accepted. She knows of my interest in the subject and I was grateful for her acknowledgement of it.

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My interest in this subject dates back to a visit by a constituent soon after I became the Member of Parliament for Newbury. He told me about an operation for a cleft palate on his baby son, which went wrong. When he went to collect his son he collected a baby with only one foot. He came to see me because the lawyers representing the health authority were contesting a payment of compensation for a mistake made by the anaesthetist. The letter that they sent my constituent was unbelievably high handed and it was only due to my personal intervention on his behalf that we persuaded the health authority that if there was a case for compensation, this was it. I am glad to say that he got compensation.

That case left a mark on me and subsequently, during long spells in hospital, I had some personal experience of medical mishaps, which perhaps merely served to strengthen my view that all is not well with the present system of compensating for negligence.

I have referred to the measure before us as a potentially important Bill because, as it is drafted, I am not sure that it could be a proper alternative to the present system, where proof of medical negligence produces compensation. Certainly the victims of a medical accident should receive compensation speedily.

I am afraid that I do not agree with the hon. Member for Greenwich that the no-fault route is the right one to take. There has to be accountability. One cannot talk about accidents in which no one is to blame. That is not the real world. The hon. Lady told us that she envisaged safeguards in respect of what she described as reprehensible behaviour. I wish that she would spell that out. I must tell her that I shall have some difficulty in supporting the Bill today if she pursues the concept of no fault. The medical profession has no more right than any other profession to expect to be exempted from explaining its actions.

Mrs. Rosie Barnes : Let me make it absolutely clear that I feel that accountability is vital. It is true that I maintain that there may be genuine accidents in which there has been no fault but in respect of which someone may be compensated ; I am sure that the haemophiliacs who have been compensated fall into that category. But wherever there is evidence of behaviour that is inappropriate, careless, reprehensible or whatever, I would certainly intend the appropriate measures and follow-up to be undertaken.

I have given a great deal of thought to accountability. I am sure that the hon. Gentleman knows that it is a difficult area, because there is a debate about whether the matter should fall within the ambit of the compensation board or should be handled separately. I felt it necessary to include the no-fault provision because it is not properly addressed anywhere else, but I assure the hon. Gentleman that I take the matter very seriously.

Sir Michael McNair-Wilson : I am grateful to the hon. Lady. Clause 1 is so widely drafted as apparently to provide compensation for any injury suffered due to mishaps during national health service treatment, although I admit that clause 2 qualifies clause 1 in its definitions of a mishap and of an injury. However, I am not easy with either. I am not a lawyer, so I do not know the legal significance of the words in clause 2 :

"a person suffers injury', where as a result of a mishap in National Health Service care and not as a foreseeable and

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reasonable result of that care or the person's pre-existing condition, he requires in-patient hospital treatment for 10 or more days ; or is prevented from engaging in normal activities" - -whatever they may be--

"for 28 or more days ; or suffers a reduction in his life expectancy."

Perhaps each of those reasons for claiming compensation would not be a matter for considerable legal argument, but it does not strike me that way. For example, can anybody say with any certainty how long any of us is likely to live?

If the Bill reaches its Committee stage, clauses 1 and 2 will need to be discussed and, in my view, heavily amended if we are to have in legislative form a real alternative to what is currently in place.

Mr. James Couchman (Gillingham) : Did my hon. Friend make a Freudian slip in omitting to mention clause 2(5)(d), which refers to a person who suffers "significant pain, disability, harm" and so on? That is the provision which worries me most because

"significant pain, disability, harm, or distress or significant loss of amenity"

are perhaps the "injuries" that are most ill-defined and most difficult to define.

Sir Michael McNair-Wilson : I was trying to use shorthand for the various reasons, but I entirely accept my hon. Friend's point and could talk about it from personal experience.

I wish that the hon. Member for Greenwich had gone for a tighter definition than the one that she has chosen. I commend to her the Finnish Patient Injury Act 1986, which set out three grounds on which compensation would be paid :

"1. that an injury probably has arisen as a consequence of examination, treatment or any similar action, or neglect of the same.

2. has been caused by infection or circumstances connected with inflammation which probably has originated in the examination, treatment, or similar action.

3. has been caused by an accident (a) connected with examination, treatment or similar action, (b) occurred during ambulance transportation or in connection with fire or other damage to treatment premises or treatment equipment, or (c) resulting from a defect in medical equipment or in a medical care device." The clearer that we make the possible grounds for compensation, the less disappointment there will be for those seeking it, and the simpler will be the task of those charged with deciding whether compensation should be paid. The fact that approximately 60 per cent. of those hoping for compensation under the Swedish and Finnish patient injury legislation actually get it shows how easy it is for people to assume that a compensation scheme covers every mishap. It cannot and it will not because being an in-patient in hospital is a hazardous business : hospitals are inevitably repositories of infection and disease and their hygiene and services are not always what they should be. I am not sure that I would want to be treated by a junior doctor at the end of his 90-hour shift. A recent survey carried out by Liverpool university showed that one person in 10 admitted to NHS hospitals acquired an infection unrelated to the reason for admission. As someone who has had to have three ribs removed as a result of septicaemia contracted in hospital, I am aware of the risk, although at present neither I nor any of the patients who pick up infections are eligible for compensation.

