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Westminster Hall

Wednesday 15 May 2002

[Sir Alan Haselhurst in the Chair]

Clinical Negligence

Motion made, and Question proposed, That the sitting be now adjourned.—[Mr. Ainger.]

9.30 am

Gareth Thomas (Clwyd, West): I am pleased to start this debate on a topical subject that is of great importance to our constituents and the national health service. I am glad to see the Minister in her place, and I hope that she will respond to some of my points. I am also glad to see the Opposition spokesmen: the hon. Members for North-East Hertfordshire (Mr. Heald) and for Oxford, West and Abingdon (Dr. Harris).

It is necessary to put the debate into the context of the record extra Government investment that the Chancellor of the Exchequer recently announced. I should also mention reform and the Government's commitment to ensuring a modernised, responsive and patient-centred health service. I propose that reform should also apply to clinical negligence and the way in which the NHS deals with those instances, which are inevitable even in the best-run services, where the standard of care is less than we can usually expect from the medical profession. Those instances are sometimes referred to in the jargon, somewhat euphemistically, as adverse health care events or medical mishaps. Newspapers sometimes refer to them as medical gaffes. However, they all come under the rubric "clinical negligence", which is a broader term in common usage, rather than the narrower term "medical negligence". Our law provides a remedy for the injured party through the tort of negligence, where it can be established that a doctor, a member of a medical team or a paramedic has been negligent and in breach of duty, and where that negligence has caused injury.

It is important to refer to the scale of the problem. Clinical negligence has received much comment from the press who, with some members of the medical profession, would have us believe that the problem is out of control. In recent years, clinical negligence claims have increased substantially to worrying levels, but the statistics are not presented clearly. The Minister will have the figures to hand, but I will quote from "NHS (England) summarised accounts 2000–2001", which shows that the NHS in England—I shall come to Wales in a moment—faced accumulated claims for clinical negligence of no less than £4.4 billion as at 31 March 2001. On any view, that is a substantial figure.

Mr. John Burnett (Torridge and West Devon): Our paths have crossed on a number of occasions. I believe—the hon. Gentleman will correct me if I am wrong—that they crossed in the Committee considering the Access to Justice Bill. Does he agree that the huge growth in clinical negligence cases was foretold by some during the debate on the widening of conditional fee agreements?

Gareth Thomas : There are many reasons for the growth in clinical negligence claims. The Access to

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Justice Act 1999 is one reason; higher awards by the courts are another. However, I shall return to that important point later, because I want to deal with the accounting methods used by the NHS.

That figure of £4.4 billion represents accumulated claims. It is the provision that the Comptroller and Auditor General has said should apply for outstanding claims. It can be regarded as a misleading figure, because it does not represent what is paid year on year to finance clinical negligence awards. I know that the Minister will have the figures. For the year 1999–2000, for instance, the figure was £373 million. We must not over-dramatise the figures, but the position is serious.

Mr. Oliver Heald (North-East Hertfordshire): I do not know whether the hon. Gentleman can help, but is it not right that when insurance companies make provisions they take account of the amounts that are likely to be paid to claimants? They make a risk analysis in relation to the overall claims that will end up being made, whereas I believe that the provision that the Comptroller and Auditor General makes is simply the value of the claims that have been made, which is a different valuation. Is that correct?

Gareth Thomas : The hon. Gentleman puts his finger on an important point, which I hope the Minister will be able to answer. I am not sure what the provision represents. Is it the worst-case scenario or is it more in line with the system that operates in Wales? I speak as a Welsh Member, but these issues are common to both England and Wales.

The figures show that for the period up to 31 March 2001 the NHS in Wales provided for a total liability for clinical negligence of £126.7 million. The accounts describe that figure as representing claims

Can the Minister clarify whether the English figures represent provision in respect of all claims that have been made, or is there a risk assessment as to which claims are likely to be paid out?

Dr. Andrew Murrison (Westbury): Is the hon. Gentleman aware that the National Audit Office's figures for April this year state fairly clearly that £4 billion is the worst-case scenario?

Gareth Thomas : I am grateful to the hon. Gentleman. One of the purposes of the debate is to tease out these issues. We need to clarify the accounting basis.

I want to refer to the views of the lawyers. I express a peripheral interest as a lawyer, although I have not had any experience of clinical negligence cases, at least in the recent past. Lawyers involved in that specialist field of litigation take a dim view of what is sometimes said by those who represent the medical profession, and say that clinical negligence claims should not necessarily be seen as a sinister feature of the health service. They think that rather than foster a culture of cover-up, which has been suggested by some doctors, clinical negligence litigation has been a spur to higher standards, better clinical governance and more openness in the medical profession.

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I shall quote from Mr. Russell Levy, who is a partner in the specialist clinical negligence firm, Leigh, Day and Co. He takes exception to the way in which the National Audit Office expressed the figures on negligence. On 26 April, he wrote in The Guardian:

Mr. Burnett : I hope that the hon. Gentleman will address not only the level of damages, but the huge legal costs that often dwarf the damages provided to the claimant.

Gareth Thomas : I agree. There is a disproportion between the level of award and the costs that accompany awards, particularly for small claims. That is worthy of serious attention. Some interesting figures in the chief medical officer's report in 2000 suggested the scale of the problem. It indicated that no less than 10 per cent. of admissions to hospitals resulted in some adverse event. I suspect that some of those adverse events were minor, but some were serious. There were 850,000 incidents a year. Many claims are modest, but they clog up the system and take up a lot of time. They also cause considerable anxiety and heartache to patients who have suffered medical mishaps, however modest. Accidents happen even in the best-run systems.

