§ 3.20 p.m.
§ Lord Allen of Abbeydale rose to call attention to the case for a no-fault system for medical injuries; and to move for Papers.
§ The noble Lord said: My Lords, I recall being surprised many years ago when I was asked to join the Pearson Royal Commission, which had been set up partly as a result of the thalidomide disaster, to inquire into problems of compensation for personal injury. I 551 should have been absolutely astonished if I had then been told that 18 years later I would be addressing your Lordships' House with some of the problems still unresolved.
§ On 1st February the other place held a Second Reading debate on Mrs. Barnes's Bill aimed at setting up a no-fault scheme for medical accidents. Today's debate is not about that Bill, defeated as it was by a government majority assembled in considerable numbers on a Friday. Your Lordships' House is discussing a wide-ranging problem of great difficulty, complexity and importance. I am grateful to all noble Lords who have put down their names to speak. Indeed, the House will have the benefit of a great deal of expertise, if not from the opening speaker.
§ I understand a medical injury to be the impairment of a person by a physical or mental condition arising in the course of medical care. The impairment may be a foreseeable and acceptable outcome of the necessary treatment. On the other hand, it may be the result of a medical accident, whether or not due to negligence. It is about such mishaps that I am speaking today. If at present things go wrong the patient's remedy is to sue his doctor in tort for damages. In order to win he must prove that on the balance of probabilities the doctor was negligent; that is, that he had failed to act in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.
§ That raises a number of problems. First, it is not so easy to reconcile the confrontation involved in any such proceedings with the traditional relationship between doctor and patient. The doctor is even in some difficulty in saying that he is sorry for fear of prejudicing legal proceedings. It has been common to experience difficulty in obtaining access to medical records and in finding doctors who are willing to testify against a colleague. The delays can be horrendous. When one reads of a substantial award being made seven or eight years after the event it is worth pausing to reflect on what those long years of waiting might have meant to the families involved.
§ Secondly, there is the aspect of cost. An individual who does not qualify for legal aid and who is not very rich will think more than once before embarking on a course which, if it fails, can impose an enormous financial burden. From the point of view of the health authority it is not easy to know the total of the sums paid under court orders or out-of-court settlements, the amounts shelled out by authorities in legal fees, and the cost in terms of legal aid, court time and administration.
§ Some health authorities view with alarm the size of the demands that settlements are likely to make on their resources. The rising insurance premiums payable by doctors for work outside the NHS, as is now the arrangement, are quite a story on their own. There is reason for thinking that some extra expense is caused by defensive medicine; that is, action taken in case there might be legal proceedings and allegations made that not all precautions were taken. 552 It is difficult to obtain hard facts but I hope that we shall hear expert opinion on the matter as the debate proceeds.
§ It is sometimes argued that proceedings in court achieve the purpose of rubbing in doctors' accountability. But the worst cases are settled out of court. Those disputed in court tend to be the more marginal cases in which there is a reasonable defence.
§ The final item in this gloomy catalogue is the provision in the Law Reform (Personal Injuries) Act 1948 which states that in awarding costs the courts are obliged to ignore the availability of service under the NHS and assume that any medical treatment is private. In the recent debate even the Secretary of State for Health conceded that that was not very satisfactory. Indeed, it would be difficult to find anyone who believes that the present arrangements are totally acceptable although not necessarily going so far as to utter the widely-held view that it is all a rather elaborate lottery in which a few large prizes are awarded after a wait of several years.
§ It is only fair to say that some improvements are on the way, including the welcome changes flowing from the Civil Justice Review and the Courts and Legal Services Act. Soon new legislation will help with access to hand-written medical records. I understand that the discussions that the noble and learned Lord the Lord Chancellor is having with the Law Commission—to which the Minister recently referred at Question Time—cover the possibility of looking at structured payments all these years after the Pearson Report.
§ The Health Minister has talked of discussing the problems of defensive medicine with the presidents of the royal colleges. In the recent debate in the other place he did not reject a suggestion previously made by my noble and learned friend Lord Griffiths that some kind of arbitration procedure—that is, a tribunal of two doctors and a legal chairman and conducted on paper—might be made available as an alternative to court proceedings.
§ All of that still assumes that negligence must be proved. In the debate the Secretary of State did not say that the approach to negligence cases suggested by my noble and learned friend Lord Griffiths was, in his view, only second best and that his preferred course was a no-fault scheme. Other eminent lawyers have come out in favour of such a scheme. So have representative bodies of doctors, obstetricians, gynaecologists—who, incidentally, have their own problems of recruitment—midwives, nurses and consumer organisations. Although there is no unanimity of view about the type of no-fault scheme that should be adopted and how, for example, accountability should be handled, the fact that there is such widespread support for the principle among so many responsible people and organisations suggests that the concept cannot be lightly brushed aside.
§ After all, "no-fault" is not a novelty in this country, although anyone reading the Commons debate would never guess that. Pearson pointed out that compensation for industrial injuries is, in essence, a no-fault 553 scheme. So are the arrangements for volunteers taking part in clinical trials. So was the Vaccine Damage Payments Act 1979. Even now the Lord Chancellor has a working party examining the possibility of a no-fault scheme for minor road traffic accidents. The difference between the award to haemophiliacs and no-fault payments is scarcely visible to the naked eye.
§ I say straightaway that the Pearson Commission did not include medical accidents among the categories where it believed that "no-fault" should be introduced at that stage. The report kept the issue open and recommended that the Government should watch how the schemes in Sweden and New Zealand (Finland should now be added) worked out in practice. The main reason why the commission came up with its rather wet conclusion—I believe that this chapter is the worst in the report—was that it could not see how to surmount the problem of causation. It believed that it would be as well to see how those other countries overcame the problem.
§ There can be unlooked for complications after an operation or as a result of the use of drugs. It can be difficult to decide whether such a mishap was indeed foreseeable and acceptable or whether it was an accident in the sense that I have explained. There has been the rather strange history of vaccine damage. Another perplexing example could be deciding whether cerebral palsy was caused at birth or whether it was congenital. It is easy enough to point to the problems and to forecast anomalies, although the argument about anomalies is very dangerous for any defender of the present system to use. Many believe that it would be wrong to abandon the whole concept because in what would after all be a minority of cases, there could be problems on the issue of causation—an issue on which the Scandinavian schemes managed to form judgments.
§ No one suggests that the right to go to court with claims based on negligence should be abandoned. However, there is much support for the idea of providing in addition an option to go to a tribunal where it would be necessary to prove causation and to show that the outcome was an accident in that it was not foreseeable and acceptable. However, it would not be necessary to prove negligence. Hurdles could be erected to keep out trivial cases and there could be restrictions on the awards. If, as a consequence, awards were not quite as glittering as some court awards, they might be more plentiful and could be given more speedily. It can be argued with some conviction that the overall net cost need not be forbiddingly large.
§ A tribunal could be on the lines of that suggested by the noble and learned Lord, Lord Griffiths, for negligence cases or on more elaborate lines as proposed in the Bill of Mrs. Barnes. She drew heavily on the precedent of the Criminal Injuries Compensation Board. In the debate the Health Minister kept arguing that that was not much of an analogy since the board dealt only in small awards of £2,000 to £3,000. He said that several times. In fact —I have sent a note to the Secretary of State—it assesses cases on the basis of common law damages 554 subject to a limit on the allowance of earnings and the full deduction of social security payments. Last year it made one award of £768,512 and another of £834,703.
§ For my part I do not claim to know the answer to some of the problems and today I do not put forward any hard and fast scheme. Indeed, in the time available it is possible to touch on only some of the issues. For example, I can do no more than mention one possible further complication; that is, a draft. EC directive seeking to reverse the burden of proof where there is an allegation of fault against the supplier of a service. However, this is not a subject that will simply go away. I ask the Government to take seriously the widely held anxieties and to put in hand, by whatever committee of inquiry seems to them best, although not one limited to lawyers or doctors, a detailed investigation into the pros and cons and the possibility of arriving at a solution for the problems which we all know exist and which cause widespread confusion and disap-pointment to doctors and patients alike. My Lords, I beg to move for Papers.
§ 3.35 p.m.
§ Lord Campbell of Alloway
My Lords, it is always a privilege to follow the noble Lord, Lord Allen of Abbeydale, who today has rendered a signal service not only to your Lordships' House but also to the country. The noble Lord proposes the introduction of a new dimension of social justice—no more and no less. He takes a non-political stance, although political decisions would be required to carry into effect his proposals, whatever their form. However, as the noble Lord says, the problem will never go away.
This is as an option to litigation for medical negligence in the courts of our country. Under the noble Lord's broad proposals, compensation may be awarded only if the medical treatment or advice caused the injury. The measure of compensation will be established on accepted common law principles, albeit with some discount as negligence is not in issue. The scheme covers only medical situations and is strictly limited in that regard. It is not concerned with product liability and makes no changes whatever to substantive law. It bears scant resemblance, if any, to the National Health Service (Compensation) Bill which failed to have a Second Reading in another place earlier this month. I could never have supported that Bill for many reasons given in another place.
If the serious attention of Parliament is to be attracted to reforms, it is of no avail whatever to hoist a no-fault flag and beat the NHS drum. The problem is complex and difficult as the noble Lord, Lord Allen, acknowledged. One can but rely upon the gentle art of persuasion and offer proposed means of implementation for the critical examination of, and objective discussion by, your Lordships.
To that end, this tentative contribution, as indeed it must be having regard to the distinguished list of speakers who are to follow, is arranged under four headings. I shall probably not have time to deal with the last of them in the seven minutes available. The first is the justification for reform; the second is the 555 means of operation; the third is causation; and the fourth is the relationship between the scheme and the courts.