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Another report, this time by specialists, pointed out that about 2,000 people injured in road crashes and other accidents die every year because of mistakes, misjudgments and inadequacies in hospitals. That is an appalling number and shows that medical accidents are rather more commonplace than most of us care to admit.

Perhaps this is the point at which I should explain what I mean by a medical accident rather than negligence. I choose two definitions. The first, given in the House of Lords in 1904, defines an accident as an unlooked for mishap or untoward event which is not expected or designed. The second says that an error of judgment is not necessarily negligence. Negligence occurs when a professional person falls below the standard that can reasonably be expected of him. Thus, if we rely on negligence as the sole reason for providing compensation, many people who have suffered medical accidents will lose out. That must call into question the Government's attitude to compensation as we know it.

As I said, I commend the hon. Member for Greenwich, because, like a number of us on both sides of the House, she has recognised that the present system for compensating the victims of medical accidents is unfair, discriminatory, unreasonably expensive and unconscionably long winded. What is more, far from guaranteeing that every NHS patient can pursue a claim for compensation if he or she feels that he or she has been a victim of a medical accident, we have constructed a system for the use of the very rich, who can afford legal fees, and the very poor, who can get legal aid, but which is too expensive for the majority of us to pursue through the courts. That is the first and overriding reason why we need a change. The second need is to speed up a process that may suit lawyers, because of its protracted and expensive nature, but which does nothing to enhance the idea that, under the national health service, compensation should be available speedily for those who have suffered medical injury as a result of inadequate treatment.

The hon. Member for Greenwich has encapsulated her solution to the problem in the Bill. I support the spirit of what she is trying to do, even if I do not support everything in the Bill. A new compensation scheme would need a compensation body to decide who gets what. For some time, however, I have held the view that, before a claim goes before a medical injury compensation board, it should be passed by some clearing house, such as the national health service ombudsman, as being a prima facie case for compensation. I know that at present the ombudsman is not allowed to investigate clinical complaints. I have always thought of that as a restriction which has made his job much less valuable than it should be. I would give the ombudsman a larger staff and the task of being the clearing house for the board. Can we seriously contemplate a compensation scheme under which no attempt is made to discover whether that for which we are providing compensation was the result of negligence or simple human error? As I have said, I do not think so. By all means, let us pay the victim of a medical accident whatever compensation the board judges to be fair--and let us compensate quickly, not five to seven years after the event, as happens at present. But let us not walk away from the need to discover what went wrong and

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whether anybody was to blame. To allow that to happen would be to place the medical profession in a favoured and unreal position in which it was in no sense accountable for what it did.

That would do nothing to improve standards. After all, as well as speeding up compensation, any new scheme should seek to make doctors and hospitals more willing to be open about the way in which they work. If compensation is to be paid as of right, the question of accountability will no longer embrace the question of liability. That would be a considerable gain and it could end the wall of silence that currently prevents hospitals from offering an explanation of what has happened to a patient or commenting on a case, for fear of admitting liability. As the hon. Member for Greenwich said, an explanation would be much appreciated by so many people who just want to know what happened.

I ask my right hon. Friend the Secretary of State whether, if the Government are as opposed to the Bill as they appear to be, they agree that the present system has serious shortcomings--they were graphically illustrated in a number of programmes on BBC 2 last autumn which were aptly entitled "Raw Deal"--which must be remedied. Are they aware of the increasingly vocal worries that are being expressed not only by those who cannot afford to seek compensation, but by professional medical bodies such as the Royal College of Physicians and the BMA, that the accountability of the NHS and those who work in it to those whom they look after is governed by the cost of lawyers' fees, despite the fact that the NHS is a service free to everyone at point of delivery?

In the light of that concern and the concern expressed in letters to hon. Members from bodies such as the National Spinal Association, the National Cancer Council, Mencap and the Haemophilia Society, what proposals do the Government have to improve matters? I know that they argue that in 1978 the Pearson report came out against a full-blown compensation scheme, but that was 12 years ago, when such schemes were in their infancy. Is not it time that the subject was recognised in the light of experience? Is not it time for a fresh inquiry to consider the subject of medical negligence and accidents and whether, if the present system stays in place, it will be able to meet the needs of those who may be victims of mishaps?

Quite apart from the intention of the Bill, which has all-party support, is not there a new EC directive that will become effective in 1993 and will place the onus on the doctor to prove that he has not been negligent, so upsetting the present approach? That could lead to defensive medicine and increased cost.

I know that the Government are worried that a new compensation scheme would be enormously expensive, and much more so than the present system. I can understand their worry and I find the King's Fund estimated that it might cost about £235 million a year more convincing than the BMA's £100 million. It will depend on the cost of setting up the scheme and on the size and number of awards that the compensation board makes.

I would not envisage compensation being given as huge lump sum payments, as at present, but as annual payments where a chronic condition is being compensated and modest lump sum payments for one-off accidents. Surely what matters is that we have a demonstrably fair and workable compensation scheme for the statistically small number of people who are the victims of medical accidents

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within the national health service and who currently miss out because we rely on the outmoded civil law of tort to provide compensation.