The cost of additional hospital stays and treatments from adverse incidents must also be taken into account. In 2000, that was estimated at £2 billion. Can the Minister give an indication of the number of small claims as a percentage of the number of total claims? There is a crying need to speed up the process that deals with smaller claims.

Before I deal with worrying local examples, I should say that the rate of growth of clinical negligence has declined. That may be a reflection of the steps that the Government have taken to manage risk. I shall say more about that later because prevention will clearly always be better than damage limitation.

I know of two examples from my constituency experience, and I shall refer to them as an indication of the cost of medical mishaps not just in economic, but in human terms. I have a 57-year-old constituent who, a matter of weeks ago, received a settlement of just over £2 million for brain damage that she had sustained during childbirth no fewer than 15 years previously. The solicitor representing her, Mr. Alun Thomas—no relation—told me that it had been a titanic struggle. It took no fewer than four years for the health authority to admit liability, which it did suddenly after fighting tooth and nail.

There was then a protracted argument as to whether my constituent should remain in institutional care, which would have been cheaper for the health authority's insurers, or whether steps should be taken to ensure that she had an independent mode of living. The difference in the cost was no less than £1 million. A

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compromise was reached, but only after the family fought very hard with lawyers to secure a fair settlement. The costs involved were considerable. In the words of the family:

the birth of a child—

Clearly, it should not take so long for such a case to be settled, but it is not unusual. I understand that the average time in which a clinical negligence case is disposed of is five years, but perhaps the Minister will give up-to-date figures.

My other constituency example relates to Mrs. Maureen Roberts. Her husband was suffering from lung cancer, which was misdiagnosed as arthritis. He was not given appropriate X-rays—he was given an X-ray of the front of his chest instead of the back and even then not for several months after it should have been taken. Mrs. Roberts had the tenacity to pursue a complaint through the internal NHS complaints system. She was unimpressed because it was slow, cumbersome, difficult to access and an obstacle course. She was put off at every corner and believes that if she had not been strong willed she would not have pursued an internal complaint. She told me that her main motive for making the complaint was not to obtain an apology—the Minister and other hon. Members in the Chamber will accept that that is the usual priority for patients who suffer low-level clinical negligence injuries—but to obtain an explanation that would prevent what happened to her husband happening to others. In her view, patients who go through the complaints system represent the tip of the iceberg because many people are put off.

The Minister was aware that I would be raising my concerns, which I am sure are shared by others, about the complaints system. I do not expect her to comment on those individual cases, but can she give an indication of the Government's thinking on the need to reform the complaints system? It is complex, riven with delay, not independent and seems to favour the medical establishment. My view, which the Minister may share, is that a more streamlined and effective complaints system, perhaps adopting what a recent National Audit Office report referred to as a package system, or a tribunal with the power to award modest compensation quickly, might deal with a large element of clinical negligence cases.

While dealing with the inadequacies of the complaints system, will the Minister explain how the Government propose to deal with an issue that is continually raised by people who have been involved in clinical negligence cases: the culture of the NHS and the medical profession? I know that I must talk carefully here because members of the medical profession are present.

Being on the wrong side of a clinical negligence case must cause extreme anxiety to hard-working professionals. It is surely in the interests not only of patients but of the medical profession that we undertake reform. Is there a clear policy on how medical professionals should respond in the case of an adverse incident, where something has gone wrong? Time and again, I hear people saying that nobody gave them an explanation or said sorry. I can understand why it is sometimes not appropriate to say sorry, but can we have

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some clarity on that? I know that the Government are reviewing the complaints system and that others will have thoughts on the matter, but there seems to be an unwillingness to open up and a lack of candour on the part of medical professionals, which causes great anxiety to patients at large.

Dr. Evan Harris (Oxford, West and Abingdon): The hon. Gentleman is making a valid and important point. Not only is what he describes a natural human reaction, but it is the direct consequence of what has been called the culture of blame. It has been described as such by the Secretary of State for Health and, even more tellingly, by Professor Ian Kennedy in the Bristol inquiry report. He specifically said that it is the blame culture—the fact that the clinical negligence system is blame-oriented and fault-oriented—that gives doctors an incentive to cover up their errors and those of their colleagues. There is much to be gleaned from Kennedy's recommendations on that matter.

Gareth Thomas : I am grateful to the hon. Gentleman for drawing attention to what I believe is the fundamental issue. I must part company with him, because I do not share the views of Professor Ian Kennedy. I do not take the view that clinical negligence litigation should be scrapped and that it is itself responsible for an epidemic of secrecy and a cover-up culture. I would say the reverse. As I said earlier, clinical negligence litigation has opened up the medical profession and made it more responsive. It is very important that people who fall victim to negligence, which can happen in the best-organised systems and professions, should have redress.

With the greatest respect, I think that Professor Kennedy was wrong. That view is shared by the majority of lawyers involved in the case. I do not want this debate to degenerate into a battle royal between doctors and lawyers, but my objective view, coming to it with a fairly open mind, is that the learned professor was wrong.

Mr. Heald : Of course, the hon. Gentleman and I are both lawyers. Does he accept that one of the points made by the Royal College of General Practitioners in its response to our consultation document was that many doctors are so shocked and stressed by the experience of the complaints system and clinical negligence process that they retire through ill health? We all want doctors to be held to account when things go wrong, but does he agree that it is worth considering a more informal procedure that gets on with the process more quickly, so that the agony, for patients and the medical profession, is shorter and the formality of the process less frightening?

Gareth Thomas : I agree with the hon. Gentleman. It would be difficult for anyone to disagree that there must be a speeding up of the process, especially for smaller claims.

