Examination of witnesses (Questions 100
- 120)
WEDNESDAY 14 APRIL 1999
MR GORDON
HEXTALL, MR
ALAN BURNHAM,
and DR E ANNE
BRAIDWOOD
Mr Dismore
100. This is the point I was making. Part
of this study is to identify some of the problems and if new legislation
is needed or new statutory instruments are needed you should be
saying we want to see these things changed. I am not saying it
is like dragging eye teeth out of you but we are putting these
points to you and there does not seem to be any proactive drive
towards change to take the Agency forward. All of the things I
have been raising with you in earlier questions are things I would
have thought you would be thinking about yourself. The way you
operate within the service fraternity seems to be a very closed
world and you are not looking more broadly at some of these other
issues or drawing lessons from what other parts of the social
security system have been doing, for example. Every week we see
great chunks of social security statutory instruments coming through,
but very little about the War Pensions Agency or a drive to change.
Is there any forward strategy to look towards changing some of
these very old ideas and policies?
(Mr Hextall) Two things. One is I think there
are two aspects of driving forward change. I would challenge anybody
to be driving forward change any faster than I am doing.
101. That is organisational change not policy
changes.
(Mr Hextall) Operational change is what I am driving
through. I understand and accept that there are policy changes
that relate back to when the policy was originally developed.
I believe the means of achieving this policy change is through
the Ministry of Defence review of the service compensation scheme.
In the memorandum we said it was announced in December 1998 and
we should have said 1997[4]
when that review was announced by Dr Reid and it is really that
review that is looking at simplifying the compensation scheme
for the future.
Mr Dismore: I want
to come back to that later.
Mrs Humble
102. Can I come in on that because I did
notice the deliberate mistake there? I recollected last year being
told first of all that the MoD review was going to be reporting
in the summer, then the autumn and now it is going to be some
time or other in the future. I do think there are opportunities
here to look at the whole of the picture of compensation schemes
for ex-service men and women, how the existing war pensions fits
into that and certainly I do know that the local union, the Public
and Commercial Services Union are very keen to look at that as
a total picture and say here we have expertise and staff who are
dealing with these sorts of cases. Can we use them in perhaps
new and imaginative ways? How can your staff at Norcross take
on new responsibilities that might arise out of this review and
look at a whole new way of delivering a service? I want to know
how you are involved in that and whether as well as contributing
to the Prior Options Review you are also contributing to the MoD
review and saying, "Look here, you have got this group of
people who have got all this expertise, which is surely relevant
to what you are doing, so how can you best use us?" There
are opportunities for the future.
(Mr Hextall) Yes I agree and the MoD review is
an MoD led review. Our role has been to inform that debate in
the same way that we are informing the Prior Options debate because
we do not want the new scheme to recreate the complexity and confusion
that we have been talking about that arises from the existing
scheme so our role has really been to inform that debate and that
emerging policy and procedure review.
103. I know I am getting frustrated about
all of this. We are waiting for the Prior Options Review, waiting
for the MoD review, waiting to see what is going to happen. What
sort of timetable are we looking at?
(Mr Hextall) The same timetable you have described
is the only timetable I have got. It was announced in December
1997. That was not a deliberate mistake in the memorandumit
missed the proof reading. Yes, when I joined it was going to be
imminent and I am still told it is imminent so we are in the hands
of the MoD as far as that is concerned.
Mr Dismore
104. I was going to come back to that a
bit later on, I think I probably still will do. Before we leave
the overall picture, can I be assured that the input you are putting
into that review is not simply organisational and operational
but is looking at some of the fundamental policy issues like the
one I mentioned and a few more I will be raising shortly and is
looking at the whole picture?
(Mr Hextall) Absolutely. I think the main focus
for the first part of the review has been policy issues and developing
policy. We have been feeding in probably since much later than
that anyway as far as the administration of the scheme is concerned
and I do know that they have been examining comparisons with other
compensation schemes. You mentioned the fire service earlier and
I do know they have been making comparisons with other schemes
in the development of this new one.
105. Can I be clear about how you deal with
cumulative disability where part of the disability is due to war
service and the other is wholly unrelated? If I could put that
in the context of the industrial injuries scheme. If somebody
has lost an eye already and then they lose a second eye in an
industrial accident their assessment is based on the fact that
they are totally blind. That is taken into account as the level
of disability rather than the fact they have just lost one eye.
Would you approach it in a similar way?
(Mr Hextall) It is not as straight forward as
that. Could I ask Dr Braidwood to respond?
