New Petitions
Good afternoon. I welcome committee members and members of the public to the 10th meeting in 2009 of the Scottish Parliament Public Petitions Committee. We have received apologies from a couple of members: Marlyn Glen is unavailable because of other commitments, and John Farquhar Munro is not feeling well. All mobile phones and other electronic devices should be switched off because they can interfere with the broadcasting system.
Medical Negligence (Pre-NHS Treatment) (PE1253)
The first petition that we will consider this afternoon is PE1253, from James McNeill, which calls on the Parliament to compel the Scottish Government to establish a discretionary compensation scheme to provide redress to persons who suffered injury due to negligent medical treatment prior to the establishment of the national health service. Christine Grahame has expressed an interest in the petition. I welcome her to this afternoon's proceedings and invite her to comment on the petition.
Mr McNeill is here today to hear his petition discussed. I am grateful to the committee for allowing me to speak to it.
Members will see from the petition that the journey started on 26 August 1942, when, as a young man, Mr McNeill went for radiology treatment of warts on his hands, which was fairly routine at the time. I understand that each hand should have been exposed for a couple of minutes, but Mr McNeill was exposed for 20 minutes. Over the years, the ensuing damage has had a major impact on his life.
I am grateful to the Scottish Parliament information centre for the briefing that it has provided. I may touch on one or two parts of that, but I refer first to a medical report on Mr McNeill from 1980 written by J A A Hunter, head of department, who is now a skin specialist and professor at the Edinburgh royal infirmary:
"There is gross deformity of the right hand. This is considerably smaller than the left, due to the very small digits. The hand is the size of that of a child".
In the section headed "Opinion", J A A Hunter states:
"This patient's considerable deformity fits in with the story of an overdosage of X-rays to his hands when he was six. He has radio-dermatitis affecting both hands and there is considerable soft tissue and bony change … X-ray treatment of warts is not recommended nowadays but was used fairly frequently in 1942 … It would seem certain that there was either a mistake in the prescribed dosage or a fault in the administration of the prescription. In either case the patient clearly received an excessive exposure to X-rays and I am in no doubt that this has been responsible for the considerable deformity."
The document indicates that there was negligence.
My constituent then approached Highland Health Board, which had taken over responsibility for the matter. In a letter dated 30 July 1997, a health board officer stated:
"My enquiries have revealed that all case notes for the period concerned at the Royal Northern Infirmary are missing or destroyed. I also discovered that during the war, records were removed from the hospital to a nearby air raid shelter and only a few were returned and restored by the Archivist, although unfortunately not your record.
I was successful however in finding a patient register which shows that you were treated as an in-patient at the Royal Northern Infirmary from 18th October 1946 to 8th November 1946 for ‘treatment to hand.'"
Of course, that pre-dated the NHS.
A letter to Mr McNeill from NHS Highland in June 2008 says:
"you ask that NHS Highland takes full responsibility for the subsequent disabilities and hardship you have had for the past 66 years."
It refers to the letter dated 30 July 1997 and says:
"In this letter the Board indicated that they were unable to trace any record of your case apart from an entry in the Admission Register of the Royal Northern Infirmary. In the absence of any further records, NHS Highland is unable to progress this matter any further."
With your leave, convener, I will come to why I am dealing with these bits of evidence.
A consultant vascular surgeon at Edinburgh royal infirmary, Mr S C A Fraser, said of Mr McNeill in a letter written on behalf of NHS Lothian in 2007:
"He has clearly been through the mill with the radiation injury to his hands. The bottom line is that I do not think there is anything that we can do to assist him, other than reinforce conservative measures that he is already taking."
Therefore, no more remedial action can be taken.
A letter dated 13 March 2008 to Mr McNeill from NHS Lothian states:
"It is therefore with the deepest regret that I have to inform you that unfortunately due to the passage of time since the incident, and also that it occurred under the jurisdiction of another health board, we are unable to process your specific complaint of radiation overdose."
In a letter to me dated 18 July 2008, a general practitioner from Penicuik Medical Practice said of Mr McNeill:
"His is a most unfortunate case. His hands were damaged as a result of radiotherapy, which he received in 1942. His disability is slowly worsening as he gets older, which compounds the effects that this radiation has had. It does seem unjust that there is no means by which the State or the NHS can provide him with the financial means to live comfortably and independently."
On 3 November 2008, I wrote a letter to the Cabinet Secretary for Health and Wellbeing in which I gave the background to the case. I said that Mr McNeill
"has tried over the years to obtain through the usual routes, compensation, but because the events took place in wartime—1942—and tracking personnel and medical records have been difficult, a claim never took off. What is not in dispute is that he went in for treatment for warts to his hand and came out with the hand burnt badly from over exposure to x-ray treatment."
I sent the cabinet secretary copies of correspondence. She replied in a letter dated 15 November 2008:
"I was sorry to learn of Mr McNeill's long term problems following the procedure carried out on his hand in 1942 and appreciate that this will have caused him much distress over the years.