The Government are taking steps to deal with the problem. As I have said, there is greater emphasis on risk management, better clinical governance and prevention. I welcome the advent of the NHS Litigation Authority, which now administers the clinical negligence scheme for trusts. In Wales, the Welsh Risk

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Pool is a similar scheme. It is clear that through education, systems to prevent accidents happening in the first place and steps to promote best practice, we can learn a lot from mistakes and bring the figures for clinical negligence under control, which is what we all want.

The Government have said in their NHS 10-year plan that they want reform in relation to clinical negligence and the way in which such cases are dealt with.

Mr. Burnett : I believe that the hon. Gentleman said that the level of damages and claims in the United States was falling.

Gareth Thomas : I said that the level of growth in clinical negligence claims has declined. The figures are rising, but the rate of increase has declined. I did not refer to the United States. I think that the hon. Gentleman misheard me.

The NHS plan calls for reform and, in an important initiative, the Government set up the chief medical officer's committee on clinical negligence in July 2001. The committee has a broad brief, including consideration of a no-fault system of liability. It recently called for ideas, and many organisations have submitted representations.

I share the views of the Claimant Clinical Negligence Practitioners Group and the Association of Personal Injury Lawyers that there is no such thing as a no-fault system. Even in New Zealand, Finland and Sweden, where such a system has been established, it is necessary to prove causation. In any event, the schemes are very expensive and take money away from front-line services. They do not deal sufficiently with risk management, and eligibility criteria have constantly been cut, particularly in New Zealand. Therefore, I do not accept that a no-fault system is the answer, even for discrete categories of clinical negligence such as accidents during childbirth.

Reversing the burden of proof for causation would be a far-reaching reform of the law on clinical negligence. Those who are involved in the area know that proving breach of duty is difficult. The law provides for a very demanding test of the medical profession, but the test is qualified by the Bolam decision, which presupposes that it is a defence if the doctor adopted a course that a responsible body of opinion would have taken, even though it may not have been a majority view to do so. The decision has been discussed in various cases, but I do not want to deal with that. I want to discuss reversing the burden of proof.

Proving fault is one thing, but proving causation can be technically very difficult and can take up a lot of court time. It can result in many experts arguing for years about an issue and a mushrooming of costs that, in many cases, are already out of control.

Dr. Murrison : Will the hon. Gentleman clarify his point about Bolam? I hope that he is not suggesting that medical decision making should be based on a majority view.

Gareth Thomas : In relation to negligence cases, the medical profession is in a favoured position—I do not say that in a critical way—because the law has accepted that an element of judgment always needs to be

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exercised. There are circumstances in which one doctor may carry out a particular procedure in one way, and another doctor may undertake it in a different way, or go about the problem differently. The question of judgment is enshrined in the Bolam decision. Doctors can use that as a defence.

Reversing the burden of proof for causation would help. It would cut delay and mitigate some of the worst aspects of our adversarial system. On small claims, there is scope for a streamlined system, quick explanations, modest recompense given to patients quickly and an integrated complaints and compensation system. The Lord Chancellor's Department has recently issued a consultation paper on damages for future loss. Some of its proposals would help considerably, giving courts the power to order periodic payments and looking again at structured settlements, rather than putting all the emphasis on the need to arrive at a final, definitive lump sum. That might go some way towards relieving the burden on the NHS and mitigating some of the delay inherent in the present system.

Dr. Evan Harris : Does the hon. Gentleman accept that there is a strong case for guaranteeing NHS care for people with long-term disabilities as a result of clinical negligence, rather than awarding staged payments or, as we have at the moment, large lump sums for private purchase? A guarantee of NHS care, and the funding going into that care, will work both ways: it will provide the care that is needed as well as some financial compensation, and it will improve care generally in the health service.

Gareth Thomas : I think that there is scope for considering rehabilitation, and perhaps providing, effectively, an indemnity to those who suffer medical accidents, so that they will be looked after. Of course, there is an issue concerning the current legislation because, as the Minister will know, the measure of damages in clinical negligence cases assumes that the cost of future care will be obtained from the private sector. I do not advocate that that should be amended, but the hon. Gentleman's point is a good one.

Mr. Heald : Is it not necessary to take account of the fact that the NHS would have to provide those facilities, and there would be a cost? It would be necessary to decide whether it was better on balance for the NHS to provide those facilities at that cost rather than retain the present system, in which they are provided by the private sector. It may be quite a fine judgment in terms of cost.

Gareth Thomas : That is worthy of close attention and I take the point. It will be interesting to hear what the Minister says about that.

I take the view that clinical negligence litigation has begun to open up the medical profession. I believe that people need an effective means of redress. There are problems with the complexity and delays of the present system. We should go about reform. I know that the Government are committed not only to investment in the health service, but reform in all areas, including those of clinical negligence.

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10.4 am

Dr. Andrew Murrison (Westbury): The hon. Member for Clwyd, West (Gareth Thomas) is to be congratulated on raising this issue for debate. He is also to be congratulated on styling it as "clinical" and not "medical" negligence because we are talking about negligence generally, not confining the debate to doctors. It has to be admitted, however, that most cases are brought against members of the medical profession.

I shall declare an interest: I am a doctor and, like all medical practitioners, am potentially on the receiving end of the sort of actions that are the subject of today's debate. I regret that claims for negligence against my medical colleagues are becoming more and more common. Indeed, I would probably rank myself in a minority in not having been subject to the threat, suggestion or realisation of such an action. It is important to understand that the overwhelming majority of practitioners do their level best for their patients. That did not come across particularly well during the hon. Gentleman's speech, although I am sure that he intended it to do so. It is important to pay tribute to the hard work of people across the board in the NHS.

Gareth Thomas : I have made the point consistently that, even in the best-run systems with the most committed and dedicated doctors and medical teams, accidents will happen. It should not necessarily be regarded as an indictment of doctors or the medical profession that accidents happen.