As to the grounds of justification, the legal complexities of a medical negligence action inhibit any reasonable prospect of obtaining compensation by the vast majority of those who have suffered from such injury. A barrier exists which precludes success or argument as to the state of the medical art. If the treatment or advice was given in accordance with—and I underline this—any respectable body of medical opinion, that can kill it, as can the contention of those who gave the treatment that the drug or product used in the treatment which caused the injury was used without negligence.
The second ground of justification is the fear of a medical negligence action which has led to defensive medicine; namely, reluctance to take the sensible and appropriate risks to the detriment of the patient; and the resort to over elaborate precautionary methods to avoid that risk at the cost of NHS and private patients. Thirdly, the heavy cost, the uncertainty, and the delays of two to five years involved in these High Court actions, usually supported by legal aid, are totally unacceptable. Fourthly, there is the mounting burden of professional insurance premiums which add assuredly in the USA and in this country, one-third to the cost of medical treatment. The cost of the provision of those medical services is increased either to private patients or to the NHS to that extent. That is wholly unacceptable.
Lastly, the sense of overweaning injustice and frustration on the part of those injured by medical treatment must be recognised by any government of this country sooner or later. Something has to be done. The question is what.
I have spoken for my seven minutes. There is no more that I can usefully say to your Lordships.
§ 3.41 p.m.
§ Lord Pitt of Hampstead
My Lords, I should like to thank the noble Lord, Lord Allen of Abbeydale, for giving us the opportunity to discuss this important subject.
The present tort-based system of compensation for the victims of medical injury is harmful, unpredictable and unjust. Similar needs receive dissimilar treatment. A no-fault compensation scheme would relieve the patient of the necessity of lengthy and expensive legal cases, and base compensation principally upon the injured person's needs.
The emphasis of such a scheme should be on reimbursement of identifiable financial loss or of expenses as a result of a medical mishap, together with reasonable recognition of unnecessary pain and suffering. Instead of those few individuals who are able to establish that the care they had received had been negligent being awarded very large sums of compensation, a no-fault compensation scheme would offer a choice to the individual.
Patients suffering unforeseen injury during their medical care would be compensated reasonably for a 556 damage that they have endured and, where appropriate, dependants compensated for financial loss. It is important to remember that there are a large number of medical accidents where nobody is at fault. The current legal system is slow and expensive, with average delays of four years and some of seven years. In the case of children damaged at birth 20 years is the time allowed for the legal process to begin.
For those patients not eligible for legal aid, the risk of serious financial damage if the action is unsuccessful compels them to abandon all hope of compensation and not to proceed with the claim. Even if they proceed, the amount is a lottery. Even when the case is proven and damages awarded, a high proportion of the damages will be absorbed by legal costs.
The present system destroys the proper relationship between the doctor and the patient by introducing a confrontational element. That encourages conceal-ment and lack of frankness on the part of the doctor, just when it is most undesirable. It is the sincere hope of the medical profession that whatever other benefits might result from a no-fault scheme, the absence of the threat of litigation would ensure much greater openness in explaining to the patient the nature and cause of any mishap, encouraging accountability by the doctors to the patients who are, after all, the people most entitled to require it.
I would not wish such a scheme to protect professional staff if errors have been made. Those patients wishing to prove professional negligence should always have the route through the courts open to them. The present fault-based system does not give accountability. The greater the degree of incompetence or plain negligence, the more certain it is that the case will be settled out of court, saving the doctor from any adverse publicity.
As the health authorities pay the indemnity for hospital doctors, an individual working in an NHS hospital suffers no financial penalty in either legal costs or damages. The medical profession takes that very seriously and is involved with considering how best to deal more effectively with incompetent doctors. The BMA has worked with the Government to introduce compulsory medical audit and the General Medical Council is actively looking at the issue and considering new disciplinary measures.
I am glad that the noble Lord, Lord Allen, referred to the new directive of the European Commission. I shall be interested to hear the Minister's views. However, the proposals do not seem to resolve the delay, expense, uncertainty and disruption caused by a fault-based compensation scheme. I hope that the Government will listen to the professional organisations and the consumers, and will consider seriously the proposals put forward for a no-fault compensation scheme.
§ 3.48 p.m.
§ Lord Walton of Detchant
My Lords, I too wish to congratulate the noble Lord, Lord Allen of Abbeydale, on his initiative in arranging for us to debate this issue, which I believe requires urgent attention.
I accept many of the arguments advanced by the Secretary of State in recommending that the Private Member's Bill recently introduced in another place should be opposed. Nevertheless the problem is one which cannot, and must not, be brushed aside. Since the report of the Pearson Royal Commission in March 1978, the position relating to claims alleging damage through medical acts or omissions has become increasingly serious.
I commend to your Lordships four important documents. The British Medical Association and the Royal College of Physicians have each produced cogent reports recommending the introduction of a no-fault compensation system. The Royal Society of Medicine hosted a conference in 1989 and the proceedings of that meeting, organised jointly with the BMA, were published. A copy of that comprehensive book is now in the House Library.
Perhaps I may also commend a research note entitled Compensation for Medical Accidents—is 'no-fault' a better way?, published by the House of Commons Library Research Division under the authorship of Keith Cunninghame and Helena Jeffs in January of this year.
In the UK, claims under common law alleging medical negligence are still guided by the judgment of Mr. Justice McNair in the case of Bolam v. Friern Hospital Management Committee in 1957 in which he said, as the noble Lord, Lord Allen, pointed out,A doctor … is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular artMedical negligence is part of the wider tort of negligence. But the present operation of the system is exceptionally slow, expensive and depressing to both sides and does not always operate fairly. Some have suggested that the existing system assures medical accountability. That is clearly not the case. Most cases in which negligence has plainly occurred are now settled out of court and are not followed by action which would be likely to influence the practice of the offending doctor. Admittedly, as the noble Lord, Lord Pitt, pointed out, the GMC is now discussing whether to introduce a system of performance review followed by remedial action in the case of doctors whose standards of practice have fallen below an acceptable level. But that action is no part of the present legal system, although it could be facilitated under a no-fault compensation scheme.
There are many cases where damage, including irreversible brain damage, has occurred through medical accidents where no question of negligence arises and in which there is therefore no prospect of compensation. As has been pointed out, it is also important to note that many actions in which negligence is alleged, now pursued in the civil courts, 558 are legally aided; and many injured individuals whose income exceeds the threshold allowed under the legal aid system are deterred from pursuing claims for financial reasons.
In Britain the claims received by the medical defence organisations, which until recently insured all doctors, doubled between 1984 and 1987. Until Crown indemnity for doctors working in the NHS was introduced, annual subscriptions to those organisations rose from £40 per annum in 1978 to £1,350 in 1989. A specific area of concern relates to accidents at birth and suits against obstetricians. Those have been facilitated by a change in the legal aid rules which mean that a child can now obtain legal aid on the basis of its own income and not that of its parents. Recently Sir Donald Acheson estimated that, whereas the number of such cases grew from 50 in 1983 to 200 in 1989, the figure is now likely to rise to around 600 a year, many resulting in large settlements which, under Crown indemnity, will fall to be paid by NHS health authorities with a consequential reduction in the income which can be devoted to patient services.
A side effect of that problem has been a fall in the recruitment of young doctors into obstetrics and gynaecology. Some feel that the Bolam principle may have been stretched to the limit in dealing with some such claims, not surprisingly perhaps in the light of the tragic consequences of perinatal brain injury. Fortunately we have not yet reached the appalling situation which at present exists in many parts of the United States of America where defensive medicine has become the rule. So-called malpractice insurance there costs many doctors in surgical and obstetric specialities in excess of 50,000 dollars a year and, because of the danger of malpractice claims, many refuse to carry out certain procedures which, though usually beneficial, carry a significant risk. Fortunately we have not yet reached the situation here which exists in America where a doctor may drive around with a sticker on his car saying,Support a lawyer—send your son to medical school".The Royal College of Physicians and the BMA suggested that to institute a system of no-fault compensation would relieve the patient of the necessity of proving fault and would base compensation principally upon the injured person's needs. They believe that it would lead to the rapid resolution of claims much more than under the present tort-based procedures. As was pointed out, the present situation tends to destroy the doctor/patient relationship. A no-fault system would have the advantage of making compensation available to those individuals suffering damage as a result of totally unpredictable medical accidents.
The Government have already made ex gratia payments for no-fault compensation in the case of infants suffering brain damage through vaccination against whooping cough, and more recently in the case of those unfortunate individuals developing AIDS through the use of factor 8 concentrate in the treatment of haemophilia. Reference was made to the 559 EC draft directive which, if introduced, would compensate for defective services; the plaintiff would then be relieved of the obligations to prove negligence.
As others have said, I believe that the Government should now establish a high level committee with appropriate medical, legal and lay representation to examine the present system and its major deficiencies and to make recommendations.
§ 3.55 p.m.
§ Lord McColl of Dulwich
My Lords, the increase in medical litigation in this country has led to the fear that we may be heading towards the unfortunate American legal system. However, it should be pointed out that the American legal system is quite different in having contingency fees, which allow lawyers to make no charge if they lose the case but to take as much as half the award if they win. I believe that that system was invented by the British around 300 years ago. About 100 years later they saw the error of their ways and outlawed the practice. However, before the reform could be effected, the American colonies had gone off on their own and found themselves lumbered with the contingency fee system from which they are unable to escape. The danger of this country following the American legal road is remote.
