25 Jul 1996 : Column 1519

House of Lords

Thursday, 25th July 1996.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers--Read by the Lord Bishop of Coventry.

NHS: Grant to Patient of Legal Aid

Baroness Gardner of Parkes asked Her Majesty's Government:

    What advice they will give providers of National Health Service health care following the granting of legal aid to a patient to sue because his treatment had enabled him to outlive his prognosis.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): None, my Lords. The Government remain fully confident that the National Health Service will continue to provide the highest quality treatment, including offering realistic prognoses based on the best evidence available.

Baroness Gardner of Parkes: My Lords, I thank my noble friend for that Answer. Does she share my concern about the growing burden placed on the NHS by the fact that treatments are no longer determined just by clinicians but retrospectively by the courts? With the increasing litigation, can she tell us what is the cost of defensive medicine in the NHS?

Baroness Cumberlege: My Lords, yes, I share my noble friend's concerns. The burden on the NHS is increasing. Defensive medicine is an element that has grown increasingly. It is not always in the interests of the patient. Although I do not know the costs of defensive medicine, I know that the cost of clinical negligence settlements has increased in three years from £117.9 million to £149 million.

Baroness Hayman: My Lords, does the Minister accept that recourse to litigation is seldom the most satisfactory way of resolving complex medical negligence disputes? Does she agree that it involves large sums of public money, both in legal aid and the cost to NHS authorities--here I declare the interest of which the House is aware--usually resulting in protracted misery and dissatisfaction for all the litigants involved? Will she look carefully at proposals for alternative methods of resolving disputes in those areas, such as mediation? Can she tell the House anything of the pilot schemes that I believe are being undertaken in Oxford, Anglia and York?

Baroness Cumberlege: My Lords, I agree with a great deal of what the noble Baroness said. In my experience, when people come with a complaint they want three things. First, they want a full explanation of what happened to them; secondly, they want an apology; and, thirdly, they want an assurance not only that it will

25 Jul 1996 : Column 1520

not happen to themselves again but that it will not happen to anyone else. Litigation seldom meets people's requirements. As she said, it is a painful and costly process to go through. As a government, we are looking at mediation. Three schemes are running in three different regions. They were set up in 1995. We expect the results of the pilots in 1997. We will look closely at them, but initial progress seems to be good. Through the Health Service Commissioners (Amendment) Act, we have made it more possible to ensure that complaints are resolved locally through mediation processes.

Lord Ironside: My Lords, is my noble friend aware that the Legal Aid Board has funded a multi-party action for alleged victims of radiotherapy treatment for breast cancer, which is unlikely to reach the High Court until at least the middle of next year? Can she now say what is the total current expenditure on the aid which has been provided for those, I believe, 120 cases?

Baroness Cumberlege: My Lords, I am aware of that court case. I imagine that it is sub judice and therefore it would be inappropriate for me to go into the detail of it. As to the expenditure granted by the Legal Aid Board, that is a matter for the board.

Lord Ashley of Stoke: My Lords, does the Minister agree that, while I concur with her general view about trying to avoid litigation, and agree with the points my noble friend made, nevertheless there are cases in which there has been negligence by doctors and the necessary compensation has not been agreed, and that people should take legal action in order to get their rights, and that that should not be discouraged if mediation is inadequate?

Baroness Cumberlege: My Lords, of course I accept that mistakes are made. When the NHS employs 1 million people some mistakes are likely to be made. We have reviewed the whole complaints procedure through the Health Service Commissioners (Amendment) Act. We are trying to resolve issues before people take them to court. When I was a health authority chairman I remember the chief executive telling me that a bunch of flowers was worth £40,000.

Lord Burnham: My Lords, does my noble friend accept that it is fairly rare for the NHS to be accused of negligence when it cures the patient?

Baroness Cumberlege: My Lords, my noble friend is referring to a case which, I understand, is not sub judice at the moment. It is a complicated case. The media coverage of it has not been accurate. In fact, the Legal Aid Board was so concerned about the coverage that, unusually, it issued a press release. There is a difference of opinion concerning the original diagnosis and what the patient was told as to the likely prognosis.

Lord Rea: My Lords, does the Minister agree that as regards this particular case there may have been a genuine clinical mistake? The patient appeared to be and was diagnosed as suffering from lung cancer, which is

25 Jul 1996 : Column 1521

almost universally fatal whatever treatment is given for the common severe kind. In fact, the patient was not suffering from that condition and the apparent success of the treatment may have been because the original diagnosis was not correct. The patient was, in effect, condemned to death. Does the Minister agree that genuine clinical mistakes are often made even by those at the top of the profession, and that the National Health Service should make proper amends to patients who, unfortunately, are victims of that situation?

Baroness Cumberlege: My Lords, the noble Lord has outlined the case and has put only one side. It is a matter for contention, which is why limited legal aid is being granted to commence the initial investigations which need to be taken. Of course I accept that there are cases which should be resolved in court. All I am saying, as was said by the noble Baroness, Lady Hayman, is that where that can be avoided it is much better. It is possible for the National Health Service trusts to settle out of court matters involving sums less than £1 million.

Lord Ackner: My Lords, is not the short answer to the Question that the providers of the services should, if proceedings have been issued, apply to the court for them to be struck out as disclosing no cause of action? The facts which are put in the Question, that treatment had enabled a prognosis to be outlived, do not in any way comply with the facts as this particular misreported case has indicated. Is not the position in regard to that case, subject to whether the facts are right, that a person who was relatively fit was diagnosed as having a terminal illness which would bring about his death within a very limited space of time, that as a result he spent money on holidays, gifts and the like and ended up destitute by the time he should have died if the diagnosis had not been a negligent one?

Baroness Cumberlege: My Lords, the noble and learned Lord referred to the facts and, of course, the facts are in contention. Therefore, it would be inappropriate for me to comment on the case at the moment.

Learmont Report: Recommendations

11.16 a.m.

Lord Harris of Greenwich asked Her Majesty's Government:

    When they will implement the recommendations of the Learmont Report.

The Minister of State, Home Office (Baroness Blatch): My Lords, my right honourable friend the Minister of State yesterday gave details of the steps taken by the Prison Service to improve its performance on security, including measures taken in response to the Learmont Report. The balance of Learmont recommendations is still under consideration and my right honourable friend the Home Secretary will report his conclusions in due course.

25 Jul 1996 : Column 1522

Lord Harris of Greenwich: My Lords, I thank the noble Baroness for that Answer. Does she recall that on 16th October last year her right honourable friend the Home Secretary, when making the Learmont Statement, said that security had to be the first priority of the service? That being so, why is it that after so many months have passed more than 30 of the recommendations--strangely enough, all those which cost money--have not been implemented at a time when the prison population is rising?

Baroness Blatch: My Lords, security has not been compromised in the implementation of the recommendations. Good progress is being made on them. Security has been central to them and has been given its due priority. I had hoped that the noble Lord would have welcomed the progress that is being made. The Learmont Report contained 127 recommendations, many of which have been completed or are in hand and being implemented. Only 27 are still under consideration.

Next Section Back to Table of Contents Lords Hansard Home Page