Dr. Murrison : I am grateful for that clarification because the point is important. Before we become too censorious, which is the general impression that I got from the hon. Gentleman, it is important to recognise that people working in the health service are doing their level best, often under adverse circumstances. It is also important to recognise that it is necessary to build a spirit of mutual trust between all sorts of practitioners and their patients. I recognise that he is a lawyer by profession, as indeed is my hon. Friend the Member for North-East Hertfordshire (Mr. Heald), but the ways in which medical practitioners and lawyers operate are very different. Lawyers are very adversarial and deal with tort, which cuts across the general modus operandi of the national health service. It is important to recognise that a threat of legal action can result in a practitioner being pole-axed. Although I have not directly experienced that, I know colleagues who have. Having the sword of Damocles hanging over one's head is truly a devastating experience.

I take issue with the hon. Gentleman's suggestion that practice might be improved by the threat of action for clinical negligence. I suspect that that is not the case. I recall many occasions on which such a threat was a problem in terms of a person's ability to carry out their day-to-day work.

Mr. Burnett : As a doctor, will the hon. Gentleman explain, perhaps with one or two examples, the problem for the medical profession of practising what I gather is called defensive medicine, and the problems that that causes for patients?

Dr. Murrison : I am grateful for the intervention. As the hon. Gentleman will know, defensive medicine is a

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blight on the way in which medicine is practised because it takes a practitioner's eye off the ball. Of course, one should focus on an individual patient's needs with one thing in mind—how to benefit them, not how to get off the hook in the event of a patient questioning in law what one is doing. One hidden cost of the culture of defensive medicine is the expense to the health service caused by practitioners doing every last test—it is perhaps the example that the hon. Gentleman seeks—to make sure that every last eventuality is covered. That involves a huge opportunity cost that has not been recognised in the NAO figures.

Gareth Thomas : I appreciate what the hon. Gentleman is saying, but is that not an example of steps being taken to prevent accidents? Sometimes, it is very difficult to draw a distinction between what he describes as defensive medicine and reasonable precautions or preventive measures. In any case, does he not accept that the argument sometimes advanced that the use of defensive medicine is widespread is somewhat overstated? If one asks doctors to give examples of defensive medicine, they find it difficult to cite specific examples.

Dr. Murrison : I am grateful for that intervention. I think that I gave an example of defensive medicine: the number of tests that might be done unnecessarily and at great cost to the NHS. Such tests therefore involve an opportunity cost for patients.

It may be useful to reflect on the situation in the United States. Many of us have been quite surprised at the great wave of negligence litigation that has overtaken practice there. This country has not been engulfed in the same way. Indeed, there has been quite a long delay between events in the US and those in the UK with regard to negligence litigation. However, if we consider the way in which patients are treated in the US, and the huge welter of defensive medicine that pervades every aspect of medical care in that country, we can imagine the problems that may lie in store for the NHS.

Mr. Burnett : Does the hon. Gentleman agree that one difference between the US legal system and ours is that the US has a contingent fee system? A lawyer acting for a plaintiff in the US will receive a percentage cut of the damages if the plaintiff is successful. Does the hon. Gentleman agree that if we introduced such a system in the UK—that is the way in which the pressure on the Lord Chancellor's Department is going—it would lead to an even greater growth in claims?

Dr. Murrison : The hon. Gentleman may have a good point. I am concerned about the advent of no win, no fee ways of operating for lawyers who specialise in this area. One must at least suspect that that has resulted in an increase in the number of medical negligence claims.

Many of us worry that the Chancellor's recently announced largesse will be consumed without much in the way of improved clinical outcomes. Part of that concern is derived from the belief that the mounting cost of negligence claims will swallow up an increasingly large amount of the NHS budget. The hon. Member for Clwyd, West referred to various figures that I believe are derived chiefly from the National Audit Office. I share

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his confusion at the way in which those figures have been represented, and like him I should appreciate clarification from the Minister.

The take-home message is that the level of claims in this country is increasing. The figure of £4.4 billion is a projected figure. I understand that it is predicated on claims that we expect in future. Some of those will be very large claims, because they relate to conditions such as cerebral palsy, and the eventual settlements that people receive in such cases are very expensive. Can the Minister shed any light on what the figure of £4.4 billion represents?

One telling figure from the NAO is that 65 per cent. of settlements below £50,000 had associated costs that exceeded the damages awarded. That is obviously a bean feast for lawyers, but I am not sure that it is terribly good for the NHS and I am absolutely sure that it is not good for practitioners or, ultimately, patients. There must be a better way.

We understand that, in 1999–2000, the NHS paid £400 million in clinical negligence costs. Again, I seek clarification, because that seems to tie in poorly with the NAO figures. Expenditure by medical defence organisations in respect of non-vicarious items is not included, so I suspect that the real figure for the whole arena is rather greater than that given by the NAO.

Patients will continue to lose out hugely from the tort-based system. I do not share the view of the hon. Member for Clwyd, West that it has, on balance, been beneficial and that it is the only way to proceed. There must be more imaginative solutions that do not involve a vast cost to the health service, to practitioners and, ultimately, to the national health system. Patients will lose out collectively through the opportunity cost of the projected £4.4 billion, which I believe relates to outstanding anticipated claims, and individually through the system, which is capricious, slow, bureaucratic and for some impossibly expensive.

A problem with the current system is that despite obvious harm, litigants may have difficulty pinpointing a specific act of negligence and if they cannot do so their action falls at the first fence. For the great majority of the remainder, the legal process is alien, drawn out and disagreeable. The system is increasingly tilted towards the assumption of monetary compensation, when an apology or explanation may be the desired way to achieve closure. An unhelpful compensation culture has been encouraged by ambulance-chasing law firms wishing to attract instruction in medical negligence cases. No win, no fee specialists use brazen television advertisements to suggest that if a person has suffered in any way someone must be to blame and there is a financial remedy to be had. Some outfits have even set up shop in the foyers of major hospitals. What kind of message does that send out?