It has also been argued that if the present increase in litigation continues doctors will practice defensive medicine. My impression is that there was more defensive medicine in the 1950s than exists today. As students we were taught that we had to X-ray a patient's head if there was any question of that patient having suffered a head injury, as there had been a judgment in the early 1950s which gave rise to the impression that it was negligent not to have an X-ray under those circumstances but not negligent to miss a fracture even if it was clearly visible on the X-ray. As a result of that curious state of affairs, millions of skull X-rays were taken quite unnecessarily. In the past few years that practice has been discontinued. In one's teaching of medical students today one concentrates on the importance of practising good medicine with courtesy, openness, effective communication and believing in the old adage that the customer is always right.
There are many disadvantages in having a no-fault system. First, it will lead to more hassle for all concerned. In addition, after the compensation has been agreed the patient will be free to sue in the courts. Secondly, it will exclude equally handicapped children who are born with some congenital defect. Thirdly, it is illogical to have such a compensation scheme in medicine and not in other walks of life. However, there is one place where such a no-fault compensation scheme might be appropriate, and that is in regard to injuries resulting from road traffic accidents where it is notoriously difficult to assess who is to blame. Fourthly, separating negligence from the scene would still leave the patient with the difficulty of establishing causation, and establishing causation may be just as difficult as establishing negligence. Fifthly, it would create yet another layer of suffocating bureaucracy with which we could well do without.
560 We should try to improve the present position. A large number of medical negligence cases are preventable. The wrong part is still being removed. X-rays are being labelled right and left the wrong way round. These are all preventable lesions. Every operation site should be marked with an indelible pen with the name of the operation. That practice has never given rise to any problem except on one occasion where the surgeon expected to carry out a hernia operation. Unfortunately the patient had had tattooed across his neck a dotted line with the words, "Cut here". Happily, he recognised that the handwriting was different!
Some believe that giving too much explanation of what may go wrong before an operation may put the patient off. However, nowadays we regard that as too patronising. We have to be much more open and put the patient completely in the picture. The delays in the legal world have been unduly prolonged and ways are being found to speed that up. Making access to medical records easier has been an important contribution in this field. It would be easier still if patients were allowed to keep their own records.
Lastly, serious consideration might be given, where appropriate, to making yearly payments in negligence cases instead of a huge lump sum. I understand that during the past 10 to 15 years the courts have been able to make an interim award, with a review some time later where the prognosis is in doubt. It might be useful to extend that practice to inflation-proof yearly payments. As usual, I am grateful to the noble Lord, Lord Allen of Abbeydale, for initiating this debate. I am sure that it is shedding more light on this vexed problem. But I fear that a no-fault system for medical injuries would make matters worse than they are at present.
§ Lord Campbell of Alloway
My Lords, before the noble Lord sits down and for the sake of clarification, perhaps I may ask him whether he accepts that the scheme proposed by the noble Lord, Lord Allen of Abbeydale, would not allow for two bites at the cherry, so to speak? One has to elect whether to operate under the scheme proposed or under the courts. Again, in order to save confusion and a waste of time in this debate, will my noble friend accept that the principles of causation will be those which operate in the courts at present? They would present no difficulties. Does he also accept that the only excision of complexity would be the problem of establishing negligence? I ask those questions to avoid confusion.
§ Lord McColl of Dulwich
My Lords, if things were that simple there would not be the problem that we have today.
§ 4.2 p.m.
§ Lord Irvine of Lairg
My Lords, when the other place debated Mrs. Barnes's Bill, the debate concentrated on her specific proposals. While vigorously opposing her Bill, the Secretary of State acknowledged that few people in the debate had:been willing to say that the operation of the law is satisfactory in respect of medical negligence cases and the definition of who is responsible for what at present".He added: 561I count myself among that consensus"—[Official Report, Commons, 1/2/91; col. 1260.]Later he said that he agreed:that, in many respects, the present arrangements are perceived as unfair. There is a basic perception that such compensation claims are a lottery".—[col. 1261.]He avoided saying what the Government proposed doing about it, and contented himself with attacking Mrs. Barnes's Bill and with a disquisition on how he claimed that court proceedings are being streamlined and speeded up.
The basic question is one of principle; it is nothing to do with court procedures. It is whether a patient whose medical treatment goes badly wrong should have to prove that the doctors were negligent in order to recover any compensation. The courts have made it extremely difficult for patients to win against doctors. I do not need to align myself with the cynic's view that here we have one profession, the lawyers, or, more accurately, the judges, laying down the law in order to protect the medical profession. It is sufficient to say that the case for a system of no-fault compensation is the greater if the law is in fact so weighted in favour of the medical profession that very few victims of medical injury can recover when things have gone badly wrong. The vast majority who suffer medical injury go uncompensated. The proportion of successful claims is far and away lower than for all negligence cases.
The courts allow the medical profession to set its own standard of care. They decline to choose between rival bodies of medical opinion. A doctor is not negligent, as has been said, if he is acting in accordance with a practice accepted as proper by a responsible body of medical opinion, even if another body of medical opinion takes precisely the opposite view. The courts have given many reasons for declining to lay down a higher standard of care; that it would increase the likelihood of litigation and so destroy the trust which is the basis of the relationship between doctor and patient; that it would lead to practitioners avoiding taking risks that may be necessary for the patient's benefit; that it could lead to doctors refusing to treat patients; that it could create a disincentive to innovate; that it could increase litigation and so increase the cost of the provision of medical services; that it could lead to fewer people entering the profession; and that it would be unnecessary anyway because of the high professional standards current among medical practitioners.
Your Lordships may assess the judicial approach from two short quotations from two of the judgments of the Court of Appeal in a leading case in 1980. The first judgment states:If medical men are to be found liable whenever they do not effect a cure, or whenever anything untoward happens, it would do a great disservice to the profession itself, Not only to the profession but to society at large, Take heed of what has happened in the United States. Medical malpractice cases there are very worrying, especially as they are tried by juries who have sympathy for the patient and none for the doctor who is insured. The damages are colossal. The doctors insure, but the premiums become very high and these have to be passed on in fees to the patients. Experienced practitioners are known to have refused patients for fear of being accused of negligence. Young men"—there is no mention of young women— 562are even deterred from entering the profession because of the risks involved. In the interests of all, we must avoid such consequences in England".The second judgment held that a higher standard of proof should apply than in other civil cases because of the gravity of a negligence allegation against a professional man. The judgment says:The Defendant's professional reputation is under attack. A finding of negligence against him may jeopardise his career and cause him substantial financial loss over many years … the public interest is put at risk".A similar solicitude for the medical profession runs through the decision of the courts on the need for the patient's consent to surgical procedures. In the United States the prevailing doctrine is that consent must be an informed consent. I emphasise "informed". Every adult of sound mind has a right to determine what is to be done with his own body. True consent to what happens to oneself requires an informed exercise of choice. That in turn requires the doctor to inform the patient of the options, and the risks accompanying each option.
That doctrine is rejected here. If English jurisprudence has a doctrine it is that the "doctor knows best". The same principle as applies to diagnosis and treatment applies to warning the patient of risks inherent in treatment that the doctor recommends. The doctor need give no more information than would accord with the practice accepted as proper by a responsible body of medical opinion.
What this comes down to is that the judiciary allows the medical profession to set the standards by which the medical profession is to be judged. The Secretary of State has himself acknowledged that the existing state of the law is unsatisfactory, He was adamant that Mrs. Barnes's Bill was not the way forward. This debate gives the Government the opportunity to inform your Lordships' House what the Government believe is the way forward.
The Government responded to the haemophiliacs cause because of public pressure on behalf of a sympathetic case. But all cases where medical treatment goes badly wrong are sympathetic cases. The Government were playing politics by responding to a popular case. They were not addressing principle. I hope the noble Baroness, Lady Hooper, will address principle when she replies to this debate and that that will be the reward which the noble Lord, Lord Allen of Abbeydale, deserves for bringing this important subject before the house.
§ 4.11 p.m.
My Lords, I am grateful to the noble Lord, Lord Allen of Abbeydale, not only in a general sense for introducing this debate but particularly because he referred to, but did not expand on, the subject of defensive medicine. It is difficult to attack the idea that is held in the minds of some that defensive medicine is inevitable and that it is widely spread. I do not wish to suggest that for a moment. I do not think there is any firm evidence to suggest it, but the possibility is extremely clear. If I give one or two examples perhaps I may be able to convince the House.
563 The expenditure of time that is so important in all medical matters—time representing money in a big way as well as goodwill—is very great. The noble Lord, Lord McColl, referred to X-rays. Unnecessary defensive X-rays cost the patient's time. They cost many people's time. They cost perhaps a surplus amount of irradiation for the patient. It takes time to visit the laboratories to have tests done which may have to be repeated and confirmed. Again, time for all concerned. The keeping of extensive and carefully edited notes so that they can stand up to critical scrutiny rather than serve as a help to the doctor or his colleagues on referral; that takes time. Referral itself takes up a very great deal of time. There is therefore the possibility that in defensive medicine one will in the future see patients' essential needs being treated, with the doctor looking over his shoulder to some extent rather than looking straight at the patient's face.
