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Vaccine-Damaged Children

Volume 175: debated on Wednesday 27 June 1990

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Motion made, and Question proposed, That this House do now adjourn.— [Mr. Lightbown.]

1.6 am

I thank the House for the opportunity to raise on the Adjournment the important subject of compensation for vaccine-damaged children.

I first became introduced to my constituent, Bernice, through her parents writing to me. Bernice was born in March 1973. She was vaccinated against whooping cough in June and August of that year and suffered convulsions and brain damage as a consequence. Her chance of a normal life was lost.

In 1978, the Royal Commission on civil liability and compensation for personal injury reported. It included a special passage on vaccine damage, such was the public interest at that time. In essence, it reported that all immunisation carried risk and that there was particular concern about the case of whooping cough vaccine. It considered the absence of a compensation system in this country and compared us to others. It declared its general view:

"We do not think it is right to try to distinguish one severely disabled child from another, and to produce a situation where two children have the same needs, but one is compensated and the other is not. We decided, therefore, that vaccine damaged children should be considered with other severely disabled children, irrespective of the cause of disablement."
In its conclusion, the report recommended in relation to vaccine-damaged children:

"We recommend that the Government or the local authority concerned should be strictly liable in tort for severe damage suffered by anyone (adult or child) as a result of vaccination which has been recommended in the interests of the community."
Following that report, the Vaccine Damage Payments Act 1979 was passed. According to the Department of Health, the Act provides for
"A single lump-sum payment to be made in those cases where the Secretary of State is satisfied that, on the balance of probabilities, severe mental and/or physical disablement was caused by vaccination against any of the diseases certified in the Act."
Payment is made for severe disablement only. This is defined as

"Loss of faculty to the extent of eighty per cent. or more assessed as for the Industrial Injuries Disablement Benefit Scheme. Eighty per cent. is customarily recognised as the lower end of the spectrum of severe disablement. The amount of payment under the Vaccine Damage Payments Act was originally set at £10,000. It was subsequently increased to £20,000 for successful claims made after 18 June 1985".
Bernice's parents were successful in a claim in 1982 and were awarded £10,000 for her. Her parents wrote to me saying that the decision of the tribunal was that Bernice
"is disabled as a result of vaccination to which the claim relates…The extent of the disability arising from vaccination to which the claim relates amounts to severe disablement".
Bernice is now 17. She cannot dress, feed herself or go to the toilet. She has fits every day. Her walking is severely limited. She is hemiplegic, with lack of movement down the right side. Naturally, communication with her devoted family is desperately limited.

In urging me to take up the matter, Bernice's parents wrote:

"Over the years Bernice's condition has not improved, but we know that given the proper training, physiotherapy and speech therapy, she could have been a more independent person than she is today."
That is the personal, moving background behind a statistic.

Since the introduction of the Act, after an initial surge, the number of awards has gradually fallen. In 1979, 349 awards were made. By 1986, the figure was 15, by 1987 it was nine, by 1988 it was three, and by 1989 it was nil. In total, 849 awards have been made, but more than 2,500 have been rejected. The majority of rejections were because disablement was not found to be the result of vaccination, but some claims were not investigated because disability was not deemed sufficiently severe, and in a small number of cases vaccine damage was accepted by the tribunal, but the claim failed because of the 80 per cent. rule.

There are four main problems causing widespread concern. The first is the adequacy of compensation. It has long been held by the Association of Parents of Vaccine Damaged Children—I pay tribute to that organization which helped me prepare tonight's debate for its concern over a number of years—that, because of widespread concern in Parliament at the time of the passage of the Act, the provisions of the Act would be interim. Much of that worry stems from the inadequacy of the capital figure.

The sum now available to be awarded—£20,000—is woefully small compared to the sums awarded by courts to victims of medical accidents. The awards to young people in exactly the same circumstances as my constituent Bernice are now reaching hundreds of thousands of pounds. The difference that that makes in terms of provision for a child is obvious. Not only are there capital needs to be satisfied, perhaps related to the physical needs of disablement such as changes in the construction of a house and the provision of security for children such as Bernice who are prone to fall regularly due to fits, but money also has to be found for holiday care, and sometimes to compensate for wage loss of parents devoting their lives to the care of a child.

The future also has to be considered. Bernice's father wrote:
"I am 67 years of age and my wife is 52 and our biggest concern is what will happen to her when we are gone, whilst if we were able to set up a trust fund for her welfare, it would lessen our fears."
There is no financial comparison between Bernice's position and that of a child left damaged by any other medical accident. We are therefore a world away from the Pearson commission's desire to see all treated equally, regardless of the cause of disability.