(Dr Braidwood) I think what you are describing,
Mr Dismore, is the principle of paired organs which is also called
greater disablement.
106. Not necessarily in that context but
more generally how you deal with the two linking?
(Dr Braidwood) The particular issue you discussed
was noted very early on in the life of the scheme and in 1947,
the Hancock Committee set out an approach to that which very much
encompasses what you said. If an individual has lost an eyethis
is extremely unlikely in a service setting because of the need
for people in the services to clearly be physically fit. So the
scenario of a man going into service with one lost eye is not
one that we see. Should an individual lose an eye as a result
of service and subsequently lose the other eye as a result of
some non-service related disablement then there are special rules
which apply to the assessment of disablement. There is an approach
called paired organs and there is another approach which is to
recognise greater disablement. In general, the other principle
which is relevant is that case law, established in respect of
causation. Where you have a service related cause as a possible
cause of the claimed disablement, although it may not be the only
cause, then that is enough for the claim to succeed. A cause is
the cause.
107. For example, if we were looking at
a back injury and then a growing problem with a back injury through
the ageing process, how would you treat that? Would you look at
the cumulative effect of the disability or just the bit that related
to the service?
(Dr Braidwood) I think, if I may, it is rather
difficult to do it without individual case-specific facts because
that is very pertinent. The legislation does lay out how assessment
is to be carried out. This is by comparison with a normal, healthy
person of the same age and gender. So there is no general increase
in disablement as a result of ageing. That was also something
covered by the Hancock and McCorquodale Committee reportsthat
is not to be included. It may be that the attributable condition
itself deteriorates and it would be a matter of looking at the
particular case specific facts.
108. If somebody had a back injury in service
or had a bad back to start with and had a worsening of the back
in service or the other way round had a back injury in service
and then later had another back injury, how would that be treated?
(Dr Braidwood) You may have an injury which is
attributable to service. If the back injury is attributable to
service I think it is really rather inappropriate for me to give
a sort of general guideline because the process is to look at
individual case-specific facts. With an attributable injury it
is very likely that you have to focus upon that disablement due
to the attributable condition. You will be accepting that major
responsibility for the disablement is likely to be service linked.
If, on the other hand, a person comes in with a congenital problem
and there is an aggravation of that after the date of service
release, then any worsening of that condition, you have to be
very careful in assessing the evidence to assess only that part
of it which is due to service.
109. So you would not reflect the fact that
the top-up part that relates to service results in a greater degree
of disability compared to somebody who does not have a bad back
to start with or later?
(Dr Braidwood) You might depending on the case
specific facts.
110. Is this similar to the industrial injuries
scheme?
(Dr Braidwood) It is not entirely similar but
it is broadly the same.
111. I want to talk about this in the context
of noise induced deafness because I have done quite a lot of work
on deafness in the industrial sphere and my understanding of noise
induced deafness is that whilst you may have presbycusis or something
like that which would give you a certain degree of deafness inevitably,
either later or wherever in your life, if you have noise induced
deafness on top of that that may be due to your industrial service
or in this case war service but the cumulative effect of the presbycusis
plus the amount attributable to your service is far greater than
the small part that is actually attributable in its own right.
One of my concerns about the way that this whole debate around
noise deafness has been treated is that there has been a false
distinction drawn in my view between the attributability of the
percentage hearing loss in dBA and the actual level of disability
that is the result of that. How do you answer that point?
(Dr Braidwood) I would like, if I may, to provide
you with a note.[5]
If I could just say quickly (because it is as you rightly say
a very complicated argument) the war pensions scheme sets out
clearly that war pension is awarded for disablement due to service.
The glossary attached to legislation defines disablement and the
definition is, "physical or mental injury or damage or loss
of physical or mental capacity". I would ask you please to
note that definition. The definition, as we said, like the rest
of the legislation is very old and all the words "disability",
"handicap", "disablement" have both a general
meaning and what has become a much more particularly specified
meaning. Largely as a result of the World Health Organisation
who in 1980 established a glossary of definitions in order that
people in relation to medical legal work and perhaps more importantly
in relation to rehabilitation, should use common terminology.