There is already an alarming situation that could be called evasive medicine rather than defensive medicine. It was referred to by the noble Lord, Lord Allen of Abbeydale, who mentioned obstetricians. The president of the Royal College of Obstetricians and Gynaecologists, Mr. Stanley Simmons, is a man of enormous professional experience and expertise. Furthermore, he is a man who has been concerned with medical matters at national level for many years. He is a man of strong and tough mind. He is deeply concerned about the future of his particular branch of the medical profession. He tells me—and this has already been referred to—that not only is recruitment diminishing but, disturbingly, early retirement is developing among those engaged in obstetric practice. His college has been foremost in developing medical audit. It is going forward well at the present time. Having applied those principles to examining the performance of its own fellows and members, he can declare that standards have never been higher, that they are ever ascending and that, as they ascend, the number of complaints and the number of cases involving action for compensation has increased. It seems therefore that those concerned are in a trap and they are beginning to think of opting out of it.
Perhaps an illustration might relieve the anxiety that some people are feeling. The Chief Medical Officer, Sir Donald Acheson, gave an eponymous lecture at the Royal College of Obstetricians and Gynaecologists. His subject was "Is the specialty doomed?". If the answer is yes, how would those young spouses feel; how would parents feel; how would grandparents feel? Looking around this House, I cannot believe that any except myself are great-grandparents. Nevertheless, how would great-grandparents feel? The answer must be that that specialty will continue to endure and will be supported by every effort to reap the fruits of its own expertise, which is ever increasing for the benefit of all and which we in this House hold to be so very important.
§ 4.17 p.m.
§ Lord Airedale
My Lords, the noble Lord, Lord Allen of Abbeydale, confined his Motion to medical injuries just in the same way as, not very long ago, the noble Lord had a Motion in similar terms, but confined it to road accident injuries. It may be that the noble Lord in his wisdom considers that one's chances of success are greater if one does not try to get everything all at once. However, the problem about proceeding with any matter piecemeal is that, if one succeeds, at the moment of success one creates anomalies. I hope that the noble Lord does succeed and that the anomalies will be pointed out. I hope that people will shout from the house tops, "What about the unfortunate people whose injuries were not medical injuries? Why do they not get the special compensation that is promised for the victims of medical injury?". I am bound to say that I should like to see compensation for these injuries becoming a first charge upon the welfare state. It is a good Christian principle that we should attempt to share one another's misfortunes.
In and after World War II we had, as many noble Lords will remember, the war damage compensation scheme. If one's property was destroyed or damaged one had a claim upon the public purse for compensation. Surely physical injury is more important than damage to property! I should like to think that what can be done in respect of damage to property in war time can surely be done in a wealthy nation in respect of personal injury in peace time. I am not suggesting any more than the noble Lord, Lord Allen, that the law of tort should cease to apply in these personal injury cases. Where there is fault of course let the case be fought. Let the Secretary of State be standing behind the litigant in the same way as at present the insurance company stands behind the litigant. Any damages recoverable could be paid by the Secretary of State into the National Insurance Fund and thereby reduce the charge upon the public purse for making good all the compensations.
Numerous problems arise in regard to the question of compensation itself, the amount, its calculation and the method of payment. I should like to draw to the attention of the House the case of Kelly v. Dawes which was tried in July 1989 in the Queen's Bench Division. The learned judge, Mr. Justice Potter, went into the difficult question of compensation and set out all the problems and the means of overcoming them. I had hoped to go into this question in some detail, but just as Cecil Rhodes said on a famous occasion, "So much to do but so little time", I have to say, "So much to say but so little time". I refer your Lordships to Mr. Justice Potter who said it all much better than I could have myself.
§ 4.22 p.m.
§ Lord Hunter of Newington
My Lords, I should like to add my thanks to the noble Lord, Lord Allen of Abbeydale, for introducing a vitally important debate. We are all looking forward to hearing what the Minister has to say.
565 As has been said, in the United States it seems that the image of the dedicated and hard-working physician toiling long hours for the good of his patients has been replaced by hardened attitudes of patients, many of whom have had less than optimal interactions with their physicians and unrealistic expectations of what modern medicine can accomplish. Physicians are also keenly aware that their patients often fail to recognise that the average physician in the United States still works 2,500 to 3,500 hours per year, much of it stressful, rather than the standard 40 hours a week which amounts to 2,000 hours per year. Is something of the same happening here?
The Motion mentions medical injuries, but there are two legal aspects of this. One is failure to treat or negligent treatment and the other is failure to warn. Because of the difficulties which I shall mention, many people are of the considered view that there should be a no-fault system for medical injuries. We have heard eloquent arguments in that regard. There are many reasons for this, ranging from failure to warn to failure of treatment. As I have indicated, other factors contribute to the disaffection of physicians and patients. An important one is the demands for documentation and justification of expenditure, which is very clearly indicated in the new medical contract. It is a substantial burden. Another is the increase in professional liability insurance. These must be taken together with the changing status of the physician and the confusing picture of the law.
I should like to confine my remarks to considering in more detail the failure to warn patients. The recent decision of Lord Caplan in Moyes v. Lothian Health Board is one of the few "failure to warn" cases reported in this country. The patient, Mrs. Moyes, suffered pain down the left side of her face and it was feared that she might have vascular disease. She had the diagnostic procedure known as an angiogram carried out and she suffered a stroke. Mrs. Moyes sued the Lothian Health Board on the basis that it was vicariously liable for the negligence of its employee doctors. The substance of her action was that the doctors had failed to warn her of the risks of stroke inherent in this procedure.
The decision of the House of Lords in the Sidaway case in 1985 as to the extent of a doctor's legal duty to warn a patient of risks inherent in a medical procedure is confusing and no clear rule emerged from a deeply divided court. Lord Caplan stated that Sidaway had not changed the law so that the duty of a doctor in "warning" cases was to be determined on the basis of expert evidence of professional practice, as stated in the well known case of Bolam. Lord Caplan subsequently accepted this proposition. He reconciled the different approaches by stating that,where the skill or knowledge, or specialist experience of the doctor is a material factor, standards will be regulated by the standards of responsible members of the profession".He added that the court should not take too narrow a view of the,ambit of medical expertise—the doctor's skill in handling his patient may be as much a product of his clinical experience as diagnosis or the prescription of medicine".566 Only if the doctor has failed to take "reasonable care for the safety of his patient" will professional practice not be determinative, as, for example, where a doctor fails to warn of a "decidedly substantial risk" so that "the patient's safety is obviously imperilled".
On the facts in the Moyes case, the very small risk of stroke would not have satisfied this and so it would not have been negligent of the medical profession to fail to warn Mrs. Moyes. I am advised that confusion reigns—we have heard much of it tonight—and that there are controversial legal views, to some of which I have referred, which the Law Lords might some time address. Perhaps I may say that I am grateful to the Centre of Medical Law and Ethics at King's College for some of the information contained in my speech.
Perhaps I may summarise the reasons why there should be a no-fault system of medical injuries and accidents and failure to warn. The law is confused. The experience in America of litigation is frightening in the extreme. Professional liability insurance is increasing rapidly. Such a situation can only tend to contribute to the patient/doctor conflict, and yet there is no doubt that patients should be compensated for accidents, including failure to inform if this can be accurately found.
§ 4.28 p.m.
§ Baroness Oppenheim-Barnes
My Lords, I should like to thank the noble Lord, Lord Allen, for initiating this debate. I follow the noble Lord, Lord Hunter, with humility. I bring neither legal nor medical expertise to this debate but deep feelings and some personal experience. I do not believe that I have heard a single noble Lord defending in an unqualified way the status quo. I do not believe that it is possible for anyone in this country who has suffered a medical injury less than death or the life of vegetable to be sure of succeeding in a case of medical injury.
One of my daughters was a patient who received such an injury. She practically lost her life. She spent three months in hospital, in great pain, and suffered a number of operations. Neither my late husband nor myself were without influence—I was at the time a Member of another place—nor without resources to pursue the case. However, in the end it proved impossible for us to do so. My daughter did not particularly want to pursue the case because she did not feel that the financial aspects were important. My late husband was anxious to pursue it because he felt that in airing the case it would prevent the same error being made again. I shall return to that point in a moment.
In the event we were unable to pursue the case because the brilliant consultants who helped to save my daughter's life were reluctant to come to court to give evidence against their colleagues—and who wants to pursue a case in which the witnesses are reluctant?
In my constituency experience as a Member of Parliament for Gloucester, your Lordships can imagine the hopelessness with which I approached the task of trying to help my constituents with similar experiences. One of them certainly suffered for the rest 567 of her life, disabled and in pain as a result of the maladministration of an epidural anaesthetic, and she got no recompense whatsoever.
Having said that, I should not want to see no-fault compensation put forward as a remedy for what is an intolerable situation. I would be fearful of the American experience. I do not think that it would help those patients who are unable to pursue their cases successfully today simply to fatten the bank accounts of insurance companies and lawyers and to pass on to the health service vast costs even where the cases are legitimate ones. Those vast sums of money would deprive other patients in the long term of treatment they have every right to expect as resources are not unlimited.
Therefore I hope and pray that a middle course can be found. Certainly the present situation is intolerable. I hope and pray that wiser heads than mine can come together to find such a way so that those who have suffered physically are not, on top of that, made to suffer delay, anxiety and, in the end, despair.
§ 4.32 p.m.
§ Lord Wilberforce
My Lords, I put down my name to speak in this very important debate because it seemed to me that there should be some voice, however weak, from those who occupy the judicial Benches in your Lordships' House. In saying that I certainly do not profess to represent the legal establishment and I am quite certain that my noble and learned friends, by my side or elsewhere, will not agree with everything I shall say. Nevertheless, there is a contribution which one can make.
The basis for a modern approach to this subject, I suggest, starts from the remarkable statement made by Mr. Justice Ognall in the haemophiliac case. That case, your Lordships will remember, concerned actions brought by many hundreds of people based on negligence which, on every ground of merit and humanity, seemed extremely strong. Nevertheless, the learned judge at the beginning of the trial felt it necessary and right to warn the parties and their legal advisers that in so far as their case was based on negligence it was exposed to very considerable difficulties.
