§ 7.22 p.m.
§ The noble Lord said: My Lords, I am well aware that this is not the first time that these issues have been debated, but they are important to a sizeable number of the less fortunate members of the community. For my part, I have to confess that I do not altogether understand the line that the Government have been taking so far. I am grateful to the other noble Lords who have put down their names to speak, even if some of them seem to have been taken a bit by surprise by the ending of the previous debate. If I may say so, I am particularly appreciative of the fact that the noble Lord. Lord Ennals, is to help us, given the fact that as Secretary of State he was responsible for the Act which forms the subject of my Question.
§ As noble Lords will recall, it was an Act which followed a number of cases where vaccination, especially for whooping cough, had apparently gone wrong and where all the publicity was having a pretty devastating effect on programmes of immunisation against a variety of other ailments. I shall not weary your Lordships with a detailed account of the 1979 Act, but to make my remarks reasonably intelligible I think that I must say just a little about it.
§ It was an Act designed to give a measure of compensation to those who suffered severe damage as a result of vaccination carried out under public policy. The argument was that society asked for these vaccinations to be carried out in the interests of the community and it was right that the community should shoulder responsibility when things went wrong. The Act applied to children after their second birthday, to adults in relation to polio and rubella and to anyone affected as a result of vaccination carried out during an epidemic and who was encouraged by the authorities. The test of what constituted severe damage was disability of at least 80 per cent. Claimants could apply to the DHSS for a grant of £10,000, and, if refused, could appeal to a medical tribunal. In view of the great problem of proving causation, the test was to be a balance of probabilities.
§ When the Bill was debated, it was welcomed in both Houses by the then Opposition as a new benefit for a very deserving category of person, but the Opposition made the reservation that they regarded the Bill as only an interim measure and that it must not prejudice consideration of the more far-reaching proposals in the Pearson Royal Commission report, which had been published the previous year. The noble Lord, Lord Ennals, was careful never to describe the Bill as an interim one. No doubt the Treasury had made it clear to him that the word "interim" in relation to a spending Bill was to be regarded with the same abhorrence as the word "hypothecation". But in the event the Bill was discussed by one and all on the basis that it was a temporary measure which would hold the field until conclusions had been reached on the recommendations of the Royal Commission.
§ That commission had received overwhelming evidence in favour of paying compensation when vaccination was undertaken to protect the community. No witness argued to the contrary. The commission had also looked at the provision which was already made on these lines in a number of other countries. It concluded that the existing remedy in 333 tort, with the usual test of negligence or fault, was of no help whatsoever in this context. A doctor who performed a vaccination in the recognised circumstances and using the recognised methods could never be said to be acting outside the bounds of proper practice and would never be found negligent. The commission did not know of a single case in which there had been a successful tort action, and I myself am not aware that there has been one since. It therefore looked for an alternative remedy.
§ The commission concluded that this was an area where the basis of liability should no longer be one of fault but should be strict. If the plaintiff could show, on a balance of probabilities, that the injury was attributable to the administration of a vaccine on the recommendation of the Government or a local authority, he should be entitled to compensation. There would be no need to prove fault or negligence; and the award would follow the accepted practices of the courts in tort cases. There would certainly be no maximum of £ 10,000 and no hurdle of at least 80 per cent. disability to surmount before a claim could even begin.
§ The Government have stated that they have no intention of accepting this recommendation. They have given not the slightest indication either that they intend to do anything at all about the 1979 Act. In a reply to a Question in another place not long ago, they even placed some reliance on the right to take tort proceedings on grounds of negligence. I cannot help thinking that, if this debate has done nothing else, it will perhaps at least have made those concerned in the department read the Pearson Report afresh.
§ I hope that some of what I regard as the anomalies arising from the 1979 Act will have emerged from my recital so far. The most obvious point is the inadequacy of the £10,000. Once the principle is accepted that there is a case for a special payment because of the interests of the community, a sum of this order falls far short of the extra expense with which a family with a brain-damaged child is faced, as recent research has shown with startling clarity. It is not just the distress and the impact on the whole of a family life when a tragedy of this kind occurs: over the years there is a very big financial bill.
§ Anyway, whatever was to be said for the figure of £10,000 as a gesture in 1979, it has been steadily reducing in real terms ever since, and will keep on doing so, even if at a less precipitate pace. I am not clever enough myself to work out what £10,000 in 1979 is now worth, but I have seen estimates that it is nearer £6,000; but no doubt the Minister will be able to give us a more accurate figure when he replies. I may say that I in fact sent him a note asking him if he could let me have this figure, but when he saw it perhaps he was too horrified to pass it on. I recall that when the Bill was going through this House the wise and noble Lord, Lord Robbins, not always an advocate on index-linking, said it was a matter of simple justice that this sum should be index-linked; but this was not done, no doubt because it was thought that it would not go on for very long.
§ Then there is this test of 80 per cent. disability. I would remind your Lordships that the Act makes just the one provision; either an 80 per cent. disability, or more, and £10,000, or nothing at all—a simple and 334 rather crude provision acceptable as a temporary stopgap but hardly suitable for a permanent provision. I had better not get involved this evening with discussing the comparable provision in regard to the severe disablement allowance in the current Health and Social Security Bill. It is a point which speaks for itself in this context.
§ Next, it depends on which part of the country you live in whether you are likely to succeed in an appeal to a medical tribunal. From the latest figures which the noble Lord the Minister has kindly given me, it seems that, in Cardiff, 41 claims have been allowed and 120—practically three times as many—rejected, whereas, in Nottingham, 76 have been allowed and 108 rejected—rather less than one and a half times as many. I do not suggest that the Principality was picked out for especially unfavourable treatment, but this is just one example of a number of very strange inconsistencies. I cannot persuade myself that this is at all a satisfactory state of affairs, and I think it is bound to raise the question whether the tribunal procedure is really the right course.
§ Then there is the problem of whether, when a lump sum is awarded, it is taken into account when a claim for supplementary benefit is made. Here, the picture has been somewhat blurred by the inability of the department itself to know what the policy is. At one stage MENCAP were told, at ministerial level, that the lump sum would always be disregarded, and they disseminated this glad news to their anxious members. Then they were told, again at ministerial level, that regrettably this information was wrong and that for those over 16 claiming in their own right the payment is, after all, treated as capital and is taken into account. Both for the policy and for the muddle in explaining it, I fear that the Government do not score a very high mark.
§ I could understand it, if not exactly welcome it, if the Government said that it was wrong in principle to single out one section of the community for special treatment; that, like others, these victims should rest on the various social security benefits, actual and proposed; and that the 1979 Act should therefore be repealed. No doubt at the same time the Government would repeal all the industrial injuries legislation, put an end to compulsory third party insurance to cover traffic accidents and scrap the Criminal Injuries Compensation Board. I could understand it, too, although I would think it quite inadequate, if the Government now said that, although the 1979 Act was passed as a stop-gap measure, we seem to be landed with it and we had better patch it up and bring it up to date. It would be a bit like converting a post-war prefab into a permanent dwelling-house, and about as satisfactory. But it is a possibility.
§ I could also understand it, and greatly welcome it, if the Government, having perhaps recalled what they themselves said when in Opposition, found themselves on the road to Damascus, as it were, and were converted to the view that, after all, the Pearson proposal, and the payment of realistic rewards, was the right answer. I cannot help pointing out that the Government seem to find the payment of quite large sums perfectly acceptable for criminal injury awards, and that, not long ago, they were reminding us that these payments were justified as expressing the 335 responsibility of the community—and I would congratulate the noble Baroness on the timing of her arrival in this debate!
