The choice between litigation and the welfare state.
Part of American culture which is taking hold in this country is the increasing tendency to seeing legal action and individual pay-outs as a means of compensating people for ills suffered. This may or may not be an appropriate procedure in the United State, where the welfare state is at a rudimentary level, and socialisation is undeveloped. What is certain is that such a development can only damage this country, threatening to wreck the welfare state, penalise industrial development, and undermine the socialised approach to protecting members of society.
Unless Labour sets its face against the legalistic-compensation mind-set which is becoming prevalent, and shows how unfair and anti-social it actually is, it will find that the welfare will not survive in its present form, because it will be too expensive to run. The fact is there are far more equitable and effective ways of coping with damage people sustain and for enforcing adequate standards of behaviour and practice.
A few examples will help to show what is at stake-and the range of social life which is involved.
It is undoubtedly the case that, without the comprehensive, sophisticated and efficient medical service delivered to the people, life for many would be “nasty, brutish and short”. But the NHS is faced with increased demands from litigants for compensation for medical negligence. Such claims no longer concern serious cases of malpractice, but proceedings of a less serious nature are now being brought. For instance, just before Christmas, two couples were sent home with the wrong newborn babies. The mistake was television publicity, they are now suing the Hospital. This shows how deeply the American approach has taken hold. But it is my view that, as long as there is a mother for a baby, and a baby for a mother, no damage will have been done in a two-week case of mistaken identity. Babies really do not have or develop much of a personality in the first few weeks after birth: they are asleep most of the time.
What must undoubtedly be true, however, is that bringing a Court case might well develop problems where none should exist-because a trauma simulated will prevent disturbed relationships settling into normality.
On the question of equity, moreover, the amount such couples could expect to win in damages, if they do win their cases, could hardly cover the cost of confinements in countries without National Health Services. In America having a baby involves major medical expenditure (except for the very poorly served ‘public’ patient). It is now the case in America that if a patient and ambitious lawyer can manufacture malpractice suit, they will try to recoup medical costs in what is becoming a Judicial Sweepstake. As a result, many ambitious doctors are shying away from obstetric practice, and only the less able enter the discipline.
In Britain there has been a different approach since the socialist NHS was established: a utilitarian service is supplied which costs absolutely nothing at the point of use and which, until the Tory ‘reforms’, cost very little to administer.
But, if greedy solicitors and patients are going to start milking the socialised service in search of the big ‘win’, the NHS as we know it will rapidly become a thing of the past. Doctors will be covering themselves, rather than treating patients to the best of their ability, and legal overheads will make it uneconomic to provide the full service that currently exists. The rise in medical negligence claims over recent years amply demonstrates that this is the tendency of development.
It is my view that patients availing of the NHS should not be entitled to any compensation for medical negligence. It is already unfair that, for instance, one paraplegic who can prove that the condition resulted from medical negligence will be compensated, while another who cannot so prove, will not get a penny. Their need for extra facilities is equal, after all. It seems far more sensible to provide adequate support services for all paraplegics out of the public purse.
That does leave the question of how to punish medical negligence. It must be remembered that losing a medical negligence case in court will not cost the medical staff concerned a penny. Insurance covers the awards. There are separate disciplinary proceedings which punish improper practice. It seems to me that it would be appropriate to build on that and to establish a Medical Ombudsman, or Statutory Committee of some sort, to hear complaints about medical staff and institutions in the public sector. The Ombudsman should have the power to levy personal fines, suspend staff from practising without pay, or—if an institution is badly administered—initiate a change of management. The law of criminal negligence might also be used. The main thing is to establish a procedure which is accessible to users, and which is not a honeypot for the ever-increasing numbers of lawyers our welfare state is turning out.
Consideration should also be given to reducing the numbers of lawyers being trained ( at public expense). The American experience has revealed that idle lawyers soon get into mischief: they find work for themselves to do. There is probably a ‘law’ to the effect that the amount of legal work expands to occupy the numbers of lawyers.
The use to which the civil legal aid system is put should also be scrutinised. Unfortunately lawyers have not been public-spirited about undertaking cases for which payment is guaranteed from public funds.
The idea that the role of the courts should be expanded into one of general scrutiny of government must be combatted. Court action is an unfair, ineffective and wasteful way of keeping a check on the executive.
Much of what has been said about the NHS applies equally to another great arm of public service, that provided at local government level. Again, municipal services are under threat from the legalistic-compensation mind-set.
The Municipal Mutual Insurance Group was established by Local Authorities to provide insurance for the public undertakings under their management. The scheme worked well until the compensation mind-set became prevalent in that sector. Burgeoning awards have bankrupted the Insurance Company, and it remains to be seen if a foreign owner will take over some of its duties-and at which increased cost to the Local Authorities and Charge-payer,
Local Authorities, as well as providing public services such as education, run many personal social services, such as Homes for Children, the Aged, and the Disabled. Toe possibilities for litigation are endless. Indeed, in Dublin the courts have shown themselves ready to award compensation to be paid by Local Authorities on the most frivolous of charges. For instance, a person sitting on a wall fell into the garden of a house and cut themselves on glass. A claim on Dublin Corporation for failing to ensure the proper upkeep of the garden of this house, which belonged to it, was successful. This example may seem far-fetched at present in England, but once the compensation mind-set becomes prevalent, human ingenuity will be bound to come up with profitable grievances. In Belfast compensation suits for pavement accidents suffered by pedestrians became an epidemic at one point. As a result many pavements have been remade, using tar-compounds amongst other things. It seems that people are no longer expected to look out for themselves in daily life. (In London, people used to be trusted on buses without doors, but the nanny-mentality is gradually disabling them from coping with open platform buses.)