The final report of the Bristol Royal Infirmary inquiry called for an overhaul of the way in which the NHS handles clinical negligence. Some of Kennedy's recommendations—those on open reporting, sentinel event reporting and governance, for example—are laudable and within the Government's power to grant. Others, such as a shift to an alternative funding system for compensation, will have to be sufficiently attractive to potential litigants and their legal advisers. However, Ministers cannot assume that changes would result in

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savings to the NHS in the longer term. No-fault compensation may be helpful to patients and practitioners but despite the view of organisations such as the British Medical Association it may open up a new cost ledger for the health service.

I broadly welcome the Department of Health's stated desire for better communication and attention to non-monetary remedies and I welcome its resolve to deal with the spiralling cost of claims. However, I want to know what assessment the Minister has made of the effects of the implementation of Lord Woolf's recommendations and of the impact of the NHS Litigation Authority.

10.17 am

Mr. John Burnett (Torridge and West Devon): I shall be brief. I congratulate the hon. Member for Clwyd, West (Gareth Thomas) on securing this important debate. He made some valuable and worthwhile points. I, too, declare an interest: I am a lawyer, although I have not practised for about four years. My specialisation was taxation, as will be apparent from the thrust of my remarks.

It is imperative to find a more sensible system of dealing with claims for clinical negligence; the existing system could be significantly improved. It is important to have the statistics, to see the level of damages and the huge amounts being paid out, involving not only plaintiffs but health authorities. The important National Audit Office document "Handling Clinical Negligence Claims in England", published on 3 May 2001, goes into detail about the costs and huge expenses. I want to tease out from the Minister how the Department of Health is working with the Lord Chancellor's Department to come up with a sensible scheme and to find a solution to an intractable problem. It is unacceptable that billions of pounds go annually not to successful plaintiffs—sometimes known as victims—but into the pockets of the legal profession for formulating and pursuing claims.

I presume that the Minister and the Lord Chancellor's Department are considering some form of early option: openness, discussion, apology and perhaps a scale of damages to be agreed between plaintiff and health authority. An early option system should never be mandatory, but it should be incumbent on the legal advisor to ensure that the benefits and disadvantages of not accepting early settlement are made clear to the plaintiff. The legal profession owes a duty both to the court and to the individuals whom it advises. The advisor should be under a duty to explain at an early stage the benefits and drawbacks of taking early a settled sum in a more formal, less adversarial procedure.

I hope that the Minister will set out the steps being taken to simplify the legal processes dealing with clinical negligence.

10.21 am

Dr. Evan Harris (Oxford, West and Abingdon): I am conscious that there are two doctors present, which would normally lead to three opinions being proffered. Three lawyers are present, which would probably lead to three more expensive opinions. We have a Minister,

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which often leads to no opinion, and you, Mr. Deputy Speaker, who are always of a sensible opinion, correct and good value for money, being free—

Mr. Deputy Speaker (Mr. John McWilliam): Order. It might help the hon. Gentleman to know that I am an engineer.

Dr. Harris : As a scientist you dine with us, if I may speak for the members of the medical profession present.

I declare an interest as a General Medical Council registered doctor. I am also a member of the British Medical Association, which is lobbying for a change in policy. I sit on its medical ethics committee, although it has no remit in this area. I have never been sued for medical negligence, although many of my friends and family members who are doctors, have been. The threat of future action against them is unavoidably high on the agenda of members of the medical profession, as is the stress and time taken defending or settling existing actions.

We owe a debt of gratitude to the hon. Member for Clwyd, West (Gareth Thomas) for bringing up the subject for debate and for his clear exposition of the issues. He was right to point out that those who use the complaints procedure are only the tip of the iceberg of the number who feel fit enough to make a complaint and who have the tenacity to complain about one aspect of their care. Such people are often happy with other aspects of their care and may be afraid that any complaint will be seen as a criticism of the hard work either of those against whom they are complaining, or of others.

Whatever changes are made to the complaints procedure, we need to make it easier for patients to complain and for them to be given support in doing so. The number of people who make claims for clinical negligence is a minority of those who could make claims. As the number of claims increases, the proportion of those that are well founded, which may be different from those that are settled as it can be easier to settle a case than to define it as well founded, may drop. However, that does not mean that people who are not currently applying would not qualify for compensation.

It is important to recognise that the medical profession, like other health care professions, has traditionally had a culture of believing that any complaint or question is an affront to its professionalism. That attitude is changing; it must change. If we want to have not only happier patients but correct management choices, decisions must be made jointly by the clinician, other health care professionals involved, the patient and, with the patient's permission, any friends or relatives whom they wish to involve.

We must deal with the broad policy issues. Whether one agrees with them or not, the Liberal Democrats have clearly defined policy positions. In both an admirable contribution and in his interventions, my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) asked how we could change the existing system in which complaints go to law; specific questions about a no-fault scheme for most claims; and what we could do about the escalating cost of settlements.

I understand that the Government are conducting a review, which is why I hinted that the Minister would probably express few opinions today, as she would not

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want to pre-empt it. I suspect that we shall hear nothing specific, although even before the review it was difficult to get any specific views from the Government. Although they said that they supported the existing scheme, the fact that a review has been established and that, post-Kennedy, it has been asked specifically to examine no-fault schemes gives us hope that we may have an open review of the issues.