I do not wish to promote the cause of no-fault compensation. I merely ask my hon. Friend the Minister to bear in mind the huge disparity which has grown in recent years because of the size of awards being made in the courts and to ask whether the size of that disparity can be reduced.

Secondly, will the Minister review the 80 per cent. rule? As I have said, there have been cases where damage has been assessed by the tribunal to be caused by the vaccine, but no award has been made because the level of disability is less than 80 per cent. Surely it cannot be beyond our wit to devise a sliding scale of payments to compensate youngsters for the degree of disability they suffer. It is time for us to consider seriously, and to end, that anomaly.

Thirdly, some parents, dissatisfied with the scheme, have tried to take legal action to prove negligence. We know that success in the courts in negligence cases opens the way to massive awards. The difficulties, however, of piloting such a route to adequate compensation have been well documented over the past 20 years. The cases of Kinnear, and particularly Loveday, stand out.

The Loveday case failed when a judge said that, on the balance of probabilities, the plaintiff's case did not satisfy him that whooping cough vaccine could cause permanent brain damage in young children. He said:
"It is possible that it does; the contrary cannot be proved."
Until March of this year, that judgment stood in the way of progress in cases of negligence because legal aid was being ruled out in similar cases and preventing them from getting under way. Now a judge has ruled that that case is no bar, and the way is open again for more claims. But to what end—more cost, heartbreak and time lost? Could we not end this struggle towards proving negligence with a more open and generous compensation system?

Will the Minister consider immunisation for all potential diseases, not just whooping cough? I am a firm supporter of immunisation. My father is a general practitioner and I welcome the success that has been achieved over the centuries since immunisation became widespread and the effect that it has had on preventive medicine in this country.

I support whooping cough vaccination. The right hon. Member for Stoke-on-Trent, South (Mr. Ashley), to whom I pay tribute for his exceptional work on this subject and who was kind enough to drop me a note earlier today supporting this debate, extracted an answer from my hon. Friend the Member for Derbyshire, South (Mrs. Currie)in 1987, when he was given the figures for deaths resulting from whooping cough in recent years. During the period 1957–61, there were 200 deaths from whooping cough in this country; by 1982–86, the number had fallen to 29. It should never be forgotten that in years gone by whooping cough was a killer, and I am glad that those days are largely gone.

In my constituency, the notified cases of whooping cough in 1988 had fallen to as low as 13. Vaccination figures are high in my constituency and I pay tribute to my health authority for the hard work it does in ensuring such a high rate of immunisation. Also, the view of the director of public health in Bury, Dr. Christopher Hallett, is:
"My colleagues and I are now quite confident about recommending the whooping cough vaccine and anxious to protect as many vulnerable children as possible. With all the publicity about the so called side effects of whooping cough vaccine I cannot believe that there are any hidden cases of alleged vaccine damage in the community about which no one has informed me."
To his knowledge, there were only two cases in Bury of children damaged by whooping cough vaccine.

All that goes to prove the efficacy of immunisation and the fact that tragedies resulting from things going wrong are few. My personal experience and support for vaccination was shown when my children were immunised. My little girl, Hazel, was immunised first and reacted badly to her first injection, so we stopped the second injection. We had no hesitation in having our little boy immunised, despite Hazel's reaction. He successfully completed both injections and is now immunised. Therefore, I believe firmly in immunisation.

However, if we are to proceed with the programme and encourage more people towards it, a better security system should be found for those for whom something might go wrong. We are extending the targets.

In passing, I would say that, where doctors have contacted parents and they have refused vaccination for their children, they should be made to sign a form saying that the matter has been fully explained to them but that they have nevertheless refused to have their child vaccinated. That would assist parents to realise what a serious step they were taking in not allowing their child to be vaccinated. Each case should then be included in the doctor's quota towards his target.

If we are to extend immunisation to as many people as possible, some protection for parents who fear that something might go wrong would be welcome. That is why I wish to see a change in the system.

My solutions to the problems that I have illustrated are briefly these. We should discuss the possibility of a larger capital award. The disparity between the figures shows that a larger capital award is called for. Some parents of vaccine-damaged children argue for rather greater income payments when the child is small, preferring to build up their own capital sum in that way. I hope that my hon. Friend the Minister will consider that.

In addition, it may be worth asking drug companies to support a fund in some way. They gain many benefits from the immunisation programme. Their profits are large, although they are needed for research and development, and I do not criticise them for that. But they have funds that could be made available for a fund for the protection of vaccine-damaged children.