§ But what I cannot understand is a flat refusal to do anything at all, and simply to maintain for an indefinite future an Act which creaks at the joints and is bound to get steadily more and more out of date. Nor do I quite follow how this attitude of Government is supposed to fit in with what I suppose is their overall policy of trying to strengthen the immunisation programmes against rubella, measles and the rest. I shall learn of the Government's response this evening with great interest, but so will a number of other people who have already suffered distress, frustration and personal misery, and the collapse of their lifetimes hopes and ambitions.
§ 7.37 p.m.
§ Lord Ennals
My Lords, I am sure that the House is extremely grateful to the noble Lord, Lord Allen of Abbeydale, for asking this Question. He was himself a very distinguished member of the Pearson Commission, and certainly it is my view that the report of the commission received really very little consideration, or achieved very unsatisfactory results from that consideration, by the Government; and I hope that the Minister, when he comes to reply, will perhaps give some indication of how many of the recommendations in the Pearson Report were acted upon. I have of course read the debate in this House on 1st December, 1982, on a Motion by the noble Lord. Lord Campbell of Alloway, and I am looking forward to the speech that he will make later.
As the noble Lord, Lord Allen of Abbeydale, has said, I have a deep personal interest in this Act, as it was I who introduced it on to the statute book originally in the House of Commons in 1978, with the warm-hearted support of my noble and learned friend Lord Elwyn-Jones, who was then Lord Chancellor and without whose assistance it would not have been possible for me to have persuaded my colleagues in the Cabinet to bring this forward before the report of the commission was published.
So what was the object of the Bill? There was a very serious problem for a limited number of very seriously handicapped children. I had the opportunity of seeing many of the parents and the children, both in my own constituency and in other parts of the country, and I was deeply moved. It was clear (and it was later proved to be so) that many of them were in the sad state that they were because they had followed the policy advocated by successive Governments regarding vaccination. There was also very active advocacy on the part of the Association of Vaccine Damaged Children, led by Mrs. Rosemary Fox, who did a quite remarkable job.
Of course the noble Lord is right in saying that the sum of £10,000, which was not compensation—and, as he said, I constantly stated that it was not compensation—was not adequate, even as a temporary cash payment. I now use the word "temporary" which I could not have used then. In the other place I never used the term "interim payment", because that would have implied that a decision had already been taken that there would be a compensation scheme, and that the interim was 336 obviously leading towards something. That something had not been decided upon. The Pearson Commission had not actually reported when the decision was first taken regarding the Bill, and even later when the Bill was in Committee consideration of the Pearson Commission's report was only just in hand. The sum was of course inadequate, but, having seen the children and their families, I felt that it was necessary urgently to find some means of getting some cash to the families, who were experiencing very great distress and extra expenditure due to the situation their children were in.
There was another argument, too. The incidence of vaccine damage, relatively small though it was compared to the damage caused by children not being vaccinated against whooping cough, was prejudicing the vaccination programme. As my noble and learned friend Lord Elwyn-Jones said at col. 1259 in the debate on 1st December:the disease is far more dangerous than the vaccine … the higher the proportion of children vaccinated, the greater are the prospects of controlling whooping cough".He was right then, and he is right today.
Therefore at the time when I took the decision—or the Cabinet took the decision—there was an element of seeking to strengthen the vaccination programme.
As I have said, the sum was never intended to be a form of compensation. Certainly it was my hope that in their consideration of the Pearson Commission's report the Government would come up with some form of compensation. I note that in the earlier debate the noble Lord, Lord Allen, said at col. 1251:because vaccination is carried out in the interests of the community and at the urging of Government, notwithstanding a known element of risk, there is a special responsibility on the Government to do something about those few cases where the procedure goes badly wrong. This debate is showing beyond a peradventure that the 1979 Act is imperfect in its operation. But it was not, and was never intended to be, the final answer"."Imperfect in its operation"—in what sense? Certainly, I agree with the noble Lord, in several senses. First, it was very strange the high proportion of those who were granted the award of £10,000 on appeal who had been turned down when the original application was considered by the Secretary of State or those acting on his behalf. There was, on the whole, a high proportion of acceptances on appeal, though, as the noble Lord has said, the variation was tremendous as between one part of the country and another. But the situation suggested to me—and I raised this point with my successor as Secretary of State, Mr. Patrick Jenkin—that there was not enough generosity on the part of those who were taking the original decisions, and that wherever there was doubt it should be cast in favour of the applicant.
Secondly, while, as I have said, the sum of £10,000 was inadequate in 1978, what should it be today? Perhaps the Minister has done his arithmetic and we have not done ours very well. But I should have thought that it would now be of the order of £18,000 or £19,000. The Minister may say £16,000, but whatever the figure is, it is substantially more than £10,000, because though the inflation rate is low at the moment, certainly it was very high just three or four years ago. In the six years since payments started to be made the Government have refused to increase the sum.
337 Thirdly—and this point has been raised by the noble Lord—should the lump sum be regarded as capital for the purposes of assessing supplementary benefits? This is a very important question because, sadly, a large number of these families are on supplementary benefit, partly due to the fact that the parents have to concentrate their attention on their extremely handicapped children—at least 80 per cent. handicapped. As I say, many of them are living on supplementary benefits. In the case of those who have grown up and are over the age of 16 the grant is made to them personally, and it seems to me to be quite appalling that it should be taken into consideration for the purpose of assessing supplementary benefits.
In January 1981, together with my friends in another place, Mr. Jack Ashley and Mr. Alf Morris, I led a deputation to see the then Secretary of State, Mr. Patrick Jenkin. We raised with him the issues of indexing and supplementary benefit. He took a long time to consider them. Then, in July 1981, he wrote a letter to me, giving a written assurance that the new supplementary benefit regulations would enable the cash benefit to be disregarded. I am sorry to say that he went back on that written assurance. I was extremely angry at the time, and I shall always be extremely angry if a Minister of the Crown goes back on a written declaration of intent.
As the noble Lord has said, the same thing happened again. On 22nd April 1983 a letter was written by the then Minister for the disabled, Mr. Hugh Rossi, now Sir Hugh Rossi. One has to make a number of mistakes in order to become a "Sir", and one has to lose one's seat in order to become a Lord—
§ Lord Ennals
Not everyone. This is just a momentary light, jocular riposte. Mr. Hugh Rossi wrote to Mr. Brian Rix, the general secretary of MENCAP, and in his letter he made it absolutely clear that,the sum should be totally disregarded".That was on 22nd April.
On 6th July Dr. Rhodes Boyson, who had then succeeded Mr. Rossi, wrote to Mr. Rix as follows:I am sorry Hugh Rossi's letter of April 22nd misled you and suggested that there had been a change in the rules. This is not so. Where a vaccine damaged person is aged 16 or over and is claiming in his own right the payment is treated as capital".Of course, if it is treated as capital, the tendency is to spend it straight away, to get it all spent. That is the thing to do, otherwise one loses supplementary benefit, and in the course of a number of years one will lose in supplementary benefit what one gains in terms of the payment of the £10,000. So clearly it was an absolute nonsense.
Mr. Rossi did not at all believe that he had made a mistake. He said:I was happy and content to sign that letter as it reflected the policy I was following, I deeply regret the fact that it has been changed".At the time I was appalled that someone referred to the matter as a civil servant's blunder. I think that is quite wrong. It is not civil servants who blunder in these situations; Ministers have to take responsibility for 338 letters that they sign, and either it was a ministerial decision, or Mr. Rossi did not read the letter that was put up to him. So it is an appalling record of incompetence; and it is incompetence that has led to the suffering of a significant number of individuals. The Minister is shaking his head. All right—but not to have taken that mean action would have cost only £300,000. That is all that it would have cost not to have taken the payment into consideration when assessing supplementary benefit.