I note that the procedure was carried out some six years before the NHS was established."
She went on to say:
"I regret that I cannot be more helpful on this occasion."
In other words, no particular remedy was offered.
That is the route that Mr McNeill has gone through. The SPICe briefing mentions trienniums and the usual court routes. An advocate, Colin Campbell, gave a legal opinion on the matter on 16 December 1980. At the beginning of that opinion, he said:
"I have no doubt that an action against the N.H.S. is now well and truly time-barred."
So that is it. At the end of the opinion, he said:
"I can only express sympathy for Mr. McNeill in the unfortunate circumstances of this case, especially if only now is he to experience direct patrimonial loss but this factor in itself will not have postponed the commencement of any prescriptive periods. He can perhaps find consolation in the fact that, even if an action could be raised, the difficulties of proof at this late stage would render the prospect of success extremely problematical."
That is why I read out the stuff about the loss of records. Not only has the triennium passed, but evidence to bring the matter to the standard of proof in a court—there are ways of doing so, but it is almost impossible in this case—is simply not available.
Finally, I wonder whether the cabinet secretary might find room in the proposed patients' rights bill, for which provisions on no-fault compensation for cases subject to litigation are being considered, to introduce some remedy for the very small number of people whose symptoms were mistreated before the NHS was established. I should stress that I am suggesting that these people were badly treated by the standards of the time, not in light of the progress that has since been made in medical treatment.
Thank you. Do members have any questions or comments?
Christine Grahame's comments have reminded me of the ex gratia payments—not, I stress, compensation—made to the haemophiliacs who contracted hepatitis C as a result of treatment. It might be worth asking the Government whether a parallel approach could be taken to this matter.
There is no doubt that we should pursue the possibility of a discretionary compensation scheme. Having read the material, I find it very disturbing that someone should have suffered so much from what was clearly a mistake, although I point out that in 1942 not very much was known about the effects of radiation. I remember frequently getting my feet X-rayed before being bought a pair of shoes, which is something that we would never do now.
The effects of radiation were kept secret: in 1945, people were allowed into Hiroshima after it had been bombed and were wandering about for weeks in a highly radioactive atmosphere. However, if the guidance of the time specified two minutes and Mr McNeill was exposed to radiation for considerably longer than that, a mistake was obviously made.
As we will all acknowledge, Mr McNeill has been through the mill. The mistake happened in 1942, but as a result he has had to visit his GP 80 times and to have seven major skin graft operations. If the Scottish Government can look into this matter, we should certainly ask it to do so. As the petitioner makes clear, the fact that it happened in 1942 means that his case will not open the floodgates for thousands more people to come forward with claims. Nevertheless, if other people have suffered in the way that he has, we should push this matter forward and see what we can do for them.
I tend to agree: Mr McNeill has suffered a real injustice. If we are going to ask the Government whether it will introduce a discretionary compensation scheme, we should also ask whether the National Health Service (Scotland) Act 1947 contains any clauses specifying that the NHS or the Government takes on liability for pre-NHS negligence and, if so, whether they apply in these particular circumstances.
We are trying to be helpful. Obviously we—and the petitioner—realise that some time has elapsed and that the legal framework has changed somewhat. However, it might be reasonable to refer the petition for consideration to the working group that, as Christine Grahame alluded to, is looking into no-fault compensation. Even though many people might not have been as severely affected as Mr McNeill has been, we still need an accurate picture of the situation and the likely cost implications for the Government if we ask it to move in that direction. We should also ask the Government about the framework that it operates in this respect.
Do members have any final comments?
The only comment that I want to make is that Mr McNeill is driven not by money but by the wish for somebody somewhere to recognise what has happened to him. Of course, he could do with assistance now that the deformity of his hand is getting worse as he gets older. However, he is driven by the fact that nobody who dealt with him has ever said sorry or at any time taken responsibility. I am grateful to the committee for taking the matter up; it is the first time that anyone has done that.
On that final point, there is an element of personal justice that needs to be sustained, and we will want to ask whether the cost elements can be dealt with. Those are legitimate issues for Mr McNeill or anybody else to come forward with. The fundamental issue is the individual's sense of worth and a recognition of the experience that they have undergone. If we can address that by opening up the debate through the petition, that will be welcome.
Would it be possible for us to investigate what other supports might be available—fiscal supports, charity supports or Government supports through benefits—that have not yet been tried?
There has been a fair amount of exploration of that, but we could summarise what has been done.
I advise the petitioner, who is in the public gallery this afternoon, that we are at stage 1 of the process and will come back to the petition when we have received further information from the Scottish Government and anyone else with whom we have made contact. Mr McNeill has an advocate in Christine Grahame, who is pursuing the issue on his behalf, and we hope that that will be of benefit to him as a petitioner. I thank Christine Grahame for her attendance for that item.
Fire (Scotland) Act 2005 (PE1254)
The next petition is PE1254, by Mark Laidlaw, calling on the Scottish Parliament to urge the Government to amend section 51 of the Fire (Scotland) Act 2005 to allow flexibility in order that an employee of a fire and rescue authority can also be employed as a special constable.