In essence, I would like the Minister to say tonight that he will review the area, that he agrees that problems exist and that he will look at them.

The closing words of my constituent's letter tell us much. He says:
"We are not asking for charity. What has happened to Bernice is the sole responsibility of the Government. If we had not been persuaded to have the vaccination, Bernice would have remained a normal, happy and healthy child. As it is she has had no past and very little future without help 24 hours per day."
There is not one hon. Member with happy, healthy, normal children who does not feel for any constituent who finds himself in the situation of Bernice's parents. Such cases are always sad.

I accept that the Government can only do so much, but in this case the concern about the adequacy of compensation and cover for vaccine-damaged children has been widespread for a number of years. The time has come to look again at the matter, and I hope that my hon. Friend will respond to the matters that I have outlined tonight by announcing some form of review.

I take it that the hon. Members have the consent of the hon. Member for Bury, North (Mr. Burt) and the Minister to take part in the debate.

1.22 am

I congratulate my hon. Friend the Member for Bury, North (Mr. Burt) on initiating this important debate and thank him for the opportunity to contribute briefly to it. I wish to comment on immunisation.

I welcome the steady increase in immunisation in the past few years, which has led to a marked decrease in the number of cases of childhood diseases which can cause deaths and more serious permanent injury. I welcome, too, the Government's efforts to increase the level of immunisation still further, but I share the concern expressed by my hon. Friend about the target system being too rigid and I fear that that could well result in fewer children being immunised than would otherwise be the case.

In some areas of my constituency, for example, doctors will achieve 90 per cent. with comparative ease. In other areas, despite possibly working harder and making greater efforts, they will achieve 75 per cent. because of the different type of people living in their area. In those circumstances, only the dedication and professionalism of the doctor will ensure that he works to immunise as many children as possible, knowing that he will not achieve his target. It is therefore essential that the effectiveness of targets is clearly monitored to ensure that they are set at realistic levels so that the Government's aims can be achieved. I hope that my hon. Friend the Minister will also give my hon. Friend the other assurances that he has sought.

1.24 am

I, too, thank my hon. Friend the Member for Bury, North (Mr. Burt) for the chance to contribute to this important debate. My interest in the subject was aroused by the case of Sally Anne Mills, a four-year-old girl from my constituency who contracted poliomyelitis as a result of vaccination, and who was recently told by a vaccine damage tribunal that she was only 60 per cent. disabled. The tribunal said that there was some measure of comparability between Sally's problems and conditions 26 and 27 in the Social Security Regulations 1982—amputationsbelow the knee, which constitute no more than 60 per cent. disability.

Despite that equivalence, my constituent will receive no compensation or payment. It seems ridiculous not to grade payments according to disability or to give a lump sum payment on the basis of 80 per cent. Even if one accepts, as Lord Henley, a Social Security Minister told me, that these payments are not compensation but social security payments, it is wrong that someone with an 80 per cent. disability should get £20,000 for future requirements as a result of disability, while someone with a 60 per cent. disability receives nothing.

There is a strong case for making these payments by way of compensation. If the Government are—rightly—encouraging people to take up vaccination, and if it then goes wrong through no fault of the recipient, flexible compensation should be paid.

Lord Henley suggested to me that legal action on the grounds of negligence could lead to payments for people affected in this way. The Law Society tells me that no person affected by poliomyelitis has ever successfully prosecuted a case in the courts. There is often no negligence to prove, since doctors have acted perfectly reasonably and respectably—yet an unforeseeable accident has taken place.

If there are as few cases of medical accidents for which compensation should be paid as my hon. Friend the Member for Bury, North has suggested, it would not cost the Government much to pay out the compensation forthwith, and on a far more generous scale.

1.27 am

I congratulate my hon. Friend the Member for Bury, North (Mr. Burt) on raising this important subject, and I offer my sympathy to my hon. Friends the Members for Hyndburn (Mr. Hargreaves) and for Wyre Forest (Mr. Coombs) for the cases that they described.

Any child involved in vaccine damage represents a real human tragedy. There can be no circumstances more poignant than those of a child which is thought, rightly or wrongly, to have been damaged by a vaccine intended to give it protection against disease and not to subject it to a life-disabling condition. We have to try to deal with such cases as sympathetically as we can.

We must also set the issue in context and remember that the overwhelming result of the immunisation programme has been an enhancement of public health. The programme has been a phenomenal public health success that we should do nothing to inhibit or upset.