We know what happened. The Government dealt with the matter on another basis and paid compensation. It has been said that that was a political decision; I do not believe that to be so at all. I believe the Government paid the money because they recognised that negligence was not the right basis on which to deal with this sort of case. A wider basis—what, for the moment, I shall call the humanitarian basis—is the right one.
It was said that the haemophiliac case was unique. So it was. Every terrible case of medical misfortune is unique. But there will undoubtedly be other cases of the same kind. A case in India involving what was called a medical mishap resulted in a very severe ophthalmic infection leading to blindness from which a number of people suffered. The case went to the 568 supreme court of India—a legal body, I would remind your Lordships—which said that the sufferers should be compensated fully on humanitarian grounds.
One is able to see the difference between that approach and one based on negligence if one considers the argument we have heard today. It is said that if we open the door now to "no-fault" in medical cases we would have to do it all over the field. That is welcome to the noble Lord, Lord Airedale, but not very welcome to the noble Lord, Lord McColl. I saw the noble Baroness nodding with approval when the noble Lord, Lord Airedale, was putting his arguments. That seems to indicate that the Government are taking the line, as they have before, that to open the door is to open the floodgates, with the consequent need to act all over the field. It is important to say that there is a very wide gulf in principle between medical cases, and possibly others with which we are not concerned today, and fault cases, based on negligence. That is the distinction between private law and public law.
Private law deals with a system which enables individuals who have suffered from a breach of duty on the part of other individuals to sue those latter individuals and recover damages. That is the private law system which governs road accidents and many other cases based on fault which lead to actions in negligence. Public law is a totally different matter. It arises where the state or a public body is entrusted by Parliament with the duty to carry out certain duties and fails to do so or does so imperfectly. That failure gives rise to a range of special remedies: judicial review, injunctions, compensation and, in some cases possibly, although it is a doubtful area, to damages.
It is vital to recognise that the National Health Service has clearly and completely passed into the public law area. The state has assumed responsibility for providing to everybody who asks for it, and free, a system of prevention and cure. There is no contract between the patient and the National Health Service: it is a system provided by the state. Therefore one has to ask whether it is right or appropriate in any way that claims in relation to failure to fulfil administrative duties should be based only on negligence. Mr. Justice Ognall—I should like to quote much more but there is not time—said:A government which takes upon itself the role of public provider of medical advice and clinical services is in a very different position from any commercial organisation. It is clearly arguable that its duty to innocent citizens who suffer injury under the aegis of such treatment has a moral dimension to it which should distinguish its assessment of its position from the criteria to be adopted by other defendants of a corporate character".I believe that to be a perfectly sound principle and the principle upon which the Government acted quite rightly in the haemophiliac cases. It is one which has been recognised in other cases—the vaccine cases, which have been given as an example, and others. It is a question of putting right what has gone wrong. In other words, compensation is part of the service provided, part of the national service of putting right what has gone wrong. And the cost of doing so is part of the cost of the service. I respectfully suggest to your Lordships that far from negligence being the right way 569 to deal with these cases, it is the wrong way. I am not dealing with whether or not it may be invoked in addition. However, the proper and best way of dealing with these cases is by recognising moral, administrative and humanitarian obligations on the part of the state to compensate for what has gone wrong.
If the test is not to be negligence, it must be a case of putting right a medical mishap in the best way possible. Something has gone wrong which should not have gone wrong and has caused the injury of which the person complains. It should not be past the wit of man, in this House or outside, to devise a formula to meet that case. The Swedish scheme —and perhaps the noble Baroness will be speaking about it that in due ccurse—does that; perhaps too severely. But it does so, and I believe that the Finnish scheme does so too. Surely in this day and age we should now be putting our hands to that instead of embarking on and arguments about negligence, contributory negligence, and so on. I believe that the haemophiliac decision was right and that the principle ought to be extended. Therefore, "no-fault" is not only practically best. It is, in principle, the best way of dealing with these cases.
§ 4.40 p.m.
§ Lord Cocks of Hartcliffe
My Lords, when introducing the debate the noble Lord, Lord Allen of Abbeydale, stated that he was looking forward to hearing expert opinions of other noble Lords. I cannot offer any expertise on this subject. I find myself in that situation for the second time this week. On Monday I had the temerity to speak in the debate about horse racing that was introduced by my noble friend, Lord Donoughue. I had the audacity to address your Lordships, as an ordinary punter who occasionally liked a flutter, among a plethora of other speakers who are members of the Jockey Club, owners of racehorses or race tracks, and so on. I hope that noble Lords will excuse any infelicity on the subject.
At the age of 16 I was taking my Higher Certificate (as it then was) when I became ill. I did not complete the examinations and I did not attain the qualification. The entire course of my life was changed by that accident. It never occurred to me to blame anybody or to examine the matter in great detail. When asked about it, I stated that I had had bad luck. I consider that I am extremely lucky to have been born and enjoyed the experience of life on this globe and to have reached the age that I have—I will not qualify that in any way out of deference to your Lordships. There are certain risks in life that are inherent in the mere fact of existing. One cannot protect against those risks completely.
I refer to one comment made by the noble Lord, Lord Allen. He remarked on a Government majority that was assembled on a Friday. That statement sounded pejorative but I must tell noble Lords that, as a former government chief whip in another place, I liked to have a government majority assembled whatever day of the week it was. Not too much should be made of that point.
During my life I have always believed that those of us who may be blessed with abilities or intellect that are average, or above average, have a grave and 570 serious duty to think of those in society who are not so well off. Having listened to noble Lords today I wonder where society is going. If the tenor of the debate is taken to its ultimate, matters will bear very heavily upon the handicapped people in society.
One of my few contributions towards public life in this country was to move a resolution in my local ward of Bristol West Labour Party that mentally handicapped children should be taken into the education system instead of the health system. That resolution was adopted as party policy by the Labour government who introduced the Mentally Handicapped Children Bill. The Bill fell when Labour lost office in 1970. However, I was elected to the other place in 1970 and the Bill was picked up by the Conservative Government and proceeded with, and I made my maiden speech in relation to the Bill. It was based on the idea that no child is ineducable.
To proceed along the lines that have been mentioned this afternoon would be to turn back the clock. A subtle change would be introduced into our attitude towards handicapped children, particularly mentally handicapped children. If a child has cerebral palsy, neighbours will say of the parents, "It is very unfortunate about the child but no doubt the parents received a substantial amount in compensation. Oh, they did not? Oh, really!" A very unfortunate attitude will develop.
Those of us who have our wits about us, to some extent at any rate, should think very carefully about that matter because those who cannot defend themselves have a great call on those of us who are better placed. There is a rising expectation in society which goes beyond all reason. We are lucky to live in a country with rapid industrial development and the wealth that that generates. By far the largest proportion of the world's population is not in our situation, and those people are suffering from diseases which have long been wiped out in developed countries.
Certain burdens will be placed upon professional people if we go down this road. Every decision will have to be looked at and busy doctors and dentists and other professional people will have to make many decisions in the course of a day under great pressure. Those burdens that will be placed upon them and the queries that will be raised in relation to the great advances in medical techniques, could outweigh any possible benefits or lectures which could be given to civil liberties groups about another great advance.
At the other end of the corridor recently there was a fast for 27 million people who are now facing starvation in East Africa because of the drought in the Sahel. Let us turn our attention to preventable diseases in other parts of the world. Let us give more thought to how handicapped people in society are regarded and let us not become too intellectual in our approach to the problems of society.
§ 4.45 p.m.
§ Lord Butterfield
My Lords, I should like to express my gratitude to the noble Lord, Lord Allen, for introducing the debate. Some remarks have touched me deeply. There was the contribution of the noble 571 Lord, Lord Cocks. I am sure that the noble Lords, Lord McColl of Dulwich and Lord Walton of Detchant, will agree when I say that we are always trying to remind our medical students of the terrible circumstances in many parts of the world, and asking them to keep matters in perspective.
There is no doubt in many medical minds that things can go wrong. The remarks of the noble Baroness, Lady Oppenheim-Barnes, in relation to her experience and those made by the noble Lord, Lord Wilberforce, add to my feeling that we must continue to debate this subject and find a resolution. The noble and learned Lord, Lord Wilberforce, may have put his finger on a very important point. He stated that if the matter is under the aegis of the National Health Service, which is a national institution, one set of rules may obtain, and that if it is under the aegis of an individual, the American system may evolve. I hope that that situation will not arise. We will not be able to resolve this important and serious problem today but I urge noble Lords to continue to think and talk about it.
The report by the Royal College of Physicians on compensation for no fault sets out the main reasons for arriving at the conclusion that we must continue to discuss the matter. In relation to inequity to the plaintiff, large and sometimes smaller amounts of compensation are awarded for the same problem. Delay is an extremely serious matter for the patient or the family when the question of compensation arises due to some fault. The report recognises that the quality of representation is variable. In some cases, the solicitor who is approached by the family may be very good at cases that involve compensation. To other solicitors such matters may be mysterious.
A problem arises in relation to lump sum awards. I am very taken by the idea of annual payments or some kind of slow payment so that the football pools win problem, which may be advantageous to the financial advisory industry and the stockbroking profession but not to the families involved, does not arise. I was once told by a stockbroker at a luncheon held at a hospital that most of the fortunes with which he was dealing, at any rate in London, came from very modest industrial compensation settlements before World War One. He was very pleased to indicate to me how well he had taken care of those funds. He had improved them and made them grow.