In conclusion, I want to put three questions to the Minister. Why did the Government not introduce some form of compensation, whether on a no-fault liability basis or in some other way in line with the Pearson Commission report? This seems to be absolutely common justice, particularly in a case such as this where the action was taken in line with community interest. Secondly, what weight should we give to the statement of the noble Lord, Lord Trefgarne, who, in reply to a question from the noble Lord, Lord Allen of Abbeydale, on 27th January 1983, said that the Government thought:that improvements to the system ought to be subsumed in a wider consideration of benefits available for disabled people, and we shall do that as soon as resources are available."—[Official Report, 27/1/83; col. 364.]What does that mean? Are the Government really planning new benefits for disabled people as we, from these Benches, have advocated for many years? That would certainly create a record. To my knowledge, no new benefit for disabled people has been introduced to Parliament by a Conservative Government for the past 50 years.
My last question is to ask the Minister whether he can explain the significance of a section of the document, Social Security Notes published by his department, that is headed "Vaccine damage payments. New time limit for old claims". I find it difficult to understand why this is being done and exactly what the declaration means. Perhaps the noble Lord the Minister can indicate the purpose of this new decision, taken and announced in the February edition of Social Security Notes. I warmly support the Question put by the noble Lord, Lord Allen of Abbeydale.
§ 7.52 p.m.
§ Baroness Faithfull
My Lords, of the eight speakers in this debate, six spoke in the debate on 1st December 1982. I am sure that if the noble Lord, Lord Ennals, had been here he would have spoken on that occasion. I can perhaps therefore make the figure nine. This indicates the depth of feeling that those of us who are interested in the subject have shown by coming here again tonight. We are grateful to the noble Lord, Lord Allen of Abbeydale, for raising the matter once more.
In the debate of 1st December 1982, I made three points. I cannot forbear from making them again. First, there is the point made by the noble Lord, Lord Allen of Abbeydale, and by the noble Lord, Lord Ennals, that parents have had to wait too long. It would have been too long in any case. But, with the changed circumstances of recession, unemployment and the difficulties of life which we have to face at the moment, it is doubly difficult for the parents of these children. My second point relates to the climate of opinion. It is absolutely essential—I speak now as a 339 social worker—that, when working in ante-natal clinics one should be able, in partnership with the doctors and perhaps at the doctors' request, to talk to parents and persuade them that the children should receive immunisation. I have worked in various clinics and I have had to do this.
One tries to explain to parents either before or after they have seen the doctor, but usually before, why the children should he immunised. Their response is always to say, "Supposing it goes wrong?" One does not want to hang up the carrot of a large grant. That is quite wrong. If, however, one is able to say that should it go wrong—one has to be absolutely honest with parents—then help would be available, a climate of opinion is established. If it is possible to tell parents that help will be available should anything go wrong, one is able to set a positive climate of opinion in favour of immunisation and not against it. That is most important.
My third point relates to the social services and health visitors knowing what help is available to be given to parents whose children have suffered as a result of vaccination that has gone wrong. I have made this point before and I make it again. A decision made in your Lordships' House means that under the Mental Health Act there should be social workers particularly trained to understand the workings of the Act and to understand the needs of patients and the ways of helping them. With regard to the handicapped, there are a number of organisations. I contend, however, that there should be specially trained social workers who understand the needs of the handicapped and who also know what facilities are available. If the social work service of the Department of Health and Social Security had to produce a manual of the facilities that were available, it would experience great difficulty because it would fall over the question of finance. I had intended to go much more deeply into the financial situation but the noble Lord, Lord Ennals, has performed that task for me. I am grateful to him.
A fourth point which I did not make in my speech in the debate of 14 months ago was that mentioned by the noble Lord, Lord Allen of Abbeydale, about index-linked help. I have lately had to deal with, and enjoyed doing so, the whole question of handicapped students. I have also had to deal with a number of adults who are handicapped. The handicap lasts. It does not go away. It is there for all time. Unless there is index-linked financial help available, as suggested by the noble Lord, Lord Allen of Abbeydale, the patient or the person who has sustained the injury will be at a severe disadvantage. I should like very much, although I did not mention it in my speech of 14 months ago, to support what was stated by the noble Lord, because it is most important. The wheels of Government, we are told, grind exceedingly slow. I should like to ask the Government "Are they going to grind sure?" Are we to have a very positive policy in the realm of the Pearson Report?
§ 7.58 p.m.
My Lords, as has already become clear, I think, the House, not for the first time, owes a substantial debt to the noble Lord, Lord Allen of 340 Abbeydale, for drawing to our attention a matter that, if not speedily resolved, could undermine public confidence in public health measures in general and thereby prove damaging to public health itself. If the public become disenchanted with one form of vaccination, they very soon become highly suspicious of all forms of vaccination. And down that road lie very great dangers, indeed.
Vaccination serves two purposes; first, to protect the vaccinated individual against the particular disease concerned and. secondly, to impede the transmission of the disease through the community as a whole and thus protect the public health in general. Vaccination can be, and, indeed, has been, immensely effective on both counts. As an example, I would quote diphtheria. In the year before routine immunisation was introduced, there were 70,000 notified cases. In the following year, the figure came down to double figures, in the year after that, to single figures, and soon there was a year in which there were no cases at all.
Similarly, there was the dramatic effect of vaccination against smallpox. One does not have to go back all that many years to reach the time when anyone who was not pockmarked was regarded as good looking, so universal was that very serious disease. Smallpox has been virtually eradicated from the face of the world as a result of vaccination. Similarly, poliomyelitis is a disease that can have dramatic effects on the young and on very healthy and particularly highly trained adults. That too is no longer the scourge it once was.
Having said that, vaccination can also have its dangers and I quote the same examples. We very quickly found that vaccination against smallpox indeed carried quite serious dangers. We later found that poliomyelitis immunisation, when it was first introduced, had certain dangers. We then went on a course in which we improved the vaccine and so on.
This particular question relates to pertussis (whooping cough) vaccination. Whooping cough is a disease which, in the main, affects the very young. In the main, again, it is usually very mild indeed but it can have most serious consequences, particularly in the very young. The disease of pertussis (whooping cough) can be prevented by this vaccine, but this vaccine can cause, and has undoubtedly caused, very serious side effects. When side effects become known as a result of vaccinations, we then have to balance the risks: the risks of vaccination on the one hand, and the risks of contracting the particular disease and the consequences which flow from it, on the other.
With the example of smallpox which I quoted, that balancing act had already taken place. Smallpox has now been so far removed from the world that we no longer recommend routine vaccination against smallpox because it is not necessary; the risk of smallpox vaccination is immeasurably greater than the possible risks of contracting the disease. So that has been eliminated. In other cases, such as that of poliomyelitis, as I said earlier, we developed a much safer vaccine, as we certainly did with the polio vaccine in the early days. Where are we now with pertussis? That is where I want to add to the questions which have already been posed to the noble Lord the Minister by the noble Lord, Lord Allen of Abbeydale. I should like to ask whether the Minister can tell us 341 what is the present level of pertussis immunisation? We used to have figures published fairly regularly and I should quite like to know what is the present level of immunisation against whooping cough among young people at the moment. It is a figure which I am not aware of.
Secondly, I should like to know how many new cases of brain damage have occurred as a result of these vaccinations. That again is a figure which I personally do not know, and, when we know the answers to those two questions, I think we shall perhaps be able to make some kind of estimate of the size of the present risk.