Our first suggestion is that, rather than give lump sums to people to pay for parcels of care from the private sector, we should find a way of providing a guarantee of adequate NHS care, particularly with the increased resources going to the NHS, which should enable new services to be set up. We could invest that money in accessible NHS provision—not just a national centre—so that people who have been affected, often tragically, by medical negligence, such as those with cerebral palsy, could benefit from care that was also open to other people.

The hon. Member for North-East Hertfordshire (Mr. Heald) asked the fair question of whether setting up bespoke NHS provision in a local area was any cheaper than individually purchased private provision. That may be relevant in some cases, but in the context of expanding NHS provision, and because care is inadequate for people who do not receive large lump-sum compensation for damage, NHS provision would give us extra value for money. The care from an NHS scheme will be available to people who do not have the resources to purchase the care because they have not been able to get, or do not qualify for, compensation.

Mr. Heald : Will the hon. Gentleman give way?

Dr. Harris : I shall in a moment. The case is predicated on the argument not simply that it would be cheaper to provide NHS care—the hon. Member for Clwyd, West made a fair point—but that one would get extra value for money in an expanding NHS, given the extra resources that the Government are putting in, to enable those who are unfortunate enough not to qualify for compensation to access free care on the NHS. I give way to the hon. Gentleman.

Mr. Heald : I will leave it. Sorry.

Dr. Harris : I would be grateful if the hon. Gentleman responded to that point because it is good for each party to put down its position in these matters.

Mr. Burnett : Will my hon. Friend confirm that any no-fault scheme advanced by our party will not oust the jurisdiction of the courts, or the right of plaintiffs to go to court if they so wish?

Dr. Harris : Of course. It is a human right to have access to justice. Indeed, our party has campaigned in this and the previous Parliament to ensure that that is as wide as possible. I was going to come to the no-fault compensation scheme. The key point is to make it attractive enough to dissuade people from recourse to a more expensive, more legally involved and much longer system of NHS care. I can read out Liberal Democrat policy on this at length, but it is well stated by Professor Kennedy in his report. Paragraph 86 states:

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that is, the existing tort system—

Professor Kennedy could not be clearer. The hon. Member for Clwyd, West has been good enough to confirm that he disagrees with Professor Kennedy. It is worth while bearing in mind that even important reports such as that are not unchallengeable. I admire the hon. Gentleman for openly saying that he disagrees strongly with the independent view of a high-profile inquiry.

The Government have draped themselves in the Kennedy report in many areas where we support their policy. They must recognise that if they say that they back the report almost in its entirety and, indeed, take on board the remark about clinical negligence, people will have their expectations raised that they accept the report's conclusions.

The report continues that the system of clinical negligence

that has been set up—

Professor Kennedy repeats that in the recommendations on page 451, at paragraph 119. He sets out in some detail why he believes that the blame-based system will, with the best will in the world and despite the quality initiatives that have been introduced, still lead to an under-reporting and under-admission of significant adverse events, even where there has been negligence.

I should like to deal with a separate question: the quintuple jeopardy that faces the medical profession—other people may face one or two trials—which adds to the culture of fear and an unwillingness to own up to errors. If a doctor makes a mistake, he or she faces real trials and ordeals. The first is disciplinary action from his or her employer. Then there is the threat of criminal charges following a police investigation, as happened to a number of my former colleagues. That is extremely stressful and usually does not lead to the bringing of charges. Nevertheless, it means that the matter cannot be settled in other ways. There can be a coroner's inquest, which is a trial-like approach. General Medical Council action can be taken against the doctor. There can be a suit for clinical negligence. There can be trial by media. That is sometimes added to by being sacked on "Newsnight" by a Secretary of State for Health in less than full possession of the facts. It is a major concern that puts many people off going into medicine. The Government should give some thought to streamlining, if not reducing, these processes to prevent prolonged suspension of medical staff who are later cleared on all counts. We have time to touch on only some of the relevant matters in this debate.

I have one final point for the Minister, who has heard me say it before. We will not drive out errors and negligence from clinical practice unless we ensure that at the riskiest time for patients—out of hours—it is the most senior health care professionals, whether doctors or others, and not juniors who deliver care. Those

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delivering care must also be the most fresh, not the most tired. The proportion of claims in relation to maternity services points to the shortage of consultants in obstetrics at hand to deliver the out-of-hours care in obstetric emergencies that is required. I hope that the Minister will give urgent thought to the need to expand consultant numbers, particularly in high-risk specialties.

10.35 am

Mr. Oliver Heald (North-East Hertfordshire): I congratulate the hon. Member for Clwyd, West (Gareth Thomas) on securing the debate on this important subject. The Conservative party recently concluded a consultation exercise on clinical negligence, which was launched by my hon. Friend the Member for Woodspring (Dr. Fox) in December. It is clear from the responses—I am not going to reveal the final outcome of our deliberations—that human rights, particularly the right of the patient to redress, have to be counterbalanced by fairness to practitioners. It is a difficult balancing exercise.

Great dissatisfaction exists about the current handling of clinical negligence. That is clear in the Woolf report of 1996, and Professor Kennedy's and the National Audit Office reports of 2001. Reforming the system is not easy. In a wide-ranging speech, the hon. Member for Clwyd, West raised many of the issues on which we consulted: reversing the burden of proof, although we have a different formula for achieving it; having a more streamlined system to deal with small claims; and using periodic payments as a better way of dealing with future loss for claimants. Some of the conclusions emerging from consultation will be of considerable interest.

My hon. Friend the Member for Westbury (Dr. Murrison) made the important point that the majority of medical practitioners—indeed, almost all—do their best and work to a high standard. We should all pay tribute to that. Many claims are, in the event, not justified. On the latest figures from the NHS Litigation Authority's website, outstanding claims amount to £4.1 billion, yet 75 per cent. of publicly funded cases fail; there has been a sevenfold increase in settlements since 1995–96; and in 65 per cent. of settlements of less than £50,000, the legal costs exceed the damages recovered.