The question of cost must also be considered. If we go for a no-fault system, how will it work out cost-wise? There are inhibitions and impediments to going ahead as proposed. The noble Lord, Lord Campbell, concluded his remarks by saying that something must be done in the matter. Of course, something has been tried; for example, in Sweden and also in Finland. The latter country not only has the medical accident no-fault approach; it also has a fund for dealing with problems experienced in the development of new medicines.
There is also the example of New Zealand. I have been asking people about the system in that country. It is a most interesting but rather worrying situation. 572 I believe that 1.4 per cent. of New Zealand's GNP can be traced as going into its no-fault accident legislation. Moreover, I was told not long ago about the case of a man who built a ladder. He climbed the ladder in order to prune an apple tree but the ladder broke. Despite the fact that it was his ladder and that he climbed it himself in order to look after his own fruit, he received quite considerable compensation for the subsequent damage which occurred. That example brings to mind the line suggested by the noble Lord, Lord Cocks. I understand the noble Lord's point. We cannot wrap everyone up in cotton wool for 24 hours of every day.
There is one further point that I should like to bring to your Lordships' attention. I refer again to the question of cost. One of the men who sat on the inquiry of the Royal College of Physicians is the secretary of Nuffield Provincial Hospitals Trust, Dr. Ashley-Miller. He told me that the trust recently received an application to make a detailed study of the present costs of compensation in the medical world in order to ascertain what no-fault costs would amount to, if introduced. I am sorry to have to tell the noble Lord, Lord Allen, that I do not believe that there will be 100 per cent. support today for his schemes. Eventually that support will be forthcoming. But it seems to me that the information about costs is bound to loom large in the mind of any Secretary of State who is wondering how he can take the matter forward.
When we eventually move in the direction proposed, I hope that we shall be able to separate the costs of these unfortunate outturns of an increasingly technological health service and what may possibly go wrong through technological as well as surgical, medical or obstetrical errors. We must be able to separate those payments from the regional or district health authority funds which really should be established for the care of patients and not for paying compensation. If we have the football pools type situation, very considerable sums of money may be deflected from the clinical care of the remaining patients to cover the cost of any unfortunate accident which may arise.
§ 4.54 p.m.
§ Lord Auckland
My Lords, the noble Lord, Lord Allen of Abbeydale, initiated the debate in his usual humanitarian fashion. I believe that a tribute is also due to the honourable Member for Greenwich for her courage in introducing the compensation Bill in another place. Whatever flaws the proposed legislation may have—I believe that it has some and I shall try to illustrate them in a moment—it is a pity that it was not at least given a Second Reading so that it could have been further discussed. I say that because there is a point upon which we are all agreed: the present system is illogical and unfair. Those of us who have children who are normal and fit must give some thought to the people who have brain damaged or disabled children. There must, of course, be two lines of thought in this sphere.
I am one of the few Members of your Lordships' House taking part in the debate who is neither a doctor nor a lawyer. However, I am concerned about 573 the matter because I used to work in the insurance industry. I should point out at this stage that I speak for myself and not for any influential organisation. There are many problems in the present system. If the no-fault compensation system goes through in its logical form—I hope that I may put it that way—there would be enormous increases in insurance premiums. That would have a serious effect on the medical profession. Of course, the health service does not have any insurance as such.
The noble Lord, Lord Allen of Abbeydale, referred to New Zealand and Finland. Having visited both countries I have some knowledge about them, though I am not conversant with the no-fault compensation systems in those countries because I am not a lawyer. However, when I visited Finland about seven years ago I recall visiting a special hospital in the town of Espoo which is just outside of Helsinki. There I saw a number of brain damaged children who were taken care of in what is known as the Rivvekoti Centre. The children were beautifully looked after, but it was an intensely moving and sad experience. Whatever compensation their parents received they would have no hope whatever, with the state of medical progress at present, of leading a normal life.
The latter point leads me on to the pharmaceutical industry. Of course, we all know about the Opren and Thalidomide tragedies. However, the Medicines Act did make considerable progress as regards the testing of drugs. It is, of course, an ill tested drug which can, more often than not, cause problems. In my view, it is essential that more and more research is carried out in that respect. I wonder whether my noble friend the Minister has any current figures from her department on the number of brain damaged children, and others, who are awaiting compensation. I know that that is a very general question and I realise that it will probably be verb difficult for her to find an off-the-cuff answer. However, I believe it is important both to your Lordships and to the country that we know roughly how many people are at present involved in such claims.
In regard to the American system, I recall that when I started in Lloyd's of London in 1948 I worked in the claims department of an underwriting syndicate. We dealt with American malpractice and Workmen's Compensation Act insurance. Even in those days, 42 years ago, settlements often went into six figures. We do not want that kind of situation to evolve in this country.
I believe that the Government must act quickly in this matter in order somehow to offset the effects of the present tiresome and illogical system. The effects are tiresome for both the legal and medical professions because the people in those professions have to make agonising judgments. Of course, it is easy to say that, but governments of all parties need to carry out a great deal of research into the matter and there is no instant legislation available.
Similarly, one has the tragedy of the rather cynical lottery which exists at present. A person knocked down by a car may receive a six-figure sum in compensation; but a person damaged by a drug—through no fault of the pharmaceutical company or 574 the doctor—particularly in regard to medical research, may not. That is the problem we face. The House and the country should be grateful to the noble Lord, Lord Allen, and to the noble Baroness, for having given the Government—any government—something to think about seriously.
§ 5 p.m.
§ Baroness Robson of Kiddington
My Lords, I join other Peers in thanking the noble Lord, Lord Allen of Abbeydale, for introducing the debate today. The point of view from all speakers in the House has been almost unanimous that our system of compensation for medical negligence through the courts in many cases encourages the practice of defensive medicine. It also adds enormously to the cost to the NHS through the excessive use of pathology tests and X-rays in order to ensure that nothing has been missed and that there is no danger of a doctor being sued for negligence. Perhaps the worst problems are in the obstetric field.
Saddest of all is that our system has created a grave danger to openness between doctor and patient because the doctor is afraid of saying too much. Sometimes a patient only wants a clear explanation of what went wrong; an assurance that steps will be taken to ensure that it will not happen again. That situation is beginning to disappear altogether from our system due to the danger of being sued in court. I think it was the noble Lord, Lord Butterfield, who expressed the view that compensation for medical negligence should be made in annual payments. I could not agree more with him. How can a judge decide how long a person will live? Somebody who is expected to live only 10 years may live for 50 years these days, and the situation could result the other way round.
The noble Lord, Lord Allen, suggested that I might talk about the Swedish system. In Scandinavia there are no enormous payments; there are annual payments which increase with inflation to cover the costs necessary to keep the injured person in funds.
The Swedish Government rejected the New Zealand system of an overall no-fault compensation. The system in Sweden, started in 1975, involved only injuries from medical treatment, but in 1978 it was extended to include drugs. The noble Lord, Lord Auckland, also mentioned that he would like an insurance scheme. In both Sweden and Finland schemes are based on voluntary group insurance between the health authorities—in Sweden the county councils because our system is devolved—the drug companies and the insurance consortia. It is quite interesting to realise that in 1988 the premiums were about 70 pence per head per year. Thus it is possible to set up an insurance scheme.
The noble Lord, Lord McColl, was nervous about a no-fault insurance scheme because it might not preclude a person from going to court and obtaining a large compensation award in addition. In Sweden, injured persons are not parties to the insurance agreement, therefore they are free to pursue their claim in the courts if they so desire, rather than 575 receiving compensation through the insurance schemes. However, they cannot do both; that would obviously be absolutely wrong. It is interesting to note that there have been very few court cases since the introduction of the no-fault compensation scheme.
In Sweden patients have a statutory right to information about their medical treatment, and they have had that right for a long time. It is essential for a successful implementation of the patient injury scheme. That will apply in this country also, I understand, from November, when patients will have access to their own medical records.
Certain standards are set for eligibility. A patient must have been ill for 30 days or in hospital for 10 days. The advantages of the scheme are that it is quick, has low administrative costs and eliminates legal costs and the adversarial features between doctor and patient. Those are completely avoided; there is no holding back in an open conversation between doctor and patient about what may have gone wrong.
In addition, in 1980 in Sweden the responsibility board for health and medical care was set up. It consists of a judge, four Members of Parliament and four members representing various organisations. In other words, in Sweden the responsibility board is outside the medical profession, but it is limited in its jurisdiction. It can only impose a caution as a sanction for a less severe mistake and a reprimand for a more serious mistake. The board has absolutely no authority to revoke a licence. That procedure is still left in the hands of the medical profession.
The Finnish system is much more recent; it started later than the Swedish system. The Finnish Patient Injury Act was passed in 1986 and the government are to be congratulated on having defined much more clearly the grounds on which compensation should be paid. If I had more time, I would read those grounds to the House but noble Lords who are interested will find them at column 1244 of the proceedings of Hansard in another place for 1st February 1991, volume 184. I believe that we in this country should look very carefully at the matter. I am sorry that I do not have any more time.
§ 5.8 p.m.
§ Lord Ennals
My Lords, everyone has said how much we in this House owe to the noble Lord, Lord Allen of Abbeydale, for introducing not only this debate but so many others. I find it very unsatisfactory that with so much wisdom in the House each speaker is confined to seven minutes. It is treating us all as though we were sixth-formers. We must somehow find a better way than this because the House possesses great experience; we have heard many brilliant speeches, each containing a gem. However that problem is not for us today.