If we look for a moment at the other possible course of action, when we find a vaccine which is dangerous—that is, in pioneering and developing a safer vaccine—
§ Lord Ennals
My Lords, before the noble Lord moves on. I wonder whether he will forgive me for putting a question. He would agree, would he not, that we know very much more now than we did five or six years ago? The Committee on the Safety of Medicines has at its disposal information, statistical analyses and so on, which shows that it is far safer for children to be vaccinated than not be vaccinated. I hope that in putting his question he was not casting any doubt on what the Committee on the Safety of Medicines is now prepared to state very emphatically.
My Lords, I am not going to give an unqualified answer to that question until I know precisely where it is leading me. Indeed, I should like some of the answers to my questions from the noble Lord the Minister before I finally formulate my firm views on this matter, because I still think it is a matter in which we have to balance the risks. But I will come back to the noble Lord's point in a moment.
If we look at the other possible course of action which we can take before we find a vaccine having no risks—and that is the pioneering and development of a safer vaccine—I should like to ask the Minister whether he can tell the House what progress has been made as a result of the efforts which are being made (and they are being made in many places) to develop a safer vaccine against haemophilous pertussis. I should like to know whether we are on the route to a safer vaccine and how soon it is going to be in general use and what we know about it.
My next question is this: so that we shall all know the size of this problem and the problem with which we are now confronted, I wonder whether the noble Lord is in a position to tell us the total number of cases on the books, in general terms, in which parents still feel aggrieved and dissatisfied perhaps as a result of failing the 80 per cent. disablement test, perhaps as a result of the deplorable application of the supplementary benefits capital cut-off rule in relation to the £10,000, perhaps because of appeals which are still pending in one way or another, or perhaps because their present circumstances are such that what they have been paid so far is manifestly below what they actually need and deserve.
From that question, one would really like to know from the noble Lord the Minister—and I know this is a figure which he will find very difficult to conjure out 342 of the air—what his estimate would be of the total amount of money which might now be necessary in order to settle once and for all these outstanding grievances. I know it is a difficult figure to ask for, but I feel that unless we do know that figure, unless we can settle the outstanding grievances, this matter will bubble away, will continue to arouse resentment and frustration, and will continue to arouse suspicion about vaccination and public health measures in general which could, in fact, be desperately dangerous.
If the figure is going to be a huge one, I should like to say this to the noble Lord: if we cannot pay the cost and if we cannot find a safe vaccine, we really do have to address ourselves to the question which the noble Lord, Lord Ennals, put to me; should we continue to recommend routine pertussis vaccination?
Here, I think, I must remind the House of the circumstances in which the last debate took place. It took place in the midst of a whooping cough epidemic and at a time when the then Secretary of State had altered the guidelines with regard to vaccination against whooping cough. In the past we had always said that it was necessary for very young children but not necessary for older children because they were not substantially at risk as the disease in them was not serious. But we then had a Secretary of State who said that children of two, three and even up to four should be vaccinated against whooping cough, not to protect those children—who we did not regard as being in great danger—but to prevent them contracting whooping cough, so that they did not pass it on to their brothers and sisters, to young children in their families, or perhaps other people's families.
I say to the noble Lord the Minister finally that if children were vaccinated not for their own benefit but for the benefit of others as a result of the Government's general policy at that time, and if any of those children did subsequently suffer from brain damage as a result of that, surely it is utterly clear that we have a responsibility and that that responsibility should be fulfilled. I urge that if the noble Lord the Minister can tell us that any of those children who were clearly vaccinated against whooping cough for the public benefit and not their own individual benefit, have suffered brain damage as a result, clearly they should be compensated, compensated adequately and compensated very speedily indeed.
§ 8.10 p.m.
§ Lord Auckland
My Lords, I should like to add to the tributes paid to the noble Lord, Lord Allen of Abbeydale, for having once again raised this extremely distressing question. I should also like to pay tribute to the Pearson Commission for the very close study which they gave to this particular aspect, among many in the commission which was presided over by the very wise noble and learned Lord, Lord Pearson.
This, or any, Government may or may not argue that at a time of severe financial restriction all questions of compensation have to be looked into in relative terms, but in this case I do not think that argument applies at all. I have also had the argument put to me—and I have had some experience, having served on the committee of a mental health hospital over a period of years—that all children who are mentally handicapped, or their parents, should 343 receive compensation; or if they do not, why should vaccine damaged children or their parents receive compensation? Why should these children or their parents receive compensation if the others do not? Here again the argument is somewhat illogical.
The noble Lord, Lord Ennals, has mentioned the sum of £10,000. I think that at the time he was facing an extremely difficult task. Any Minister of State, faced with what is virtually a unique problem, has to make an extremely difficult decision. We are assured that this is not really a payment of compensation in legal terms. But the criticism which must go through the whole of your Lordships' House, the other place and, indeed, the country at large, is that after all this time no proper amount of compensation has been fixed. Having said that, I would of course agree it is very difficult to fix a statutory sum of compensation because some of these children may well be living in areas of ready access; others may be living in tower blocks; some may be living in underprivileged households and some may be living in relatively comfortable circumstances. Not that that is any compensation for the children or the parents or those who look after them. But if one looks at the financial and environmental circumstances, it does make it a particularly difficult task for anybody who is trying to fix compensation.
The other point is that it is in future years that these children will face the gravest and most alarming problems. For example, their parents may die or the parents may separate under the great strain of looking after those children who live at home. Clearly, in those circumstances, again the statutory fixing of compensation is extremely difficult. However, it has become cruelly apparent that £10,000 is a derisory sum of money. What will £10,000 pay for? It might pay for a wheelchair properly adapted for these children. It will hardly pay for any kind of help, even if it were, to some extent, to be funded by the state.
All governments can find money for schools—maintained schools and other schools. I have no quarrel with that. But I believe that here we have a handful of children—I do not know the number—who have been vaccinated or inoculated for rubella, for pertussis and other diseases specified in the 1979 Act, and who have been cruelly striken down with the most awful condition. The fault of course is not with the medical profession; nobody can specifically be blamed. It is some compensation to know that under the Medicines Act very much more care is now taken in the manufacture of vaccines. I do not know whether my noble friend the Minister has the figures as regards any recent cases of brain damage occurring through vaccination or inoculation against any diseases specified in Section 1 of the 1979 Act. Clearly the figures are, mercifully, well down from what they were at the time when we had all these cases. But have they been eliminated? I think, alas! that the probable answer is that they have not.
I turn to the 80 per cent. disability. I am not a doctor, but I should have thought that just about every case was an 80 per cent. or worse disability. So was it really necessary to fix an arbitrary figure? Possibly for the sake of parliamentary power, yes. But surely, if a vaccination of this kind is given and brain damage 344 occurs, the extent of brain damage in every case would be sufficiently substantial for compensation to be paid? I would hope that in every case where brain damage has occurred, compensation, the allowance or whatever it is called, has been paid irrespective of the extent of the brain damage. These children are suffering the most cruel' disabilites, and their parents or whoever looks after them are suffering even worse ordeals.
It is more than probable that this question will be raised again in your Lordships' House and elsewhere. But I say to my noble friend the Minister that the time has now come for her Majesty's Government—and I would say this of any government—to make sure that the parents of these children are paid a proper amount of compensation, since the Government have for a long time—and quite rightly—urged parents to vaccinate their children. That is absolutely right. But where things go wrong (even if it is not the fault of the Government or the doctor) because vaccination took place by Government encouragement, the compensation—even if it costs the taxpayer a lot of money—should be paid without any further hesitation.
§ 8.18 p.m.