It is easy to conclude, and I agree, that lawyers are making a fine living out of all this and that something must be done about it. Much can be said for speeding up procedures and aiming for a more informal settlement process. However, it takes two to tango. I should be interested to know whether the Minister is satisfied that people dealing with such cases for the state have always had the ability to settle cases as promptly as they would have wished, had they had the resources available to respond quickly. Have they, as public servants, felt able to take the risk of settling a case as quickly as they should? Does anything need to be done, or is it being done, to change the culture on the NHS side as well as the claimant's side, and to settle cases promptly? A balance should be struck throughout.

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The picture is not static. Does the Minister agree that, when valuing claims, it is necessary to take account of a point that has been made today and was made during our consultation by Professor Dingwall of Nottingham university? He said that

Can the Minister tell us the real, discounted, risk-assessed value of outstanding claims? If she does not know, why not?

The NHS Litigation Authority is a relatively new body. It took on responsibility for pre-1995 cases only in April 2001. Although 1995 may seem a long time ago, there is a substantial body of cases. Can the Minister give any idea of what progress the NHS Litigation Authority has made as it has gradually taken on cases from an earlier period? Is it leading to a more efficient, more prompt settlement of cases? The authority also has an important role in risk management and tries to enforce best practice in health authorities. Can the Minister tell us how the authority is getting on with that?

The pre-action protocols that were introduced following the Woolf reforms are also relatively new. Many believe that they are leading to quicker settlements, but that was not the purpose of the reforms. Their purpose was to have a more expeditious and sensible course for cases to follow to reach a conclusion in court. Have the Woolf reforms resulted in more cases being settled more quickly? If the Minister does not know, will she commission research into that? The Medical Protection Society, which has a key role, wants to know what effect the pre-action protocol for clinical negligence claims has had. I also want to know.

Does the Minister agree that even if the value of claims outstanding is less than we believe, there is still a case for further reform? Many people who responded to our consultation, including the Consumers Association, InterMediation and not surprisingly, the Academy of Experts, the Royal College of Nursing, the Royal College of Physicians, the Royal College of Radiologists and many others, were enthusiastic about mediation or at least an independent, neutral evaluation to help parties at any early stage, before a case is started, to try to reach a settlement or to clarify ideas. Does the Minister believe that that has further mileage?

There was a great deal of support for a package of remedies. The NAO mentioned apologies, explanations, remedial treatment counselling, meetings with medical staff to find out what went wrong, how that can be prevented and other support mechanisms for patients. That package of measures may be as important as the money. Can the Minister tell us her view and what conclusions are emerging from the chief medical officer's call for ideas?

Can the Minister give us some idea of how she now evaluates the pilot undertaken into mediation? The Mulcahy pilot, which took place following a decision in 1995, took two years and suffered from a low number of cases being brought before the mediators. It was also very expensive. Does the Minister feel that, in terms of

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policy structure and judicial thinking, the climate has now changed sufficiently for mediation to work better than it did in the Mulcahy pilot?

Does the Minister have any views on the ideas on which we consulted, such as having a tribunal system to deal with claims for less than a certain amount—we suggested £50,000? There seemed to be some support for that more informal procedure in our consultation. Does she agree that it may be necessary to consider changes in the law and to have a simpler and more readily understandable definition of what we mean by clinical negligence, perhaps using the model of unacceptable clinical practice?

We suggested that it should be possible to give compensation through the complaints system in far more cases, perhaps in those likely to be worth less than £10,000. Does the Minister support that idea? Does she agree with some of the ideas that we, the Lord Chancellor's Department and others have discussed on improving the damages regime? The hon. Member for Torridge and West Devon (Mr. Burnett), in his very measured speech, talked about having a scale of damages for clinical negligence and about early resolution procedures, and said that the legal profession owed a duty in that area. Does the Minister feel that the present damages structure, which is widely known and laid down by the Court of Appeal, could usefully become a more formal tariff of damages? Again, we examined that in our paper.

The hon. Member for Oxford, West and Abingdon (Dr. Harris) mentioned no-fault compensation. One understands the attraction of that, especially in terms of populist rhetoric, but many of those who replied to our consultation suggested that that would be a very expensive scheme, which would not necessarily mean that the people most wronged received the level of compensation that they should, and that it would put an artificial cap on the level of damages. What is the Minister's view on that?

We have had a very good debate. We have not yet reached all the conclusions that we want to, and the Minister may be in the same position. However, it would be helpful if she shared her emerging thinking with us.

10.48 am

The Parliamentary Under-Secretary of State for Health (Yvette Cooper) : I congratulate my hon. Friend the Member for Clwyd, West (Gareth Thomas) on securing this important debate on clinical negligence and on initiating such a thoughtful debate on an extremely complex subject.

We all know that the NHS treats hundreds of thousands of patients every day. As several hon. Members have made clear, with so many patients being treated, it is inevitable that clinical errors and mistakes will sometimes occur. When things go wrong, it is important to ensure, first, that there is a process for learning from those mistakes, for responding properly to them and for making all possible efforts to prevent such errors reoccurring and, secondly, that patients receive an appropriate and fair response transparently, clearly, quickly and effectively, and with the minimum trauma.

Under the current system, compensation for harm or injuries suffered as a result of clinical negligence is generally paid only where legal liability can be

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established. The underlying principles for establishing negligence are enshrined in common law. Compensation is payable where it can be shown that there has been a breach of the duty of care by act or omission, where there has been harm and where the harm was caused by the breach of duty. Each claim for compensation must be considered on its merits. Where agreement is not reached, the issues must be addressed through the civil justice system.