First, we thank the noble Lord, Lord Allen. I agree with the noble Lord, Lord Auckland, that it would be nice if we had been debating the issue on the Second Reading of a Bill that had come from another place. I have great respect for the way in which Mrs. Rosie Barnes put forward her Bill. It was based on a great 576 deal of experience among some of my noble and honourable friends, particularly Miss Harriet Harman, who was involved in previous legislative attempts. It would have been nice had the Bill received a Second Reading, been knocked around in Committee in another place and had come here and we had knocked it around in Committee and finally tried to get it right.
We have been reminded that this issue has been debated year after year. I first debated it in November 1978, shortly after the report of the Pearson Commission had been published. I did not give the reaction of the government who were then in power. I merely said that we were carefully considering the report. Shortly after that, another government came to power. Twelve years later we are still considering this matter. Before I have to give way to allow the Minister to speak at 5.29 p.m. I had better say what my party's policy is. It would be a pity if I missed that out.
We believe that there should be a system of no-fault compensation for the victims of medical accidents. I am not talking about road accident victims. We believe that the Government should set up an inquiry and ask for a report with recommendations on the details of how such a scheme would work. I hope the Minister can comment on that. The whole House has been concerned with the costing of such a scheme. The Minister may be able to give us a good deal of information on the matter. The Government should certainly investigate the cost of the current scheme for compensation for negligence, including court settlements, out of court settlements, the medical indemnity scheme, court costs, legal aid costs, the cost to the social security system of benefits for the victims of medical accidents and all the other different costs that are involved. We talk about how expensive a no-fault liability scheme would be but we do not know how expensive it would be. However, we could at least make an assessment of how costly the present scheme is.
The whole House was grateful to the noble Baroness, Lady Robson of Kiddington, for explaining to us the position in Sweden. It is important to know about that; but one has to recognise that in Sweden there is a much more substantial social security system to go with the scheme. I direct that observation to my noble friend Lord Cocks. I never like to disagree with him, although I sometimes do. I believe he was wrong, although I share his concern that in considering compensation for people who suffer from medical accidents, whether by negligence or other fault, we must also consider the position of other victims. I remember facing the same problem when I first became a Minister in the Department of Health and Social Security.
At that time there was an industrial injuries scheme and a scheme for war disabled. I was very interested in the latter scheme as I am war disabled myself and my pension is an important part of my income. We recognised that it was important that no section of society should be left out of compensation arrangements. Over the years governments have tried to introduce benefits which help people who are 577 naturally disabled. Governments have introduced attendance allowances and mobility allowances. I hope that eventually disablement costs allowances will be introduced.
The noble and learned Lord, Lord Wilberforce, spoke with great emphasis and clarity. The logic of his argument is that all costs of medical mishaps causing injury should be compensated for by the state. I first came across this issue in a direct way in 1978 when I introduced a Bill for vaccine payments. That Bill was not concerned with compensation but payments, I felt forced to introduce that Bill to restore public confidence in vaccination policy—there was much criticism at that time that children had been damaged by vaccines—as people in their hundreds of thousands were opting out of vaccinations, Without doubt those vaccinations were to their children's advantage. I also wanted to help those relatively few people whose children had reacted adversely to vaccinations. That was a special case.
I return to the noble and learned Lord, Lord Wilberforce, and his point about haemophiliacs. What was special about the haemophiliacs was that they were able to organise a lobby, There was huge public concern about their plight. A limited number of people were afflicted and the press took hold of the matter. The Government were forced to act. That was what was special about that case, not the fact that those people were haemophiliacs.
The Government had to react in the case of the haemophiliacs in the way that I had to react at the time of the vaccine payments Bill.
I believe that almost every speaker in this debate has agreed that the present system is grossly unsatisfactory. It is unpredictable because the injured person, on whom the burden of proving negligence falls, cannot know in advance whether he will receive compensation. The existence of the injury is clear, but it is not clear whether the victim will receive compensation, or how much. The compensation procedure is expensive because of the cost of litigation. That cost is likely to deter some people from seeking compensation. If costs are not awarded against the defendants, they are likely to eat substantially into the award.
I am not criticising any noble Lords here who are lawyers, but the amount that is paid in legal fees is a substantial proportion of the money that is eventually paid from the public purse. I refer to the public purse because it is the health authorities who have to foot the bill when a case is successfully prosecuted in court.
The system is unfair for a number of reasons. The costs and risks of litigation place enormous pressure on claimants to settle for less than full compensation. The dividing line between success—and perhaps substantial compensation—and failure is a fine one. It is both necessary and difficult to apportion blame where there has been a medical accident. The system is also unfair because a person who can attribute a medical accident to negligence will obtain compensation while another victim of what may be an almost identical accident, but who cannot prove negligence, 578 will get nothing. Similar cases of injury will be compensated in quite different ways. Mrs. Rosie Barnes was quite right to say in another place:The current system is a lottery and it is necessary to prove negligence to be awarded compensation. There may be negligence, but proving it can be distressing, costly and time consuming—and quite often impossible. The only witness may be unconscious at the time of the incident, unaware of what is being done and why".—[Official Report, Commons, 1.2.91; col. 1224.]Noble Lords have also argued that the system is unsatisfactory because of the extraordinary time lags involved. Mrs Barnes also related (at col. 1224 of Hansard) the unfortunate tale of a woman. She said,Her husband died some seven years ago, us a result of what she believed to be negligence following a fairly routine and relatively minor piece of surgery. She was left a young widow, with three children. She took the matter to court, and was eventually awarded £250,000 in compensation—although she made it clear that it was not the money, but a proper investigation and explanation, in which she was interested.The matter did not end there, however. The health authority chose to appeal and, seven years after her husband's death, the woman discovered that she had lost her £250,000 award; even worse, costs of £150,000 were awarded against her. The only way in which she can meet those costs is by selling her house".Perhaps that is an extreme case, but there are many other extreme cases. It is such extreme cases which prove that the present system is grossly unfair and grossly unsatisfactory.
I hope that the Minister will not merely answer the questions that have been raised in this House but say something that will show the way forward. There is a feeling that at last the time has come to put something on the statute book which provides fairness and justice and addresses the problems which have been raised, such as the question of defensive medicine mentioned by the noble Lord, Lord McColl. Something has to be done. We look forward very much to the Minister's reply to what I can assure the noble Lord, Lord Allen of Abbeydale, has been a remarkable debate.
§ 5.20 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper)
My Lords, I too should like to thank the noble Lord, Lord Allen of Abbeydale, for his clear introduction of the subject, which has attracted wide bipartisan interest both here and in another place. I can assure him that we take seriously the worries and concerns that have been expressed. I have been most interested to note that, as my noble friend Lady Oppenheim-Barnes said, in the course of this debate no one has fully supported the status quo. That at least is a starting point.
Perhaps I may attempt to summarise some of the concerns. First, there is a feeling that it is unfair for one person to receive extensive damages, as the noble Lord, Lord Ennals, mentioned, while another cannot bring a case or, having brought the case to court, loses it.
On the question of unfairness, it is central to the common law approach that we follow in this country that a person who has been damaged by the negligent action of another is entitled to be compensated by that other person for the harm he or she has suffered. In a very even-handed way the noble Lord, Lord Cocks, 579 pointed out that there could be unfairness for other groups of handicapped people even under a no-fault scheme.
We have established that there is a system which operates if doctors are at fault. If doctors are not at fault, and despite the best endeavours of all concerned treatments fail with damaging results, is it still appropriate to compensate patients? If more money has to be diverted into compensating patients for the result of entirely diligent treatment less is available for compensating those who are genuinely entitled to compensation. Most important of all from the point of view of the National Health Service, less money is available for the first duty of the National Health Service, which is to give treatment to patients who need it.
Secondly, there is concern that large awards and increasing litigiousness may increase cases against doctors. We have heard of the experience in the United States where an escalation in defensive medicine and even more litigation is predicted. There is no evidence that that is happening here, though I noted the examples quoted by the noble Lord, Lord Richardson. If defensive medical practices are adopted by a doctor in order to prove in a court of law that he has taken every precaution that is not necessarily a bad thing.
Apart from the fact that there is little hard evidence to validate the fears of an increase in defensive medicine—and the views of the Royal College of Physicians and the King's Fund Institute could be quoted in support of that fact—even if there is a risk it is by no means certain that any proposals that have been put forward in favour of a no-fault scheme would do anything to reduce it.
My noble friend Lord Campbell of Alloway said:Something has to be done. The question is what".Most proposals for no-fault compensation retain the right to sue in tort. Doctors would thus still have to live with the prospect of litigation. In cases which would not progress to the courts but which would proceed under a no-fault system, negligence might no longer be an issue. However, the number of potential compensation cases would increase substantially and doctors would still wish to avoid involvement in specific cases which would be both time-consuming and stressful. We believe that overall the outcome would be to increase rather than diminish the propensity for defensive medicine.
In connection with the American experience it should also be noted that damages in the United States are awarded by juries who are not professionally expert in the assessment of damages. Damages can be tremendously high and may be intended as much as a warning to other perpetrators as to rectify the harm which has been done. In this country damages are awarded by experienced judges who determine the needs of victims on the basis of an assessment of their needs to overcome the damage and the financial implications. The relative systems between the United Kingdom and the United States 580 are thus very different. Furthermore, we have to bear in mind that American lawyers have a contingency based fee system, as we were reminded by my noble friend Lord McColl, which gives them a proportion of the damages awarded to their clients. That must clearly have some effect.