§ Lord Henderson of Brompton
My Lords, fortunately for the House, but unfortunately for me, I seem to have lost the notes of what I intended to say on the operation of the Vaccine Damage Payments Act. Anyway, much of what I would otherwise have said has already been said by those who have spoken before me. So I shall be rather more general and less specific in what I say than I would otherwise have been.
To my mind the anomalies arising from the operation of the Act are quite horrifying, and they must be due either to the deficiencies of the Act itself, in which case it should be amended, or to the existing machinery or the policy of those who operate it, in which case urgent administrative action should be taken. Alternatively, it may be a combination of all three.
My interest in compensation for personal injury is almost exactly 40 years old. I have no complaint myself as my personal injury was due to the war. Ever since I have been compensated by a war disablement pension and I have been well cared for, first by the Ministry of Pensions and now by the DHSS. Incidentally, the noble Lord, Lord Allen of Abbeydale, mentioned the 80 per cent. assessment of disability. I cannot help recalling that the other day the noble Lord, Lord Ennals, declared that he was a 100 per cent. war disabled pensioner. I recall that when I was awarded a 100 per cent. disablement pension 40 years ago I asked myself: 100 per cent. of what? I thought that this was perhaps a declaration, an assessment, of death. To me, 100 per cent. of life disablement equals death! But in statutory terms one has to look at the Act, and one sees in Section 1(4) of the 1979 Act that:For the purposes of this Act, a person is severely disabled if he suffers disablement to the extent of 80 per cent. or more, assessed as for the purposes of section 57 of the Social Security Act 1975".That does not help very much. It still remains a mystery to me how anybody can assess disablement except in terms of total extinction of life, which is 100 per cent.
345 Be that as it may. I can never forget the time when I was in a spinal injuries centre which, of course, contained those who were injured other than by war, and there were those with identical or closely similar injuries lying in the same ward or in neighbouring beds. One person was in receipt of compensation for his injury, perhaps caused by an accident at work, and he received industrial compensation, whereas his neighbour received nothing. The anguish caused by this injustice compounded the injury of the victim who received nothing. Just as bad as that was the effect on his family—the wife and the children of the uncompensated victim, who in those days received little enough in the way of social security benefits.
For some reason that I have never fully understood, this crying injustice was not appreciated by the general public, nor by many politicians and nor by the great political parties until the events which led to the setting up of the Pearson Commission on Civil Liability and Compensation for Personal Injury in 1973. So great was the problem that it took that commission five years to hear evidence and to deliberate before it reported in 1978. I do not complain of that. It was five years well spent, and, in view of its quality and its comprehensive nature, the report was well worth waiting for.
It is six years since the Pearson Commission reported, and despite the valiant efforts of the noble Lord, Lord Allen of Abbeydale, who was a member of that commission for most of its time, nothing of any great significance has happened. I know that there has been some legislation implementing a number of the Pearson Commission recommendations, and there is the Vaccine Damage Payments Act 1979, which (if I do not do the Pearson Commission an injustice) roughly followed the proposals in chapter 25 of that report. I suppose that it could be regarded as a pilot scheme, which is something. But here we find in the small area of vaccine damage the same sort of anomalies that one finds among all victims of personal injury. It may be an exaggeration to say so, but it almost seems as though the payments that you or your parents receive under the Act vary according to the part of the country you happen to live in, and as has been repeated by everyone who has spoken so far, clearly those payments do not seem to be enough. Therefore, even if one is to regard this as a pilot scheme it has proved itself to be woefully inadequate.
Clearly, great though the abilities and persistence of the noble Lord, Lord Allen of Abbeydale, are, this is a matter which cannot be left solely to his efforts and his initiative. Do we have to wait for yet another sensational piece of Sunday journalism to galvanise the Government into action? I would say as seriously as I know how to those organisations concerned with the disabled, whether or not they are Government-aided, that they should combine and bend their energies towards persuading the Government to implement the major recommendations of the Pearson Report. In my view, those organisations have wrongly persuaded those interested in the disabled in Parliament to spend a great deal of parliamentary time this Session on a comparatively trivial, though I grant important issue of discrimination against the disabled. How very much more worthwhile would it have been had they spent that considerable amount of 346 parliamentary time on pressing the Government to act on Pearson's major recommendations!
I know well enough that it will never be possible to be entirely fair and that, however hard one tries, there will always be anomalies. But that is no excuse for not trying to be as fair as possible and to reduce the areas of unfairness. We are all at risk. But it is grotesque that compensation for injury should be so capricious as it is. If a road accident is caused by a cat or dog, by a pedestrian or by a cyclist, it is only very rarely that the victim receives any compensation because the owner of the cat or dog, or the pedestrian or cyclist, is not insured and has no money. But very occasionally one finds that the owner of the cat or dog is insured for personal liability—possibly if he or she is a council tenant and an enlightened local authority has taken out a blanket policy for all its tenants. Then, huge damages may be awarded by the court, as happened only last summer when I think a victim of a road accident was awarded some £250,000. That, of course, can he regarded in two ways. One may say that that is too much money, but at least it shows up the paucity of the £10,000 for the parents or the wretched child who is damaged by a vaccine. There is a grotesque difference between £250,000 and £10,000.
Then, again, the kind of thing which is worrying is if the lucky recipient of the £250,000 (if I may so call him) is so badly damaged that he dies within a month or so of receiving the compensation then that £250,000 accrues to his widow. That, of course, is another matter; but it illustrates how capricious this matter is and how very necessary and urgent it is as a matter of public policy and as a question of deep social significance that it should be looked into.
This may seem very far removed from vaccine damage payments, but in my view it is not. The vaccine damage payments scheme is a microcosm as well as a pilot scheme, and should be seen in the context of the much greater social evil that requires a remedy or series of remedies such as were proposed in the Pearson Report of six years ago to the very month.
§ 8.30 p.m.
§ Baroness Lane-Fox
My Lords, some subjects are so painful to consider that one yearns to find for them a flattering disguise. But facts must be faced and no amount of ingenuity in these particular cases is likely to do much good unless it can provide cure, cash or care. Part of the privilege of being a Member of your Lordships' House is to grip these uncomfortable subjects. I should like to add my tribute to those already paid to the noble Lord, Lord Allen of Abbeydale, for his persistence in returning to this unfinished subject and in shining on it the full brilliance of his intellect.
I ask to be associated with the very highest degree of sympathy that has already been expressed for the cases and families described. There is therefore no need whatever for me to add to the heartrending descriptions with which I so fully concur. I am in entire agreement that this situation of the vaccine damaged children should be dealt with as far as is possible.
My concern is that the circumstance of other families with equally handicapped children shall also be fully considered. Eventually, and much sooner, I trust, than later, one hopes that an allowance will be 347 payable, not made to compensate but to retrieve such opportunities of life as are feasible. That must be the best solution for an already cruel situation. This calls for an assessment which is not made on the cause of the handicap under which, for example, a child with defective limbs that just can be linked to the thalidomide tragedy, receives more than those with identical impairments where this fault just misses being so established. I have to admit to your Lordships that these are the sort of cases that really drive me beserk. In my view it is the extent of the handicap that should be measured, taking into account social and environmental circumstances.
I asked a parliamentary Question last December which was answered by my noble friend the Minister, regarding the international classification of impairments, disabilities and handicaps, published by the World Health Organisation in 1980. That brought from Dr. Wood, Professor of Community Medicine in Manchester, a follow-up on his draft for that WHO publication. His prime purpose was to promote a more sensitive appreciation of the experience of disablement, distinguishing between the three dimensions of impairment, disability and handicap. He considers that benefits on the basis of impairment, rather than the resultant disadvantage, could cause unnecessary anti-bias, stigma or whatever. Every encouragement and opportunity should be allowed to those who are impaired but who try hard and achieve a lot. Yet those who cannot state their case, who cannot be vocally emotive about their situation, must always rank high for consideration. Hence the case for the vaccine damaged.
