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10.14 pm
The Parliamentary Under-Secretary of State for Health (Mr. Paul Boateng): My hon. Friend the Member for Bexleyheath and Crayford (Mr. Beard) brings considerable knowledge of medical research and the NHS to bear on this topic. He is to be congratulated on having used the Adjournment debate to raise the issue of compensation for victims of medical accidents. It is a subject of obvious importance.
There can be few things more distressing for the victim and for friends and family than that someone should seek medical help and be harmed as a result. We well understand, therefore, what has caused my hon. Friend to bring the matter before the House--although I am afraid that I will not be able to satisfy him this evening.
There is a significant difference between harm caused by a negligent act and harm caused by a set of circumstances that could not reasonably have been foreseen. Much as we may wish to, we cannot give absolute guarantees--no one ever can--of a successful outcome to a medical treatment. No matter how careful we are, in all walks of life accidents can happen from time to time.
Sometimes, the actions or omissions of an individual are responsible for the harm that occurs. At other times, it is simply a set of circumstances that could not have been foreseen, or the result of a foreseeable risk that was nevertheless justified in the circumstances. The person who suffers the harm may have contributed to or caused the accident himself. Medicine is no different in that respect from any other activity.
We no longer live in times--we are glad of it--when it was presumed that the doctor knew best, and when everyone blindly accepted treatment without explanation or consideration of all the options. Generally, before any medical treatment is given today, the patient's consent must be obtained. To be valid, that consent must be freely given, and obtained only after sufficient information has been provided about the proposed treatment--its nature, its consequences, possible alternatives and any substantial risks. In that way, a balanced judgment can be made. If that does not happen, a patient may have the right to take legal action, or grounds for a legitimate complaint.
When an adverse effect is the result of third party misconduct or negligence, it is right that the harmed person should be able to seek some recompense. The underlying principles are clear cut and established under the common law. They apply to personal injury cases in general, not just those arising from health care. We are not persuaded that health care should be singled out for different treatment.
In the case of compensation for medical treatment, it is necessary to prove that a duty of care is owed by the NHS body; and that there has been negligence through an act
or omission; that there has been harm; and that the harm was caused by negligence. NHS bodies may already, in exceptional circumstances and within delegated limits relating to public expenditure, make ex gratia payments on the merits of individual cases. My hon. Friend will know that when clinical negligence is involved and a settlement has been negotiated following legal advice, upper limit is £1 million.
The Government recognise that pursuing a claim for medical negligence can be a lengthy and traumatic process. My experience in practice as a solicitor and barrister taught me how difficult such litigation is for those involved. Several years may elapse before a case finally comes to trial, making investigations more difficult and time-consuming.
Sometimes, NHS bodies seek to defend claims where liability should be admitted early on. My hon. Friend will be glad to know that we are seeking actively to discourage such practice, because it only prolongs the anguish of patients and clinicians alike, and leads to unnecessary increases in legal expenses. We want the valuable resources of the NHS to be used for patient care, not to line the pockets of lawyers. I have sympathy with the points made by my hon. Friend, but we are unable to take the road along which he invites us to travel.
Some argue that as it takes a long time for medical negligence cases to be heard, it is unfair on the litigant, and that a supposedly quicker no-fault scheme is the answer. The Government cannot agree with that. To pay compensation when no fault has been established would, to some extent, belittle the harm caused to others through a negligent act. It would also treat medical accidents in a different way from other personal injuries, and it may often be just as difficult to establish that the medical treatment had caused the injury as to prove that someone had been negligent.
Even under a no-fault liability scheme, causation would still have to be established. That is not always easy, and can be as difficult as establishing negligence. The amount of compensation would still have to be determined, and possibly disputed. Some of the most prolonged and bitter disputes are over the quantum. Legal action and legal fees would not necessarily be avoided, and the process could still be lengthy. The full extent of the injury would still need to be established, taking into account the longer-term prognosis. Within delegated limits, NHS bodies may already award compensation on an ex gratia basis up to a maximum of £50,000 where no fault has been established.
Money for a no-fault compensation scheme--which would not be cheap; we should be under no illusions about that--would have to be found from NHS resources, and would inevitably result in reducing the money available for direct patient care. It also seems to us that the cost of meeting injury claims would be shifted from those who were negligent to the community as a whole, and, by extension, to injured people themselves, because they are part of that community. There is also a risk that a no-fault culture could, over time, diminish clinical accountability, and we could no longer reassure patients that what had happened to them would not subsequently happen to somebody else.
Even under a no-fault scheme, professional bodies and the NHS would still have the responsibility to ensure that standards were maintained. Clinicians will always want to do the best by their patients, and that is just one of a number of considerations that would have to be addressed if such a scheme were ever to come before the House for consideration.
My hon. Friend referred to compensation for those who may have experienced harm while participating in innovative medical procedures. Research ethics committees, which offer independent, objective advice to NHS bodies on the ethics of research proposals to be carried out within the NHS, have an important role. They ensure, among other things, that those who agree to participate in such research--which may involve a risk--are told at the outset not only of the nature of any risk, but of the compensation arrangements that will obtain in the event of the research subject's being harmed.
Mention has been made--and it has been the way for as long as I have studied or practised law--of the existence of no-fault compensation schemes in New Zealand and Sweden. I recall the considerable interest, and indeed controversy, that surrounded the establishment of the scheme in New Zealand. It would, however, be dangerous to make a direct comparison between those two countries and ours. There are many differences between the jurisidictions, and it is important to recognise the way in which no-fault compensation schemes have developed to reflect the broader context of the countries in which they were established.
In Australia and Canada, consideration was given to a no-fault compensation scheme, but, ultimately, the idea was rejected. There are few such schemes in the European Union.
Clinical negligence costs the national health service £200 million a year. That is not good enough, and my hon. Friend is right to draw attention to it. My right hon. Friend the Secretary of State has expressed our fear that the figure will continue to rise. The best way to ensure that it does not is to raise standards, and that is what we have promised to do. Our proposals for a national institute for clinical negligence and a commission for health improvement will help to raise standards of performance, and reduce the risk of adverse incidents occurring in the first place.
Our White Paper "The New NHS" puts quality organisation, evidence-based practice in day-to-day delivery of NHS services and the infrastructure to support that at the heart of what we seek to achieve. We want clinicians to be involved in quality improvement programmes, disseminating good practice, using high- standard clinical risk reduction programmes, identifying adverse incidents, and learning the lessons that need to be learned from them. All that can contribute to a reduction in the number of costly negligence claims.
I commend the use of mediation, which presents a real alternative to long and costly court cases. A pilot project in two English regions, Anglia and Oxford, and Northern and Yorkshire, is making an important contribution to our body of knowledge. It will establish whether mediation is a viable option for the NHS as a whole. We also look
forward to the Lord Chancellor's work in reforming the civil justice system. All in all, we believe that that package of measures is the best way forward, that it will ensure that the victims of medical negligence and medical accidents are properly compensated, and that the public will receive the reassurance that is their due.
My right hon. Friend the Secretary of State has said that what is wanted is
Question put and agreed to.
"explanation, not litigation. Apologies, not accusations. Excellence, not excuses."
In the new NHS, that is just what we seek to achieve.
Adjourned accordingly at twenty-eight minutes past Ten o'clock.
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