The Government's policy has been that NHS patients who have been harmed or injured as a result of clinical negligence should be able to obtain appropriate compensation. That is as true for NHS patients treated in the independent sector or overseas as for those treated in NHS hospitals.

Concerns have been raised in debates and in many of the reports to which hon. Members have referred about the current system of dealing with clinical negligence cases. Those concerns were highlighted recently in the NAO report entitled "Handling Clinical Negligence Claims in England" and in the response of the inquiry into events in Bristol. The NAO report highlighted the increasing number and cost of claims, the length of time it takes to settle them and the problems caused by the existing separation of the complaints and compensation systems in providing the remedies that claimants say they want.

Several hon. Members have asked questions about the costs and the way in which the figures are assessed. Hon. Members are right that the NAO summarised accounts of 2000–01 include a figure of £4.4 billion. That is not the NHS's annual expenditure on clinical negligence claims. It is the figure quoted in the NAO summarised accounts for the total provision to cover the possible cost of all existing claims that are likely to succeed, as well as potential clinical negligence claims. It bears no relation to the date of the incidents, nor is it linked to the amount spent in that year. In 1999–2000, as my hon. Friend the Member for Clwyd, West and other hon. Members have said, the NHS spent £373 million on costs and damages in settling clinical negligence claims.

Hon. Members have asked about the accounting procedures used. Those procedures are clearly a matter for the NAO. However, I am happy to pursue with the NAO the rationale behind its use of the figures and to write to hon. Members on that.

Dr. Murrison : Just for clarity, are we to take it that the figure of £4.4 billion is based on the value of claims that the NHS has received? As we have heard, if they are settled in favour of the litigant, most of them will be settled for a figure lower than the claimed figure. Can we take it, therefore, that that is the absolute maximum and that the figure is likely to be a long way short of that? If so, by how much will it be short?

Yvette Cooper : The hon. Gentleman is right that not all claims are settled straight away. Some may be settled many years later, some at less than their estimated value, and some may not succeed at all. However, as I understand it, the figure is not for all claims ever entered against the NHS. It includes an estimate of those that are likely to succeed, and an estimate on the basis of events that have taken place where a claim may arise in

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future. However, I am happy to write to the hon. Gentleman further after consulting the NAO on the rationale behind its accounting measures.

Mr. Heald : Why does the NHS Litigation Authority website today say

when the accounts to which the Minister is referring say £4.4 billion? Professor Dingwall says in his evidence to us that no analysis of risk management is involved: all the claims are included in the £4 billion figure.

Yvette Cooper : As I have said, I am happy to write to the hon. Gentleman on the matter. The figure from the NAO's summarised accounts for the NHS for 2000–01 is £4.4 billion. That is the figure that I have used in the response.

Dr. Evan Harris : The Minister is right in her understanding of the figures. However, we should be worried not about the fact that £375 million—the last known expenditure on medical negligence—is somewhat less than the £4 billion-odd being provided for likely successful claims, but about the rate of increase of that expenditure, which seems to be increasing inexorably.

Yvette Cooper : There is a series of concerns. One relates to what is happening to the resources for clinical negligence; another relates to the response to patients; the third is the way in which the medical profession and the NHS are able to respond by providing clinical care and to learn from experience.

I am running short of time to respond to all hon. Members' points. Considerable work has already been done to try to speed up claims in the existing system, including work by the NHS Litigation Authority to require panel solicitors to examine every case for mediation suitability, and work to link clinical negligence claims with the wider quality agenda. Work is under way to change the culture and reduce adverse health care incidents following the report entitled, "An Organisation with a Memory", by the chief medical officer, which aims to promote a culture of openness and learning. That work established the national patient safety agency last summer, which runs a new national system for reporting, analysing and learning from

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adverse events and near misses involving NHS patients. It is important that we learn properly and prevent future adverse errors. Other improvements have been made in clinical governance and the role of the Commission for Health Improvement.

Hon. Members have concentrated on the issues of clinical negligence and work by the chief medical officer's committee. It was asked to consider a wide range of options for handling clinical negligence claims more effectively. It has not yet reported, and I do not want to pre-empt its analysis or conclusions. However, I shall set out some of the options that it is considering.

The most high-profile reform is no-fault compensation. Such a system exists in other countries, and its success has varied. Some of the advantages are that it can speed up the legal process and resolve cases to prevent the need to go to court where only liability in dispute. Some of the disadvantages are that disputes can still occur over the level of compensation, the system may still not deal with the need to receive an adequate explanation of the events leading to injury, and there may also be cost implications.

In light of the Bristol Royal Infirmary report and the work of the chief medical officer, we have asked the chief medical officer's committee to reconsider the merits of the no-fault compensation option. We have also asked it to consider the interface between the system for complaints and that for claims against the NHS. Those are separate processes, as several hon. Members have said, and a poorly handled complaint can result in a claim. The NAO has recommended a package-based approach for dealing with clinical negligence claims. The chief medical officer is considering whether a more flexible, responsive, patient-focused approach could provide a more tailored response to individual claims.

The issue of small claims is important and has been raised by several hon. Members. In response to my hon. Friend the Member for Clwyd, West, small claims comprised about 26 per cent. of claims received in 2000–01. There were approximately 2,000 claims for less than £20,000, which remained a low proportion of the overall value of claims. The committee is looking at whether there is a fast-track way of responding to small claims, and at ways in which mediation and structured settlements could be better used.

The chief medical officer's report is drawing to its conclusion. We will need to publish proposals and consider the way forward, but I will ensure that the issues raised in this debate are fed into the process of deliberations. I think that many useful points have been raised.

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