In case what I have said today sounds pretty well like pie in the sky, may I say that I understand that a DHSS feasability study has been completed to update the Amelia Harris 1968–69 survey of handicapped and impaired people in Great Britain. As I understand it, its results are still in limbo. It is my earnest hope that they may be taken up and that the opportunities of a resulting survey explore the alternatives of applying impairment, disability and handicap as the basis for eligibility, so that the right definition formula may be found. Of course if the basis for benefit were to be altered and were to result in established groups at first losing their edge, this could be adjusted. What is sure is that the home, social and environmental situation must be included in the consideration.
I apologise for my detailed argument at this time of night. My deep interest in the subject is the wish to see those with the same degree of disability, such as the noble Lord, Lord Henderson of Brompton, has mentioned, awarded more or less the same help.
Dr. Wood's department does not cope much with impairment other than that some handicaps arise from impairments without actual disability, as in the case of facial disfigurement. His department is aware that the Amelia Harris in depth inquiries took some three hours to get through, having started first with a postal screen. Dr. Wood's department is developing a questionnaire for use in detailed study with people responding positively to the screen. They expect to get the information they need, this time in a much shorter time than 3 hours. He is particularly aware of the effect there would be on all of their social circumstances as 348 well as the actual physical condition. I find it heartening to know that there are courageous, clever people working out these delicate issues. It is a subject that is becoming better understood through current higher education courses. As one goes around one finds that to be so.
To me it is extremely necessary that some balance be struck. Only when a basis has been agreed can cases be judged without emotive discrimination. It may then be, the experts tell me, necessary to hope for a separate division of the High Court to be set up, with a judge advised by two distinguished members of the medical profession, to work out the important conclusions. It is interesting that an opinion poll taken in 1981 indicated that 80 per cent. of those questioned said that in the benefit system there should be equal treatment for all disabled people. I am quite certain that that equal treatment does not exist today. It is my fond wish that a fairer basis be found for allowances and best of all for a national disability pension, including extra expenses, which the vaccine damaged and their peers require. If anyone wants to read a most careful, reasonable assessment of these cases, a booklet called Mental Handicap Costs More by Judith Buckle, which was published by DIG recently, can be strongly recommended.
The needs for which we claim stem from progress in medical science. It has succeeded in helping many of us to survive, despite appalling handicaps in many cases. But I believe we are becoming privy to many small matters that really need not require the attention of the whole House because we do not have a suitable measurement of impairment. Such a measurement of handicap could be used to help, to enable and to empower people to have a fairer deal in our mainly generous society. For this reason I appeal to my noble friend the Minister to bring pressure to put the feasibility study to the aims I have described, and thus help to overcome the dilemma of the vaccine damaged; to point the way forward, for many of the current programmes for disabled people, to cash and care if not, necessarily, alas! for cure. It is difficult for a Minister at this time to appear to support any expenditure on such schemes but, with all the power that I can use from my own experience, I ask my noble friend the Minister to accept that the Government will find it both economic, humane and administratively wise to undertake the survey into the definition of disability.
§ 8.41 p.m.
§ Lord Campbell of Alloway
My Lords, here we are again, this small, dedicated, select, esoteric band of hopefuls under the leadership of the noble Lord, Lord Allen of Abbeydale. We will continue to meet, we will continue to fight, in this House, whether we have this Government or whether we have another Government, whatever may be the case, until our voice is heard and heeded in high places. And we now have the welcome force of the reasoned eloquence of the noble Lord, Lord Henderson of Brompton, the all-powerful strain of the Cross-Benches.
My sole purpose tonight is to seek not to repeat what I said on 1st December but to make it plain that my own personal reservations, for what they are worth, are as to the system—rather the same argument as arose in 349 the case of another type of compensation debate, also introduced by the noble Lord, Lord Allen of Abbeydale. It is the system.
The first question arising is a very simple one to ask. It is this. Why has Parliament already recognised the special case for compensation in this regard as distinct from other disabilities? It is because—and I know that the noble Baroness, Lady Lane-Fox accepts the reason although, quite fairly, she disagrees with the application of the reasoning—this triple injection is administered to the very young, on the say-so, sometimes, of a very young parent, with the full encouragement of the state in the general public interest. And that is why Parliament has made this a special case.
I adopt wholly the most helpful exposition of the noble Lord, Lord Ennals, who told us, with authority, about the origins of this Bill and also the full explanation on this aspect of the noble Lord, Lord Allen of Abbeydale. It is the acceptance of this slight, but appreciable, risk of irreparable brain damage in these circumstances which distinguishes this situation from all other forms or categories of disability—the point made before, and made again (if I may say so, with even greater cogency and force on account of the interruption) by the noble Lord, Lord Winstanley.
This is essentially a medical matter on which someone such as I must simply rely upon the evidence of experts, the opinion of experts. Figures have been asked for. We need these figures in order to form a judgment, and of course I rely upon the expertise of the noble Lords who have expressed their views in different ways—for example, as governors of mental institutions and as medical experts. I rely upon the expertise of the noble Lord, Lord Ennals, and the expertise of the noble Lord, Lord Allen. They are a disparate group but their views make up the composite run; the drift is all the same. I rely on their expertise, for mine is only that of a lawyer who has some practical experience of these cases, though I am told (and I observe this) that it is not proper for me to speak on that aspect in this House. And I shall not do so.
My Lords, on the assumption that there is a special case, the question then is whether this makeshift statutory experiment is not long overdue for reform. If so, what are the options? There are only three options. The first is a comprehensive scheme for all disabled. That is the long-term solution, something that one day we must have, the ideal. But, although I would support the ideal and, certainly, the view expressed by the noble Baroness, Lady Lane-Fox, and the noble Lord, Lord Henderson of Brompton, I, for one, feel that in the financial situation in which we are, the constraints as they now exist render it not a viable option.
So I go to the next option. That is the Pearson solution, where causation is irrelevant. Again, one would be naive to suppose that this Government—and I have said this to your Lordships before in another context—have any intention of implementing the Pearson Report because, if they had any intention of doing so, they would either have done so or have said already that they proposed to do so. So we are left with the third option. What is that? That is a radical revision of the Act; and it is quite simply done. All you have to do is to introduce a new qualifying proviso and scrap the old and a new regime for compensation and scrap the old.
350 In a matter of two minutes, may I put to your Lordships for your consideration how simply this might be done? As to the new qualifying proviso, the concept of proof of causation on the balance of probabilities, which creates so much difficulty in practice and is the common law test, must be replaced by a reasonable ground upon which the tribunal could infer a lesser test, thus abrogating at once the arbitrary, qualifying proviso of 80 per cent. brain damage. As to the regime for compensation, subject only to the new qualifying proviso—that is, proof, reasonable ground upon which to infer that some brain damage has occurred as a result of the injection—the tribunal should award compensation according to actual brain damage, percentage brain damage, applying ordinary common law principles. This should be subject to review by our regular courts of law to iron out the inconsistencies and remove the disparities and the injustices to which the noble Lord, Lord Allen, and other noble Lords have referred. That would abrogate all at once this ridiculous, outmoded and unjust concept of fixed compensation anyway and the ridiculous amount of £10,000. If steps along those lines are taken by way of a radical revision of the Act, you do not get the ideal, the first, option; you do not get the second ideal; but you do more than refurbish a prefab: you produce a respectable set of law which would do justice broadly.