Christine Grahame has a keen interest in the petition, too. We will need to think of other things to keep you busy, Christine. I invite you to open the debate.
My Tesco surgeries keep me busy.
There are a couple of questions to be asked in relation to the petition. Mark Laidlaw makes it plain that he is employed as a full-time firefighter and acted as a special constable with Lothian and Borders Police for a considerable period before somebody came along and said, "You can't do both—you're barred." Being a special constable is the same as being a constable. In other words, if a firefighter was also a special constable, who would know which hat they were wearing at the scene of a fire? Would they be there as a firefighter or as a constable? Mark Laidlaw thought that, when he was not performing his special constable's duties, he would be just like any other member of the community.
There seems to be some dispute about the provisions in section 51 of the Fire (Scotland) Act 2005. National Policing Improvement Agency circular NPIA(WSU)(SC)(07)1 states:
"Section 37 of the Fire and Rescue Services Act 2004 prohibits the employment of members of a police force by a fire and rescue authority for the purpose of discharging any of the authority's functions under the Act".
I thought—as did my constituent—that he was not a warranted police constable but a special constable and a constable only when he was on duty. There seems to be some conflict between the advice that is being given by the Government and the advice that Mr Laidlaw has been given.
I have here an e-mail to Mr Laidlaw from Andrew Leigh, of Lothian and Borders Police, which states:
"Re your query, I have been informed by Training Branch at FHQ that Special Constables are only classed as having ‘police powers' during the actual time they have paraded alongside other officers in their capacity as a Special Constable.
Should any such officer have cause to intervene in any incident they see in the street … then they would do so as a civilian and not as a Police officer. It would therefore hold that Special Constables are not ‘on duty' 24/7 and given this is a ‘voluntary service', that makes sense."
According to that e-mail, Mr Laidlaw is not warranted.
However, this further e-mail came back to me on 25 May from Mr Laidlaw himself. It says:
"It transpires that special constables do have the same powers as regular officers. The Training Department of Lothian & Borders Police were unaware of this. They have been teaching recruits that Specials do not have Police Powers when off duty. Unbelievable that they did not know the facts."
Nobody seems to know whether special constables are warranted or not warranted. The first question is whether special constables have the same powers as regular officers when they are off duty. If the answer is yes, that would prohibit them from doing the two jobs and would finish the matter. If the answer is no, why should there be differences across different brigades? Another e-mail says that it is really up to the chief constable to decide whether someone can come in as a special officer. There is a third leg to the matter: in England and Wales, a special constable is not deemed to be warranted.
In that mix, we need to find out what the legal status is of a special constable when not performing their duties as a special constable. That is the question that nobody seems to have clarity on. If it turns out that they are the same as a constable, that would end the matter of whether they are able to do both jobs, as there would obviously be a conflict of roles. If they are not, why should special constables not come from the fire brigade? I hope that I have not confused the committee now. If a special constable is not warranted, what is to stop a full-time firefighter doing that really valuable job in the community? There is a list of things; clarity is the first thing that I would appreciate.
Do members have any comments?
Christine Grahame is right to say that clarity is called for. The situation is confused—and confusing. We could write to the Scottish Government to ask what the rationale is behind section 51 of the Fire (Scotland) Act 2005 and whether it will amend that section to allow an employee of a fire and rescue service to be employed as a special constable. If the Government replies that a special constable is a warranted constable, we could ask for the section to be amended so that a special constable could be made exempt—in other words, a constable who is not warranted. That would allow one hat to be worn on one occasion and another hat to be worn on another occasion. If we do not ask for clarity on that, we will remain in a confused and confusing situation, which is not a good situation to be in.
I suggest that we write to the Association of Chief Police Officers in Scotland, the Chief Fire Officers Association, the Fire Brigades Union and the Scottish Police Federation to ask for their views on the issue. It would be appropriate to ask both sides—the management and the staff bodies—to find out if there might be a potential conflict in people carrying out both roles.
The issue of other emergency services has also crossed my mind. Does the same situation apply to paramedics, too, for example? Might the reverse be true for retained firefighters? I am thinking in particular of rural areas. Let us try to pull all those things together.
There are no other comments from committee members, so I invite Christine Grahame to make any further comments if she wishes.
Bill Butler is right. I would add that, if special constables are held as warranted, the Government might wish to review that. Perhaps special constables did not quite know that that was the situation. As I have said, there seems to be confusion even from the guidance that has been issued.
We will take that course of action for the petition.
We have concluded the new petitions; we will now come on to current petitions. Other MSPs are here, keen to participate in discussions on some of them. Is that your duties over today as an auxiliary member, Christine?
I think so, yes.
We could put you down as a part-time member of the Public Petitions Committee and see what happens.
Or a special member.
Yes, a special member.
Not special constable, but special committee member.
Thank you, Christine. See you in a fortnight. Take care.
I am leaving my warrant behind.