By their definition the war pensions definition of "disablement"
is very closely aligned with "impairment". It is different
from "disability" which is a much more "individual
to the person" concept. That means then that the War Pensions
Scheme focuses on injury done or detriment done. It has always
been the policy (and indeed the legislation) to focus upon that
and to consider in the assessment of it not the individual effects
on the individual who had suffered the injury, but rather the
effect on the median. Disregarding matters such as whether he
was a concert pianist or a clerk in the DSS, these sort of individual
circumstances. Because clearly while it is absolutely right that
the impact of the same injury on any individual is likely to be
unique to that individualthe scheme is unable to address
thatit looks at disablement, which is impairment. Incidentally,
as you noted, part of the complexity of the Scheme, and Mr Hextall
has said it is modern in a way in respect of the welfare Scheme,
is that it is also modern because the scheme predated the welfare
state and the whole concept of a Social Security scheme because
it has all kind of add-ons. It has a set of allowances which we
would now recognise civilian equivalents of, which were designed
to look at the disabling effects of the injury done, added to
the principal disablement benefit, which would be given to those
pensioners who were most severely disabled by their attributable
condition or their aggravated condition. That is the bit that
looks at disabling effects. When you take impairment in relation
to hearing loss you are talking about hearing threshold shift.
Much of the debate that has gone on recently first of all internally
in the Department in terms of the literature and getting expert
opinion, provided evidence that if you take noise injury deafness
it produces in some cases, not all because there is an individual
susceptibility to it, noise induced permanent sensorineural hearing
threshold level shift. When that noise injury (which for our purposes
is at the end of service) disappears, that does not increase.
That is our present understanding and that was confirmed by the
expert review. The other point which is important which is one
you alluded to was, "Okay, we can accept that, but what happens
when the person gets older or indeed has a virus or atherosclerosis
or something else that might affect his hearing?" The evidence
on that point, too, was examined carefully. In the domain of impairment
or disablement, as defined in legislation, the conclusion was,
that present evidence, and one has to always couch it in these
terms, is that a reasonable doubt is not raised by reliable evidence,
that deafness due to noise induced hearing loss, sensorineural
hearing loss due to that and that due to age are more than additive.
That being so, we have to concentrate on the service attributable
noise injured related deafness and are unable to give account
for any other part of it.
Chairman: Can I make
an appeal on behalf of the shorthand writer? For somebody who
does medical science between two experts it is fascinating but
I am concerned that the shorthand writer might be struggling with
some of these medical terms.
Mr Dismore: I would
like to probe this in more detail but we have not got the time.
Mr Dismore
112. There are criticisms of the reviews
that have taken place of which I am sure you are aware. The one
point I would raise is the burden of proof argument which we explored
earlier today and my concern is that the burden of proof test
has not been properly applied to the way that we are looking at
medical evidence on noise induced hearing loss. I know the committee
which chaired this came forward with very strong conclusions but
certainly internationally there is evidence that points the other
way.
(Dr Braidwood) May I just say as part of the present
review that has just taken place we did request some international
comment. We were not ablethis was a very sincerely conducted
exercise I assure youto identify any such evidence. I would
be very glad to know of it, that is part of our approach to this.
No line is drawn under noise induced hearing loss or indeed anything
else and any new evidence would be very helpful.
113. I understand the British Legion are
in the process of obtaining it.
(Dr Braidwood) That is fine and we will be very
happy to look at that.
114. Rather than go into that in more detail
perhaps I can go on to some of the bigger picture and that is
the relationship between the separate division of the War Pensions
Agency in the particular context of some of these difficult cases.
I was going to try and explore Gulf War and radiation damage cases
with you as well, both of which are quite important and very problematic
for constituency members when we get these cases brought up with
us and more generally as policy issues. The finger starts to point
back to the medical evidence and how that is collected. Can you
give me a quick rundown in relation to that general point?
(Dr Braidwood) May I just say that I would be
very happy indeed to provide you with background information on
the two specific topics you mentioned. I agree that this is not
easy. When this scheme first came into being medicine was an easy
subject. Things were constitutional and therefore could not possibly
be service related and they were not attributable. That probably
was the intention of the scheme, that the awards did relate to
damage done in war. Since then medicine has moved on. We have
learned much more about the interaction of the constitution and
environmental influences and the whole business has become more
problematical. The function of DSS medical policy advice, in terms
of Mr Hextall's war pension Medical Advisors, is that in addition
to decisions in the scheme being made within the law and within
any policy, (of which there is not very much that relates directly
to medical matters), decisions need to be medically sound and
as far as possible reflect generally accepted medical understanding
of conditions. DSS medical policy, which is headed by the Chief
Medical Adviser to the Department, has a responsibility for writing
guidance, advising on individual cases, providing medical appendices
which aim not to provide a Departmental point of view but to provide
a general understanding, a consensus, a reflection of that as
it is currently understood at any particular date. It should reflect
contemporary general understanding, looking at both arguments
which would be in support of environmental cause, for example,
and that against it and coming to some kind of properly informed,
conclusion by literature, search, by consultation with experts
within the United Kingdom and indeed well beyond that in reaching
those judgments. These are of course in the public domain.