If I may, I would say this in conclusion. We have to consider very carefully the warning of the noble Lord, Lord Winstanley. Should we have, if I may use the phrase, "routine injections" of older children for the exclusive benefit of the community if there is to be no fair and proper compensation if things go wrong? I repeat: should we, my Lords?
The second matter is this. Without repeating anything that has been said, the case for urgent administrative reform within my third option was developed by the noble Lord, Lord Henderson of Brompton, and, for the reasons that he gave, surely the case that he made out is unanswerable. Surely, the case that I seek to make out for radical reform is unanswerable too. For how long shall we all gyrate in a vacuum?
§ 8.52 p.m.
§ Lord Glenarthur
My Lords, I join those who have spoken before me in thanking the noble Lord, Lord Allen of Abbeydale, for initiating this debate and for bringing to it the depth of his knowledge and experience, especially as a member of the Pearson Commission. The Vaccine Damage Payments Act was introduced in 1979 as a response to the Pearson Commission's recommendations, and it is particularly apt that the noble Lord, Lord Allen, as the sole member of the commission still in this House, should have asked this particular Question.
Those who have taken part in the debate have criticised several aspects of the Vaccine Damage Payments Scheme, but before I respond in detail to their criticism I ought to make it clear at the outset that the Government are satisfied that the Vaccine Damage Payments Act operates fairly and that we have no plans to review or extend it. When the Act was introduced in 1979 the aim, as then expressed by the 351 noble Lord, Lord Ennals, when he was Secretary of State for Social Services, was to provide a measure of financial support to help ease the present and future burden of those severely disabled as a result of vaccination, and for their families. This remains the aim today.
The Government believe that the scheme plays a valuable part in providing a preferential payment in respect of children who are found to be severely disabled as a result of vaccination, compared with other children who are similarly disabled but as a result of other events. The award under the Act is additional to the social security benefits and health and personal social services available to disabled people in general. For instance, it is probable that the unfortunate child who qualifies for the special payment would also be entitled to the attendance allowance, and possibly also to mobility allowance. The £10,000 award does, therefore, represent a substantial preference for vaccine-damaged children over and above the benefits available to other groups of disabled children; and this is fully consistent with the treatment of vaccine-damaged children as special cases.
The Government cannot contemplate any changes which would increase the preference, but we have not adopted this position lightly or out of any lack of sympathy for children disabled as a result of vaccination, or for their families. We do not underestimate in any way the day-to-day problems faced by parents and others who care for vaccine-damaged people, and I should like to take this opportunity to pay my tribute to their immense courage and sacrifice.
Rather than increase the financial preference for vaccine-damaged children the Government feel that it is right for their long-term policy to be one of working towards a more coherent system of benefits for disabled people in general. Some progress has already been made in this direction, despite the rather gloomy comment of the noble Lord, Lord Ennals. Last year, for example, we were able to remove the "invalidity trap" which prevented thousands of chronically sick and disabled people from ever qualifying for the higher, long-term rate of supplementary benefit. Also, the Health and Social Security Bill, at present in another place, includes proposals for the introduction of a new benefit, severe disablement allowance, to replace non-contributory invalidity pension from November 1984. Initially, this will result in an extra 20,000 disabled people being able to qualify for benefit for the first time, at an additional cost of £20 million a year. So I really cannot accept that the noble Lord's challenge in this respect was fair.
The noble Lord, Lord Allen, has drawn attention in his speech to statistics which show that among the seven vaccine damage tribunals in different parts of the country there are differences in the proportion of claims which have been allowed following their respective hearings. This is a matter of fact. But it is a fact also that one cannot expect each tribunal to be faced with an identical cross-section of cases for consideration. I am sure the noble Lord will accept that. Each individual case must be considered on its own merits. The noble Lord seemed to suggest that the 352 different success rates between tribunals is the result of different attitudes on the part of chairmen and members. But the tribunals are independent bodies, and it would be quite improper for me to compromise that independence by reacting to any suggestion about their conduct.
The chairmen of the vaccine damage tribunals are appointed by my noble and learned friend the Lord Chancellor, while the tribunals are under the jurisdiction of the Council on Tribunals. Should the noble Lord, Lord Allen, wish to pursue this point further, I think he would agree that it would be appropriate for him to do so with my noble and learned friend.
With regard to the points raised by my noble friend Lady Lane-Fox, I am of course well aware of the very strong views that she holds on this matter, but I am afraid there is very little I can add to the reply that I gave her on 19th December. The classification of "handicap", as advocated in the World Health Organisation document, is at an experimental stage. The feasibility of a new survey of disabled people is still being considered by the department. No firm decisions have been taken yet, but I have no doubt that if it is decided to go ahead the existence of the WHO document will he taken into account by the researchers, as I am sure it will by by others. However, it is far too early to say whether it could form any basis for the assessment of benefits.
The noble Lord, Lord Allen, asked about the whole acceptance of the Pearson Commission's recommendations. I have to say to him and to the noble Lord, Lord Ennals—and I think they recognise the point—that payments under the Act cannot be regarded as compensation. That is emphasised by the fact that the Act provides for a single lump sum payment instead of a sliding scale of payments according to the degree of disablement suffered. We cannot agree that because vaccination is recommended generally there is a case for paying compensation in every case of vaccine damage. That would involve massive public expenditure, which could only be made at the expense of other equally deserving goups. On the other hand, a claim under the Act, whether or not it leads to an award, does not prejudice the individual's right to institute legal proceedings on the grounds that negligence has occurred.
The noble Lord, Lord Allen of Abbeydale, my noble friend Lord Auckland and the noble Lord, Lord Henderson of Brompton, raised the question of reliance upon 80 per cent. as the criterion for the allowance. I must stress that the phrase "80 per cent. mental handicap" is not the criterion for an award and gives a rather misleading impression. What is assessed is overall disablement, either physical and/or mental. In making this assessment, regard must be had to the scale laid down in the social security regulations. For example, blindness and deafness are each prescribed as 100 per cent. disablement but clearly do not represent the greatest possible extent of disablement. Eighty per cent. is customarily regarded as the lower end of the spectrum of severe disablement, as defined, and it is misleading to think of 100 per cent. as representing the greatest possible extent of disablement. I am sure that the noble Lord, Lord Henderson of Brompton, will agree with me on that point; And he looks 100 per cent. alive to me. The level of disablement decided 353 upon as a qualifying condition is in line with the thinking of the Pearson Commission which envisaged payments only for severe disability.
I was asked by the noble Lord, Lord Allen of Abbeydale, and the noble Lord, Lord Ennals, about the real value of the £10,000 payment. The £10,000 payment continues to give a substantial measure of preference, as I have already said. Any increase in the £10,000 payment would lead to a movement away from rather than progress towards our long-term strategy to improve benefits for disabled people in general. That is the point which I made just now. However, so far as the figure itself is concerned, the payment now would be approximately £16,000.
The noble Lord, Lord Ennals, raised the question of the payment of supplementary benefit. So far as supplementary benefit is concerned, a vaccine damage payment held in trust for a child is wholly disregarded in calculating his parents' benefit entitlement. Where the vaccine damaged person is 16 or over and claiming supplememtary benefit in his own right, the payment is normally taken into account as a capital resource, so supplementary benefit is not payable. But it may be disregarded temporarily, usually up to a year, where it is earmarked for some major item of expenditure for the benefit of the vaccine damaged person.
The noble Lord, Lord Ennals, alleged that the Government had gone back on a promise to disregard completely vaccine damage payments. He said this promise had been made on several occasions. While certainly there was some misunderstanding at the time when the new supplementary benefit regulations were being drafted in 1980, I have to say to the noble Lord that his description of this misunderstanding was something of an exaggeration and that it has now been cleared up and is a matter of history. Those who are involved now accept that point. Therefore I do not believe that I can usefully be drawn on what previous Ministers did in fact say. The noble Lord quoted letters, but the dispute has now been resolved—perhaps not entirely to the noble Lord's satisfaction, but certainly to the satisfaction of others.