The World Health Organisation has set a target of 90 per cent. for children to be immunised against a raft of diseases, and that target is built into the GPs' contract, as my hon. Friend the Member for Hyndburn stressed.

I should like in passing to explain why the Government disagree with the approach outlined by my hon. Friend the Member for Hyndburn, who suggested that we should discount those who refuse immunisation. It is our objective, on public health grounds, to achieve a minimum of 90 per cent. immunisation. If that target is not achieved, for whatever reason, policy makers and NHS managers will have to deal with the shortfall. We should not seek to rig the targets so as to convince ourselves that we are achieving an objective when in fact we are not.

We all welcome the fact that as of February the immunisation programme against polio, diptheria and tetanus is now achieving an 88 per cent. take-up rate. The take-up rate for measles, mumps and rubella immunisation is 85 per cent., while the take-up rate for whooping cough is 80 per cent. That is not just the achievement of some target set by the World Health Organisation—there has been a definable improvement in public health standards which can be directly attributed to that immunisation programme.

The incidence of whooping cough has been dramatically reduced as a result of that programme. The incidence of measles is now at its lowest ever level and, with the exception of a couple of isolated cases, one of which was instanced by my hon. Friend the Member for Wyre Forest, polio is now virtually extinct. On a personal note, that means a great deal to me because one of my aunts, who was also my godmother, was disabled by polio at the age of three and throughout her life suffered from the disability that polio causes. In a relatively short time, a disease of which parents of young children used to live in fear has been eliminated. That is a substantial advance which we should do nothing to undermine.

Despite the undoubted public health benefits that the immunisation programme has made possible, there remains a fluctuating but continuing concern about the safety of the vaccines. Most strikingly, that concern welled up during the 1970s in connection with whooping cough vaccine. The figures are striking. In 1950 there were about 100,000 cases of whooping cough. By 1973, when there was 80 per cent. acceptance of whooping cough vaccine, the incidence of the disease had fallen to about 2,400 cases per annum. There was then a scare, acceptance of the vaccine fell from 80 to 30 per cent., and the incidence of the disease rose from 2,400 cases per year back to the 100,000 per year level that occurred in the early 1950s. There was thus a dramatic slide in what had been a public health success. I am pleased to say that that success is again with us.

Against that background, the Government of the day introduced the Vaccine Damage Payments Act 1979, on which my hon. Friends have concentrated in their speeches. As my hon. Friend the Member for Bury, North made clear, that Act introduced a payment—originally of £10,000—to relieve the suffering caused by vaccination damage to a child early in life. That payment is made where a child suffers 80 per cent. disability, where the disability can be said to have been caused by a vaccine on the limited list defined in the Act.

The Act was intended to help relieve the suffering caused to families in which such tragedies occurred, but it also sought to rebuild confidence in the immunisation programme and to encourage vaccination rates to rise again. That is important, because we are now back to the levels of between 80 and 90 per cent. acceptance of the immunisation programme.

It is important to understand that the payments made under the Vaccine Damage Payments Act are not intended to be compensation in the sense that compensation is awarded if a successful claim for negligence is brought against a contractor. Payments made under the Act do not affect the individual's right to compensation if negligence can be proved. They are in the nature of ad hoc payments and are not intended to be compensation of the kind that would be awarded by a court if fault were proved.

That important distinction of principle should not be lost. That is why I do not accept the direct comparison which my hon. Friend the Member for Bury, North sought to draw between the level of payment under the Act and the level of payment awarded by the courts where negligence has been proved. In a successful negligence action, it seems entirely legitimate that the person whose negligence caused suffering should be required to make a substantial payment which seeks to put the injured party, as far as that is possible financially, in the position that he would have occupied if the negligence had not occurred. That has never been the aim of payments made under the Act.

My hon. Friend the Member for Bury, North said that he did not wish to reopen the principle of no-fault compensation. He then quoted the ambition of the Pearson committee—that we should seek to ensure that no injured child was in a better position than another injured child as a result of distinctions in compensation. Although that sounds an attractive ambition, it is not achievable because we cannot deal with a child who is disabled by illness. It is an approach which does not overcome the fundamental problem of causation. That has been emphasised by the Loveday judgment and the decisions which have flowed from it.

The technical details of the Vaccine Damage Payments Act 1979 are matters for the Department of Social Security, and I shall draw—

The motion having been made after Ten o'clock and the debate having continued for half an hour, MR. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at twenty-four minutes to Two o'clock.