115. I have seen a lot of that evidence
as well but what I am concerned about more generally is again
going back to the burden of proof argument and whether that is
being applied fairly in the context of the Gulf War cases and
the radiation damage cases. Going back to the burden of proof
test which you outlined earlier on, what I am concerned about
is that is not being applied evenly across the board in relation
to those two particular categories.
(Dr Braidwood) I would have to say I disagree
with you there.
116. I thought you might!
(Dr Braidwood) The Gulf cases to date have all
been governed by Article 4. The date of the Gulf War was January
1991 and therefore you might say, "That is not right doctor,
we are now eight years from then", but remember the clock
starts ticking in terms of standard of proof from the date the
man leaves service. There remain a significant number of the 53,000
troops who served there still in service so as yet I have not
seen a case in the 2,800 claims from Gulf veterans which have
not been governed by Article 4. Even when it changes to Article
5 I do not see that as being a major problem.
Chairman
117. That is when the onus of proof changes?
(Dr Braidwood) Indeed. Forgive me. If I may say
so, the whole question of Gulf-related illness is a very problematical
one. We are some now some eight or nine years after the war and
some six or seven years since people started complaining of various
degrees of ill-health, a whole spectrum of rather vague, ill-defined
problems. In this country we have rather belatedly, some people
might say, begun to produce reports and papers. The Americans,
as ever, began rather earlier but there has been from the outset
very good cooperation and sharing of information. They have to
date spent about $120 million on researching the Gulf War. Late
last year the Communicable Disease Centre at Atlanta produced
an attempt at a case definition of Gulf-related illness. They
were unable to come up with something which they found to be unique
to Gulf service. Although they have acknowledged, as indeed I
hope our certification always has, that there was a significant
number of people who had served in the Gulf who complained of
disablement following that. Later on at the beginning of this
year two papers came out of Britain; a set of papers from King's
College and Dr Coker's MoD assessment evidence. Both lots of evidence
do similarly confirm a higher rate of symptoms and ill health
reported in Gulf veterans. But it is not unique to them. There
is also ill-health amongst people who served in Bosnia, which
was used as one of the control groups in the case study, and also
in people from the same generation who did not get deployed abroad
at all. It certainly does not say that there is no single specific
Gulf illness. It says, to date we have no evidence of such, despite
quite considerable efforts to find it. The evidence does suggest
that active service (in particular) is associated with ill-health
in some individuals. That is the position we are at.
118. Does that satisfy your burden of proof
test?
(Dr Braidwood) To my knowledge all the disablement
in Gulf veterans which we believe is causally related to serviceand
there is a great deal of itis accepted and certified. We
use ICD 9 and 10 category which is called SSIC which means "signs,
symptoms and ill-defined conditions" simply as shorthand
to allow us to accept. Should evidence emerge which allows us
to say that there is indeed a specific Gulf illness we have legislative
powers and I am sure it will be our practice to re-visit these
cases and change the label accepting it under that.
119. I am in danger of losing a quorum.
Is there some way we can get a note on this?
(Dr Braidwood) I would be very happy to send you
a note.[6]
Chairman: Will you
settle for you that?
Mr Dismore: I will
settle for that.
Mrs Humble: Further
briefing notes would be useful as written submissions.
Chairman
120. This always happens to us.
(Dr Braidwood) I am very sorry, Chairman.
Chairman: Au contraire,
it is extremely important and very valuable evidence and we appreciate
it and appreciate your expertise in this and Andrew is a particular
expert as well. We will lose a quorum at one o'clock and we did
say we would discharge you back to your trains for the north by
one o'clock. I think I have got no alternative but to draw reluctantly
the public proceedings this morning to a close. Thank you very
much. It has been a fascinating session, an important session.
I do not want you to leave us with the feeling that we are being
hyper critical about all of this. There are obviously some problems
and I hope we have been able to put those robustly to you. We
only do that because there are people who know a bit more about
this from day to day who have been asking us to raise them with
you. We wish you well in the important work that you do and thank
you very much for your evidence this morning. Thank you for your
attendance. The public session is now closed.
4 See Ev p 5. Back
5
Note by Witness: Supplementary evidence to be submitted
on "assessment of noise induced hearing loss". See Ev
pp 42-43. Back
6
More correctly-noise induced permanent sensorineural hearing threshold
level shift. Back
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