I recently heard my right hon. Friend the Secretary of State talking of his child's treatment by the national health service and of his attitude to that treatment. He agreed that when it is one's own child, the NHS does not lend itself to becoming a health service that should be constrained solely within business disciplines. I agree with him. I add only that when one has been the victim of a massive drug rash, septacoemia or some other mishap that has forced an unwanted and unexpected hospital stay, imposed problems on one's family and possibly jeopardised one's employment, one is inclined to expect a measure of compensation by right as well as statutory sick pay and sickness and invalidity benefits.

I have referred to the statistically small number of people who are victims of medical accidents. I think that I am correct in that statement, but one of the more curious features of the subject is that the Department of Health does not collect figures centrally, so none of us can be certain how many claims there may be. When I wrote to the chief medical officer asking for guidance, he replied : "The only relevant figures which we collect centrally for the hospital and community health services provided by health authorities are the numbers of formal written complaints whether or not they are wholly or partly clinical."

That is a strange admission and it makes the Government's hostility to the Bill even harder to understand, unless there is a principle involved that has not yet been stated. It certainly makes it impossible to know the statistical basis for their estimated cost of setting up a compensation scheme. I hope that they will give proper consideration to the Bill's suggestion for a national database so that those figures can be made available.

We hear that the Government intend to have an approved list of solicitors who specialise in negligence, who it is hoped will speed up the present legal process. We know that the Lord Chancellor has brought forward proposals for a no-win, no-payment approach to these cases. That has merit if one wins, but if one loses who pays the defence costs if the case is not fought on legal aid?

I do not deny that reducing the time within which compensation cases come to court would be helpful, but what of their cost? Under NHS indemnity, there seems to have been a saving in medical protection insurance premiums because the health authority bears the whole cost of any litigation and if it loses it pays out of its annual regional budget. That system must make the life of a regional chairman even more difficult than it has always been, because a big award may mean that he has to cut expenditure on new drugs--I am thinking particularly of Erythropoetin for kidney patients--or even close wards to balance the books. Surely that should not be the price that every other patient must pay for the negligent behaviour of a small number of his medical staff.

Is not it time that consideration was given to the make-up of compensation awards? If a lump sum is being provided, should it contain a figure for loss of earnings as well as a theoretical multiplier? These are matters for a fresh inquiry.

I must repeat that NHS indemnity does not sound like a satisfactory long- term approach to the problem, and I shall give just one illustration. Recently, I heard of a case in Oxford where the authority settled out of court because it was advised that it might not win and that, if it did not,

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costs would be awarded against it, which would have made the case far more expensive than settling out of court in the first place. That is not a good precedent. All these measures seem to be tinkering with a system that is less and less able to meet the needs of patients for whom the NHS has been a personal tragedy. The haemophiliacs illustrate that.

That is why I believe that a new approach is needed and why I support the principle behind the Bill, even if I have reservations about its detail. If the Government will not allow it to go further, at least let them recognise that it represents a genuine concern that patient rights have not been given proper attention in the past and that in a reformed national health service the clamour for more consideration to be given to the users of the service will not go away.

11.37 am

Mr. Tom Clarke (Monklands, West) : The whole House will have welcomed the return to our proceedings of the hon. Member for Newbury (Sir M. McNair-Wilson) and the particularly robust speech that he made.

I should like to think that the whole House would welcome what I regard as a splendid Bill, presented by the hon. Member for Greenwich (Mrs. Barnes) in an excellent speech. I cannot recall a speech--the House will understand that I have followed private Member's Bills carefully in recent years--that had been more methodically researched. The hon. Lady was able to reassure hon. Members who wanted to be reassured about points that they raised.

The hon. Lady said that the Bill's aims are modest, but none the less it will be a major step forward for people who should benefit from it. I thought that the House would welcome her response to the hon. Member for Newbury, when she made it quite clear that the issue of compensation did not remove the need for accountability. If, for example, criminal acts take place within the health service, the law takes its course. If there are other procedures responding to other matters within the health service, issues will still be dealt with as they are now even if we introduce the issue of compensation. Some of the arguments so far, either in interventions or in speeches from some Conservative Members, disappoint me in the extreme. Hon. Members may have some criticisms of the Bill. I have one or two very mild criticisms, as the hon. Member for Greenwich will appreciate. However, the procedures in this House and in another place should mean that if we accept the principle--and there seems to be overwhelming support for the principles in the country--in due course we can, in Standing Committee and elsewhere, address ourselves to some of the issues. If that is not the intention of some hon. Members, they are nit picking, which is most unworthy in terms of some of the injustices in the national health service today.

Mr. Gale : No speech this morning suggested that the present system is entirely or in any way satisfactory. I doubt whether any hon. Member here does not agree that the hon. Member for Greenwich (Mrs. Barnes) has done a tremendous service in promoting the Bill. However, some of us believe that the long and short titles of the Bill do not permit the necessary changes and that is why we look to

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