As with the NHS, the suing mentality can only undermine the provision of public services. But there is no justification for this. A person who sustains an injury as a result of an accident is given free medical care. If they are off work, they are entitled to Sickness Benefit. In fact, many receive full pay from their employers while they are sick. In those cases where payments will not cover a person’s liabilities, it would be more appropriate to top-up the payments by a means-tested benefit. Such a scheme would be much preferable to the legal action route.
Again, the issue of negligence should be pursued separately outside the civil courts, with appropriate institutions set up to hear and rectify complaints, as proposed for the NHS.
There have been some very expensive cases of maladministration in Local Authority Children’s Homes which have led to pay-outs to whole categories of complainants. Some of these have involved sex abuse. In other instances, standards of child-care have changed over the years. Practices which were acceptable in the Sixties are no longer so. These include forms of punishment, such as “pin-down”. I don’t know what the rights and wrongs of these changing standards are (though it seems to me that in general the chattering classes have forgotten that children can be savages).
It is my view that there should not be monetary compensation for adults on account of the treatment they received in Children’s Homes. These are already extremely expensive to run. If they were not there, the children would be on the streets, or living in undesirable circumstances, or otherwise disadvantaged. Making public child care facilities even more expensive by handing out compensation to some individuals will tend to undermine public services as a whole, because there is simply not enough money to provide the services that are required as it is.
Monetary compensation cannot replace a happy childhood for the people concerned. But life had already dealt the children concerned a cruel hand: they would not have been in the Homes otherwise. Society can and does offer what assistance it can to victims of maladministration in the shape of counselling, and there may be other practical aids which may be appropriate in individual circumstances.
As in the case of other public services, a non-court method of supervising local authority services can be devised which will work more equitably, more effectively, and will be cheaper in the long run; In addition, Children’s Homes and Mental Institutions should be subject to closer scrutiny by visiting committees, as residents are less able to pursue complaints than other users of public services.
As well as bringing a huge improvement in the quality of life, industrial society carries dangers for its members. Such dangers may affect people who live and work in industrial areas. They are very real. At the same time there are signs that the litigation mind-set is beginning to move into the work-environment Carried to its logical conclusion, it would make industrial life nigh impossible. A working balance must be found, which will protect workers as far as is practicable at the given level of technological development. It seems to me that the Trade Unions, which already perform a role in Health and Safety matters, should have that role expanded as a substitute for having court action invade the workplace. There can be no better institution to balance the interests of the individual against those of the group.
Rather than have court action to win substantial awards for those who sustain industrial illnesses, with the burden of proof and expensive litigation which that involves, it seems to me that a better graduated scale of disability benefit should be generally available, rising to a full home-nursing care service for the utterly incapacitated.
I think readers have got the general idea of what I am proposing now. All public services should have administrative supervisory bodies with statutory powers. These should be easily accessible to the public and be able to deal quickly with every type of complaint. This system should supersede litigation for those sectors. Rather than compensating the lucky minority of people who are able to prove suffering as a result of negligence, a more appropriate general welfare service should be developed.
All this is not just a matter of saving money. It is the world-view which is to prevail in society which is at stake. Is it to be the pig-in-the-trough mentality of every atomised individual for himself, ready to milk the public purse, or is it going to be a socialised approach which develops the solidarity of those who depend on public services to provide a reasonable life-style?
The welfare-state did not come out of nowhere. It resulted from l00 years of intensive, even obsessive, socialist propaganda from a myriad of groups which were not content with the laissez-faire society. Ideas of mutual assistance, class solidarity, and social responsibility were argued for and gradually won out against the prevailing Benthamite capitalist notions that the society benefitted by each individual looking after his own interest; and that society would become unworkable under any other terms.
Unfortunately, the last two decades have seen the virtual demise of socialist thought, education and agitation. Instead of a widespread leavening of the society by the arguments of working class intellectuals taking place, there has been the growth of a spurious ‘issues’ ideology, promoted by the chattering classes. But these ‘issues’ -fanatics can make no impression on the insidious re-emergence of Benthamism which is taking place. The welfare-state cannot be sustained in a vacuum. Unless its rationale is defended, explained and expanded, it will gradually be diminished.
This article appeared in January 1993, in Issue 33 of Labour and Trade Union Review, now Labour Affairs. You can find more from the era at https://labouraffairsmagazine.com/very-old-issues-images/ and https://labouraffairsmagazine.com/very-old-issues-images/m-articles-by-topic/.