Before leaving that subject perhaps I may quote a recent British Medical Journal article which said that:one of the features of using US analogies in British debates is the lack of attention to real evidence on the American position. This is compounded by the tendency of some to predict the future by assuming that 'current trends will continue'".Apparently insurance premiums to cover doctors against actions for negligence have gone down over the past two years.
Thirdly, concern has been expressed that recourse to the courts is damaging to the doctor/patient relationship and that the present system does not sufficiently bring home accountability. The relationship is damaged when the patient is convinced that the doctor has been negligent and not when the patient commences an action in tort. Even though the process may take place outside a court of law, doctors are still entitled to defend themselves.
I should like to point out to the noble Lord, Lord Irvine, that doctors and other health professionals are required to provide patients with enough information about treatment alternatives and consequences to allow the patient to take a proper decision on whether to accept the treatment. If a doctor fails to discharge that obligation he may be guilty of assault.
The fourth underlying concern which has been raised relates to criticisms of our tort system. There is a feeling that winning a negligence action is too difficult, too slow, too uncertain and too expensive. That is an area in which the Government are in full sympathy. We therefore supported the passage of the Private Member's Bill which led to the Access to Health Records Act 1990 which will put at the patient's disposal information that will enable him to make an informed decision on whether to pursue a negligence claim.
Regarding the process of litigation, the Government acknowledged the need for reform of civil litigation when the then Lord Chancellor, my noble and learned friend Lord Hailsham, set up the Civil Justice Review as long ago as 1985. That resulted in some 91 recommendations to reduce the cost, delay and complexity within the civil justice system and generally to improve access to justice. Among the most important proposals affecting medical injury litigation which came out of that review are the matching of cases to judges, a "cards on the table" approach to evidence and an interventionist role for the courts to ensure case progress. From July this year there will be new arrangements for the allocation of business between the High Court and county courts to ensure that cases are heard by the appropriate level of judge. Those changes will provide that the High Court is reserved for such cases as require its expertise. We hope that the result will be speedier determination of actions. New rules have already been introduced 581 requiring earlier disclosure of medical reports and statements of special damages by the plaintiff. Furthermore, my noble and learned friend the Lord Chancellor will be considering steps to allow courts to exercise an interventionist role in ensuring case progress. I trust that your Lordships will agree that those measures will do much to assist those who resort to the courts to establish their claims for compensation.
The question that remains, however, is whether there should be choice, as suggested by the noble Lord, Lord Pitt, and what can be done for those who cannot prove negligence. It is suggested by some that no-fault compensation is the answer. However, no credible no-fault scheme which is simple to run, straightforward in operation, fair in outcome or acceptable in cost has thus far been devised, whether in Sweden, New Zealand or anywhere else. However, in saying that, we are indebted to the noble Baroness, Lady Robson, for updating us on the current position in Scandinavia.
The Pearson Commission, of which the noble Lord, Lord Allen of Abbeydale, was a most distinguished member, reported in 1978 and was sympathetic to proposals for a no-fault scheme. But it identified problems relating to finance, scope and administration.
However, the most significant difficulty identified was how to establish causation. It was forced to conclude that in practice there would be difficulty in distinguishing a medical accident from the natural progression of the disease or injury and from a foreseeable side effect of the treatment. I think that we are no nearer establishing causation some 12 years later. Although advances in medical science have clarified some causal links—for example, that damage to the brain during delivery is rarely the cause of cerebral palsy—the introduction of innovative techniques and new drugs and the increasingly complex interactions between these and the patients to whom they are applied heighten rather than diminish the problems of proving causation in the individual case.
For all those reasons the Government's position remains that the basis for seeking compensation for injuries alleged to have been suffered as a result of medical intervention should be proof of negligence actions through the courts and that the Government's approach should be to effect changes to improve the process of litigation. Where negligence cannot be proved we do not in any event accept that there should normally be provision beyond that which is available through social security benefits and free National Health Service treatment. After all, that leaves scope for ad hoc arrangements in exceptional cases such as the whooping cough vaccine to which the noble Lord, Lord Ennals, referred, and the haemophiliac settlement. Like others, I am most grateful to the noble and learned Lord, Lord Wilberforce, for his enlightening explanation of the humanitarian approach.
Looking ahead, my right honourable friend the Secretary of State is most concerned that if any further action could be taken concerning medical negligence, 582 then action should be taken. I must dispute the suggestion of the noble Lord, Lord Irvine of Lairg, that my right honourable friend was unconstructive in his response to the Private Member's Bill Second Reading debate in another place. He has given undertakings to discuss with interested parties whether an arbitration procedure could be established within the National Health Service, which may provide quicker, cheaper and simpler avenues for the informal resolution of disputes. The announcement was made without commitment since we want to see the outcome of our consultation and to take advice on the feasibility of introducing such a measure without primary legislation and as a voluntary alternative to the courts. We should also want to consider the likely take-up of such a scheme in the light of the improved litigation processes to which I have referred.
Secondly, my right honourable friend was able to point to the fact that that my noble and learned friend the Lord Chancellor is considering with the Law Commission the possibility of instituting a new inquiry into personal injury damages. Thirdly, he announced his intention to investigate, with the help of the presidents of the various royal colleges, what exactly is understood by the term "defensive medicine" and what hard evidence there is for its practice. Fourthly, my right honourable friend readily conceded that we should have more central information about the matter and proposed that the Department of Health should both review the incidence of medical accidents and carry out a proper analysis of claims made.
It is an interesting idea that has been put forward by the noble Lord, Lord Allen, and indeed the noble Lord, Lord Walton; namely, that a high level committee should be set up to investigate further. That also probably falls into the category of the inquiry asked for by the noble Lord, Lord Ennals. No doubt both my right honourable friend the Secretary of State and my noble and learned friend the Lord Chancellor will consider the suggestion.
The noble Lord, Lord Allen of Abbeydale, referred to the European Commission's proposal for a directive concerning the liability of providers of services in cases in which an individual has suffered damage to his personal property from the provision of a service. The proposal puts forward a fault-based regime. The plaintiff will have to prove damage and a causal link between the damage and the service provided. At that point the proposal reverses the burden of proof. The defendant would then have to prove that he was not at fault. At the moment the proposal is in its initial stages and is being considered. I understand that it is the responsibility of my honourable friend the Minister for Consumer Affairs and that the Department of Trade and Industry is currently seeking the views of those representing the interests of both consumers and industry.
I trust that your Lordships will be assured that the Government have given and are prepared to give most careful consideration to the case for a no-fault system for medical injuries. I believe it has been established by both the debate and what I have been able to say that no-fault compensation is not a straightforward or easy 583 option. It has not so far proved possible to devise a scheme which would relieve unfairness and which would be straightforward in application. Because of the various checks and balances in different countries and different systems, it is not possible to transfer directly one scheme which might work in one country to another country. Certainly we consider that the National Health Service (Compensation) Bill, which has been referred to by many speakers in the debate and which was rejected at Second Reading in another place, did not offer a workable solution. As drafted the Bill could not work. The detailed principles on which the scheme was supposed to work had been left to one side to be resolved by someone else at a later date.
Many interesting and useful points have been raised in the course of the debate. Clearly the Government recognise the interest and importance of the subject. Once again I record my thanks to the noble Lord, Lord Allen of Abbeydale, for bringing forward the subject for debate and for giving me the opportunity to explain the Government's position
§ Lord Campbell of Alloway
My Lords, before my noble friend sits down perhaps I can ask for clarification. Do the Government accept that this is a proper subject, in view of the concern expressed today here and elsewhere, to be referred to a Select Committee of your Lordships' House?
§ Baroness Hooper
My Lords, I am not sure that it is proper for the Government to refer a subject to a Select Committee. Nevertheless, I have given the assurance that the Government will consider very seriously the points that have been made in the course of the debate.
§ 5.36 p.m.
§ Lord Allen of Abbeydale
My Lords, I should like to thank all noble Lords who have taken part in what I think has been an impressive debate. I certainly make no apology for having raised this issue so soon after the debate in the House of Commons, although I repeat—it is so long ago that everyone may have forgotten —that I was never for a moment suggesting that we should discuss Mrs. Barnes's particular proposals as set out in her Bill. I acknowledged the improvements that have been made or are in prospect, including, if I may remind the noble Lord, Lord McColl, even a modified form of contingency fee.
In approaching this subject it seemed to me that the present system is not an efficient way of using money. When I considered the proportion of costs of various kinds which are borne in relation to the money actually paid out, so that probably in the small cases the costs are rather greater than the award, it did not seem to me that that was the best way for the National Health Service to benefit.
I am also unimpressed by the argument about anomalies. I thought that the contribution of my noble and learned friend Lord Wilberforce was particularly interesting. I also reminded myself by looking at what the Pearson Report stated in its concluding reflections covering the whole field: 584We have not removed anomalies…; we have merely moved the boundary lines. We think that the new boundary lines are more sensible, but those who fall on the wrong side may not agree".Short of going for some kind of New Zealand scheme—I do not think anyone in this Chamber would wish to see that—there is no way of avoiding anomalies, but there are ways of improving the scheme and improving provisions in various ways. I remind the House that I did not suggest a particular form of no-fault scheme. The disadvantages of the present set-up, the number of suggestions that have been made, and the anxieties and frustrations which were felt generally have led me to the conclusion that it would be desirable for a committee of inquiry to be set up to investigate the arguments that we have heard from both sides of the House. It is a topic which cuts across party lines.
I derive some modest encouragement from what the Minister said about her colleagues considering the suggestion of setting up a committee. I had better leave it at that. I thank her for her reply and noble Lords for the contributions to the debate. I beg leave to withdraw my Motion.
Motion for Papers, by leave, withdrawn.