§ Lord Ennals
My Lords, an assurance was given to me in writing by the Secretary of State for Social Services at that time. Is the Minister saying that this was a misunderstanding? It could not have been a misunderstanding. There is no chance of it being a misunderstanding. I do not understand what the Minister is saying to me.
§ Lord Glenarthur
My Lords, we could discuss the matter at considerable length, but if I were to do so it might weary the House. The noble Lord was quite right to quote the letter to which he referred, but that subject has been examined on a number of occasions and the record has been put straight. I shall be very happy to follow up this matter in correspondence with the noble Lord and to show him that it has been dealt with. I hope the noble Lord will accept that assurance from me.
The noble Lord, Lord Winstanley, the noble Lord, Lord Campbell of Alloway, and others referred to the vaccination programme. I should like to dwell for a moment on the principles underlying the vaccination programme. It has been argued that vaccinations against whooping cough, diphtheria and tetanus in 354 particular, commonly administered as a three-in-one injection, are administered primarily in the interests of the community generally. It is important that we should reflect on the purpose of vaccination. Vaccination against the diseases which I have just mentioned and against poliomyelitis, tuberculosis and measles is recommended as public policy, with the eventual target of eliminating those potentially deadly diseases. But this is not to say that it is only for the good of the public at large.
Vaccination against these diseases is indisputably for the benefit of the individual children who receive it. Your Lordships will remember only too well the threat of fatal and disabling diseases such as diphtheria and polio. Now over 80 per cent. of children are protected against these diseases. Of course it is a valuable consequence of individual and, I suggest, voluntary decisions by parents that the incidence of disease in the community as a whole has diminished. I do not want to mislead anyone. The balance of advantage is not weighted in favour of the protection of the community. If a case of polio or diphtheria is imported, the balance is weighted overwhelmingly in favour of protecting individual children who might encounter either danger.
Other diseases, such as whooping cough and measles, also carry risks of long-term damage. Your Lordships will be aware that during the last whooping cough epidemic which peaked in 1982, with over 2,000 new cases of the disease being reported each week at its height, over 80,000 children contracted the disease. Tragically at least 21 of them died. The greatest incidence of the disease was in children under the age of nine, and of these a significant proportion were aged between five and nine. Having explained the vaccination programme and the consequences of relaxing vigilance, I believe your Lordships will agree that in the light of those figures the risk of damage attaching to vaccination is mercifully small, although I do not discount in any way the suffering that this brings when it occurs.
My Lords. I am very anxious that the point I made to the Minister should not be misrepresented in any sense. I never suggested for a moment that vaccination against diphtheria was carried out for the public benefit rather than for the benefit of the individual. Nor did I suggest that this was so in relation to tetanus, for example. The noble Lord knows that although the triple antigen can be given with whooping cough, diphtheria and tetanus combined, it is also the practice very often to give each of these separately.
In the past, it was not the practice for doctors to advise parents to immunise their children against whooping cough if their children were already above a certain age. That practice was altered during the course of the last epidemic, on the advice of the then Secretary of State. He advised that children who formerly would not have been vaccinated for their own benefit should now be vaccinated for the benefit of others. That was the specific case to which I was referring when I asked the noble Lord about this particular point.
§ Lord Campbell of Alloway
My Lords, for the sake of the record, perhaps my noble friend will allow me to 355 associate myself with those comments. I have gone in fairly hard on this debate and I do not want to be misrepresented in any way. I know that any such misrepresentation would not have been intentional, but the noble Lord has stated my position with total clarity, as I intended to state it myself.
§ Lord Glenarthur
My Lords, I certainly do not want to misrepresent anybody and I am sorry if that is what I have done. This is a complex area; the noble Lord, Lord Winstanley, is a doctor and understands the technicalities rather better than I do—although that, of course, is no excuse.
There are a number of other points I want do delve into, and, in the interests to time, perhaps I should do so now. My noble friend Lord Auckland asked about the number of recent cases of brain damage from vaccination. I cannot say for certain that there is none, but to date no award of a vaccine damage payment has been made for a vaccination which took place after 1981. Of 763 awards made since the scheme began, only 27 relate to vaccinations since 1978.
The noble Lord, Lord Winstanley, asked specifically about the research that is being done into alternative whooping cough vaccines. Research is continuing in this country into the development of an improved whooping cough vaccine, and if potency and toxicity studies are completed successfully then clinical trials of the vaccine will be considered. The noble Lord and my noble friend Lord Auckland also asked whether we can give precise figures for the risk of brain damage from vaccination. There are, as your Lordships will know, several causes of severe neurological disturbances in babies and infants, some of which may arise at the same time as the administration of a drug or a vaccine. The Joint Committee on Vaccination and Immunisation has always recognised the difficulties of identifying conditions caused by vaccination in the system of monitoring adverse reactions. Recent research suggests that a figure of one in 100,000 children vaccinated against whooping cough who might suffer a permanent handicap is the most reliable estimate at present available.
My noble friend Lady Faithfull asked what the department are doing to publicise the risk of immunisation against whooping cough. Guidance on adverse reactions is highlighted in the whooping cough section of the memorandum on infectious disease which was issued in 1982. It was sent to all NHS doctors. An updated revision of that memorandum is shortly to be distributed. In addition, the Health Education Council's leaflet on immunisation is widely distributed. It gives clear advice to parents about both the benefits and possible side effects of whooping cough vaccination.
The noble Lord, Lord Winstanley, asked what steps the Government are taking to ensure that vaccines are safe in use. All vaccines are medical products, as he knows, and as such have to be awarded a product licence before they can be marketed. Before a product licence can be granted, vaccines have to be examined by the Committee on Safety of Medicines, which considers their safety, their quality and their efficiency. Once a vaccine is marketed, any adverse reactions are monitored by the CSM through the yellow card 356 system, among other means. A sub-committee of the CSM reported last year on improvements to current arrangements for the notification and consideration of adverse reactions. The recommendations were recently approved by Ministers, and action is now proceeding on a number of measures. A working party is now operating, and during the second phase of its deliberations will be looking at new or alternative ways of collecting adverse reaction data. It is expected that the working party's report will be ready later this year. I hope that to some extent that satisfies the noble Lord.
The noble Lord, Lord Ennals, asked why the right to make a claim under the Vaccine Damage Payments Act will be restricted with effect from May this year. When the Act was introduced, it related to vaccinations carried out on or after 5th July 1948, and specified a time limit of 8th May 1984 for claims to be made where the child's date of vaccination and second birthday were before 9th May 1978. This time limit was needed because it becomes increasingly difficult to obtain and investigate medical evidence as time goes by. From 9th May 1984 claims will only be accepted within six years of the date of vaccination or the child's second birthday. The fact has been publicised in the February edition of the DHSS periodical bulletin Social Security Notes, to which the noble Lord referred.
I have covered quite a lot of ground but there are, I fear, a number of points which I have not been able to answer in the time available to me. Of course I shall study those points and if any of them can be met usefully for those who took part in the debate, I shall certainly respond in writing. I am, of course, fully aware of the strength and depth of feeling and the passion which vaccine damage leads to. It is quite understandable. For that reason I am glad to have been able to set out the Government's view and glad that the noble Lord, Lord Allen of Abbeydale, gave me the opportunity to do so. As I said, I will follow up with what I can in writing, but I hope that at least with what I have said the noble Lord is in no doubt as to the Government's views.